Ms Brittany Lee v Pasta Group Pty Ltd
[2024] FWC 3467
•12 DECEMBER 2024
| [2024] FWC 3467 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Brittany Lee
v
Pasta Group Pty Ltd
(C2024/3987)
| COMMISSIONER TRAN | MELBOURNE, 12 DECEMBER 2024 |
Application to deal with contraventions involving dismissal – Jurisdictional objection - Employer alleges that the employee was not dismissed – Whether resignation forced by employer conduct or course of conduct – Jurisdictional objection upheld – Application dismissed
Ms Brittany Lee (the Applicant) applied to the Fair Work Commission for the Commission to deal with a dispute in which she says that she was dismissed by Pasta Group Pty Ltd in breach of the general protections provisions under s 365 of the Fair Work Act 2009 (Cth).
Pasta Group objected to the application on the grounds that it had not dismissed Ms Lee but that she had resigned.
Ms Lee says that she was forced to resign because the employer made clear that they did not want her back when she returned to work following maternity leave. She says the Pasta Group demonstrated this by not returning her to her pre maternity leave role and creating a hostile work environment. The hostile work environment included the employer treating Ms Lee very poorly, marginalising her, not providing her with work to do nor an office, desk or equipment to work with and on one occasion requiring her to work in extreme heat. Ms Lee also says that Mr Luca Naldoni, the Director of Pasta Group, sexually harassed her when he made comments that she “had the biggest cajones” in the company. The comments were made in an “office organization” meeting on 21 February 2024.
On 23 May 2024, Ms Lee resigned by letter from her then solicitors, Gorval Lynch, to the employer.
For the Commission to exercise its jurisdiction to deal with the contravention involving dismissal, it must first find – as a matter of fact – that the dismissal occurred.[1]
Both parties were self-represented, so I dealt with the matter by way of a determinative conference on 7 October 2024. At the Determinative Conference, Ms Lee gave evidence on her own behalf and Mr Luca Naldoni, Director, gave evidence on Pasta Group’s behalf. Both parties also filed submissions, witness statements and documentary evidence in accordance with Directions that I had issued on 29 August 2024, and reissued on 30 August 2024.
What happened?
Ms Lee started part-time employment with Pasta Group on 27 September 2021 as an administration officer. Ms Lee's employment changed to full time from around March 2022. In April 2023, Ms Lee went on parental leave. Ms Lee returned to work on 22nd January 2024. When Ms Lee returned to work, she initially worked full-time for 2 weeks to cover another employee’s leave and then worked part-time for five days a fortnight. The days that Ms Lee worked were never formalised with the employer but she generally worked Monday, Tuesday and Thursday.
Ms Lee says when she returned from parental leave, she was not provided with an office, desk, computer or any work to do. I find this to be an exaggeration. Ms Lee worked in a shared office and was one of 3 administration employees in that office. She had a desk and a laptop. Mr Naldoni says, and I believe him, that she was the only employee who had a laptop. This is because Ms Lee said that she had been provided with a laptop before going on parental leave as she was put on bed rest during her pregnancy and continued to work using that laptop. The administration staff shared a joint email address rather than having individual email addresses.
It appeared that working arrangements were casual and ad hoc. Mr Naldoni, who started with Pasta Group during Ms Lee’s parental leave, did not formally discuss with Ms Lee her return to work. Ms Lee had discussed her return to work with Mr Zanin, another director at the company, when she attended a Christmas party. There were no other discussions.
The person who had been employed to cover Ms Lee’s leave – Ms Maxine Parker – remained employed on a full-time basis when Ms Lee returned. Mr Naldoni appeared to not know how to allocate work among the 3 administration staff and attempted throughout February to discuss and reach some arrangements. However, he did not appear to devote time to this and also travelled during this period, therefore work arrangements remained unclear.
Mr Naldoni also formed a view that Ms Lee could not fulfil her pre-parental leave role because it was a full-time role, but did not discuss that view with Ms Lee.
On Monday 19 February 2024, another employee asked Ms Lee to cover her shift as she was unwell due to the heat. The office air conditioning and fans were insufficient to keep the administration office cool. Ms Lee described being extremely physically uncomfortable in the office. As Ms Lee had left the office early the prior day, Mr Naldoni wanted to speak with Ms Lee about this. He attempted to do so but due to her physical discomfort, she did not wish to discuss it with him.
Ms Lee and Mr Naldoni described this discussion very differently.
Ms Lee says that she felt bullied by Mr Naldoni. She was hot, uncomfortable and upset, and felt backed into a corner by his questioning. She walked away from Mr Naldoni after saying, “It's not a good day to start a fight.” She described him following her through the warehouse screaming at her and then intimidating her after she sat down on an office chair because he stood over her demanding that she respect him. Ms Lee accepts that she raised her voice during this ‘confrontation.’
Mr Naldoni agreed that it was a hot day and that it was very hot inside the office. Mr Naldoni agreed that he had wanted to speak with Ms Lee about her leaving early without telling anybody. He said this had occurred in the prior week and that 19 February was the first opportunity to speak with Ms Lee. Mr Naldoni says he found Ms Lee in the canteen where she was preparing her lunch. He asked her to have a chat and she started to shout at him. He says that he did not follow her but they both started walking back to their offices, which are nearby each other. Mr Naldoni agrees that he told her to offer him respect as a director of the company and that he also said when he asks her a question, she needs to please answer the question. He says he did not swear or shout as that is not “his personality”. Last, he says that it Ms Lee abused by him, which is why he then issued her with a formal written warning.
I find that what had occurred was a confrontation between Ms Lee and Mr Naldoni, in which both were equally culpable of inappropriate workplace behaviour. From the manner that both gave their evidence, it was clear that each brought their own perspective to the conflict. For Ms Lee’s part, she perceived Mr Naldoni’s question, in the context of her unhappiness about her treatment in the workplace, as a further injury. Mr Naldoni, on the other hand, tried to excuse his behaviour but was genuinely perplexed by Ms Lee’s interpretation of events. Ms Lee accepted that she raised her voice; Mr Naldoni attempted to minimise his role and contribution to the conflict. I find that he did demand Ms Lee respect him, in a raised tone of voice but that Ms Lee had similarly raised her voice at Mr Naldoni. I do not find that Mr Naldoni bullied or intimidated Ms Lee in this interaction.
On Tuesday 20 February 2024, Mr Naldoni held a meeting about roles in the administration team. Ms Lee, Ms Parker and Rhianna, another administration employee, were at the meeting. Mr Naldoni says that the meeting was to finalise an office organisation chart to find the best roles and duties for everyone, which aligns with Ms Lee’s expectations that she would learn what her role was. Prior to this meeting, Ms Lee had seen email exchanges between Ms Parker and Mr Naldoni, in which Ms Parker had indicated what her preferences were for her work and that she did not know what role there was for Ms Lee.
At this meeting, Mr Naldoni made a comment that Ms Lee had ‘the biggest cajones in the company.’ Ms Lee says that she was offended by the comment, which she says was derogatory, calling her a man and said during the meeting to humiliate her. Mr Naldoni says he deeply regrets the comment, and that Ms Lee took it the wrong way. He says he thought he was giving Ms Lee a compliment and meant that Ms Lee had a strong personality. He had said it in the context of offering her the role of external accounts and accounts receivable, where she would have to confront customers who may not have paid their accounts.
As with the prior day’s confrontation, Ms Lee was already in a state in which she brought all her discontent about how she had been treated from her return to work and the lack of any formal discussions. From Mr Naldoni’s manner and evidence, I found him to be disorganised and distracted, and therefore an ineffective manager. He did not seem to be aware of the full extent of Ms Lee’s unhappiness. Ms Lee left work immediately after this meeting, as it was the end of her shift. She said she left feeling defenceless, humiliated, degraded, embarrassed and ashamed.
On Wednesday 21 February 2024, Ms Lee was upset to receive an invitation to a disciplinary meeting. This was not a working day for Ms Lee. After the comment that had offended her at meeting on 20 February, Ms Lee described feeling further insulted.
On 23 February 2024, Pasta Group had a disciplinary meeting with Ms Lee and issued her with a formal written warning. The warning referred to 3 breaches of company policies and unacceptable workplace behaviour. They were: (1) misuse of company business credit card; (2) leaving work early without proper communication; and (3) disruptive behaviour and unprofessional conduct. Ms Lee acknowledged that a discussion may have needed to take place about the confrontation, but she disagreed that the formal written warning was appropriate. She also disputed that she had misused the company credit card. Ms Lee says that at the meeting, Mr Naldoni agreed to remove that breach but then did not. This was a further aggravation for Ms Lee.
Also during the meeting Ms Lee and Mr Naldoni discussed their different perspectives about the ‘biggest cajones’ comment, with Mr Naldoni stating that his meant that Ms Lee had a strong personality. Ms Lee acknowledges this but did not accept that Mr Naldoni was trying to make an apology as he failed to acknowledge her point of view about how the comment was “disgusting and insulting”. Mr Naldoni says that he apologised, and he apologised again during the determinative conference.
After the disciplinary meeting, Ms Lee continued work as normal. Mr Naldoni was away from the office for a few weeks as he was travelling for work to Melbourne. Ms Lee’s issues remained unaddressed.
On 28 February 2024, Ms Lee instructed Work Claims Australia who wrote to Pasta Group about returning her to her previous role. That letter referred to Ms Lee’s views about how she had been treated since returning from parental leave, including the lack of a desk, telephone or email address, and being made to feel like she was surplus to the workforce. The letter referred to the occasion on 19 February 2024 when Ms Lee was made to work in 49-degree heat, which caused her to become unwell. Last, the letter referred to a comment that Ms Lee alleged was sexual harassment, being the ‘biggest cajones’ comment. The letter asked for a return to her normal employment.
The letter above inaccurately referred to the ‘biggest cajones’ comment as Mr Naldoni saying that Ms Lee had ‘the biggest kahoonas in the company.’ Ms Lee made clear during the determinative conference that the comment referred to cajones, and referred to testicles. The context and Mr Naldoni’s explanation also made clear that the word which was offensive to Ms Lee was cajones and not kahoonas.
The last day that Ms Lee attended work was Thursday 7 March 2024. On Monday 11 March 2024, Ms Lee took carer’s leave. Ms Lee provided a medical certificate for the period from 11 March until 15 March 2024. After this time, Ms Lee remained on sick leave and says she had medical certificates but that she did not provide these to Pasta Group.
Around 15 March 2024, Ms Lee instructed Gorval Lynch solicitors to act on her behalf. Gorval Lynch wrote to Pasta Group about Ms Lee’s employment. Ms Lee assumed that all correspondence with her employer was through her solicitor. I have not been provided with any correspondence during this period, other than the resignation letter referred to below.
Also around this time, Ms Lee attempted to log into ‘Deputy’, the workplace system where she could see her shifts. However, while Ms Lee said that she had been ejected from the platform, she also said that she had spoken with her colleague (Rihanna) who informed her that a new platform had been installed and that Ms Lee needed to be set up with a new log-in. Ms Lee did not make further enquiries about how to obtain a log-in, and did not make any attempts to contact her employer because ‘her solicitors were dealing with it’. Mr Naldoni confirmed that the employer stopped using Deputy and changed to using a different platform in April.
Ms Lee also says that around this time, the employer advertised ‘her job’ on Seek. However, the advertisement was due to Ms Parker (who had been Ms Lee’s parental leave cover and who remained in that role after Ms Lee returned to work) resigning. Ms Lee was aware of Ms Parker resigning. Ms Lee was unhappy that Mr Naldoni did not contact her about her filling the role. However, Ms Lee did not raise this with Mr Naldoni around the time the job was advertised.
After he last heard from Ms Lee on 11 March 2024, Mr Naldoni made no attempts to contact Ms Lee. He asked other employees, whom he thought knew Ms Lee, whether they thought she was coming back to work, but Mr Naldoni made no attempt to contact her directly to enquire about it.
On 23 May 2024, Gorval Lynch wrote to Pasta Group on Ms Lee’s behalf. The letter said:
“Our client hereby resigns from her position as Administration Officer (Clerk) with Pasta Group Pty Ltd (the Company) effective 23 May 2024. Our client’s resignation is immediate given our client cannot work and you have failed to provide her with work in any event. Our client’s last day of employment with the Company is the date of this letter.”
The letter then listed 6 reasons why Ms Lee said that she had been forced to resign, which were the events I have described above.
Relevant Law
The dictionary in section 12 of the Act defines ‘dismissed’ by reference to section 386,[2] which relevantly[3] provides:
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.
This matter is about whether Ms Lee’s resignation on 23 May 2024 was a dismissal within s 386(1)(b); that is, whether she was forced to resign by conduct, or a course of conduct, engaged in by her employer. In relation to this, the Full Bench in Bupa Aged Care v Tavassoli[4] has said
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 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.
Consideration
Ms Lee says that particular conduct of Pasta Group, as well as the course of the employer’s conduct, left her with no choice but to resign, being:
· Following her return from parental leave, she was not returned to her pre-parental leave job;
· Following her return from parental leave, she was not provided with an office, desk, computer or work to do;
· She was forced to work in extreme heat on 19 February 2024 and Mr Naldoni’s conduct towards her on this day was aggressive and intimidating;
· During a meeting on 20 February 2024 Mr Naldoni sexually harassed or humiliated her by saying that she had ‘the biggest cajones in the Company’;
· On 23 February 2024, Pasta Group victimised her by requiring her to attend a disciplinary meeting at which they issued her with a written warning; and
· Following her return from parental leave, she was treated poorly, marginalised and subjected to a hostile work environment
I find that much of what Ms Lee says she experienced did occur, but I do not consider that individually or together they demonstrate that Pasta Group engaged in the conduct with the intention of bringing Ms Lee’s employment to an end. Nor do I consider that termination was the probable result of Pasta Group’s conduct such that Ms Lee had no effective or real choice but to resign.
I am of the view that during the confrontation on 19 February 2024, both parties were equally culpable in the conflict and confrontation. It was appropriate for management to seek to ask Ms Lee about why she had left earlier on a prior occasion. While Mr Naldoni raised his voice when Ms Lee had also done so, it cannot be said that he questioned her or asked her to respect him with the intention of making her resign. Rather, as later demonstrated by the disciplinary meeting and letter, he was attempting to manage what he perceived to be inappropriate workplace behaviour.
In relation to the comment made on 20 February 2024, Mr Naldoni did apologise and attempt to explain himself to Ms Lee a few days later. The comment was not appropriate and the intended meaning could have been better expressed, but I do not find that Mr Naldoni made the comment with the intent of making Ms Lee resign. It was said in a meeting in which he was allocating duties among team members, when he had formed a view that Ms Lee would be able to handle difficult conversations with customers. It was said with an intent about what role Ms Lee could perform in the workplace, not with the intent that she should leave it.
In relation to the warning, I do not consider that this was victimisation. This is because the events did occur. It was not the case that the disciplinary action was taken without any justification. Ms Lee acknowledged that the credit card use had occurred, not through her misuse but that she had been the subject of fraud. This seemed to have been accepted by Mr Naldoni during the meeting but not later rectified. Ms Lee also acknowledged that it was appropriate for the employer to deal with her leaving the workplace and raising her voice at Mr Naldoni, despite disagreeing that a written warning was appropriate or proportionate.
It was the case that Pasta Group did not return Ms Lee to her pre-maternity role and that she may not have had duties to fill her days when she attended work. This seems to have come about from Mr Naldoni’s approach to management, which struck me as disorganised and distracted as he was otherwise busy. He also seemed to not want to deal with issues. This was demonstrated by his inaction after Ms Lee did not return to work after her medical certificate expired on 15 March 2024. Mr Naldoni simply did nothing, which was his earlier approach to how to find work for Ms Lee. However, this unsatisfactory behaviour was not intended to force Ms Lee to resign. Mr Naldoni made some attempts to find Ms Lee work – as demonstrated by the meeting on 20 February 2024 – and had a clear idea of the work Ms Lee could perform. It was work that Ms Lee did not want to perform, as she said she had no experience in it.
There is a gap in the chronology from 15 March to 23 May 2024, when Ms Lee resigned. Ms Lee says this was due to correspondence between her solicitor and Mr Naldoni trying to resolve the matter. None of this correspondence was put into evidence, so I cannot reach any conclusions about it.
While overall the employer’s conduct was unsatisfactory, I do not consider that individually or together it was conduct engaged in with the intention of forcing Ms Lee to resign, nor that it left Ms Lee with no choice but to resign. On 20 February 2024, Mr Naldoni provided information to Ms Lee about a role that she could perform. She was not interested in discussing it, because it was not her old job. Discussions were also not assisted by Mr Naldoni’s comment that offended Ms Lee. By the time Ms Parker left, Ms Lee had already formed the view that the employer was not going to offer her job back and so she did not take any steps to ensure that she could have the role that Ms Parker left (which was her former role).
This is a case in which the employer needed better human resources support. Given their size, Mr Naldoni needs much more support in his role managing team members, including obligations relating to the entitlements of part-time employees and of employees returning from parental leave. None of those failings however lead me to conclude that Ms Lee was forced to resign.
Conclusion and Order
I find that what brought about the end of the employment relationship was Ms Lee’s resignation through her solicitor’s letter to the employer on 23 May 2024. The resignation was not forced by the employer’s conduct or course of conduct. There is therefore no dismissal within the meaning of s 386 of the Act.
The Respondent’s jurisdictional objection is upheld.
I order that the application for the Commission to deal with a general protections dispute involving dismissal in matter number C2024/3897 under s 365 of the Fair Work Act 2009 filed by Ms Brittany Lee on 12 June 2024 be dismissed.
COMMISSIONER
Appearances:
B. Lee for herself
L. Naldoni for the Respondent
Hearing details:
Monday
7 October 2024
Via Microsoft Teams
[1] See Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68]
[2] While s 386 is contained within Part 3-2 of the Act, which relates to unfair dismissal, it has been applied by the Courts to Part 3-1 of the Act, which relates to general protections: see Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68]
[3] I have not included subsections (2) and (3), which relate to contracts for specified periods of time, tasks, season, training arrangements and demotions.
[4] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [47]
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