Mrs Pamela Trim v RSL Care RDNS Limited T/A Bolton Clarke

[2021] FWC 2714

[2021] FWC 2714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Pamela Trim
v
RSL Care RDNS Limited T/A Bolton Clarke
(U2020/12845)

DEPUTY PRESIDENT LAKE BRISBANE, 12 MAY 2021

Application for unfair dismissal remedy – whether the Applicant was dismissed – Applicant resigned – application dismissed

[1] On 24 September 2020, Mrs Pamela Trim (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been unfairly dismissed by her employer, RSL Care RDNS Limited T/A Bolton Clarke (the Respondent).

[2] The Respondent’s Form F3 – Employer Response raised a jurisdictional objection that the Applicant was not dismissed, but instead had resigned.

[3] The matter was listed for a conciliation before a Commission Conciliator on 13 October 2020, but it did not settle. The matter was then allocated to me to determine the Merits and Jurisdictional Objection. I listed the matter for Conference on 18 November 2020 and 21 January 2021. I then set the matter for a substantive hearing for 23 February 2021.

[4] At the hearing, the Applicant represented herself, and the Respondent was represented by Jo Foster, Principal Employee Relations Advisor of Bolton Clarke.

RELEVENT LEGISLATION

[5] Section 382 of the Act sets out when a person is protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[6] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[7] Section 386 of the Act sets out when a person has been dismissed from their employment and 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”

[8] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[9] It is first necessary to determine if the Applicant was dismissed pursuant to s. 386 of the Act. If I find she was not dismissed pursuant to s. 386 of the Act, the application will be dismissed.

APPLICANT’S EVIDENCE

The Applicant’s Witness Statement and Submissions

[10] The Applicant’s evidence was that she started working for the Respondent on 6 December 2004 at the Archerfield location in Brisbane. She said she was employed as a permanent part time Personal Care Worker (PCW).

[11] The Applicant stated that in 2008, she transferred to the Bundaberg Area which covered Maryborough, Hervey Bay, Childers and the Bundaberg Wide Bay Area.

[12] The Applicant’s evidence was that she did not have a Certificate Three, but was up to date with the required training for a PCW doing domestic cleaning in client’s homes and social support work.

[13] The Applicant said that at no time did she give her resignation to the Respondent.

[14] The Applicant stated that in approximately mid-2018, she decided to put her property on the market. Subsequently, she informed her Bundaberg office that when it was sold, she would need a transfer to Caboolture. She said the Manager at the time, Dawn, said “when your property did sell I will chase up the transfer."  1 The Applicant stated that Dawn resigned and Kylie came in as a temporary Manager and later, Facilitator.

[15] The Applicant submitted that she informed Kylie of her situation to need a transfer when her property did sell, and Kylie said, “when sold give dates for transfer.”  2The Applicant said that Kylie resigned as well.

[16] Around Christmas 2019, The Applicant said that she informed the office that if she did not get a sale, she would lease the property and she would inform them of a date of transfer to the Caboolture office. She said it was at this point, she informed Kylie and Joy that her and her husband were separating, though she rarely discussed her private life at work. She said that the Bundaberg office informed Ms Helen Mitchell and after a meeting, she informed everyone she was selling, and it was general knowledge. The Applicant said once she had a definite date she informed the office.

[17] The Applicant submitted that on 5 August 2020, she was in the Bundaberg office when Joy told her that Ms Mitchell requested that she needed to write a letter of resignation from the Respondent in the Bundaberg Area to be transferring with the Respondent in the Caboolture Area. The Applicant said that she wrote this immediately and Joy sent it to Ms Mitchell who confirmed receipt of it.

[18] The Applicant said that she never wrote a letter of resignation. Rather, she wrote a letter that Joy said Ms Mitchell had asked her to write for purposes of her transfer to Caboolture. She said she was not resigning, but transferring as could not afford to give up her job, which is why she decided to transfer and not resign.

[19] The Applicant stated that two weeks before 5 August 2020, she called the Caboolture office and spoke to three ladies about a transfer. She said she recalled these being Cathy, Rianna and one other lady. She stated that Joy said she should ring the Caboolture office, which she did and that this was when Joy confirmed that Ms Mitchell knew of the transfer.

[20] It was the Applicant’s evidence that when talking with Ms Boyes, she said “pity we didn’t know about your transfer we just did a recruitment drive.” 3

[21] The Applicant submitted that her transfer was not acted upon properly due to the managers not being supportive and earlier managers not passing on correct information when they resigned. The Applicant said that she had no other conversations from anyone by phone until Ms Mitchell and Jenny called her on 6 August 2020 and that any other conversations that they said happened are unknown to her.

[22] The Applicant stated that if there were no other positions or hours available, there was no reason she would have been sent an offer of reinstatement on 25 November 2020. The Applicant further went on to say that she had no faith or trust in management and therefore, she declined the reinstatement.

[23] It was submitted by the Applicant that she did all that was requested of her and Ms Mitchell was fully aware of her transfer, which is why she requested the letter on 5 August 2020.

[24] The Applicant stated that regarding the conversation with Ms O’Shea, she did not hang up on them and at no time did she yell or was abusive. She said she could not believe the disrespect and attitude towards her.

[25] The Applicant’s evidence was that she had been ‘shafted’ and at no time did she put in a resignation. 4 She said that Ms Boyes mentioned her age and said that they did not think they wanted someone like her working at Caboolture and to go try one of the other aged care facilities.

[26] It was submitted by the Applicant that at no time did Ms Mitchell suggest other positions to her and at no time did she decline or hang up on her.

[27] The Applicant stated that she asked Ms Mitchell if she had been dismissed, to which she Ms Mitchell and Jenny replied, “yes that is right.”  5

[28] I note, for completeness, that the Applicant did not press the matters relating to her age at the hearing.

RESPONDENT’S EVIDENCE

Witness Statement of Ms Helga Boyes

[29] Ms Boyes, Team Leader for the Respondent’s At Home Support Services (AHSS) in Caboolture & Redcliffe surrounds, Sunshine Coast and Wide Bay, provided a witness statement in these proceedings. Ms Boyes has been employed by the Respondent since October 2009 and has been a Team Leader for AHSS since March 2020.

[30] Ms Boyes states that at the time of the Applicant’s resignation, she was Team Leader of the Respondent’s AHSS in Caboolture and Redcliffe surrounds and Brisbane Metro North, and since November 2020 has been responsible for AHSS Sunshine Coast and Wide Bay, along with Caboolture and Redcliffe surrounds and no longer Brisbane Metro North.

[31] Ms Boyes notes that in her role as Team Leader she is responsible for providing leadership and supervision of the AHSS delivered by the Respondent to its clients in the Caboolture, Redcliffe, Sunshine Coast and Wide Bay. She notes that she has not met the Applicant in person and has only spoken to her on the phone on one occasion.

[32] Ms Boyes states that she first became aware of the Applicant’s request for a transfer in early August when one of the Caboolture Administration Officers told her that a PCW from Wide Bay had called and was looking to transfer to Caboolture. Ms Boyes says at that time, she was not aware that the Applicant was the relevant employee.

[33] Ms Boyes states that she advised the Administration Officer to put the call through to one of the HomeCare Facilitators so they could get all the relevant information regarding the role they wanted, hours of work, availability for rostering and qualifications held. She also advised the relevant employee’s manager should be contacted to get feedback on their work performance. Ms Boyes’s evidence is that she did not receive any further information regarding the employee transfer at that time.

[34] Ms Boyes states that on 5 August 2020, her manager, Ms Renae Armstrong (Local Area Manager – Brisbane Metro North and Caboolture Redcliffe), emailed her asking for her to look into the Applicant’s transfer.

[35] Ms Boyes says that on 6 August 2020, she spoke to Ms Helen Mitchell (Local Area Manager – Sunshine Coast and Wide Bay) to discuss the transfer, and during that discussion she advised Ms Mitchell that:

“i. I had looked into the supposed transfer of Mrs Trim;

ii. Advised Mrs Trim had only spoken briefly to one of the HomeCare Facilitators Ms Rhiannon Stevens at Caboolture;

iii. When she spoke to Ms Stevens, she had provided no specifics to the HomeCare Facilitator regarding the hours of work she could do, what qualifications she had and had not made any further contact with the Caboolture office to get the transfer going;

iv. Ms Stevens had advised Mrs Trim to call her back when she could to give more information;

v. The Caboolture Team had recently completed recruitment activities for Domestic Assistants that had taken about 3 months, but all roles were now filled and there was no job and no hours that could be given to Mrs Trim at this time.”  6

[36] Ms Boyes states that Ms Mitchell advised she would discuss this with the Applicant, and Ms Boyes understands she phoned her to let her know. Ms Boyes also offered to speak to the Applicant, and she states that on 6 August 2020 she called her to advise:

“i. I had been advised she was seeking a transfer and that she thought she was starting at Caboolture on 7 September 2020;

ii. We didn’t have any details regarding her transfer and nothing had been actioned as she had not provided any information to us;

iii. Unfortunately, we had just put on 7 staff and we didn’t have a position for her to move to at this time.”  7

[37] Ms Boyes’s evidence is that the Applicant replied:

“i. Her manager was not supporting her and that she had been “shafted”; and

ii. She had already resigned and she is already moving to Caboolture.” 8

[38] Ms Boyes states that she apologised for not having a position available for her but reiterated the fact that there was no job for her to do. Ms Boyes says that she told the Applicant that even if there was a position, which there was not, speaking ill about her manager was not the way to introduce herself.

[39] Ms Boyes states that the Applicant asked if she could apply for a position if one became available, and Ms Boyes confirmed she could and would have the same opportunities as anybody if they advertised again. Ms Boyes gave evidence that she did not make any comments about the Applicant’s age.

[40] Ms Boyes states that she also advised the Applicant the Respondent operated a Residential Aged Care facility in which she may be able to apply for a position.

[41] Ms Boyes states the conversation lasted around 10 minutes and she did not speak to the Applicant again.

Witness Statement of Ms Helen Mitchell

[42] Ms Mitchell, Local Area Manager - Wide Bay, Sunshine Coast and Caboolture for the Respondent, filed a witness statement in these proceedings. Ms Michell has been employed with the Respondent since August 2015. Ms Mitchell has held the position of Local Area Manager since around November 2018, and from September 2020 has held Local Area Manager responsibilities of Caboolture, Wide Bay and Sunshine Coast.

[43] Ms Mitchell states that she first met the Applicant around October or November of 2018, during a team meeting while she was in the position of Local Area Manager - Wide Bay and Sunshine Coast. Ms Mitchell recalls this as the Applicant had received compliments from clients whom she provided services to, and during the team meeting, Ms Mitchell presented her with two gift vouchers to thank her for her good work and for a service anniversary. Ms Mitchell notes she also introduced herself as the Applicant’s manager.

[44] Ms Mitchell says that since that time, she had seen the Applicant a few times when she was working in the Bundaberg office and the Applicant attended at the office. Ms Mitchell states she had also spoken on monthly team meetings via Skype as Local Area Manager, which the Applicant attended. Ms Mitchell also notes that from March 2020, as a result of the COVID-19 pandemic, she held monthly team meetings to keep the team informed of business matters and the Applicant had attended these meetings.

[45] Ms Mitchell’s evidence is that she was not aware of any concerns regarding the Applicant’s performance or conduct at work from before she resigned.

[46] Ms Mitchell states that around 5 August 2020, she was advised by Joy Latimer, Bundaberg Administration Officer, that the Applicant had informed her she:

“•  Sold her house in Bundaberg;

•  Was moving to Caboolture in a few weeks; and

•  Had another job with Bolton Clarke working in Caboolture.”  9

[47] Ms Mitchell states the Applicant was not approached by her personally and this conversation with Ms Latimer was the first time she was made aware of the Applicant wanting to transfer to Caboolture. Ms Mitchell said she told Ms Latimer she knew nothing of the transfer and then called the Applicant. The Applicant did not answer the call and Ms Mitchell left a message asking for a return call about the transfer.

[48] Ms Mitchell’s evidence is that the Applicant did not return her call.

[49] She states that around 5 August 2020, she spoke with the Applicant over the phone and explained the transfer process, noting that transfers are not a ‘given thing’ and that the Respondent has a process that they had to go through. Ms Mitchell says she explained:

“•  There must be a position available for employees to transfer into;

•  Transfers usually involve employees applying for vacant and advertised jobs through recruitment and letting the managers know they are applying; and

•  Everyone needs to have a discussion and agree on a transfer date.”  10

[50] Ms Mitchell says the Applicant then advised she had already spoken to someone at Caboolture and was starting on 7 September 2020, and that it was ‘all organised’. Ms Mitchell states that when she asked for a name, the Applicant provided a name of someone that, to the best of Ms Mitchell’s knowledge at the time, did not work at Caboolture. Ms Mitchell therefore told the Applicant she would look into it and ring her back.

[51] Ms Mitchell states she contacted Ms Renae Armstrong (Former Local Area Manager - Sunshine Coast) to see if she was aware of the transfer, and that Ms Armstrong replied stating she was not aware of any transfers. This was provided in an email, which was forwarded to Ms Boyes.

[52] Ms Mitchell says she then spoke to Ms Boyes, further to which she realised there was no position available for the Applicant at Caboolture, no transfer forms had been done, and there was no contract for her to start at Caboolture. Ms Mitchell contacted the Applicant to advise no transfer had been arranged, nor was it possible. Ms Mitchell notes that she had Ms Jenny-Kay O'Shea, Senior Administration Officer, with her during the call. Ms Mitchell notes the Applicant stated she was at a client’s house when she rang, and when the Applicant returned the call, there was the following exchange:

“•  I told Mrs Trim I was really sorry there isn't any position available for her at Caboolture.

•  I said I had spoken to the Team Leader (Helga Boyes) and the Manager (Renae Armstrong) of the Caboolture area and that they had no idea about any movements or transfers.

•  I reiterated again that I was "really really sorry" and started explaining how the transfer process works.

•  Mrs Trim started yelling at me and saying things like I didn't support her., Mrs Trim also asked me if I was sacking her, to which I stated absolutely not. Mrs Trim kept stating are you sacking me, at least 3 times, and each time I stated no, I am informing you that there are no positions available to transfer to at Caboolture

•  Mrs Trim said she had spoken to Kylie Johnson (Former HomeCare Facilitator at Bundaberg) about her transfer months ago but hadn't heard back from Kylie.

•  I told Mrs Trim that Kylie had not spoken to me about her transfer, that Kylie left Bolton Clarke around May or June, and, that for something as important as her job she needed to take accountability of this herself.

•  I could understand why she was upset and I said: "there are vacancies in Bolton Clarke's Residential Aged Care at Caboolture. Do you want me to try and get you a position there?"

•  Mrs Trim responded saying "I'm not working in no laundry and kitchen. I'm not doing that".

•  I said "ok, but I can try if you want".

•  Mrs Trim then hung up on me.” 11

[53] Ms Mitchell’s evidence is that she did not speak to the Applicant again after this.

[54] Ms Mitchell states she never told the Applicant she had to resign and there was no mention of resignation during their conversation.

[55] Ms Mitchell states she also did not make any comment regarding the Applicant’s age during their conversations and did not tell the Applicant she was dismissed.

[56] Ms Mitchell states that the Applicant could have continued working in her position in Bundaberg but given that she had sold her house, the Applicant did not have a place to live in Bundaberg. Ms Mitchell is aware that some days later the Applicant came into the office and provided a sick certificate and did not return to work.

Witness Statement of Ms Rhiannon Stevens

[57] Ms Stevens, former HomeCare Facilitator for the Respondent, filed a witness statement in these proceedings. Ms Stevens was employed with the Respondent from November 2016 to October 2020 and accepted the position of HomeCare Facilitator in November 2019 at the Respondent’s AHSS Metro North site, transferring to the Respondent’s Caboolture and Redcliffe AHSS July 2020.

[58] Ms Stevens states that in her role as HomeCare Facilitator, she was responsible for implementing support and care service programs for the Respondent’s AHSS clients in the Caboolture and Redcliffe regions.

[59] Ms Stevens’s evidence is that she never met the Applicantand had only spoken to her over the phone once.

[60] Ms Stevens states that on 3 August 2020 she received an email from Tenika Wilson, Administration Officer, asking for one of the HomeCare Facilitators to contact the Applicant from Bundaberg as she was requesting a transfer to Caboolture “with a view to start 7 September 2020”. 12

[61] Ms Stevens states that she called the Applicant either on 6 August or 7 August 2020, to get more information from her about her requested transfer. Ms Stevens notes that in this call she:

“•  Introduced herself and advised she was contacting the Applicant as she had received a message about her request for transfer;

•  Asked the Applicant if she could chat now and she said she was working;

•  Gave the Applicant the office number and asked her to call her back when she was free and told her to ask for Rhiannon;

•  Did not discuss any details regarding the transfer as the Applicant was working.”  13

[62] Ms Stevens says that it was her expectation the Applicant would call back when she was free, however she never heard back from her.

[63] Ms Stevens notes that in the office, if they miss calls or calls cannot be transferred by the Administration Officers, they would usually send staff an email asking for them to call someone back. She says however she was not advised by anyone that the Applicant had tried to contact her again.

[64] Ms Stevens notes her conversation with the Applicant was very brief and she did not explain the transfer process, ask any specific information or offer any information about working at Caboolture. She states that she did not offer the Applicant a position at Caboolture and says in her position of HomeCare Facilitator she was not able to make offers of employment.

[65] Ms Stevens says that if the Applicant had contacted her, she would have asked her for more information about what she was looking for so that Ms Stevens could send this to her manager, Ms Boyes, for consideration.

[66] Ms Stevens states that she did not speak to the Applicant again.

Witness Statement of Ms Jenny-Kay O'Shea

[67] Ms O’Shea, Senior Administrative Officer at the Respondent's Sunshine Coast AHSS’s office, filed a witness statement in these proceedings. Ms O’Shea has worked for the Respondent since May 2016and has held the position of Senior Administrative Officer since May 2020.

[68] Ms O’Shea states in her role as Senior Administrative Officer, she is responsible for the administration duties of AHSS delivered by the Respondent to its clients in the Sunshine Coast and Cooloola regions. She states the Wide Bay Bundaberg office does not have a manager on site and she also provides administration support to this site from time to time to keep things running smoothly.

[69] Ms O’Shea states that she had never met the Applicant in person and only spoke to her over the phone with Ms Mitchell.

[70] Ms O’Shea became aware of the Applicant’s request for a transfer in early August when Ms Latimer called and said words to the effect of “I think someone needs to speak to Pam about her transfer request”. 14 She states that she was with Ms Mitchell when she spoke with the Applicant and advised her that there was no job for her at Caboolture. She confirms that Ms Mitchell did not tell the Applicant that she had to resign and did not tell her that she was dismissed.

[71] Ms O’Shea states during the call:

“i. Mrs Trim was adamant she had a transfer and said she had spoken to Kylie Johnson (HomeCare Facilitator) at the Bundaberg office about her transfer;

ii. Helen told Mrs Trim that Kylie did not have authority to offer transfers to other sites and that no one, including Kylie, had approached her about the transfer before now;

iii. Mrs Trim also said she had spoken to the Caboolture office and said it was all organised at Caboolture but was not able to advise the names of anyone she had spoken to;

iv. Mrs Trim said words to the effect of "so you're telling me more or less I don't have a job" and Helen said "No, I'm letting you know this is the first I have heard about this transfer and the manager at Caboolture is not aware of any transfer";

v . At this point, I think Mrs Trim hung up and then rang back a bit later;

vi. When Mrs Trim rang back she gave the names of some people she had spoken to. Helen and I knew confirmed that neither of those people were the Manager as Helga Boyes is the Team Leader at Caboolture;

vii. Helen told Mrs Trim again that no one was aware of her transfer, and, that there wasn't a position at Caboolture in [AHSS] available for her as they had recently finished a recruitment process;

viii. Helen told Mrs Trim there might be a position in the Residential Aged Care facility that she could try to apply for;

ix. Mrs Trim said she didn't want to work in RAC and the call ended.”  15

[72] She did not recall saying much during the call as Ms Mitchell is the manager. She recalls that the Applicant was not very pleasant during the call and kept blaming Ms Mitchell for not transferring her.

[73] Ms O’Shea states that she had no other conversations with the Applicant after this.

Witness Statement of Ms Joy Latimer

[74] Ms Latimer, Administration Officer at Wide Bay Bundaberg AHSS. She notes her position is based at the Bundaberg Office. She has held her current position since July 2019, in which she is responsible for administration relating to the delivery of AHSS to the Respondent’s clients in and around Bundaberg.

[75] Her evidence is that she first met the Applicant when she was working as a Personal Care Worker at Bundaberg AHSS after she had transferred 10 years ago. Ms Latimer notes she first became aware of the Applicant’s ‘possible transfer’ around Christmas 2019, when the Applicant told her she would be ‘gone from Bundaberg by next Christmas’. Ms Latimer says however she was not aware of the Respondent’s internal transfer process when the Applicant requested a transfer.

[76] Ms Latimer gave evidence that she told the Applicant ‘5 or 6 times’ that she needed to speak with the site about transfers. She recalls giving the Applicant the number of the Caloundra or Caboolture office, as she was not sure where the Applicant was wanting to transfer to.

[77] Ms Latimer states that when the Applicant first spoke to her about transferring, she asked the Applicant if she had made contact with the site where she was going. Her evidence is that the Applicant said she was waiting until she had firm dates on the sale of her house before talking to the site. Ms Latimer says she told the Applicant she should contact the new site early as it was not guaranteed there would be a job available there, but the Applicant said a few times that she wanted to wait until her house was sold.

[78] Ms Latimer gives evidence that she did not think the Applicant had to resign to transfer, as that seemed strange to her.

[79] Ms Latimer states that Applicant’s house took months to sell, and when it finally did, the Applicant came to the office and told her she was transferring. Ms Latimer says this was around five weeks before she wanted to finish at Bundaberg.

[80] Ms Latimer again asked if the Applicant had rung the site and said she might not have a job where she wanted to go. Her evidence was that the Applicant advised she had not, and Ms Latimer therefore told her she needed to ring them ‘now’.

[81] Ms Latimer says that on 5 August 2020, the Applicant came into the office and said she had to give a month's notice before starting at Caboolture. She wrote her resignation letter in front of Ms Latimer. Ms Latimer provided the Applicant her staff number and helped her calculate her notice period. Ms Latimer’s evidence is that she did not tell the Applicant she had to resign or give four weeks’ notice.

[82] Ms Latimer states that she scanned the letter and sent it to the Sunshine Coast Administration team and saved the letter to the Applicant’s file.

[83] Ms Latimer states she did not have any other conversations with the Applicant, until a few days later, when the Applicant returned to the office with a sick certificate and said “you know I didn't get transferred, I have been shafted”. Ms Latimer says the Applicant used “a lot of profanities” talking about Ms Mitchell. Ms Latimer advised the Applicant she could not talk about it more, as it had nothing to do with her.

Respondent’s Submissions

Summary of the Respondent’s position

[84] The Respondent submits that the Applicant resigned from her employment following the sale of her home in Bundaberg due to a personal decision to relocate to Caboolture.

[85] The Respondent’s evidence was that the Applicant was not eligible to make an unfair dismissal application on the basis that the Applicant resigned from her employment and that the resignation was not triggered by the behaviour of the Respondent.

[86] It was the Respondent’s evidence that the Applicant presumed that upon her request she was entitled to a transfer of her employment location from Bundaberg to Caboolture. The Respondent refutes this position and submits that there was, and remains, no obligation or onus on the organisation to transfer an employee’s work location solely based on their request.

[87] The Respondent submits it did not have a position available for the Applicant to transfer into at Caboolture at the time requested. In addition, there was no obligation for the Respondent to “create” a position for an employee at an alternate location given it was the Applicant’s personal decision to relocate to Caboolture.

[88] The Respondent denies the assertions made by the Applicant that she was told she must resign and submits witness statements and contemporaneous emails discussing the matter of the Applicant’s transfer to this effect.

[89] The Respondent submits the Applicant has failed to provide any evidence supporting her position that she was dismissed within the meaning of the Act and is therefore ineligible to make an application for an unfair dismissal remedy.

[90] The Respondent’s evidence was that Applicant was engaged to perform the position of PCW at Bundaberg, however, was not a qualified care worker as she does not hold the necessary Certificate III in Aged Care Services (or similar) to provide qualified care services including personal care such as assistance with bathing. The Respondent noted that therefore, she was commonly referred to as a domestic assistant, which included activities such as cleaning and social support services to the organisation’s clients in and around their homes in Bundaberg.

[91] The Respondent stated that, as early as Christmas 2019, the Applicant had an intention to cease her employment in Bundaberg but that she did not make any formal approaches at that time to her Manager about her intentions to relocate. The Respondent’s evidence was that had she done so, the Respondent would have been in a better position to support the Applicant with her request to commence work in Caboolture.

The Resignation

[92] The Respondent’s evidence was that on 3 August 2020, the Applicant contacted the organisation’s Caboolture office and requested a transfer of her employment from Bundaberg AHSS (Bundaberg) to Caboolture AHSS (Caboolture) to commence on 7 September 2020.

[93] It was submitted by the Respondent that the administration officer who spoke to the Applicant on 3 August 2020 noted her call and requested one of the Caboolture HomeCare Facilitators contact the Applicant to discuss the possible transfer further. At this time, the Applicant was not advised her transfer would be processed.

[94] The Respondent submitted that on 6 or 7 August 2020, Ms Rhiannon Stevens, HomeCare Facilitator, contacted the Applicant to seek further information regarding the Applicant’s requested transfer. At the time, Ms Stevens contacted her, the Applicant advised she was working, and Ms Stevens advised the Applicant to call her back at a later time when she was able to discuss the transfer request. The Applicant did not contact Ms Stevens, and as a result, Ms Stevens took no further action regarding the possible transfer.

[95] On 5 August 2020, the Respondent submitted that the Applicant attended the Bundaberg office and resigned from her Bundaberg employment. The resignation letter provided four (4) weeks’ notice that she was “restarting” her employment within the Caboolture AHSS business on 7 September 2020.

[96] On 5 August 2020, the manager of the Wide Bay and Sunshine Coast AHSS, Ms Helen Mitchell, was alerted to the Applicant’s requested transfer and contacted the Applicant. The Applicant advised Ms Mitchell that she had already arranged the transfer with the Caboolture office and was commencing in Caboolture on 7 September 2020.

[97] Ms Mitchell proceeded to contact the manager of Caboolture AHSS, Ms Renae Armstrong, to seek more information regarding the transfer and offered to complete the required paperwork to facilitate the transfer. Ms Mitchell was not previously aware of the Applicant’s transfer request however if this was already agreed she would complete the necessary paperwork.

[98] Ms Armstrong advised Ms Mitchell she was also not aware of the transfer and requested the Team Leader of Caboolture AHS, Ms Helga Boyes, to investigate the transfer and provide further information. Ms Boyes investigated the Applicant’s request for transfer. During her investigation, Ms Boyes spoke to Ms Stevens and it became clear that the Applicant’s request for transfer had not been processed. Ms Stevens advised this was due to the Applicant not contacting her to discuss the process and provide the necessary information to facilitate a transfer from Bundaberg to Caboolture.

[99] After speaking with Ms Stevens, Ms Boyes identified that the Applicant was seeking to transfer to a permanent part time domestic assistant position in Caboolture, and, that there were no vacant domestic assistant positions at Caboolture.

[100] The Respondent submitted that on 25 May 2020, the Caboolture business requisitioned three (3) permanent part time domestic assistant positions. These positions were advertised externally on the SEEK and Indeed job search platforms, and, on the Respondent’s public website on the “Careers” page from 9 June 2020 to 7 July 2020. The positions were also advertised internally via the Recruitment SharePoint (Intranet) page. The three positions were advertised on 26 June 2020, 6 July 2020 and 8 July 2020 respectively. The Respondent submits that no casual domestic assistant positions were available at Caboolture at the time as four casual positions had recently been placed on 8 May 2020 (2), 27 May 2020 (1) and 2 June 2020 (1).

[101] Upon concluding her investigation and identifying that no permanent part time or casual domestic assistant positions were available, Ms Boyes contacted Ms Mitchell to advise that they did not have the ability to accommodate the Applicant’s transfer.

[102] Ms Mitchell subsequently contacted the Applicant to advise her that there was no domestic assistant position available for her to transfer to at Caboolture. Ms Mitchell advised the Applicant she may be able to secure a position in the organisations Residential Aged Care facility. The Respondent submits the Applicant was displeased with this news and declined to apply for a position at the organisation’s Residential Aged Care facility.

[103] The Respondent firmly denies the Applicant’s assertion that she was told during both or either of these conversations that she was dismissed or that she had to resign. The Applicant had no further conversations with Ms Mitchell or Ms Boyes regarding her transfer and the Applicant’s employment ceased on 4 September 2020.

Internal transfers

[104] It was the Respondent’s evidence that the organisation has an established process to transfer employment internally. The Respondent notes this process is not formally documented, and that no resignation is required to approve or facilitate internal transfers.

[105] The Respondent further submits the delegated authority to offer transfers of employment sits with the applicable managers of business units. Administration officers, HomeCare Facilitators and the like do not have the appropriate delegated authority to make offers of employment.

[106] The Respondent acknowledges that the Applicant may not have understood the Respondent’s transfer process, including, who she would need to contact or speak to, what steps may be involved in arranging the transfer of her employment and the time frames associated with transfer. However, the Respondent submits that this did not negate the organisation’s reasonable expectation that, in circumstances where an employee is seeking to transfer their employment within the organisation, the employee will notify their direct manager of this intention in a timely manner.

[107] The Applicant, having had this contact and being asked to contact the office to discuss at a time convenient to her, failed, refused and or neglected to call this person back and discuss her request. Given this lack of contact it was not open to the business to presume that the Applicant was still seeking to transfer.

[108] The Respondent’s evidence was that the Applicant did not contact or speak with her direct manager about her requested transfer of employment until 5 August 2020, just over one (1) month before her intended commencement date at Caboolture.

[109] The Respondent denies that any of its employees made any offers of employment as described by the Applicant or otherwise gave the Applicant the indication that her transfer to Caboolture was guaranteed or would happen automatically.

[110] The Respondent notes that the process of selling a home often occurs over an extended period. The Respondent submits that during this time the Applicant had ample opportunity to notify her manager of her intention to transfer her employment location from Bundaberg to Caboolture. Alternatively, if there were some reason the Applicant did not want to speak to her direct manager about her intention to transfer her employment location, the Applicant could have taken proactive steps to engage with the Caboolture office to enquire about the transfer process and whether any vacant positions existed.

[111] The Respondent submits the Applicant’s letter was prima facie a resignation letter, regardless of her intention to restart work at Caboolture some weeks later.

[112] The Respondent submits that any failing of the organisation’s employees to probe the resignation further detracts from the clear position that the Applicant put forward which was that she could not, and would not, continue her employment in Bundaberg.

Not dismissed

[113] The Respondent submits that the Applicant’s employment ended because of her decision to sell her Bundaberg home and relocate to Caboolture. The Respondent reaffirms that this position was not motivated in any way by the organisation and that Applicant’s action in selling her house demonstrates the Applicant made a clear, deliberate and informed decision to no longer be bound by her contract of employment in Bundaberg.

[114] The Respondent’s evidence was that it would be unreasonable to expect the organisation to transfer an employee to a location where there are insufficient client hours available as this would result in an excess of employee hours required to be paid with not enough work.

Other matters

[115] The Respondent reiterates that the Applicant’s request to transfer her employment was not successful for the simple fact the organisation had no positions available at Caboolture at the time the request was made.

[116] The Respondent maintains its view that the Applicant would remain employed by the organisation had there been a position available for her to transfer at Caboolture, or if she had successfully applied for a position within the Respondent’s Residential Aged Care facility.

[117] The Respondent notes that the outcome of the Applicant’s requested transfer would likely have been different if she had taken more timely and appropriate steps to discuss her personal relocation with either her direct manager Ms Helen Mitchell or the contact that she was provided within the Caboolture office.

[118] The Respondent denied that the Applicant was told to resign. However, the Respondent submitted that even if the Applicant had been told she must resign, this would not constitute a dismissal under the Act as it was the Applicant’s inability to continue working in Bundaberg that brought the Applicant’s employment to an end.

CONSIDERATION

Was there a dismissal in accordance with s.386(1) of the Act?

[119] 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. 16 The Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan provided clarity as to these two distinct grounds:17

“[9] The distinction between a dismissal falling under s.386(1)(a) and one falling under s.386(1)(b) is sought to be explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:

Clause 386 – Meaning of dismissed

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.”

[10] It seems clear from the above that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:

“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, 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. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’

[12] Importantly, in Mohazab the Court did not decide that the termination of employment in that case was at the initiative of the employer because there had been a constructive dismissal. Indeed, the Court expressly observed that it was “. . . unnecessary to consider whether the facts fall within or without the notion of constructive dismissal.”

[13] As s.386(1)(b) is intended to capture or reflect the common law concept of constructive dismissal and as the Commissioner concluded that “the applicant was constructively dismissed” because she had accepted the Appellant’s repudiation of the contract of employment and thereby brought the contract and the employment under it to an end, we consider that when read in its entirety the Commissioner concluded that the Respondent had been dismissed within the meaning of s.386(1)(b) of the Act.”

[120] 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.” 18 (emphasis added)

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

“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.” 19 (emphasis added)  

[122] 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:

... 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…” 20 (emphasis added)

[123] The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred. 21 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.”22

[124] The Applicant’s contention is that she had no alternative and was instructed to resign from her position in order to affect a transfer. The Respondent’s evidence does not support this contention. The Respondent claims that the Applicant decided to resign from her employment following her decision to relocate from Bundaberg to Caboolture.

[125] The Respondent’s organisation is not small and the Applicant would not be the only employee who has wished to transfer to another location for personal reasons. The Respondent’s witnesses provided cogent and reliable evidence on the usual practices undertaken when an employee seeks to be transferred to a new location, including the relevant people who must be informed and the process undertaken. The Respondent’s evidence was that while it may, in certain circumstances, be willing and able to accommodate an employee’s request to transfer to a different location, the Respondent was under no obligation to do so. Accommodating such a transfer was subject to the needs of the business.

[126] In this case, that the Applicant’s line manager was unaware of the transfer request and that there were several months in the planning of the move (given the house sale had to be undertaken), meant that the Applicant had ample opportunity to properly advise management of her preferred transfer and communicate the desired location so that the Respondent might be able to identify current and potential roles that might be available.

[127] The Applicant did not follow the Respondent’s internal process. This was unfortunate and may have been a result of a misunderstanding on behalf of the Applicant. Had the Applicant had made appropriate enquiries, following the correct process and kept management advised of her wishes and timing, the outcome may have been different. As it stood, the Respondent’s evidence was that the relevant people within its business were only informed of the Applicant’s intention to request a transfer to Caboolture five weeks prior to her requested start date. At that point, there were no positions available in Caboolture and the Respondent was unable to accommodate the transfer.

[128] While I have considerable sympathy for the Applicant, I do not find that the Respondent by any of its actions caused the Applicant to resign. Furthermore, it was not the case that the Applicant had no choice but to resign. She could have applied for leave or had discussions on a transition arrangement with her manager. This did not happen and therefore the resignation was the Applicant’s choice and not affected by any actions of management.

[129] For the reasons set out above, I am satisfied that the Applicant was not dismissed in accordance with subsection 386(1) of the Act.

CONCLUSION

[130] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729786>

 1 Witness Statement of Mrs Pamela Trim at paragraph [7].

 2 Ibid [8].

 3 Ibid [17].

 4 Ibid [27].

 5 Ibid [29].

 6 Witness Stated of Helga Margaret Boyes, dated 8 December 2020, at [17].

 7 Ibid [19].

 8 Ibid [20].

 9 Witness Statement of Helen Mitchell, dated 7 December 2020 [14].

 10 Ibid [20].

 11 Ibid [28].

 12 Witness Statement of Rhiannon Stevens, dated 7 December 2020 [7].

 13 Ibid [9].

 14 Witness Statement of Jenny-Kay O’Shea, dated 7 December 2020, at [9].

 15 Ibid [11].

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

 17   City of Sydney RSL & Community Club Ltd v Balgowan[2018] FWCFB 5, [9]-[13] (Balgowan).

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

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

 20   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941

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

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