Ms Catarina Reale v Helloworld Ltd T/A Qantas Holidays and Viva Holidays Ltd

[2015] FWC 7122

[2015] FWC 7122

FAIR WORK COMMISSION

DECISION

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

Ms Catarina Reale
v
Helloworld Ltd T/A Qantas Holidays and Viva Holidays Ltd
(U2015/6349)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 15 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mrs Catarina Reale (the Applicant) made an application to the Fair Work Commission for an unfair dismissal remedy on 7 July 2015, in relation to the termination of her employment by Helloworld Ltd t/a Qantas Holidays and Vivs Holidays Ltd (Helloworld, the Respondent) on 17 June 2015. A Hearing was conducted on 15 October 2015. The Applicant was self-represented and Helloworld was represented by Mr Colin Hamilton (General Manager Human Resources).

[2] I gave my decision on transcrip at the conclusion of the hearing. This is an edited version of that decision.

[3] The primary issue I need to determine is whether the applicant (Ms Reale) was dismissed by the respondent (Helloworld Ltd) or whether she resigned her employment.

[4] Most of the key facts are not in dispute. The applicant commenced employment with the respondent’s predecessor on 15 June 2000. On 4 February 2008 she took up the position of Sales Executive NSW (now called Business Development Manager). It is not in dispute that she was employed at this stage as a full-time employee. She held this position until she left for maternity leave on 4 February 2011. The applicant then took several contiguous periods of maternity leave. She planned to return from maternity leave in June 2015, at which point she had three small children, the oldest being three years and two months old.

[5] In April 2015 the applicant indicated to Ms Dalton (Manager National Industry Sales) that she was not able ‘to commit to full-time work at the present time.’ She added

‘I would ideally like an opportunity to trial a temporary part-time role, in my current position or alternatively (if this is impossible) I would like to have the opportunity to find another role within the company with a goal to return to full-time work within a year.’ 1

[6] In May Ms Dalton responded to the applicant’s request for part-time work. She wrote wrote:

‘Regrettably, despite our best endeavours, we have been unable to source any part-time positions within wholesale at this time to offer you for consideration. The reason for this is that the size of the business has reduced substantially over the last 5 years and in line with this all departments have also reduced their headcount since you were working with us full time prior to 2011. Consequently the opportunity to offer part-time work roles has substantially decreased.’ 2

[7] Further interchanges took place between the applicant and the respondent. The applicant drew the respondent’s attention to the enterprise agreement that covered her employment. This agreement includes a provision that provides an employee who is entitled to parental leave to request the employer to return from a period of parental leave on a part-time basis until the child reaches school age. The agreement states that:

‘The employer shall consider the request having regard to the employee’s circumstances and, provided the request is genuinely based on the employee’s parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or the employer’s business. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.’ 3

[8] On 28 May Ms Dalton again wrote to the applicant. This included the following;

‘… unfortunately the business is unable to accommodate this request in your current role, or in any alternate roles of comparable skill and salary. Please know we have considered your request carefully and the business is unable to facilitate your request for part-time work as we will be unable to maintain the necessary service standards and expectations within the Sales Division. I appreciate that you are a long-standing employee of the business and that you bring a wealth of knowledge to the team, however notwithstanding our efforts, no part-time roles of a similar level are currently available. I am able to confirm that your pre-parental leave role of Sales Executive, now renamed Business Development Executive, is available for you to re-commence in a full time capacity. Whilst I acknowledge that you have provided the business with adequate notice of your return from parental leave, we believe that we have given you sufficient time to consider your options on returning to the role on a full time basis.’ 4

[9] The applicant was then asked formally to confirm her return to work. Some further interchanges occurred during which the respondent refused a request from the applicant to extend her parental leave. She was then advised on 15 June 2015 that she had two options:

● accept the full-time position of Business Development Executive commencing on 22 June 2015; or

● resign from her position by providing written notice prior to close of business Wednesday, 17 June 2015.

[10] During the hearing, Mr Hamilton, the respondent’s General Manager, Human Resources, gave further evidence concerning the respondent’s business reasons for declining the applicant’s request for part time work.

[11] In short, the Business Development Executive provides support to a network of travel agents. Feedback had been given by travel agents that there was a need for the Business Development Executive to be available on a full time basis.

[12] I am satisfied, based on Mr Hamilton’s evidence, that the respondent had reasonable business grounds for refusing the applicant’s request for part time work.

[13] On 17 June 2015 the applicant responded to this email and stated:

‘I wish to inform you that I unwillingly resign from my position, as my request for flexible work arrangements has been rejected. I do not want to resign; I reiterate this is a decision that has been forced upon me.’ 5

[14] Under section 386 (1) (b) of the Fair Work Act a person has been dismissed if:

‘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.’

[15] There are a number of authorities on what constitutes forced resignation, including Mohazab v Dick Smith Electronics 6, Australian Hearing v Peary7 and O’Meara v Stanley Works Pty Ltd8. I have had regard to those authorities. These, inter alia establish that a forced resignation is when an employee has no real choice but to resign, the onus is on the employee to prove that the employer forced their resignation, and the employer must take action with the intent to bring the relationship to an end or that has that probable result.

[16] I can certainly sympathise with the applicant’s circumstances and I can readily appreciate that she felt she had no choice but to resign rather than return to work on a full time basis. However, given my finding that the respondent had reasonable business grounds for its refusal to convert her employment to part time, I am not satisfied that it was the action of the respondent – rather than her personal circumstances - that forced her to resign.

[17] I find that the applicant was not dismissed. It follows that I must dismiss her application for an unfair dismissal remedy.

SENIOR DEPUTY PRESIDENT

Appearances:

Mrs C Reale - Applicant

Mr C Hamilton – for the Respondent

Hearing details:

Sydney

2015

15 October

 1 R1 - paragraph 7

 2   Ibid – paragraph 9

 3   Australian Services Union (Qantas Holidays Limited) Agreement 1- subclause 43.5.2

 4 R1 – paragraph 12

 5   Ibid – paragraph 19

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

 7   Australian Hearing v Peary (2009) 185 IR 359, 367 [30].

 8   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23].

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