Ms Mary King and Mr Sam King v Bundawarrah Service Pty Ltd
[2023] FWC 869
•18 APRIL 2023
| [2023] FWC 869 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Mary King
And
Mr Sam King
v
Bundawarrah Service Pty Ltd
(C2022/7567)
| DEPUTY PRESIDENT CROSS | SYDNEY, 18 APRIL 2023 |
Application to deal with contraventions involving dismissal
On 17 November 2023, Ms Mary King (the First Applicant) and Mr Sam King (the Second Applicant) made applications (the Applications) to the Fair Work Commission (the Commission) pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act), alleging contraventions of the Act associated with their alleged dismissals. The Applicants were employed as Pharmacists in Temora, NSW.
Bundawarrah Service Pty Ltd (the Respondent) objected to the Applications filed on the basis that the First and Second Applicants were not dismissed from their employment within the meaning of section 386(1) of the Act. Section 365 of the Act requires the Commission determine a dispute about the fact of a dismissal prior to exercising powers conferred on it by sections 368 and/or 369.
Section 386(1) of the Act relevantly provides that a person is dismissed only if the person's employment has been terminated on the employer's initiative. If the Respondent’s contention is correct, it follows that the Applicant does not have standing to bring the Applications under s.365 of the Act, and the Commission therefore does not have jurisdiction to deal with the dispute under ss.368 or 369 of the Act.[1]
Directions
On 10 February 2023, directions (the Directions) were issued outlining the timetable for filing materials in the matter.
The parties complied with the Directions. In particular:
(a) On 24 February 2023, the Applicants filed an Outline of Submissions;
(b) On 10 March 2023, the Respondent filed an Outline of Submissions, a witness statement of Ms Sonya Lancaster, a Managing Pharmacist of the Respondent, a witness Statement of Andrew Topp, Pharmacist and General Manager of the Respondent, and a witness statement of Mr Thomas Ferguson, a Pharmacist of the Respondent; and
(c) On 17 March 2023, the Applicant filed an Applicants’ Submissions in Reply.
The matter was listed for jurisdictional hearing on 12 April 2023 (the Hearing) by Microsoft Teams. At the Hearing, the Respondent’s statements filed were received into evidence, and the Applicants’ submissions were taken to be their evidence, albeit mixed with submissions. While the Applicant did not seek to question the Respondent’s witnesses, the Respondent questioned each of the Applicants.
Background Facts
The Applicants commenced their employment with the Respondent on 18 May 2020.
Alleged issues arose concerning the workplace environment in June 2022 (June Workplace Incidents). The incidents took place over 2-days, being Monday 20 June and Tuesday 21 June 2022.
On Monday 20 June 2022, the Second Applicant was involved in a verbal altercation with another employee. Both the Respondent and the Second Applicant submit that the dispute was heated. The Second Applicant ‘grabbed a piece of paper’ and wrote out his resignation. The Second Applicant then inquired with Ms Lancaster how much notice he needed to provide. Ms Lancaster informed the Second Applicant that they would re-convene the following day to discuss the incident.
On Tuesday 21 June 2022, two meetings took place between Ms Lancaster and the employees of the Respondent, including the Applicants.
Following the meetings, Ms Lancaster spoke individually with the Second Applicant and responded to his inquiry that followed his resignation the day before. Ms Lancaster detailed to the Applicant that he had to give two weeks’ notice. The Second Applicant then stated that he wished to take back his resignation. Ms Lancaster informed the Second Applicant that she was not terminating his employment and she had organised for Andrew Topp to investigate the incidents.
On 22 June 2022, Mr Andrew Topp conducted the investigation into the incidents. On 24 June 2022, Mr Topp submitted his report which detailed his findings. On 27 June 2022, the Second Applicant received Mr Topps email outlining his recommended actions, and the Second Applicant thereafter apologised for various conduct.
The First Applicant commenced her maternity leave on 11 August 2022 and returned to the Pharmacy at which she worked on 19 October 2022 to discuss the arrangements pertaining to paid parental leave. The Second Applicant commenced his paternity leave on 12 August 2022 and returned on 26 August 2022, continuing to work thereafter at the Pharmacy.
An email was sent on 6 October 2022, outlining the implementation of various scenarios in relation to the First Applicant returning to work:
Dear Mary and Sam,
As per previous discussions we welcome Mary's return to work at 12 weeks. Please note this may affect entitlements to governmental paid parental leave; this is outside of our control.
Unpaid parental leave can only be taken in a single continuous period. Please be aware that by returning to work in any capacity, you will not be able to automatically elect to go back to unpaid parental leave.
We note your request for flexible workplace arrangements. If you both wish to work
reduced hours to share the care of Theo and remain full time employees, then your annual leave will be used to top up to 38 hours per week. We are still happy for you to have this job share arrangement if it suits you.Once your annual leave is exhausted, we will prepare a new letter of appointment indicating a part-time arrangement.
If you elect to top up your weekly hours with annual leave to less than 38 hours a week, a new letter of appointment will be prepared reflecting part-time arrangements.
Regards,
Sonya and Tom
As noted above, the First Applicant returned to the Pharmacy at which she worked on 19 October 2022 asking if she and the Second Applicant could have a conversation regarding the verbal agreement that she alleged was made in April 2022 in relation to the First Applicant’s return to work after her maternity leave. The Respondent re-scheduled the meeting to the next day.
On 20 October 2022, the Applicants had a meeting with Ms Lancaster where it is agreed between the parties that the Second Applicant made comments to the First Applicant to the effect “it’s clear we’re not wanted here”. The key dispute between the parties in the meeting involved what the Applicants described as the Respondent allegedly deviating from an agreement regarding paid parental leave that they said was struck in April 2022. The Applicants described the Respondents, arising from the email of 6 October 2022, as “going by the book” rather than “being flexible”. The meaning of those two phrases revolved around compliance with the rules regarding paid parental leave, or non-compliance with such rules, respectively.
The Second Applicant continued to work as normal following the meeting.
On 26 October 2022, the Respondent submitted that a customer came into the Pharmacy and informed Ms Lancaster that the Second Applicant was working at a different pharmacy hundreds of kilometres away in Corrimal, NSW. On 28 October 2022, Ms Lancaster approached the Second Applicant in relation to the allegations that he was working at a different store, and informed the Second Applicant that this was a breach of his employment contract. The Second Applicant referred to the other work as “locum work” and denied any breach of contract.
On 29 October 2022, Mr King worked the morning shift at the Pharmacy and left at 12:30pm.
At 1:21pm on the same day, the Respondent received an email from the Applicants detailing their resignations (the Resignation Email):
Sonya and Tom,
After Thursday's 20/10/22 short meeting, enough is enough. That is definitely not what Tom drove all the way to Temora on 12th of April 2022 and the four of us had almost 2 hours meeting detailing everything. Anyway, your wishes are granted. This is the 2 weeks’ notice of the resignations of both Sam King and Mary King. Our last day is Sunday 13th of November 2022. We hope you sleep well at night with a clear conscience.
Kind Regards,
Sam King & Mary King
It became apparent that the Resignation Email was drafted some time before 29 October 2022. A draft of the Resignation Email in largely identical terms was sent from the Second Applicant to the First Applicant at 7.19pm on 27 October 2022. That draft provided:
Sonya and Tom,
Enough is enough. That is definitely not what Tom drove all the way to Temora on 12th of April 2022 and the four of us had almost 2 hours meeting detailing everything. Anyway, your wishes are granted. This is the 2 weeks’ notice of the resignations of both Mary King and Sam King. Our last day is Sunday 13th November 2022. We hope you sleep well at night with a clear conscience.
Kind regards,
Mary King & Sam King
The Relevant Provisions of the Act
Part 3-1 of the Act is titled “General Protections”. Section 340(1) relevantly provides that a person must not take “adverse action” against another person because the other person has exercised (or proposes to exercise) a “workplace right”. Adverse action is taken by an employer against an employee if the employer (relevantly) dismisses the employee and that action is not authorised by law (s.342(1), item 1; s.342(3)). There are other defined adverse actions that do not involve dismissal.
Section 12 defines the word “dismissed” by reference to s 386. It relevantly provides:
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.
Division 8 of Pt 3-1 is titled “Compliance”. It establishes two regimes for dealing with disputes in which allegations of contravention of general protection provisions are made: a regime for dismissal disputes (Subdiv A) and a regime for non-dismissal disputes (Subdiv B).
Section 365 of the Act is contained in Subdiv A. It provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Section 368 of the Act confers authority on the Fair Work Commission (the FWC) to deal with a dismissal dispute in the event that an application is made under s.365. It provides:
Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
If a certificate is issued under s.368(3), the parties may agree to the FWC arbitrating the dispute: s.369. In that event, the FWC may deal with the dispute by arbitration and may make orders affecting the substantive rights of the parties, including orders for reinstatement, and for the payment of compensation: s.369(2). Section 369(3) prohibits a person from contravening an order made under s.369(2).
Section 370 of the Act provides that “A person who is entitled to apply under s 365 for the FWC to deal with a dispute” must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Consideration
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Tavassoli),[2] the Full Bench of the Commission conducted a detailed analysis of authorities relating to whether particular resignations constituted dismissal pursuant to various legislative schemes. After that analysis, the Full Bench provided the following distillation:
“[47] Having regard to the above authorities and the bifurcation in the definition of
“dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a)
where, although the employee has given an ostensible communication of a
resignation, the resignation is not legally effective because it was expressed in
the “heat of the moment” or when the employee was in a state of emotional
stress or mental confusion such that the employee could not reasonably be
understood to be conveying a real intention to resign. Although “jostling” by
the employer may contribute to the resignation being legally ineffective,
employer conduct is not a necessary element. In this situation if the employer
simply treats the ostensible resignation as terminating the employment rather
than clarifying or confirming with the employee after a reasonable time that the
employee genuinely intended to resign, this may be characterised as a
termination of the employment at the initiative of the employer.(2) A resignation that is “forced” by conduct or a course of conduct on the part of
the employer will be a dismissal within the second limb of the definition in
s.386(1)(b). The test to be applied here is whether the employer engaged in the
conduct with the intention of bringing the employment to an end or whether
termination of the employment was the probably result of the employer’s
conduct such that the employee had no effective or real choice but to resign.
Unlike the situation in (1), the requisite employer conduct is the essential
element.[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.”
(Emphasis added)
As is apparent from the Applicant’s submissions, they contend that the terms of s.386(1)(b) are enlivened in the matter, and the Respondent engaged in conduct with the intention of bringing employment to an end. The conduct of the Respondent said to disclose an intention to bring employment to an end was submitted by the Applicants to include “multiple events of bullying and discrimination”, and included the June Workplace Incidents, the questioning of the Second Applicant regarding working at the Pharmacy in Corrimal, and the email of 6 October 2022 and the issue of paid parental leave.
I reject the submission that the Respondent took any actions with an intention to bring the employment of either Applicant to an end and consider that the actions of the Respondent disclosed a sensitive, prompt, and supportive approach to human resource issues. One particular example of that approach to human resource issues was displayed in the Respondent’s approach to the June Workplace Incidents. Those incidents occurred on Monday 20 June and Tuesday 21 June 2022. Meetings regarding those incidents took place between Ms Lancaster and the employees of the Respondent on 21 June 2022, and Mr Topp was engaged to investigate. On Friday 24 June 2022, Mr Topp submitted his report, the following Monday the Second Applicant received Mr Topps email outlining his recommended actions, and the Second Applicant thereafter apologised for various conduct.
It was further unremarkable that the Respondent would address the issue of the Second Applicant working at another Pharmacy, albeit hundreds of kilometres away. I found the Second Applicant’s explanations for that conduct to be less than convincing, and consider the enquiries made by the Respondent to have been entirely appropriate.
The prominent issue relied upon by the Applicants was the email sent on 6 October 2022, outlining the implementation of various scenarios in relation to the First Applicant returning to work. There is simply no basis to submit that the email was anything other than an attempt by the Respondent to explain the various legally available options to the Applicant’s regarding paid parental leave.
The subsequent meeting on 20 October 2022, involved the Respondents maintaining a position, arising from the email of 6 October 2022, and the Applicant’s reaction to that email, that they would comply with government rules regarding paid parental leave. Such adherence was unremarkable and could never constitute conduct with the intention of bringing employment to an end.
While the Applicant has not asserted resignation in the heat of the moment on 29 October 2022, any such assertion would be baseless where the resignations were tendered:
(a) Nine days after the meeting of 20 October 2022;
(b) Where at least the First Applicant worked consistently after the 20 October
2022 meeting; and
(c) After a draft was circulated on the evening of 27 October 2022.
Conclusion
I have found that neither Applicant’s employment was terminated by Respondent at its initiative within the meaning of s 386(1)(a) of the Act. I have additionally found that neither Applicant’s resignation was forced within the meaning of s 386(1)(b). Accordingly, neither the First Applicant nor the Second Applicant was dismissed by the Respondent.
The jurisdictional objection by the Respondent is upheld, and each of the First Applicant and Second Applicant’s applications under s 365 of the Act fail for want of jurisdiction and must be dismissed.
Orders giving effect to this decision will be issued in conjunction with this
publication.
DEPUTY PRESIDENT
Appearances:
Mr Sam King (Applicant)
Mrs Mary King (Applicant)
Mr. William Ward (Solicitor) Mills Oakley Lawyers
Hearing details:
Microsoft Teams at 2:00PM on 12 April 2023
[1] [2020] FCAFC 152 at [74]-[75].
[2] [2017] FWCFB 3941.
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