Ms Erlinda Belbin v Ibis Style Cairns Colonial Club and Resort

[2014] FWC 1754

[2014] FWC 1754

FAIR WORK COMMISSION

DECISION

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

Ms Erlinda Belbin
v
IBIS Style Cairns Colonial Club and Resort
(U2013/15219)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 19 MARCH 2014

Summary: whether dismissal harsh, unjust or unreasonable - whether applicant resigned her employment or was forced to resign - claim the Applicant was forced to resign by manager - evidence.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (“the Act”) by Ms Erlinda Castillo (“the Applicant”) who is seeking a remedy in relation to her alleged dismissal by IBIS Cairns Colonial Club and Resort (“the employer”) on 16 October 2013.

[2] The application was subject to a jurisdictional objection. The employer contended that the Applicant had not met the condition necessary for her application to be heard. That is, the Applicant had not been dismissed at the initiative of her employer for the purposes of s.386 of the Act (which is set out below), but had resigned of her own volition.

Background and claims

[3] The evidence in this matter diverged sharply, as will be evident below.

[4] The Applicant claims that in August 2013 she informed her supervisor that she was becoming ill (with flu like symptoms) as a result of cleaning chemicals utilised by her in the course of her cleaning duties (in her role as a housekeeper/room attendant). The Applicant had performed these duties as a permanent part-time employee for some 11 months prior to her alleged dismissal.

[5] The Applicant appears to have been employed since 22 November 2012.

[6] The Applicant discussed the circumstances with her employer’s Human Resources Manager, Mr Ian Turnbull. The Applicant claims to have asked Mr Turnbull if she could be moved to a different department of the hotel which would permit her to perform duties of a different kind and away from the chemicals used in the cleaning roles.

[7] The Applicant argues that on 16 October 2013 she saw Mr Turnbull at a time when she was experiencing flu-like symptoms. Mr Turnbull informed the Applicant, so she claims, that even if she was moved into the kitchen to perform duties as a kitchen hand she would still be exposed to chemicals, and that this was not an option. There was no job, so the Applicant claims Mr Turnbull informed her, in either the laundry or in the restaurant. The Applicant claims that Mr Turnbull then advised her that she needed to resign because she was sick and could not carry out her normal duties. The Applicant was also asked to go home.

[8] The Applicant duly resigned and did so because, as she said, she was confused about her rights and otherwise was in an invidious position because English was her second language. The Applicant is Filipino in origin, and has been in Australia since 1983.

[9] The Applicant affirms that she resigned her employment in writing on 17 October 2013 (the day after her meeting with Mr Turnbull) but did so at Mr Turnbull’s request. She claims that she had no choice but to resign in the circumstances. Her resignation was therefore effectively a dismissal as it was consequential of the conduct of her employer in failing to provide a safe workplace and not assisting her by moving her into another area of the business where she could safely perform her duties.

[10] The Applicant had also sought access to a face mask and any other PPE to assist in the performance of her duties. But she claimed that Mr Turnbull refused this request (by not responding to her).

[11] The Applicant claims that she had brought her state of health (arising from her exposure to cleaning chemicals) to her supervisor’s attention on 6 and 7 July 2013. The Applicant claims that she explained that she was increasingly unwell but that that her employer had not responded constructively to her plight. Indeed, the Applicant claimed that on 16 October 2013, the day of her alleged dismissal, she provided her employer with a medical certificate which she claimed established that a blood test had confirmed that she had an allergic reaction to the chemicals to which she was exposed in the course of her duties. The Applicant claims that her employer was “too busy” to acknowledge that medical certificate.

[12] The Applicant also made claims that she had injured her back some two months previously and that her employer had informed her that she could not go back to work because she was injured.

[13] The employer for its part challenged the Applicant’s version of events.

[14] The employer (through the evidence of Mr Turnbull) contended that it had no notice from the Applicant that chemicals were the cause of her health difficulties until 6 October 2013. Indeed, the employer contends that whilst the Applicant claimed that she was ill over a two month period and that she had notified her employer, in actuality it has no record of any such notification until 6 October 2013. It appears as though Mr Turnbull was alerted to the Applicant’s concerns on 6 October 2013 by Conie Collyer, the Housekeeping Team Leader who gave evidence in these proceedings, being that the Applicant had complained to her that she was having allergic reactions to the cleaning chemicals, particularly referring to a deodoriser and the bathroom cleaning spray.

[15] Mr Turnbull claims that the Applicant notified the housekeeping department on 5 October 2013 that she was unable to attend her shift on 6 October 2013 because of an allergic reaction to one of the chemicals that she was using.

[16] On the morning of 11 October 2013, it appears the Applicant raised the issue again with the housekeeping department about her allergic reaction to chemicals. The Applicant appears to have been informed at that stage (by Ms Karen Johns, the Housekeeping Supervisor) that she would have to wear a mask in order to reduce the risk of ingesting any chemicals. The Applicant, according to Ms Johns, was said to have explained that she considered this to be impracticable because it would be far too hot and uncomfortable for her. She mentioned, it appears, that she would like to work somewhere else other than in housekeeping.

[17] Ms Johns’ further viva voce evidence was that masks and other PPE were generally available for cleaning staff and for particular use in enclosed bathroom areas. The use of such masks is advised at inductions. Ms Johns also gave evidence of an employee who uses such PPE in carrying out duties in the public areas of the resort, to stress the currency of the advice.

[18] The employer pointed out that on 1 August 2013 it had conducted training in relation to chemical handling and safety. The Applicant had attended that training session. The training session had been conducted by the employer following a chemical product change over.

[19] The Applicant e-mailed her letter of resignation to Mr Turnbull on 17 October 2013. The cover note to the e-mail read:

Hi Ian,

How are you?

Kindly find attachment a resignation letter from me.

Thanks once again.

Yours sincerely [etc].

[20] The letter of resignation was a lengthy letter. It read relevantly as follows:

As per as with our conversation last week regarding my job as a room attendant at Cairns Colonial Club and Resort, I am likeable to proceed of not continuing my duty\task in the Housekeeping department anymore simply because of my health condition.

I had been rendering my effort and services in the accommodation area of services in the past 12 months this year as a housekeeper for they Guest Room.

Unfortunately, my body developed of non-stop of muscle strain or backbone aching also of non-stop dry coughing due to the nature of work.

I actually, not an accustomed of any housekeeping chemical rooms application as I have a very sensitive sense of smell that would make me feeling ill all day after a clean the room.

Therefore, I have to make this letter of resignation as to prove that the job is no longer my likes in the Housekeeping department into the area of Accommodation Services dated 16th of October 2013.

Thank you for hiring me to get into the team of Housekeeping section and also being a good employer- IBIS Colonial Club I gained more knowledge, skills and experience working in the Housekeeping Department.

By giving me a such a wonderful opportunity for a year period of time I am experiencing the good also bad time in the Hotel is in a high occupancy however I do enjoy though with the job my main source of income also been with they people and co-worker staff, it would make me feel so welcoming and enjoyable with their companies particularly in the dining room also storage area and during the free lunch time during the staff award.

Once again, thank you my dear Ian the giving me such an awesome opportunity for joining the Housekeeping department in Cairns Colonial Club and Resort here in our tropical Cairns region.

Yours sincerely [etc] (sic)

[21] Mr Turnbull said the resignation letter arose because the Applicant approached him on 16 October 2013 and advised her that housekeeping was getting too hot and heavy for her. Mr Turnbull claims that the Applicant advised her that she had a friend who worked in food preparation at the airport and that she (the Applicant) wanted to apply for a position there with her friend. Mr Turnbull claimed that the Applicant sought his assistance to act as a referee so that she might obtain that position. The Applicant did not deny she had said as much, but claimed she was talking only about a “hypothetical” circumstance, and she had accepted no job at the time.

[22] Mr Turnbull claimed that he advised the Applicant to go and see a doctor to determine what was making her ill before she made any decisions about her career. This was because, Mr Turnbull says, she may encounter the same chemicals at the airport.

[23] Mr Turnbull claimed that no mention was made by the Applicant of the availability (or otherwise) of PPE, despite the Applicant’s claims as set out above. Mr Turnbull also strongly denied the Applicant’s claims that he had denied her access to any PPE.

[24] Mr Turnbull claimed the Applicant instigated the resignation letter entirely at her own initiative. Mr Turnbull claimed that as the Human Resource Manager for the resort, he was fully aware of the procedures involved in the termination of employment and that the Applicant had done nothing wrong. He was therefore surprised, so he claimed, to receive the Applicant’s letter of resignation the day following the meeting.

[25] Mr Turnbull claimed that the Applicant had not handed in any medical certificates on 16 October 2013 as she claimed. The medical certificates and pathology result tests that were provided to the employer were dated after 16 October 2013.

[26] Following the cessation of her employment, the Applicant subsequently filed WorkCover claims in relation to her employment with the employer.

[27] Mr Turnbull claimed that the Applicant’s employment assistance adviser asked her to acquire a separation certificate in order to access Centrelink payments, and that that may have been the Applicant’s motivation to resign her employment. Mr Turnbull submitted that the Applicant had a change of heart when she realised her resignation caused difficulties in accessing Centrelink payments.

Was the Applicant dismissed within the meaning of the Act?

[28] Section 385 of the Act provides as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed

[...]

[29] Section 386 of the Act provides 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.

(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.

[30] In giving effect to the Act, following the approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd 1 in my view remains a useful guide, despite it being made under the previous legislation:

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee”

[31] It is not just the principles espoused in Pawel v Advanced Precast 2 that are applicable here. The facts of the case are also instructive to some measure as they bear on circumstances in which an employee resigned on the basis of health and safety concerns:

[9] We turn then to determine the appeal. [...] This involves the determination of whether the appellant's employment was terminated by the employer. It was not contended before Simmonds C that there was any direct termination of the employment by the employer. Rather, it was submitted there was "a constructive dismissal occasioned by the requirement that Mr Pawel undertake welding duties with such duties being a threat to his health". Simmonds C summarised the appellant's case as follows:

" In summary, the applicant's case was that he originally sought and obtained employment in October 1995 with the company as a concreter, however on engagement he was to carry out welding of steel reinforcement on a backup basis. Prior to commencement he had undertaken a medical examination which indicated a weakness with his left eye. In the course of his employment he indicated he did not wish to continue in a welding position because of that eye problem and the potential for damage to his right eye. He continued in the welding position until some weeks before the employment terminated, when he was transferred to steel fixing. Possibly as a consequence of perceived poor performance, but primarily because the `full-time' welder successfully sought and obtained a temporary transfer to other duties, he was transferred to welding duties again. This decision was conveyed to him by the Factory Manager on 1 October 1997. There is dispute as to whether he was told this was a temporary or permanent transfer. He believed it to be permanent. On the next day, when specifically required to weld, he claimed to become nervous at the prospect, found he could not concentrate, went to his foreman and said:

`"Look, I can't take this. I'm just stressing out. I'm going to have to go and - look, I'm going to have to give notice. I just can't cope with this anymore." I indicated that I was going to go to the doctor's because I was - like I say, I was shaking, I was in a hell of a lot of stress.' [Transcript p.22]" [Print Q1099 p.1]

[32] Applying the principles above to the stated facts, the Full Bench found as follows:

“In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.

In those circumstances the employer's requirement that the appellant carry out welding duties was plainly a reasonable instruction and it was not an instruction of a character which in our view would enable the appellant to say that he had no option but to terminate his employment. In our view, different considerations would arise if the instruction was unreasonable or had placed the employee under some sort of unfair pressure. This is not the case here. Accordingly, we are of the view that there was no termination of employment at the initiative of the employer. The appellant knew of the requirement to weld and chose to leave the employment rather than weld.”

Consideration

[33] The Applicant claims that she was directed to resign her employment and did so from a vulnerable position. But the evidence does not bear this out.

[34] The Applicant’s case was unsound at various points. For example, she gave evidence in her written materials that she provided Mr Turnbull with a medical certificate on 16 October 2013, the day on which Mr Turnbull was said to have directed her to resign her employment.

[35] There is no evidence to bear this out. The Applicant was notified of her pathology results on 18 October 2013.

[36] The Applicant claims to have put her employer on notice for some two months that her health had been affected owing to the use of chemicals. But there is no evidence of this. The employer’s evidence is that the Applicant’s concerns about chemicals first came to its attention on 6 October 2013.

[37] But much more importantly than these matters for my ultimate finding was that the Applicant and Mr Turnbull provided sharply contrasting constructions of the conversation of 16 October 2013. The Applicant claimed Mr Turnbull directed her to resign her position and told her that that no other positions were available for her, and he denied access to any PPE. Mr Turnbull, in summary, states that the conversation in actuality concerned the Applicant’s desire to obtain alternative employment and a request that he provide her with support as a referee to that end.

[38] Mr Turnbull also claimed that he suggested to the Applicant that before she made any decisions in that respect she should seek medical advice on the causes of her allergies.

[39] On balance, I am inclined strongly to accept the evidence of Mr Turnbull in these respects.

[40] The Applicant claimed in her viva voce that she sought out Mr Turnbull (on what appears to be the morning of 16 October 2013) and did so with the intent of ensuring that she would not lose her job, which was very important to her.

[41] At first instance, it is difficult to see why the Applicant held that view at this point in time in any event. Her employment was not under threat. Nothing had been sent to the Applicant that could cause her to have reasonably assumed that her job was in jeopardy. The Applicant makes no claim that she had been threatened with dismissal in some manner by her employer prior to 16 October 2013.

[42] In any event, having instigated the meeting in order to defend her employment position (for whatever reason) the Applicant nonetheless claimed that she accepted Mr Turnbull’s instruction to resign her employment, and did so without reaction at the time and without rancour or protest. But thereafter, the Applicant claimed - in her viva voce evidence - she cried when she returned home because she did not wish to leave her job. Yet later that night she wrote her resignation letter, which I have set out largely in full above, which is positive, if not glowing, in its tone in relation to Mr Turnbull and the circumstances of the resignation.

[43] There is no continuity in the Applicant’s emotional representation of her experience and the genuineness of her narrative suffers as a consequence.

[44] I also found there were other discontinuities in the Applicant’s evidence. While it was not raised in her witness material, the Applicant conceded when under examination that she had asked Mr Turnbull in the course of the meeting on 16 October 2013 to act as a referee should she be able to obtain employment at the airport in the kitchen section. It appears to me that making this request of Mr Turnbull was somewhat at odds with the Applicant’s claim that she instigated the meeting with Mr Turnbull to ensure that she would not lose her job.

[45] I have also had regard to the content of the Applicant’s resignation letter as set out above. That letter makes no allusion to Mr Turnbull having directed the Applicant to resign. Instead, if anything, it alludes to the contrary: the Applicant resigned at her own initiative because of certain discomfitures.

[46] Having heard the Applicant’s evidence, and considering the circumstances, I do not believe that the Applicant’s construction of the conversation with Mr Turnbull is truthful.

[47] I have further reason for so concluding. The Applicant claimed that Mr Turnbull refused her access to PPE in the meeting of 16 October 2013. Ms Johns’ evidence was that the use of PPP was prevalent on the site and was freely available. Indeed, she expected that her housekeeping staff would use masks when cleaning bathrooms (which are confined areas). I see no reason whatsoever why Mr Turnbull would have refused the Applicant access to PPE in such circumstances. Ms Johns’ evidence was given in a matter of fact manner and she was otherwise a disinterested witness in my view.

[48] Further, I found Mr Turnbull’s evidence to be frank, confidently given and he provided a continuous narrative that meshed logically with the timeframe of the various advices he had obtained from his staff and with the medical certificates provided by the Applicant. There were no discontinuities in his representation of the exchanges that occurred between himself and the Applicant.

[49] There was no basis on which I could discern that Mr Turnbull had a reason to adopt an adverse view of the Applicant such that he would cause her to resign her position. Mr Turnbull reasonably understood the implications of such conduct. There was no objective medical evidence before him that suggested the Applicant in some way was being affected by cleaning chemicals used at the resort and the entirety of the matter had not escalated to any point which would reasonably cause Mr Turnbull to immediately seek the Applicant’s resignation even if he had been so disposed (which I have found him not to be).

[50] I note too that the Applicant agreed that she had raised the prospect of seeking alternative employment and had sought Mr Turnbull’s support as a referee. This suggests that the Applicant had in mind a change in her employment circumstances.

[51] I have no reason, therefore, to doubt Mr Turnbull’s construction of the conversation with the Applicant on 16 October 2013.

Conclusion

[52] This is not a case in which the Applicant was asked to resign, let alone to resign or be dismissed. Nor was it a case in which the Applicant was given an unreasonable direction (which might constitute a relevant ‘course of conduct’ for the Act’s purposes) to perform duties irrespective of the impact of those duties on her health and well being.

[53] The Applicant took it upon herself to elect a course of action that was a result of her own deliberate and conscious decision-making. There was no conduct (let alone a course of conduct) by the employer that caused the Applicant to resign her employment or which left the Applicant with no choice but to resign her employment.

[54] What the Applicant’s goal may have been in the end in electing to resign in the manner she did is a matter for her, and there is no requirement for me to speculate, as Mr Turnbull did so.

[55] Because I have found as I have, the Applicant is not a person who has been dismissed from her employment for purposes of s.385 of the Act. As such she is not a person who is capable of making an application for unfair dismissal remedy. The application made on 23 October 2013 is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms E. Belbin, Applicant

Mr I. Turnbull, of the Respondent

Hearing details:

By telephone

2014

12 March

 1  PR973462 [2006] AIRC 496 (11 August 2006).

 2 1106/98 M Print Q5689 [1998] AIRC 643 (21 May 1998).

Printed by authority of the Commonwealth Government Printer

<Price code C, PR548654>