Ms Briar-Louise Rose v Orotongroup (Australia) Pty Limited

[2025] FWC 329

[2025] FWC 329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Briar-Louise Rose
v

Orotongroup (Australia) Pty Limited

(C2024/7031)

DEPUTY PRESIDENT ROBERTS SYDNEY, 6 FEBRUARY 2025

Application to deal with contraventions involving dismissal - jurisdictional objection - not dismissed – whether employment terminated on employer's initiative – objection dismissed.

1. The Applicant, Ms. Briar-Louise Rose, has applied under s.365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute relating to her alleged dismissal by Orotongroup (Australia) Pty Limited (Respondent). The Applicant claims that her alleged dismissal by the Respondent was in contravention of Part 3-1, General Protections, of the Act. The Respondent objects to the application on the basis that the Applicant was not dismissed.

1. Section 386 sets out the circumstances in which an employee is taken to have been dismissed for the purposes of s.365. It provides, relevantly, as follows:

   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.  

1. The Respondent’s jurisdictional objection must be determined before the Commission can proceed to deal with the dispute by conducting a conference under s.368 of the Act[1]. This decision deals with that objection.

Factual background

1. The Applicant commenced full-time employment with the Respondent on 18 July 2024 pursuant to a letter of offer and contract of employment dated 12 July 2024. The Respondent was engaged in the role of Marketing Executive – Gifting, for a maximum term contract to conclude on 18 July 2025. The Applicant reported to Ms. Loiterton, the General Manager – New Ventures[2].

1. At the initial job interview, the Applicant flagged with Ms. Loiterton an upcoming holiday for which arrangements had already been made. That holiday was for two weeks in August. The Applicant gave unchallenged evidence of raising the holiday both with Ms. Loiterton at the interview and later with Ms. Wright, General Manager, the latter of whom confirmed the leave and confirmed that the Applicant would not be required to work in that period. The Applicant accepted the role on that basis.

1. On 26 July the Applicant and Ms. Loiterton had a conversation about the holiday. The Applicant maintained that Ms. Loiterton stated that on account of changed business requirements the Applicant would need to cancel, cut short or work remotely for part of her holiday.

1. On 12 August 2024 the Applicant complained to Ms. Dolman in the Respondent’s Human Resources (HR) department about Ms. Loiteron’s management of the leave arrangements. Later on the same day, Ms. Loiterton spoke with the Applicant and said that she was aware of the Applicant’s contact with HR and that she was no longer required to work while on holidays.

1. Before her departure on leave, the Applicant organised a further meeting with Ms Loiterton for 2 September 2024. A meeting between them occurred on that day. The Applicant said that she was told by Ms. Loiteron at that meeting that she was to ‘finish up next Friday.’

1. The following day a further meeting occurred, this time between the Applicant and Ms. Wright. The details of the conversation between them are contested.

1. At 5:11 pm on 3 September the Applicant sent an email in the following terms to Ms. Loiterton and Ms. Wright:

   “Hi Karaline & Lou,

   Please accept this as my formal notice of my resignation from my position as Marketing Executive at Oroton.  My last day of employment will be Friday 13 September 2024.
   Thank you again for the opportunity, and I wish you and Oroton all the best for the future.

   Thanks,

   Briar”

2. The Applicant continued to work with the Respondent until 13 September 2024.

1. The Applicant contended that she had been dismissed by the Respondent during the conversation on 2 September 2024, or in the alternative that her resignation provided on 3 September was forced by the conduct of the Respondent and that she was dismissed within the meaning of s.386(1)(b) on that day. She said that the dismissal was to take effect on 13 September 2024.

1. The Respondent contended that there was no dismissal and that the Applicant voluntarily resigned her employment on 3 September, effective on 13 September 2024.

The Evidence

2 September meeting

1. The Applicant’s evidence was that she had requested the meeting on 2 September to discuss upcoming work and set expectations for the future as she felt that Ms. Loiterton was upset with her for making the complaint to HR. The Applicant said that she was ‘blindsided’ at the meeting because Ms. Loiterton told her that she did not think the Applicant’s ‘heart was in the role’ and that Ms. Loiterton said that the Applicant ‘should finish up next Friday’. The Applicant said she was confused and shocked by what Ms. Loiterton had said and that she subsequently organised a Teams meeting with Ms. Wright for 3 September for ‘clarification on what was happening with (her) employment.’

1. In cross-examination the Applicant accepted that she had raised concerns about the role during the meeting on 2 September but maintained that she was nonetheless feeling ‘quite productive in the role’ and rejected the idea that she was unhappy in the position. The Applicant said she intended to complete the term of her 12-month contract.

1. The Applicant was not directly challenged in cross-examination on her evidence as to what Ms. Loiterton said to her during this meeting. The Respondent denied specific aspects of the Applicant’s evidence in chief by way of submission but did not take issue with the comments said to have been made by Ms. Loiterton in those submissions.

1. Ms. Loiterton did not give evidence.

3 September meeting

1. The Applicant said that she told Ms. Wright at the meeting on 3 September what had happened in the meeting with Ms. Loiterton the day before. According to the Applicant, Ms. Wright said the Applicant could ‘just take control of the process’ by tendering her resignation. The Applicant accepted that she expressed concerns about Ms. Loiterton’s management style. She emphatically denied that there was any discussion between herself and Ms. Wright on 3 September, or at all, about concerns with the Applicant’s performance or discussions about the Applicant being placed on a performance management process. The Applicant adhered to that evidence under cross-examination.

2. Ms. Wright’s evidence about the meeting was that the Applicant provided feedback about her role and discussed Ms. Loiterton’s style of communication. She said that she discussed the fact that Ms. Loiterton had shared concerns about the Applicant’s performance and that the Applicant said that she ‘did not see a way forward’ to continue in her employment. Ms. Wright said the Applicant raised the suggestion that she did not want her departure to be associated with her performance and that in response, Ms. Wright told the Applicant she had the option to resign if she did not want to go through the performance management process.

3. Ms. Wright said that she had spoken with Ms. Loiterton on the 2 September about Ms. Loiterton’s conversation with the Applicant on that day. She said that she was informed that Ms. Loiterton did not terminate the Applicant’s employment during the meeting on 2 September. When asked whether there had been a discussion between herself and Ms. Loiterton on 2 September about terminating the Applicant’s employment, Ms. Wright did not provide a direct response but said Ms. Loiterton and herself were keen to commence a performance process and had discussed time frames. Ms. Wright later said she had been told there was a discussion about the Applicant ‘potentially finishing up next Friday’ but not a discussion about termination.  

Findings on the evidence and conclusions

1. I accept the Applicant’s evidence as to the conversation with Ms. Loiterton on 2 September 2024, including the evidence that Ms. Loiterton said that the Applicant should ‘finish up on Friday.’ The Applicant was a credible witness and her version of these events was not seriously challenged. The fact that the Applicant contacted Ms. Wright to arrange a meeting the following day is entirely consistent with the Applicant’s version of events. She had been told that her employment was to end. This was a significant event, and the Applicant was simply seeking further clarity from Ms. Wright as to the process that would be followed from that point.

1. As I have noted above, Ms. Loiterton was not called to give evidence. The Applicant urged that I draw an inference in accordance with the rule in Jones v. Dunkel[3]. I am of the view that such an inference is open and should be drawn. Given Ms. Loiterton’s position and her centrality to the matters in issue, it is to be reasonably expected that she would have been called to give evidence about the conversation on 2 September 2024. The failure to call Ms. Loiterton was not explained. I am of the view that it can be inferred that the evidence of Ms. Loiterton would not have assisted the Respondent’s case.

2. I am satisfied on the evidence of the Applicant that she was told by her manager, Ms. Loiterton on 2 September, that the Applicant was to finish on Friday 13 September 2024. This was communicated in clear terms to the Applicant and constituted a termination of the Applicant’s employment on the employer’s initiative within the meaning of s.386(1)(a). It was a termination brought about by the employer and which was not agreed to by the employee[4]. The action by Ms. Loiterton was intended to bring the relationship to an end or had that probable result[5]. It was the principal contributing factor resulting in the termination[6].

3. Even if the employment had not been terminated by Ms. Loiterton on 2 September, it is likely given what followed, that if the termination event was ultimately the Applicant’s email of 3 September, the termination was nonetheless on the employer’s initiative. In Quirk v. Construction, Forestry, Maritime, Mining and Energy Union[7] Perram J said:

   222 It is established that the use of the passive verb ‘terminated’ does not require the legal event which ends the relationship to be the employer’s. Thus in Mohazab, the employer accused the employee of the theft of an item of stock. It invited him to resign otherwise the police would be called in to investigate. The employee resigned. The question was whether the termination of the employment relationship was at the initiative of the employer. It was held, notwithstanding the fact that it was the employee who had brought the employment relationship to an end by resigning, that what had occurred was a termination of the employment at the initiative of the employer (and hence a dismissal). The correctness of this analysis was affirmed in a considered obiter dictum by the Full Court of this Court (Jessup, Tracey and Barker JJ) in Mahony at [21].

   223 The question at hand is the meaning of the word ‘terminated’ in s 386(1). What that provision requires is two things: (a) an initiative of the employer; that (b) results in the termination of the employment relationship. The provision does not require the employer to pull the trigger but only to load the gun. In my view, the provision is expressed in such a way that it is agnostic as to the precise means by which the employment relationship comes to an end. Its focus is upon, however it might have ended, at whose initiative this occurred.

4. I accept the Applicant’s version of the conversation with Ms. Wright on 3 September 2024. In particular, the Applicant was consistent and steadfast in her denial that performance issues and a performance management process were raised with her in the meeting. She also denied saying that she could not see a way forward for herself with the Respondent. Ms. Wright’s evidence was that she did not go into ‘full detail’ about the alleged performance concerns and did not give any details about a performance process. I prefer and accept the Applicant’s evidence that there was no discussion about any performance concerns held by Ms. Loiterton. I therefore do not accept that the prospect of resignation was raised in response to the Applicant’s suggestion that she wanted to avoid a dismissal associated with performance issues and/or a performance management process.

5. Even if Ms. Wright had not discussed with Ms. Loiterton what was said to the Applicant about ‘finishing up next Friday’ when she spoke with Ms. Loiterton on that day (something which I think is inherently unlikely), I am satisfied that the Applicant told Ms. Wright what Ms. Loiterton had said and did so early in the discussion on 3 September. This was the purpose of the Applicant arranging the discussion with Ms. Wright. Ms. Wright therefore knew that it had been put to the Applicant that she should ‘finish up’. I think it is in that context that Ms. Wright urged the Applicant to ‘take control of the process.’ Ms. Wright raised the prospect of a resignation because the Applicant told her that Ms. Loiterton had said that she was to finish up on 13 September. Notably Ms. Wright did not seek to resile from what she was told had been put to the Applicant by Ms. Loiterton, but apparently considered that it would be preferable for all parties if the Applicant simply confirmed her departure by resignation.

6. In reaching these conclusions I have taken into account the Applicant’s response to questioning about her expectation of what would have happened had she not provided a written resignation on 3 September 2024. There was a lack of clarity in the Applicant’s answers which the Respondent urged should be taken as confirming that the Applicant was given an option and, had she not ‘resigned’ on 3 September 2024, her employment would have continued. I do not think this is the case. I think that the Applicant had misunderstood the line of questioning and had taken the questions to be about what she wanted to occur rather than what would have occurred in the event she had not sent the email.

1. I do not accept that the Applicant could have continued in her employment beyond 13 September 2024 had she made a different decision and not sent the ‘resignation’ email. The only effective options that the Applicant had was to send the email as suggested to her by Ms. Wright, or not. Contrary to the submissions of the Respondent, the Applicant was not given the choice of staying in employment or resigning on 3 September 2024.

2. Having concluded that the Applicant was dismissed on the initiative of the employer, on 2 September 2024, effective on 13 September 2024, it is not strictly necessary to express a concluded view as to whether the ‘resignation’ email of 3 September was a forced resignation for the purposes of s.386(1)(b).

3. The Respondent’s jurisdictional objection is dismissed.

4. The matter will be listed for conference on a date to be advised.        

DEPUTY PRESIDENT

Appearances:

Ms Briar-Louise Rose, Applicant on her own behalf

Mr Matthew Moses for the Respondent

Hearing details:

3 December 2024 via Microsoft Teams

[1] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101.

[2] Exhibit A1, Annexure A

[3] (1959) 101 CLR 298.

[4] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].

[5] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769. 

[6] Khayam op cit.

[7] [2021] FCA 1587.

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