Ms Danielle Barclay v Nando's Springfield Lakes

[2013] FWC 2645

[2013] FWC 2645

FAIR WORK COMMISSION

DECISION

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

Ms Danielle Barclay
v
Nando's Springfield Lakes
(U2013/6394)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 28 MAY 2013

Summary: whether dismissed at the initiative of the employer - whether sexually harassed and bullied by manager - findings of credit - resignation at best precipitous.

[1] This is an application by Ms Danielle Leanne Barclay (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant seeks an unfair dismissal remedy in relation to her alleged dismissal by Nando’s Springfield Lakes (“the Respondent”).

[2] The Respondent claims that the Applicant resigned her employment on 1 February 2013 following 14 month service as an Assistant Manager at the Respondent’s place of business, and as a consequence there had been no dismissal that could be characterised under the Act as an unfair dismissal. At the time of her resignation the Applicant was nineteen years of age.

Legislative provisions

[3] The Act provides that a person who has been unfairly dismissed may seek a remedy under s.394 of the Act. Section 385 of the Act reads as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[4] Section 386 of the Act sets out the definition of ‘dismissed’, and reads 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

[...]

[5] An employee who has resigned his or her employment cannot be taken to have been dismissed for the purposes of s.385 of the Act.

[6] Here, however, the Applicant contends that her dismissal was consistent with s.386(1)(b) of the Act. That is, the Applicant does not oppose the claim that she resigned her employment but contends, rather, that she did not resign voluntarily but was forced to do so for reason of the conduct, or course of conduct, engaged in by the Respondent.

[7] A resignation in such a context is a dismissal for the purposes of s.386(1)(b) of the Act, which provides as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

[...] 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

[8] The verb that is used in s.386(1)(b) of the Act (“forced”) suggests that the employer’s course of conduct must have, in some manner, compelled the employee to have resigned their employment, such that the employee had no reasonable alternative choice but to resign from their employment.

[9] The Full Bench in O’Meara v Stanley Works Pty Ltd (“Re: O’Meara”) remains the relevant authority in this respect, despite it being decided under the Workplace Relations Act 1996 as it was prior to being amended by the Workplace Relations Amendment (Work Choices) Bill 2005.

[10] Specifically, the Full Bench decision in Re: O’Meara was based upon the legislation prior to the introduction of s.642(4) of the Workplace Relations Act 1996 in March 2006, and therefore before the current legislative provision under s.386(1)(b) of the Act. Although there are some differences between the relevant provisions of the Workplace Relations Act 1996 and the current Act, I do not think that these differences affect the relevance of the decision to the current provisions.

[11] In Re: O’Meara, the Full Bench stated relevantly as follows:

“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. 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.” [My emphasis].

[12] The circumstances relevant to this application are as follows.

[13] The Applicant claims that the course of conduct by the Respondent that forced her to resign constituted:

• Duties assignments for which she was not remunerated (such as opening the restaurant which took 1.5 hours each morning); and



• a period of sexual harassment and bullying (which appears to date from April 2012) by her co-worker and restaurant manager, Mr Parminder Singh, who is referred to as ‘Manu’. Manu had been the Respondent’s Store Manager since February 2011.

[14] Following a trip to the movies with another person, Manu is said to have commenced forwarding text messages to the Applicant of an inappropriate kind. He was also said to have “pestered her verbally” during work hours.

[15] Manu was said to have informed the Applicant of his sexual fetishes, despite her requesting that he not do so. He also was said to have sent texts of a sexual nature to the Applicant, to which the Applicant said she did not respond.

[16] On 1 July 2012 the Applicant could not attend work because she was “nauseous” at the thought of meeting Manu (though it is conceded the Applicant did not inform any one of her concern in this regard).

[17] The Applicant also claimed that Manu would taunt her because of a bladder condition which required uncommonly frequent visits to the rest rooms.

[18] On 8 October 2012 Manu was said to have sent a text message to the Applicant inserting a photo of two tortoises in a sexual encounter. The text was uninvited. Another similar text was sent to the Applicant on 22 October 2012.

[19] There was some texting banter between the Applicant and Manu in relation to some matters.

[20] Because Manu’s advances apparently were rejected, the Applicant claims he became hostile towards her, and did such things as insulting her in front of customers and accusing her of applying incorrect procedures when opening the restaurant in the mornings. The Applicant claimed she would apologise for her actions only to “restore peace”, but not as a concession that she was in error.

[21] Manu was also said to have begun (particularly from November 2012) to countermand the Applicant’s directions to staff and refuse to communicate with her when necessary. The Applicant also claims that Manu hid stock from her in the refrigerators in an attempt to make her responsible for a stock loss issue. The Applicant concedes this issue was never raised with Manu.

[22] On Boxing Day 2012, the Applicant racked chickens for roasting that were out of date. This was because Manu, so the Applicant claims, had failed to indicate by notation on the notice board that the chickens were not to be cooked the following day (when Manu had been responsible for closing the restaurant the previous day). When the error was revealed, the Applicant was held responsible. Manu thereafter required the Applicant to sell the chickens to the public, so it is claimed.

[23] The Applicant claimed that Manu maintained an aggressive attitude towards her across 28 and 29 December 2012.

[24] On 9 January 2013, the day on which the Applicant returned from a short period of leave, Manu was said to have continued a belligerent attitude towards her.

[25] The following day the Applicant approached the restaurant manager, Mr Rikesh Ram (whose wife owns the restaurant), to complain about Manu’s behaviour. The Applicant claims that once she stepped out her concerns Mr Ram “laughed in her face” and claimed that she had acted in a flirtatious manner and this was demonstrated by her body piercings and tattoos.

[26] The Applicant claimed that Mr Ram did not restrain Manu’s “objectionable behaviour” and that “he would do nothing [...] to help me out of my predicament”.

[27] The Applicant claims she pressed her claims (citing Manu’s alleged conduct as set out above) and indicated that Manu’s behaviour was having a detrimental effect upon her health.

[28] On 14 January 2013 Manu was said to have berated the Applicant for making complaints and noted that Mr Ram had been dismissive of her claims.

[29] On the evening of 14 January 2013 the Applicant claims to have telephoned Mr Ram and indicated that for “personal reasons” she would be unable to attend work the next day.

[30] On 15 January 2013 the Applicant obtained a medical certificate for two days off work owing to stress. A further medical certificate, which was given to the Respondent, was obtained on 17 January 2013 and stated that the Applicant was unfit for work owing to “stress leave”. It appears the Applicant subsequently provided a further medical certificate personally to Mr Ram stating she would be unfit for her ordinary duties for the period up to 27 January 2013.

[31] The Applicant attended a psychiatrist on 24 January 2013 who is said to have advised that she (the Applicant) “could not return to work” [...] “as her health could not take it”, and that her “bipolar disorder had flared into anxiety and depression”.

[32] The Applicant accepted the advice, she says, and did not return to work. The Applicant took the further step of resigning her employment on (and with effect from) 4 February 2013. She says she had “no option but to resign”.

[33] More specifically, the Applicant’s letter of resignation read relevantly as follows:

As a consequence of the discriminatory treatment and bullying I received from both Manu and Rick while at work I became too sick to continue work and I had to seek medical assistance from my doctor. This I did on 14th of January 2013. I was given sick leave by my doctor as a consequence.

As a result of management failure/refusal to deal with the problems I faced I was left no option but to resign from my employment at Nando’s effective immediately.

[34] The Applicant’s evidence under cross examination was that following being informed by her psychiatrist that she should not return to work she decided she would resign her employment. That decision seems to have been taken around the date of 24 January 2013. It appears that on 1 February 2013 the Applicant met with her legal adviser in this matter and drafted the letter of resignation cited above. The Applicant personally handed the letter of resignation in at her place of work subsequently.

[35] The Applicant also stated in her evidence that had Mr Ram:

“responded to his duties a[s] a manager he would have sorted the matter out and I would still be working there. He did not and I had to leave - I repeat - I had no option, I had been bullied into the situation”.

[36] The Respondent claims (unsurprisingly) to the contrary, and that the Applicant had no cause to resign her employment at all, given the manner in which her concerns were being addressed at the time.

[37] Some further background is needed.

[38] Mr Rikesh Venay Ram, who is referred to above, claimed that the Applicant approached him on 10 January 2013 and complained about Manu, to the effect that he (Manu) was discussing with other employees personal matters between the Applicant and himself. One example given by Mr Ram was that the Applicant was concerned that Manu had told others that he had sent the Applicant a love letter on her birthday, which made her feel uncomfortable. The Applicant confirmed that she had indeed first raised concerns about Manu on that date.

[39] Mr Ram contends that contrary to the claims of the Applicant she did not at any time inform him that Manu had described his sexual fetishes to her or that she was suffering “very serious levels of stress”.

[40] Mr Ram also claimed that at no stage in their conversation - which he claims lasted no more than 2 to 3 minutes - did he laugh at the Applicant or state to her that she was the cause of all the difficulties with Manu, let alone make any reference to her being flirtatious.

[41] Following the discussion with the Applicant on 10 January 2013, Mr Ram discussed the matters with various other staff members at staff meetings held across 11 January 2013.

[42] At one of those meetings, the Applicant (with two other staff in attendance) raised a number of specific concerns about Manu’s conduct. These concerns amounted to Manu:

• refusing to undertake his fair share of cleaning duties;



• displaying an aggressive and bullying attitude to some staff members;



• undermining the authority of senior staff and displaying favouritism; and



• failing to throw out chicken prior to Boxing Day, which led to the Applicant racking the chicken the following morning.

[43] The Applicant’s complaints as set out above were corroborated by Mr Nico Setiawan, an employee of the Respondent, who was in attendance at the meeting along with Ms Natalie Rawlings. Ms Rawlings gave evidence that at the meeting of 11 January 2013 that she recalled the Applicant stating that she was uncomfortable with the way Manu had been speaking to her, and that the Applicant had complained that Manu had not been undertaking his fair share of cleaning duties and had otherwise been bullying staff. Ms Rawlings also recalled a reference to an incident on Boxing Day concerning a failure to discard stock.

[44] Other than that, Ms Rawlings recalled mentioning to Mr Ram that Manu sometimes gave staff nicknames and that she thought that this might be bullying. Ms Rawlings, as did Mr Setiawan in his evidence, recalled that Mr Ram indicated that he would be investigating the concerns as raised and that this would include raising the complaint with Manu himself.

[45] Neither Ms Rawlings nor Mr Setiawan made any complaints about Manu’s conduct.

[46] Mr Ram subsequently advised the Applicant during the meeting, so he claimed, that he would be investigating her concerns that had been raised and would also pursue the matters with Manu.

[47] Mr Ram gave evidence that he subsequently met with other staff and raised the concerns to which he had been alerted by the Applicant. He was unable to identify any other members of staff who could corroborate any of the Applicant’s claims, or who would indicate that Manu had acted inappropriately towards them (such as bullying them). Over the course of the next weekend and the following Monday, Mr Ram obtained written statements from two other employees, Mr Jones and Mr Tung.

[48] Mr Ram thereafter took the step of ensuring there was separation between the Applicant and Manu because of the investigation he was carrying out. To this end he rostered Manu at a different store for a period of time.

[49] Mr Ram claims that he took steps to inform the Applicant before such time as she finished work on Monday, 14 January 2013 that he was continuing investigations as to her complaints and that he would be moving Manu to a different store whilst the investigation was completed. The steps however were frustrated for reason that the Applicant had left work by the time he arrived. He attempted to contact the Applicant by phone and subsequently received a voice message from her in reply (or else a telephone call directly) that she was going to be absent the following days owing to “personal reasons”, and would not return until 17 January 2013 (three days later).

[50] The Applicant did not ever return to work following that telephone communication. Some few days later, Mr Ram recalled that he received a medical certificate from the Applicant indicating that she was unfit to work from 18 January 2013 until 27 January 2013 as a consequence of “stress”. Mr Ram subsequently re-rostered the Applicant for a shift commencing 1 February 2013.

[51] When Mr Setiawan contacted the Applicant on 27 January 2013 to check that she would be presenting for work the next week the Applicant indicated to him that:

I can’t work because I am not feeling well because my bipolar has come back.

[52] Mr Ram was thereafter contacted by a person who he claims purported to be from the Fair Work Commission (the matter to which Ms Rawlings also gave evidence as she was the recipient of the phone call at first instance) seeking his full name and details of his address. In the week commencing 4 February 2013, a copy of the Applicant’s resignation letter was received, to which reference has been made above.

Consideration

[53] The evidence as to exactly the nature of the conversation between Mr Ram and the Applicant on 10 January 2013 is unclear. Mr Ram was of the view that only some matters of a personal nature were raised as set out above and most certainly no claims relating to Manu discussing his sexual fetishes in the workplace. But under cross-examination he also indicated that there was a discussion about Manu being argumentative. At other points Mr Ram appears to have confused claims put to him about bullying in the meeting of 10 January 2013 with those claims put to him in the staff meeting of the following day.

[54] While the Applicant contended in her written materials that she had “explained in detail” her concerns including those about sexual fetishes, under cross-examination she withdrew that claim and indicated that she had not mentioned anything of any detail in relation to sexual fetishes:

I told him something along those lines, but nothing in detail.

Wasn't it the case that you didn't mention anything at all about sexual fetishes?

---Once again, nothing in detail.

[55] I very much doubt on this evidence that the Applicant mentioned “sexual fetishes” at all.

[56] These matters aside, what is more conclusive however is that following his meeting with the Applicant, Mr Ram convened a meeting of available staff for the following day - 11 January 2013 - at which a range of issues about Manu’s conduct came to be raised by Ms Barclay (and others) and discussed to some degree. At the end of this meeting, on the evidence of Mr Setiawan, Mr Ram:

[...] advised Ms Barclay that he would investigate her complaints.

[57] Ms Rawlings also gave evidence that:

at the conclusion of the meeting on Friday, 11 January 2013, Mr Ram advised Ms Barclay and I that he would investigate [the] concerns. He advised us that he would raise the complaint with Mr Singh, that he would talk to Mr Singh about our concerns and to see whether Mr Singh had any issues.

[58] I have no reason to question the evidence of Mr Setiawan and Ms Rawlings. Their evidence was frankly and fluently given, and free of any suggestion of concoction or fabrication. They struck me as being witnesses of truth. Their evidence, which they each corroborated, was that Mr Ram had expressly undertaken to hold an investigation into Manu’s conduct. Their evidence is reliable.

[59] Thus, while there may be some argument as to what was said at the meeting of 10 January 2013 as to whether an investigation would follow, Mr Ram’s clear indication at the conclusion of the meeting of 11 January 2013 at which the Applicant had been in attendance and to which she had contributed, was that Mr Ram would investigate the matters raised.

[60] I must also conclude on the balance of probability that Mr Ram was honest in his evidence that he was motivated at the conclusion of the 10 January 2013 meeting to investigate the Applicant’s claims further. I come to this view because if Mr Ram had sought to conceal the Applicant’s concerns and ensure they had no public exposure, it would be most unlikely that he would have taken the step of convening on that very same day a meeting the very next day between staff, including the Applicant, and himself. This is not the conduct of a person who might seek to suppress various claims or who had no wish to see uncomfortable matters raised in public, and it would be counter intuitive to claim otherwise.

[61] Further, I do not accept the Applicant’s claims that Mr Ram dismissed her expression of various concerns (as they may have been) by laughing at her and referring to her flirtatious manner, tattoos and body piercings. Had he been so dismissive, he would not have reasonably engaged in subsequent steps to convene meetings with the staff and seek written statements (which were received on Monday 14 January 2013) about any issues they had about Manu’s conduct or behaviour. The evidence of Mr Setiawan and Ms Rawlings gives rise to no suggestion at all that Mr Ram was being deceptive in querying Manu’s conduct with them. In all, I cannot reconcile the characterisation of Mr Ram’s disposition towards her as alleged by the Applicant with his actual known conduct.

[62] I would go somewhat further in this particular case and state that having heard Mr Ram as a witness under cross examination and been exposed to his demeanour, manner of presentation and language conventions, I would be greatly surprised if his conversation on 10 January 2013 would have been diverted to such matters as tattoos and body piercings. And, as Mr Ram himself claimed, terms like being a “flirt” were not terms that would readily arise in his vocabulary. I would agree.

[63] I add that I have no reason not to believe Mr Ram’s evidence as put to me that as part of the investigation he intended to remove Manu from the workplace (and re-deploy him to another site for the duration). Mr Ram’s evidence in this regard was frankly given, free of any suggestion of being self-serving, and it went unchallenged in substance.

[64] It is the case here that the Applicant acted on the purported advice of a psychiatrist to not to return to work at the Respondent’s restaurant as her health “could not take it”.

[65] The Applicant, given her interpretation of this purported advice, thereafter resigned her employment, and complains now that that resignation came about because she had no reasonable choice but to do so (or that she was forced to resign owing to the course of conduct by her employer).

[66] I do not find that the Applicant was forced to resign her employment because of the Respondent’s conduct for two related reasons.

[67] The first reason is that the Applicant, having raised various concerns with the Respondent, was informed that the matter was to be investigated. This was a genuine intention by Mr Ram. His related steps included seeking information from staff about Manu’s conduct, and whether or not they had observed or experienced bullying or otherwise at his hands. They had not (apart from Mr Rawlings wondering whether any employees might have reacted to his use of ‘nick’ names).

[68] The resignation by the Applicant, at its very best, therefore was precipitous, as it occurred in advance of Mr Ram acting on her expressed concerns and intervening to manage her relationship with Manu.

[69] The Applicant always had another option. If she had continued to be unfit to perform her usual duties, she had no reason to return to work and may have continued to avail herself of a medical certificate from her treating medical practitioner or psychiatrist. She did not do so. Instead she resigned her employment.

[70] Further, there is nothing in the Applicant’s evidence that suggest that the psychiatrist advised her to resign her employment, only that she could not return to work. Consequently, there was no obligation on the Applicant to return to work when she was not fit to do so, but equally there was no force arising from the conduct of the Respondent for her to resign her employment.

[71] The statutory requirement under s.385(a) for the purpose of s.386(1)(b) of the Act is not made out. The Applicant was not dismissed in that she was forced to resign her employment owing to the course of conduct by her employer.

[72] The Applicant’s own evidence is that had Mr Ram performed his duties as a manager and acted on the concerns she had expressed she would have remained in employment. The Applicant so claimed in her witness statement:

Had he responded to his duties [as] a manager he would have sorted the matter out and I would still be working there. He did not and I had to leave [...]

[73] Much the same comment was made in the Applicant’s resignation letter in which she stated that because of “management failure/refusal to deal with the problems I faced I was left no option but to resign my employment [...].”

[74] My findings as set out above are that Mr Ram did indeed act to investigate the matter, and that in addition he took steps to provide separation between the Applicant and Manu by removing Manu to another store.

[75] In this latter regard, I note that during her cross examination the Applicant stated that when she attended the medical practitioner on 14 (or more likely 15) January 2013 she held the view at the time that she wanted nothing else other than to stay at work but to perform a different shift to Manu (or for Manu to be transferred to another store).

[76] On the Applicant’s own evidence therefore she was able to remain in her employment at 14 or 15 January 2013 as long as there was separation between her and Manu. That is the very course of action that Mr Ram embarked upon, although the Applicant had ceased to perform any duties by that time and was not aware and had sought no clarification from Mr Ram as to what actions he was taking in relation to the complaints she had raised. Again, this reinforces my finding that the Applicant acted precipitously in resigning her employment without further inquiry of Mr Ram after the meeting of 11 January 2013.

[77] Perhaps ideally, Mr Ram should have acted to cause the separation of Manu and the Applicant to commence from Monday 14 January 2013, and not thereafter. The fact that the Applicant was required to once again encounter Manu on that day no doubt caused her concern (as Manu had been in an argumentative mood, she claimed). Mr Ram appears, for his part, to have used this day to conclude receipt of written statements from other staff, and missed contacting the Applicant personally by a few minutes at the end of her shift around 2.00pm that day. But this alone does not shift me from the view that the Applicant’s resignation was precipitous for the reasons given above.

[78] Further, as I have mentioned above, it was the Applicant’s interpretation of her psychiatrist’s advice that caused her to resign her employment, not the course of conduct or otherwise of the Respondent (or more particularly Mr Ram). Up until the point in time when the Applicant received her psychiatrist’s advice she had reached no such conclusive state of mind and intended to return to work under certain conditions (see paragraphs 75-76 above).

[79] For these reasons, I do not find that the Applicant was forced to resign her employment because of the conduct or course of conduct by the Respondent.

[80] Again, therefore, the statutory requirement under s.385(a) for the purpose of s.386(1)(b) of the Act is not made out. The Applicant was not dismissed in that she was forced to resign her employment owing to the conduct or course of conduct of her employer.

Conclusion

[81] For the above reasons, the application under s.394 of the Act is dismissed because the Applicant was not a person who had been dismissed at the initiative of her employer for the purposes of s.385(1)(a) of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S. Alexander, for the Applicant

Mr J. Merrell, of Counsel, for the Respondent

Hearing details:

Brisbane

2013

23 May

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