Ms Rachel Latham v Aldi Stores (A Limited Partnership)
[2025] FWC 75
•9 JANUARY 2025
| [2025] FWC 75 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ms Rachel Latham
v
Aldi Stores (A Limited Partnership)
(C2024/5690)
| COMMISSIONER SCHNEIDER | PERTH, 9 JANUARY 2025 |
Application to deal with contraventions involving dismissal
Ms Rachel Latham (the Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving her alleged dismissal by Aldi Stores (Aldi).
Aldi has raised a jurisdictional objection to the application being that Ms Latham was not dismissed. Ms Latham does not dispute that she resigned, however, claims she was forced to resign from her employment due to the conduct of Aldi.
The Commission must determine if the Applicant was dismissed before the matter may proceed.
The jurisdictional objection was the subject of a Hearing on 28 October 2024.
At the Hearing, Ms Latham gave evidence on her own behalf. Ms Brooke Jones (Executive Manager – Store Operations) and Mr Jordan Tennent (Director – Store Operations) gave evidence on behalf of Aldi.
Legislation
Section 365 of the Act provides as follows:
“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.”
The meaning of “dismissed” is provided at section 386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his 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 his remuneration or duties; and
(ii) he or he 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.”
This decision deals only with the jurisdictional objection to be determined.
Submissions and Evidence - Respondent
Aldi submits that Ms Latham was not dismissed for the purposes of section 365 of the Act.
Aldi notes that Ms Latham resigned from her employment on 15 July 2024 and proceeded to work out her notice period of four weeks before her employment ended on 11 August 2024.
Aldi submits that the Applicant has not provided any factual evidence to support the contention that Ms Latham had no choice but to resign from her employment with the Respondent due to its conduct.
Aldi submits that Ms Latham has not provided any evidence to show her employment was at risk of termination or similar in the lead up to her resignation.
Aldi submitted that they were entitled to accept and rely on the resignation of Ms Latham. The Applicant’s decision to resign was not made in the heat of the moment and was made after careful consideration.
Aldi submitted that Ms Jones had clearly communicated on numerous occasions her decision to resign from her employment from Aldi and was given the opportunity to reconsider her resignation. Aldi submits that except for the text message exchange with Ms Jones on 17 July 2024, there is no substantive evidence that Ms Latham sought to withdraw her resignation prior to the ending of her employment.
Evidence of Ms Brooke Jones
Ms Jones gave evidence that the position of Store Manager is a senior position in the Respondent business and that in her position of Executive Manager – Store Operations she would only be present in store with each of her store managers around 10% of the time. Ms Jones confirmed that she is responsible for five stores.
Ms Jones confirms that she became aware that Ms Latham was pregnant when Ms Latham commenced at the Willetton store on 3 June 2024. Ms Jones confirmed that the Willetton store is the second highest ranked Aldi store nationally based on internal metrics and as a result, the store has a reasonably high number of team members compared to other stores.
Ms Jones confirmed that she communicated to Ms Latham that she did not expect Ms Latham to perform physically demanding work (i.e. handling fresh produce) and that Ms Latham needed to ensure this work was performed by other team members. Ms Jones submitted that she requested Ms Latham to confirm her limitations so that Aldi could accommodate them.
Ms Jones confirmed that she was aware that Ms Latham had used some personal leave and attended medical appointments. Ms Jones submitted that Ms Latham never advised her that this was to attend medical appointments due to any work-related issues.
Ms Jones submitted that prior to 13 July 2024, Ms Latham only raised one issue with her in relation to staffing at the Willetton store and that was that staff members were failing to provide medical certificates as required when accessing personal leave. Ms Jones submitted that she directed Ms Latham to ensure the policy was being followed by all staff at Willetton as required.
Ms Jones outlined that all five stores under her management, including the Willetton store, had employees off on both planned (annual leave) and unplanned leave (personal leave). Ms Jones submitted that this was not unusual for the time of year and that there is a process for store managers to contact each other to see if they have staff at other stores who can assist with the coverage of shifts. Ms Jones submitted that there are occasions when stores will be short staffed and managers are required to focus on compliance and safety as a priority.
Ms Jones outlined that in a three-day period from 10 to 12 July 2024, three senior managers from Aldi, including Ms Jones, visited the Willetton store and found items out of date still for sale.
Ms Jones communicated this to Ms Latham on 13 July 2024 and requested she perform a thorough check of the store to ensure that there were no other products for sale that were out of date. Ms Latham responded to the message of Ms Jones by stating “I honestly think my time at Aldi is coming to an end”. Ms Jones submitted she was surprised by the message of Ms Latham, as Ms Latham had not raised any issues with her prior to this date (with the exception of the medical certificate issue).
Ms Jones undertook to meet with Ms Latham on Monday 15 July 2024 to discuss her message. Ms Jones submitted that she wanted to discuss upcoming interviews with Ms Latham for the Willetton store for positions such as Store Assistants and Duty Managers.
Ms Jones met with Ms Latham on 15 July 2024 at around 9am. Ms Jones submitted that she explained to Ms Latham the plan she had in relation to hiring a new Duty Manager and additional Store Assistants. It was Ms Jones’s evidence that the conversation went as followed:
Ms Latham: I doubt Aldi will make that happen.
Ms Jones: Why do you doubt that?
Ms Latham: I have asked Aldi to make changes before and they never happened, even after I was told they would.
Ms Latham provided Ms Jones with her resignation letter and it was the evidence of Ms Jones that the conversation followed as per the below:
Ms Jones: Is this 100% what you want to do? I am putting things in place. You may not trust me but I am going to do this. At the end of the day, I can only give you my word. Are you sure you want to resign? Do you want to give me a chance?
Ms Latham: No, I want to resign.
Ms Jones: What about moving to a lower position?
Ms Latham: No, I am too proud for that.
Ms Jones submitted that she encouraged Ms Latham to sleep on it before making a final decision. Ms Jones then notified Mr Tennent of Ms Latham’s decision, who directed Ms Jones to send the resignation letter to his personal assistant.
Ms Jones met with Ms Latham at 1.00pm on Tuesday 16 July 2024. It was the evidence of Ms Jones that Ms Latham confirmed she had not changed her mind and Ms Latham advised that she was considering a marketing position which would be less physically demanding. Ms Jones’s evidence was that Ms Latham was 100% certain she wished to resign at the conclusion of the conversation.
Ms Jones submitted that during her interactions with Ms Latham on Tuesday 16 July 2024, she offered Ms Latham the opportunity to transfer to an Assistant Store Manager position, however Ms Latham declined this option.
Ms Jones submitted that on the morning of 17 July 2024, at around 8.45am in the morning she received a text message from Ms Latham stating she wished to withdraw her resignation. Ms Jones submitted that she was “perplexed” to receive this message noting that Ms Latham had been adamant about her resignation the afternoon prior.
Ms Jones submitted that as Ms Latham had been adamant about her resignation on multiple occasions, she wanted to understand why Ms Latham had a change of heart overnight and wanted to understand how committed Ms Latham would be to the business moving forward.
Ms Jones submitted that she explained to Ms Latham that her resignation had been processed and an EOI had been sent out for the Willetton Store Manager position the previous evening. Ms Jones submitted that Ms Latham stated that she did not want to “cause any more work if [the resignation was] already processed and done”.
Ms Jones gave evidence that after Ms Latham advised verbally on the telephone again on 17 July 2024, that she was not interested in an Assistant Store Manager position and that “if it’s too hard and there is too much to do, don’t worry about it”. Ms Latham never raised the issue of withdrawing her resignation again.
Evidence – Mr Jordan Tennent
Mr Tennent confirmed that on 15 July 2024, Ms Jones confirmed with him that Ms Latham had resigned from her position as Store Manager at Willetton. Mr Tennent instructed Ms Jones to send the resignation letter to his personal assistant to process the resignation.
Mr Tennent confirmed that on 17 July 2024, he was advised by Ms Jones that Ms Latham wanted to withdraw her resignation. Mr Tennent then asked Mr Jones to confirm if the resignation had been processed or not and Ms Jones confirmed that it had been processed.
Mr Tennent confirmed that on 15 September 2024, he was advised by his personal assistant that she had found a termination letter for Ms Latham in the businesses’ system. Mr Tennent confirmed that following an investigation it was determined that Mr Dossett (the husband of Ms Latham and an employee of Aldi) had issued the termination letter to Ms Latham on 29 August 2024.
Mr Tennent confirmed that this termination letter was not approved, and Mr Dossett issued the termination letter without the required authority to do so.
Submissions and Evidence – Ms Latham
Ms Latham submits that her resignation was forced by the Respondent and as such she was dismissed consistent with section 386(1)(b) of the Act.
Ms Latham commenced employment with Aldi on 5 October 2017. Ms Latham was employed as the Store Manager of Aldi’s Willetton store and commenced this position on 3 June 2024. Prior to this, Ms Latham had been a Store Manager for Aldi at East Victoria Park.
Ms Latham gave evidence that she transferred from East Victoria Park to Willetton on the understanding that the Willetton store would be a slower pace, requiring less physical work, which would be beneficial to Ms Latham as she was pregnant at that time.
Ms Latham submitted that the following reasons resulted in her having no options but to resign from her employment with Aldi.
Health Concerns
Ms Latham outlined that due to her previous medical history, her pregnancy was a high-risk pregnancy. For the privacy of Ms Latham, I will not outline her medical history, however I do not dispute or question the credibility of the information provided by Ms Latham.
Ms Latham submitted that due to the working conditions and staffing issues at the Willetton store, she was left with no alternative but to do more physically demanding work than was recommended based on her pregnancy.
Ms Latham had to attend hospital on 6 July 2024 for abdominal pain following lifting heavy items at work earlier that day. Ms Latham again attended hospital on 21 July 2024.
I note that the medical certificate Ms Latham provided outlining her high-risk pregnancy was dated 29 July 2024, and this is after she had resigned from her employment in Aldi.
Staffing issues & Lack of support
Ms Latham submitted that when she commenced at the Willetton store she was not provided with a sufficient handover from her predecessor and that she was misled that there were no issues with the Willetton store. Ms Latham submitted that Aldi did not provide her with adequate information or support in relation to the availability of staff members to adequately staff the Willetton store.
Ms Latham outlined examples of the staffing issues including:
·One employee only being available for 4 weeks per year.
·One employee being on extended leave having commenced an apprenticeship elsewhere with no return date known.
·A duty manager who lived over 1 hour away from the Willetton store seeking a transfer to another store shortly after Ms Latham commenced at Willetton.
·The assistant store manager seeking a period of annual leave shortly after Ms Latham commenced.
Ms Latham also outlined that her brother Mr Ethan Latham worked at the Willetton store as a Duty Manager. Ms Latham submitted that her brother was concerned about the conflict of interest and was seeking to move to a more junior management position at another store.
Ms Latham submitted that despite the above staffing issues, there was limited to no support from Ms Jones (her line manager) to assist with managing the above issues.
Ms Latham provided copies of the WhatsApp messages from the “SM Area Chat” in which Ms Latham is contacting other Store Managers and Ms Jones to see if there were any additional staff available to cover shifts.
Ms Latham also provided a copy of a text message with Ms Jones confirming the number of short notice personal leave requests and her issues with staff not proving medical certificates.
Ms Latham outlined that in her text message of 13 July 2024, when she mentioned that her “time at Aldi is coming to an end” this needs to be read in the full context of the message. Having reviewed the message, Ms Latham outlined her concerns about the following items:
·Poor training of the Willetton team and a lack of discipline from the team.
·That her previous store of East Victoria Park was easier to manage as the other managers and team were better trained.
·That she felt “stitched up” by moving to the Willetton store having been told it would be an “easier store” than East Victoria Park, which Ms Latham submits was untrue due to the poor training and lack of support from other managers.
Ms Latham outlined that the wording in her letter of resignation from 15 July 2024 supported the position that she was forced to resign due to the conduct of Aldi due to the “current situation at Aldi Willetton and the lack of support throughout personal challenges over the last 12-months. Aldi has not been a business to fully support me through my personal challenges…..The false promises throughout this Aldi experience has retained me previously but unfortunately nothing ever changes where I can trust to stay”.
Attempt to withdraw resignation
Ms Latham submitted that on the morning of 17 July 2024, she made a request to Ms Jones to withdraw her resignation and continue her employment with Aldi.
Ms Latham submitted that Ms Jones did not seek to understand why Ms Jones was seeking to withdraw her resignation or offer her an alternative Assistant Store Manager position as alleged by Ms Jones.
Ms Latham submitted that the manner in which her resignation was processed suggested that Aldi were not genuine in any attempts to assist Ms Latham in her concerns and have her return to the business.
Consideration
Central to the consideration in this case is the operation of section 386(1) of the Act. The word dismissed is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act.
Section 386(1) of the Act reads:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
This definition contains two elements.
The first concerns termination on the employer’s initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.
The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1]
In my assessment of the circumstances, the relevant test is that under section 386(1)(b) of the Act.
Having determined that section 386(1)(b) of the Act is the relevant test for this matter, I now turn to consider the conduct of Aldi and the decision of Ms Latham.
The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one.[2] In this case particularly, whether this line was crossed is not immediately transparent.
The onus is on the employee to prove that the resignation was forced.
In my assessment of the evidence, I am not satisfied that Aldi engaged in conduct or a course of conduct, that left Ms Latham with no alternative but to resign. My reasons are as outlined below.
I accept that Ms Latham was clearly frustrated with certain aspects of Aldi’s operation and was struggling with the transition from her position as Store Manager of East Victoria Park to Store Manager at Willetton. While these frustrations are understandable, it is not uncommon for employees to be frustrated by challenges faced in the workplace (especially when they are new to a workplace), however, there is no evidence that Aldi did this deliberately to force Ms Latham to resign.
It is evident from the messages from Ms Latham that she was having difficulty finding employees to cover all shifts at the Willetton store. However, from the messages, this was not a unique challenge. It was also an item that Ms Jones appeared to be working on and had communicated this to Ms Latham prior to Ms Latham resigning on 15 July 2024, however Ms Latham made a choice that she did not wish to give Ms Jones the opportunity to put the plan in place to recruit additional resources.
It is understandable and entirely reasonable that Ms Latham was concerned about her pregnancy, especially given her previous medical history. In relation to this point, the verbal instructions provided to Ms Latham to avoid heavy lifting of produce or similar were not always practical given the staffing shortages. However, I do not think that Aldi engaged in a course of conduct to put Ms Latham at risk, rather Ms Latham out of her own dedication and pride would at times perform duties such as moving produce out of necessity for the task to be completed.
It is my opinion that additional formal steps could have been in place to ensure that the communication and expectation of duties between Aldi and Ms Latham were clarified to avoid Ms Latham feeling like she needed to perform these duties.
Aldi alerted Ms Latham that on three consecutive days (10 to 12 July 2024) out of date goods had been found to still be on display at the Willetton store. There is no evidence or suggestion that Aldi were seeking to dismiss Ms Latham or take any disciplinary action against Ms Latham.
Rather, Ms Jones provided Ms Latham with feedback and asked Ms Latham to conduct an audit. This was reasonable feedback delivered by Ms Jones in a fair and respectful manner without any threat towards Ms Latham. This kind of feedback is entirely normal in an employment relationship and certainly does not rise to the level that Ms Latham was left with no alternative but to resign.
I find that it was entirely reasonable of Aldi to rely upon the resignation of Ms Latham on 15 July 2024. I accept the position of Aldi that it is established that once a resignation has been given by an employee, the employer is entitled to accept the resignation and terminate the employment relationship. Especially in circumstances in which Ms Latham had repeatedly confirmed her intention to resign and leave her employment with Aldi.
I have determined from the submissions and evidence of the parties, that Ms Latham did not resign in the heat of the moment.
Ms Latham signalled her frustration with Aldi on 13 July 2024, had the weekend to consider her options before resigning after a meeting with Ms Jones on 15 July 2024. Ms Jones encouraged Ms Latham to sleep on her decision before Ms Latham confirmed her resignation on 16 July 2024. Ms Latham was afforded the opportunity to consider her future with Aldi and made a clear and informed choice to resign on 15 July 2024, before confirming her resignation the following day.
Whilst there is some dispute between Ms Latham and Ms Jones over the nature of the discussion, I am satisfied that Ms Jones suggested the idea of Ms Latham transferring to a more junior position on at least one occasion as an alternative to Ms Latham resigning from her employment, however this option was not agreeable to Ms Latham.
I find that Aldi via the actions of Ms Jones on 15 and 16 July 2024, took adequate steps to ensure the Ms Latham had not resigned in the heat of the moment, rather Ms Latham was making a considered decision to end her employment.
From the text message exchange between Ms Latham and Ms Jones, I have formed the view that Ms Latham made an initial attempt to withdraw her resignation, however, did not formally seek to withdraw her resignation. From the text message exchange, Ms Latham did not seek to press the issue any further when Ms Jones sought to understand why Ms Latham was seeking to withdraw her resignation.
I find that it was entirely appropriate for Ms Jones to seek to understand why Ms Latham had such a significant change of heart in the space of less than 48 hours. Ms Latham had made it perfectly clear that she was no longer satisfied with Aldi as an employer in her resignation letter of 15 July 2024 and had confirmed her decision to resign on 16 July 2024. It stands to reason that Ms Jones would need to understand why Ms Latham had such a significant change of mind.
I do not accept the suggestion of Ms Latham that Mr Tennent acted in a manner to speed up or process her resignation quickly to ensure that Ms Latham could not return. There is no evidence which supports this assertion from Ms Latham, rather I find that the more logical conclusion is that Aldi needed to commence the recruitment process for a new store manager for the Willetton store in preparation for Ms Latham’s departure.
Having resigned and been informed that her resignation had been accepted and processed, the onus sat with Ms Latham to act promptly prior to her employment ending if she truly wanted to stay in the employment of Aldi. From the submissions and evidence, I am not satisfied that this occurred.
Conclusion
Not being satisfied that Ms Latham has been dismissed for the purposes of section 386 of the Act, I have no alternative but to dismiss the application for want of jurisdiction.
The application is dismissed. An Order reflecting this will be issued in due course. [3]
COMMISSIONER
[1] [2017] FWCFB 3941.
[2] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 206.
[3] [PR783109].
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