Ms Leanne Osborne v B & P Prestige Vehicles Pty Ltd T/A Geelong Chrysler Jeep

[2015] FWC 3088

[2015] FWC 3088

FAIR WORK COMMISSION

DECISION

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

Ms Leanne Osborne
v
B & P Prestige Vehicles Pty Ltd T/A Geelong Chrysler Jeep
(U2015/2529)

COMMISSIONER WILSON MELBOURNE, 5 MAY 2015

Application for Unfair Dismissal Remedy; whether application made within time allowed; date of dismissal; whether dismissal or forced resignation.

[1] This matter concerns an application by Leanne Osborne for an unfair dismissal remedy against her former employer B & P Prestige Vehicles Pty Ltd T/A Geelong Chrysler Jeep (“Geelong Chrysler Jeep”) and three jurisdictional objections which have been taken against her application by her former employer.

[2] The jurisdictional objections are;

● Firstly, that Ms Osborne was not dismissed and that instead she resigned her employment, meaning that her application does not satisfy the meaning of “dismissed” within s.386 of the Fair Work Act 2009 (the Act); and

● Secondly, that if she was dismissed, it was on 30 December 2014, with the implication being that her unfair dismissal application is out of time. Since Ms Osborne’s application was received by the Fair Work Commission no earlier than 22 January 2015, a dismissal on 30 December 2014 would mean that her application was made outside of the time allowed for in s.394(2) of the Act which requires applications to be made within 21 days after the dismissal took effect, subject to any allowance by the Fair Work Commission for a further period for the making of an application; and

● Thirdly, that if there was a dismissal, and that date was in the alternative deemed to be on 7 January 2015, then since Ms Osborne had, in the first instance, filed an incomplete application form, the date on which the application was made, for the purposes of s.394(2) of the Act, is 2 February 2015, when a complete form was filed, with the result that the application was still out of time.

[3] The material to which I have regard includes the oral evidence of Ms Osborne and Mr Sean Blood, the Respondent’s Dealer Principal, and documents filed by both parties including the Form F2 application form, the Form F3 employer response form and various submissions from each party.

WHEN WAS THE APPLICATION MADE?

[4] I deal firstly with the issues of fact surrounding the commencement of Ms Osborne’s application.

[5] Ms Osborne’s original Form F2 was received in the Fair Work Commission (FWC) on 22 January 2015, and it is date stamped to that effect by the Commission registry. The original application was not signed and was missing page 3. This fact was pointed out to Ms Osborne by a staff member of the Fair Work Commission and she was invited to rectify the problem, in accordance with usual practice.

[6] An amended Form F2 was submitted by Ms Osborne rectifying the original problems. The date of filing of the amended form is 2 February 2015.

[7] I note that the Fair Work Commission Rules 2013 (the Rules) provide that applications must be signed (Rule 17) and that s.395 of the Act requires the payment of an application fee prescribed by the Fair Work Regulations 2009. Neither was done by the Applicant in the first instance. After communication by the FWC staff, the Applicant submitted a signed form, which as referred to above was done on 2 February 2015. A decision of the Delegate waiving payment of the application fee was given on 28 January 2015.

[8] There being no evidence to suggest the Applicant had refused the requests of the FWC staff in these regards, I am satisfied it is appropriate to waive compliance with the Rules, and now do so if, and to the extent it is necessary to do so in order to treat Ms Osborne’s application as having been made on 22 January 2015, being the first date on which an unfair dismissal document was received from her.

[9] The Commission has previously rejected a narrow construal of the Act that would have required people making applications by telephone to also have filed a completed form within the time period specified in the Act, finding that “construing s.394 of the Act so as to require a completed application within 14 days [as the Act provided at the time] would not facilitate informality and flexibility and would operate unfairly as against Applicants.” 1

[10] I find similarly, and in particular, that Ms Osborne’s application to the Fair Work Commission was made on 22 January 2015.

BACKGROUND TO THE APPLICATION

[11] Ms Osborne was employed by Geelong Chrysler Jeep on 19 November 2013 and is presently 46 years of age. Her employment was initially as a clerical officer in a reception and administration role. 2 It is agreed that her employment was also subject to a modern award, being the Vehicle Manufacturing, Repair, Services and Retail Award 20103.

[12] Geelong Chrysler Jeep was not a small business within the meaning of the Act at the time Ms Osborne left its employ, which was between 13 and 14 months after she commenced employment.

[13] Accordingly, for the purposes of s.382 of the Act, Ms Osborne was a person protected from unfair dismissal person. Relevantly, she has completed the minimum employment period; and her employment was covered by a modern award.

[14] In March 2014 Ms Osborne moved from the original receptionist and administration role to a role as “business manager”. Her evidence is that she knew and accepted her role would change in this way over time from the commencement of her employment. When she moved into the role of business manager she received a pay rise in the form of a car allowance and by being eligible to receive commissions from the sale of finance and insurance products. The Respondent’s submissions about the new role included that Ms Osborne was to work a five day week between Monday and Friday and that her hours work were mutually agreed to be 8:30 AM to 5:30 PM Monday to Friday. 4

[15] In mid-2014 a dispute arose between Ms Osborne and the General Manager, Mr Todd Sainty. The dispute came about because she would now be expected to work on Saturdays and such expectation had not previously been a feature of her employment obligations. 5 For the reason that she was concerned about this change and what it meant for her, she requested details as well as a new contract “to reflect my current role, description, packages commission structure, remuneration etc”.6 It took until 20 November 2014 for her to receive a draft contract that dealt with those matters. When the new contract was provided to Ms Osborne it showed that hours of work would be worked over Monday to Friday and Saturday.

[16] Ms Osborne responded to Mr Sainty on 27 November 2014 identifying that the draft as provided disadvantaged her in several respects; financially; the hours and days to be worked; and that, in her view, additional hours were to be worked without remuneration. 7 She identified the matters to Mr Sainty and declined to sign the contract.

[17] The employer’s expectation that she work on Saturday was plainly a sticking point between the parties.

[18] Ms Osborne was also concerned about a letter she had received from the company regarding its approach to the taking of rostered days off, sick leave and annual leave. The letter is dated 30 October 2014 and states;

“Attention all Sales Staff

Geelong Chrysler Jeep- Rostered Day Off/Sick Leave/Annual leave Policy

With effect immediately the following is to apply:

1. If a sick day is taken prior to your RDO that week then the sick day is counted as your RDO. (Still work a 5 day week)

2. If a sick day is taken after your RDO that week then the sick day is counted as your RDO for the following week. (Still working 10 days that fortnight)

3. If 2 or more sick days are taken then you will be required to work a full week including a Saturday prior to being granted a RDO. (ie. You have Mon to Wed as sick days, you will work the rest of that week and also the Mon to Sat the following week prior to a RDO the next week)

4. A Doctors certificate for time off work is required for all sick days with the exception of circumstance outlined in paragraph 1.

5. When returning from annual leave of 2 days or more you are required to work a Saturday prior to having a RDO.

6. If there is a public holiday and we are closed, this is to count as your RDO for that week, if we are to open on the public holiday then you are still entitled to a RDO but not both.” 8

[19] Ms Osborne declined to sign the letter.

[20] Ms Osborne’s evidence is that she worked Saturdays as requested and took the Monday off so that she was able to work a five day week. 9

[21] In relation to the all the matters between them, and particularly about why she was unwilling to work on Saturdays, Ms Osborne wrote;

“Please call me urgently to arrange a suitable time for both of us to discuss a mutually agreeable outcome that will not place me in a disadvantaged position from my current contract, nor cause the Dealership any disruptions from the current hours I am working. I am currently working outside and have been for quite some time (August 2014) the normal hours stated in my current contract, without any additional remuneration with respect to penalty rates. This is costing me money for the ongoing care of my daughter for attending work on Saturday, which was imposed on me without discussion merely being told it was expected.” 10

[22] Mr Blood gave evidence in the hearing on behalf of the Respondent. Overall, the Respondent’s position about work on Saturdays is that it was essential for a business of the motor vehicle dealership. Mr Blood’s evidence and the documents before the Commission make it clear that the company saw availability for work on Saturdays as a non-negotiable issue.

[23] The dispute between the parties escalated significantly toward the end of 2014, and attached to Ms Osborne’s application for unfair dismissal remedy are numerous emails on the subject, although I note that many of them are only partly reproduced and so the extent to which they can be relied upon is open to question.

[24] On 23 December 2014, Ms Osborne notified Mr Blood by email that she would not be signing the contract and would continue on with the role as Business Manager. 11 The next day, 24 December 2014, there are several very pointed emails from Mr Blood to Ms Osborne, including two at 11:16 AM and 3:04 PM. The emails refer to the non-negotiability of working on Saturday; that if Ms Osborne does not work those days as rostered that Geelong Chrysler Jeep will take her to have resigned; and that the company was withdrawing a motor vehicle allowance previously paid to her for the reason that the associated need for her to have a vehicle for business purposes no longer applied.

[25] That first email on 24 December 2014 at 11:16 AM reads as follows;

“Hi Lee,

Thanks for your email.

I have spoken with VACC.

I will reiterate to you that not working Saturdays is non negotiable. You have been performing these duties since August as an agreed part of the role (as you also note in your email), and I am not changing that position. As this is a requirement for the Finance and Insurance sales position. If you are no longer able to fulfil this requirement of the position, I will have no choice but to accept that you are resigning.” 12

[26] Within that email there is then a discussion of a changed commission structure, and advice about withdrawal of a motor vehicle allowance;

“Also, as of today there will be no longer a vehicle allowance, as there is no need for you to use your vehicle for Business Purposes

If you would like to discuss this further, please call and arrange a meeting with myself”

[27] The second of the emails from Mr Blood on 24 December 2014 was sent at 3.04 PM and follows several other exchanges between the two. That email reads;

“Hi Lee,

Thanks for your email.

I can not be any clearer. As stated Saturdays are required as part of the position of Finance and Insurance Sales. You have agreed to this previously and have shown this by working for the last 5 months (August to December). Please ensure you are in attendance on Saturday, or as stated if you now fail to attend and from your confirmed intention below, I will take that as a sign of your resignation. Your car allowance is an allowance/reimbursement for cost, not part of your retainer. As there is no requirement to utilise your personal car for business purposes, this has been removed. Also note, you are a better financial position then previous, by being compensated with your commissions.

Please ensure you are in attendance on Saturday, or your non attendance will show you can no longer fulfil the requirements of the position. This will place me in no other position but to accept that you will be resigned. I would like to meet this afternoon at 4pm to discuss this further, and ensure I am clear of your intentions. I will call now to confirm the time” 13

[28] The Respondent’s materials indicate that the motor vehicle allowance was included within the provision of the November 2014 contract to the Applicant and was to the value of $100 per week. The car allowance is in comparison with weekly remuneration of $888 with the possibility of further commissions being paid as well. 14 While the Respondent argues that the payment of the car allowance was not necessarybecause Ms Osborne no longer had a need to use a vehicle for business purposes, Ms Osborne’s evidence was that she had never used her vehicle for business purposes.

[29] The emails referred to above were sent to Ms Osborne on Wednesday, 24 December 2014. Of course, Thursday 25 and Friday, 26 December 2014 were public holidays in Victoria; however Saturday, 27 December 2014 was not, and the business expected to be open for normal trade. As made plain by Mr Blood, he expected Ms Osborne to attend for work on 27 December 2014.

[30] Despite that expectation, Ms Osborne failed to work on Saturday, 27 December 2014 and Mr Blood sent a further email to her on Monday, 29 December calling her to account for her absence the previous Saturday. That email indicated that she would be deducted pay for the absence, that he required her to work on the coming Saturday, and that he required her attendance at a meeting with him on Tuesday, 30 December 2014.

[31] The parties held the meeting on Tuesday, 30 December 2014. Mr Blood characterises the meeting as actually comprising two meetings; the first to discuss disciplinary matters and the second, shortly after the first, to discuss the outstanding contractual matters. Ms Osborne did not contest that the discussion could be characterised as two meetings with separate purposes. The evidence which has been given in relation to what was discussed included Mr Blood stating that should the Applicant not report for duties as required by her role, further disciplinary action may be taken, including termination. Mr Blood puts forward that when Ms Osborne’s partner, Mr Colin Drayton, who also attended the meeting as support person, asked if that meant she was being terminated, Mr Blood responded that she was not and that he just wanted her to work the hours required for her role. 15 Mr Drayton recalled asking the question, but did not recall it being answered so specifically. Ms Osborne did not recall a response from Mr Blood of this nature.

[32] At that point in time, Ms Osborne was concerned about a negotiated outcome not only as to whether she had to work Saturdays, but also other matters.

[33] Subsequent to the second of these meetings Ms Osborne provided to Mr Blood her written resignation, which sets out the following;

“Sean,

After today's meeting it is evident that we will be unable to reach common ground, so therefore with effect immediately, I resign my position as Business Manager for Geelong Chrysler Jeep/Blood Group.

I sight the following for my resignation:

• Sexual harassment by Management



• Workplace bullying



• Erosion of National Employment Standards



• Your inability to reach an amicable solution for your demands to work every Saturday



• Introduction of sliding commission structure effective immediately without training or notice



• Unlawful removal of fringe benefit payment



• Indecisive direction of my actual employment position.

I understand that I am required to give two weeks' notice, therefore I give you that notice commencing today 30 December 2014, with my final day of work to be 13 January 2015.” 16

[34] Ms Osborne’s evidence is that she gave the letter to Mr Blood, who read it. Mr Blood’s evidence is that she threw the letter onto his desk. In the course of giving evidence, Ms Osborne agreed that her intention was to resign with effect from Tuesday, 13 January 2015. She felt that there was not going to be a negotiation on the issues important to her and she was in fear of losing her job. Her main reason for resigning was that Mr Blood gave her no other option; she felt she was going to be sacked. Ms Osborne’s evidence that, having an impeccable employment record, she was not prepared to have a dismissal on her record.

[35] The parties agree that Ms Osborne did not then work again for Geelong Chrysler Jeep, despite there being two weeks to run on her period of notice.

[36] In the first place, there was a period of approved annual leave, with Ms Osborne not scheduled to return to work until the morning of Wednesday, 7 January 2015.

[37] When Ms Osborne did return to work on 7 January 2015, her employment finished on that day, instead of serving the remainder of her notice until her nominated finishing date of Tuesday, 13 January 2015.

[38] Geelong Chrysler Jeep’s submission about why Ms Osborne finished employment on 7 January 2015 is that “on her return to work after a discussion with Mr Blood, the parties mutually agreed the Applicant would finish on 7 January 2015”. 17 The Respondent’s evidence surrounding this sequence of events was that Mr Blood had been working in his office on the morning of 7 January 2015, in a separate location to the office where Ms Osborne worked, when he was called by a co-worker, Mr Blake Morrissey, who told him that Ms Osborne had returned to work that day and was being stubborn and not helping the other staff. As a result Mr Blood went across to where Ms Osborne was working and said to her that he would like her to finish that day, to which she agreed, after asking whether she could finish what was on her desk at that time, which Mr Blood agreed to. Mr Blood’s evidence is that Ms Osborne accepted that she would finish work with Geelong Chrysler Jeep on that day. While the company submits that, in the course of this discussion, Ms Osborne did not raise that she wanted to instead finish work on 13 January 2015, Ms Osborne’s evidence is that she did not have an opportunity to inform Mr Blood that she wanted work out the rest of her notice period.

[39] In contrast, Ms Osborne’s evidence is that she was dismissed by Geelong Chrysler Jeep when she returned to work on Wednesday, 7 January 2015. Ms Osborne’s evidence is that she came to work on 7 January 2015, and that at about 9:30 AM Mr Blood walked into her work area unannounced and said to her words to the effect that he had decided to let her go and he would not wait until next week. Ms Osborne’s evidence is that she was told to pack up her belongings and leave, which she did. As she was leaving the premises she spoke to a colleague and was seen doing so by Mr Blood who said words to the effect that she needed to leave the premises and that he regarded her as trespassing.

CONSIDERATION

[40] Because of the way the matter has been argued before me, it is necessary to give consideration to three separate matters as follows;

● The date on which employment ended;

● Whether Ms Osborne’s employment was terminated at the initiative of the employer; and

● In the alternative, whether her employment ended because of a dismissal within the meaning of the Act, for reason of the resignation given by Ms Osborne being a forced resignation.

Date on which employment ended

[41] It is convenient to deal firstly with the date on which Ms Osborne’s employment with Geelong Chrysler Jeep ended, and whether an extension of time is required for the making of her unfair dismissal application.

[42] I am satisfied from the evidence given that, whether or not there was a dismissal within the meaning of the term defined in s.386 of the Act, Ms Osborne’s last day of employment with Geelong Chrysler Jeep was on 7 January 2015.

[43] Whether or not the circumstances by which Ms Osborne came to finish her employment on 7 January 2015 was the product of mutual agreement reached on that day, as contended by the Respondent, and that such was consistent with her original resignation, or whether her departure was at the initiative of the employer, as contended by Ms Osborne, the evidence is that her last day of work was on Wednesday, 7 January 2015.

[44] As a result, it is unnecessary for me to consider whether an extension of time is required for the filing of her unfair dismissal application. This is because;

● Firstly, her application was received in the registry of the Fair Work Commission on Thursday, 22 January 2015; and

● Secondly, because the period of 21 days after the dismissal took effect, as allowed for in s.394(2) of the Act, would not be completed until Wednesday, 28 January 2015.

[45] I find therefore that Ms Osborne’s application for unfair dismissal was made within the time period allowed in s.394(2).

Whether Ms Osborne was terminated at the initiative of the employer

[46] The evidence given in the matter leads me to be satisfied that Ms Osborne was, at the time that she gave her resignation to Geelong Chrysler Jeep on 30 December 2014, genuine in her intention to resign from employment. I accept Ms Osborne’s evidence on this matter as credible and consistent with the overall evidence given by her as well as the factual material relating to the employment dispute between her and the Respondent. The evidence given by Ms Osborne was that at the time she returned to work on 7 January 2015 she had been giving consideration to her workplace rights and, after having made contact with the Fair Work Ombudsman, she was prepared to go through with the resignation. While the resignation was not in her interests, it left her exemplary employment record intact and without the blemish of a dismissal.

[47] Ms Osborne then relates an account of her interaction with Mr Blood on 7 January 2015, describing it as an encounter in which he told her that he had decided to let her go and that he would not allow her to serve the remainder of her notice, that she needed to pack a belongings on leave.

[48] I take into account in forming my views about Ms Osborne’s credit that there had been a significant dispute between her and Geelong Chrysler Jeep over some time and that features of that dispute included her allegations that the Respondent was acting outside of its obligations under the modern award and the national employment standards. I also take into account that when Ms Osborne endeavoured to discuss these matters with the company its position, and that of Mr Blood, hardened. I accept Ms Osborne’s account of what occurred on 7 January 2015 as a credible recollection of what occurred and that Mr Blood’s recollection should be accorded less credit.

[49] It is not relevant to my consideration of whether there was a termination at the initiative of the employer, that Ms Osborne’s employment was soon to end. It was Geelong Chrysler Jeep that intervened to actively terminate the employment relationship immediately, and earlier than would otherwise have occurred: per Nohra v Target Australia[2010] FWA 6857, at [10].

[50] As a result, I find that Ms Osborne’s employment was terminated by the respondent, Geelong Chrysler Jeep on 7 January 2015. For the purposes of s.386(1) of the Act, Ms Osborne’s employment with Geelong Chrysler Jeep was terminated on the employer’s initiative.

Whether Ms Osborne’s resignation was forced

[51] Having made the foregoing finding that Ms Osborne’s employment was terminated on the initiative of the employer, it is not strictly necessary for me to also consider whether the resignation she gave on 30 December 2014 was forced within the meaning of the Act. However, given the circumstances of this matter, I consider it appropriate nonetheless to deal with that contention as well.

[52] That a person’s forced resignation may be a dismissal is well established, and is explicitly identified in s.386(2) of the Act.

[53] The principles of forced resignation, or constructive dismissal, have been extensively analysed in many cases, including by the Full Bench. Those principles require all of the circumstances of a termination to be examined, and not only the actions of the employer. The employer’s conduct must be weighed objectively and arising from that it “may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal”. 18

[54] Terminations on the initiative of the employer have included those in which an act of an employer either directly or consequentially has led to the departure of an employee; namely, had the employer not taken the action it did, the employee would have remained in the employment relationship.

[55] In relation to what is meant by a termination at the initiative of the employer, the Full Court of the Industrial Relations Court of Australia found the following in an early case, Mohazab v Dick Smith Electronics Pty Ltd (No. 2) 19;

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

[56] In doing so, the Commission must carefully consider what has occurred, with the Full Bench finding as follows;

“Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.” 20

[57] In all though, a resignation that may be involuntary in and of itself may not be sufficient on “an objective analysis of the employer’s conduct” to be said to form a constructive dismissal;

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.” 21

[58] The Full Bench developed on these matters in the matter of Bruce v Fingal Glen Pty Ltd (in liq)[2013] FWCFB 5279 in which the following was said about the paragraph above from Rheinberger;

[23] The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but “would, on any reasonable view, probably have that effect”. Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. 22

[59] I take the following from my analysis of the relevant authorities;

● the employer’s conduct must be weighed objectively;

● forced resignation may result from some action on the part of the employer intended to bring the employment to an end or an action which would, on any reasonable view, probably have that effect;

● an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign;

● while an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of employment and the employment relationship is not voluntarily left by the employee”

[60] In Ms Osborne’s case, there was a significant dispute with her employer over whether she would work on Saturdays. The dispute started in about August 2014 with what appears to be an acknowledgement by Geelong Chrysler Jeep that until that point she had not been required to work on Saturdays but that it required her to do so into the future. The evidence indicates that it was explained to Ms Osborne that this change was necessitated by her changed duties and that as a business which conducted a large amount of work on Saturdays it would be necessary for her to work on that day as well. The early stages of the dispute were amicable enough with both parties engaging in dialogue in support of their respective requirements and concerns.

[61] The evidence indicates that by November 2014, the tone of the dispute had changed, with Ms Osborne explicitly rejecting certain changes proposed by Geelong Chrysler Jeep to a written contract of employment. About a month prior to Ms Osborne’s rejection of these changes, there had been correspondence to her regarding changes Geelong Chrysler Jeep was going to make to the working conditions in respect of its policies about rostered days off and the taking of sick leave and annual leave, which is referred to above. Ms Osborne regarded these changes to be inconsistent with her lawful entitlements under the modern award or the national employment standards. The evidence which has been tabled indicates that from that point the position of both parties became somewhat more entrenched.

[62] By late December 2014, the tone, at least as was set out in the company’s correspondence to Ms Osborne had become extremely serious with it being put to her that unless there was a change in her working hours she would be deemed to have resigned. While the correspondence is couched in that way, it leaves little doubt that it was intended to convey that without a change to her views not only in respect of when she would work, but also regarding her concerns as to employment standards derived from the Modern Award and the National Employment Standards, Ms Osborne would be dismissed. It would be reasonable for her to view it that way and I have little doubt that that is how Mr Blood intended to communicate it.

[63] If the employment dispute at that time were confined to the matter of whether Ms Osborne was to work on Saturdays, which is the focus of the written correspondence between the parties in late December 2014, what was being communicated to Ms Osborne may have been a reasonable position on the part of Geelong Chrysler Jeep. It is after all a business which operates Monday through Saturday and Ms Osborne’s duties required her to be in attendance at the company’s business premises in order for her to document and process the finance and insurance products for which he was responsible.

[64] On the other hand, the concerns Ms Osborne had regarding rostered days off, sick leave and annual leave issues as well as the removal of a car allowance remained unresolved.

[65] Mr Blood’s evidence was that by the time of the meeting with Ms Osborne on 19 December 2014 he had indicated that he would think about the removal of clauses of concern from the contract which had been provided to Ms Osborne. 23 However the documents which were provided to the Commission as being draft contracts given to Ms Osborne by the company and dated 20 November 2014 and 16 December 2014 respectively do not contain references to the taking of rostered days off in the way described in the correspondence Ms Osborne had received on 30 October 2014.24 Overall, the evidence, including that given by Ms Osborne, which I prefer as being more credible, leads to a view that, at the time Ms Osborne decided to resign, she had not been relieved of the general requirements of the company in this regard.

[66] In December 2014, Ms Osborne was notified by Mr Blood that Geelong Chrysler Jeep would withdraw from Ms Osborne’s conditions of employment a $100 per week car allowance. While that action is explained as being justified because Ms Osborne would no longer need to use her vehicle for business purposes, there appears to be little evidence which supports the proposition. Objectively viewed, and within the context of the dispute escalating between the parties at that time, the withdrawal of that allowance is not much better than a punitive action on the part of the employer.

[67] I also take into account the evidence given by Ms Osborne about the reason for her resignation and in particular her evidence that she wished to preserve a good employment record.

[68] Viewed objectively, the conduct of Geelong Chrysler Jeep was to expect Ms Osborne to fit in with its expectations. Those expectations went beyond merely whether she would work on Saturdays or not and included that she accede to the company’s employment policies, even those that she regarded as being inconsistent with either the Modern Award or National Employment Standards. In the context of Ms Osborne, a defensive resignation in order to preserve a good employment record would have been a not unexpected outcome of the conduct on the part of the Respondent.

[69] The context of these matters, taken collectively, leads to a finding that Ms Osborne’s resignation from Geelong Chrysler Jeep was a forced resignation, amounting to a dismissal within the meaning of s.386(2) of the Act.

CONCLUSION

[70] As a result of the foregoing analysis, I find that Ms Osborne was dismissed by Geelong Chrysler Jeep within the meaning of s.386 of the Act and that her application for an unfair dismissal remedy has been made within the time permitted by s.394.

[71] On that basis I find that the jurisdictional objections made by the employer are without merit. I dismiss the objections and will now refer the matter for hearing and determination upon the merits as required by the Act in the usual manner.

COMMISSIONER

Appearances:

Ms L Osborne and Mr C Drayton for the Applicant

Ms N Horvat and Mr S Blood for the Respondent

Hearing details:

2015.

Melbourne:

24 April

 1   Chalker v Melbourne Bus Link[2012] FWA 3399, at [18]

 2   Applicant’s Form F2, Exhibit A1, para 3.2; Respondent’s Outline of Submissions filed 22 April 2015, Exhibit R4, para 3

 3   MA000089

 4   Exhibit R4, para 5

 5   Ibid, para 7

 6   Exhibit A1, para 3.2

 7   Exhibit R4, Attachment A

 8   Exhibit A1, letter Attachment dated 28 October 2014

 9   Ibid, Attachment 1

 10   Ibid, letter Attachment dated 27 November 2014

 11   Ibid, letter Attachment dated 23 December 2014 13:16 PM

 12   Ibid, letter Attachment dated 24 December 2014 11:16 AM

 13   Ibid, letter Attachment dated 24 December 2014 15:04 PM

 14   Exhibit R4, para 9

 15   Ibid, para 19

 16   Ibid, Attachment E

 17   Ibid, para 21

 18   Doumit v ABB (1996) AIRCFB N6999

 19 (1995) 62 IR 200, at pp.205-206

 20   Doumit v ABB (1996) AIRCFB N6999

 21   Rheinberger v Huxley Marketing Pty Ltd (1009) 67 IR 154

 22   Bruce v Fingal Glen Pty Ltd (in liq)[2013] FWCFB 5279, at [23]

 23   Exhibit R4, para 13

 24   Copies of Offers of Change of Employment dated 20 November 2014 and 16 December 2014, Exhibit R5

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