Ms Sheida Azadegan v Metricon Homes Pty Ltd

[2024] FWC 1376

[2024] FWC 1376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Sheida Azadegan
v

Metricon Homes Pty Ltd

(C2024/1419)

COMMISSIONER PLATT ADELAIDE, 12 SEPTEMBER 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – jurisdictional objection upheld

1. On 8 March 2024, Ms Sheida Azadegan (the Applicant or Ms Azadegan) lodged a s.365 general protections application seeking a remedy in relation to the termination of her employment with Metricon Homes Pty Ltd (the Respondent or Metricon) which the Applicant suggested occurred on 9 February 2024.

1. On 28 March 2024, the Respondent Filed a Form F8A Employer Response which raised a jurisdictional objection that the Applicant was not dismissed, but rather resigned from her employment.

1. Upon initial review of the documents filed, there appeared to be an extension of time (21-day timeframe to file a general protections application) issue which was the subject of my decision dated 1 May 2024.[1] The application was found to be filed within time and an extension was not required.

1. On 1 May 2024, Directions were issued for the filing of material and a notice of listing for determination of the jurisdictional objection (no dismissal). Both the Applicant and Respondent filed material.

1. The material received was compiled into a Digital Court Book (DCB) and emailed to the parties on 27 May 2024.

1. The Hearing was conducted in Adelaide on 30 May 2024 in person, and on 28 June 2024 via Microsoft Teams Video. The Applicant represented herself, the Respondent was represented by Mr Rick Manuel of Counsel, with permission granted pursuant to s.596(2)(a) on the basis of complexity and efficiency. In order to ameliorate the impact of the grant of permission, the Hearing was conducted as a Determinative Conference.

Evidence

1. The DCB was received into evidence. Additional exhibits were also received.  The Applicant submitted a witness statement, gave evidence and was cross examined.  The Respondent did not call any witnesses.  Both parties provided written and oral submissions which were received on 28 June 2024.

1. The Applicant sought to rely on a letter prepared by Ms Daniela Hoskin (Psychologist (Clinical Registrar)) dated 16 May 2024.  The letter suggested that the Applicant was displaying symptoms of Adjustment Disorder and that such a condition can effect a persons ability to make sound and rational decisions.

1. The Applicant was invited to call Ms Hoskin to give evidence and the matter was adjourned to 28 June 2024 to allow that to occur.  Ms Hoskin was not called and I have determined to place little weight on Ms Hoskin’s untested evidence and do not accept the inference that the Applicant’s ability to make a sound and rational decision was compromised at the time of her resignation.

1. During the Applicant’s evidence I note that she appeared to be adjusting her evidence to suit her case. I have treated her uncorroborated evidence with caution.

1. The relevant evidential findings are summarised below:

·  Ms Azadegan was engaged as a permanent part time Business & Project Manager.[2] Employment commenced on 25 September 2024 and the minimum hours of work were 22.5 hours per week. In the correspondence leading up to the appointment, Ms Azadegan supplied a medical report from Dr Khalil which advised she would be fit to perform the role of Business & Project Manager.

·  Prior to her employment, Ms Azadegan discussed her desire to work four short days instead of 3 longer days and a hybrid WFH arrangement.

·  After commencing employment, Ms Azadegan found she was working significantly longer than 22.5 hours per week. Ms Azadegan felt she was being micromanaged.  In November 2023, Ms Azadegan raised being remunerated for these additional hours.  On 24 January 2024, Ms Azadegan emailed Mr Sam Gribble raising concerns about her work arrangements and concluding with advice that she had applied for a Senior DM role with the Government which had been advertised with a base salary of $160,000.00-200,000.00.[3]  Mr Gribble responded later that day suggesting inter alia that Ms Azadegan’s FTE be increased to 0.8[4]. It appears that Ms Azadegan was considering leaving the employment of Metricon at this time and using this position to pressure Metricon into changing her working arrangements.

·  In January 2024, there was an email exchange between Ms Azadegan and Mr Gribble regarding task allocation and workload. Ms Azadegan contends she felt pressured to work an extra day per week.

·  On 25 January 2024, Ms Azadegan lodged a grievance concerning the working of additional unpaid hours, Mr Gribble’s attitude towards her and lack or recognition for the work she had been doing.

·  On 2 February 2024, Mr Gribble conducted a 3-month review of Ms Azadegan’s employment.  Positive and negative feedback was provided.

·  On 8 February 2024, the Respondent advised Ms Azadegan that an external consultant (Ms Susan Zeitz) had been appointed to review the grievance lodged and that Ms Zeitz would meet with her on 9 February 2024.  Ms Azadegan responded stating that she was “wanting to find a way to reconcile the issues and be able to stay on”. I infer from that statement that at this point the Applicant was considering leaving her employment.

·  At 5:00pm on 9 February 2024, Ms Azadegan read Mr Gribble’s notes of her interim review meeting.  Ms Azadegan considered that the minutes were ‘one-sided’.

·  At 5:44pm, Ms Azadegan emailed Ms Zeitz stating “….I have made the decision to resign, I am still interested in your feedback and hope it helps the business, but I am no longer interested in staying on….[5] Subsequently Ms Azadegan emailed Mr Gribble complaining about the content of the Interim Review notes and suggested changes to the document. A separate resignation letter was sent to Ms Freya Dahl at 7:09pm.[6]

·  On 12 February 2024, Ms Azadegan sent her ‘official resignation’ to Mr Gribble and Ms Dahl.[7] This correspondence also dealt with arrangements for the remainder of her employment and offered to provide services as a consultant.

·  On 12 February 2024, Mr Gibble sent messages to Ms Azadegan to organise a meeting to discuss the situation (and presumedly her resignation).

·  On 13 February 2024, Ms Azadegan wrote to Ms Dhal and requested to have Tuesday as her last day, advised she was considering making a complaint with Safework SA, then offered to enter into settlement discussions (including compensation) to hold off from making that complaint.[8] In my view this communication is consistent with the Applicant finalising the cessation of her employment and carrying through with her prior resignation advice.

·  The Respondent accepted the resignation on 14 February 2024.[9]

·  On 15 February 2024, the Applicant wrote to Ms Dahl requesting to “withdraw and stay (hold off) my resignation until the matter of the underpayment for the work since I came on board, including the (almost full time) hours and commissions – to be resolved.” The Applicant contended in that email that she had been really unwell and felt that she had no choice but to step away from a job/role that she valued and wanted.[10]

·  On 5 March 2024 the Applicant lodged her s.365 general protections application.

·  On 28 March 2024 the Respondent raised the jurisdictional objection that the Applicant was not dismissed.

·  At no time did Ms Azadegan advise Metricon that she was suffering from an Adjustment Disorder or that her decision making processes were impaired.

Submissions

1. Ms Azadegan submitted that the Respondent repudiated her contract of employment by refusing to pay her for additional hours worked, refusing to permit her to work in a flexible manner and by providing a written review of her work performance.

1. Ms Azadegan also contended that the written resignation was made in the heat of the moment, that she was suffering from an Adjustment Disorder and that the Respondent should have known that her resignation was not a considered and voluntary act.

1. Finally, Ms Azadegan contends that she was constructively dismissed.

1. Metricon contend Ms Azadegan resigned of her own free will and her actions post resignation were consistent and demonstrated that it was not a ‘heat of the moment’ decision or that Metricon’s conduct forced her to resign.  Metricon rejected the assertion that the contract has been repudiated.

Law

1. Section 386 of the Act deals with the meaning of ‘dismissed’ for the purposes of the unfair dismissal regime and also the general protection regime:

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.

1. The Applicant in this matter relies on s.386(1)(b) of the Act, in that she contends that she was forced to resign from her employment because of conduct, or a course of conduct, engaged in by the Respondent.

1. The foundational case for ‘forced resignation’ matters was that of Mohazab v Dick Smith Electronic (No 2)[11]. In discussing the concept of ‘forced resignation’ it was stated:

“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.”

1. In O’Meara v Stanley Works Pty Ltd,[12] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:

“[23]…It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.”…In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (emphasis added).

1. The Full Bench of the Fair Work Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli Shahin[13] at [47] summarised the definition of a dismissal where a resignation is made in the ‘heat of the moment’:

"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.”

1. The subsequent withdrawal of a resignation was discussed in Birrell v Australian National Airlines Commission where it can be concluded that a unilateral withdrawal is not possible.[14] This position was supported by the Full Bench in Bupa.

Decision

1. There is no dispute that the Applicant was unhappy with her working arrangements at Metricon and that the parties were working to try and reach a suitable accommodation, albeit not at the speed that the Applicant desired.

1. The Applicant gave indications that she was considering leaving the employment of Metricon as early as 24 January 2024.

1. The Applicant resigned by way of three separate communications, twice on 9 February 2024 (to Ms Zeitz and Ms Dahl) and the ‘official resignation’ on 12 February 2024. The fact that the Applicant offered to provide services as a consultant is inconsistent with the contention that Metricon acted intolerably in its interactions with the Applicant.

1. The communication by the Applicant to the Respondent on 13 February 2024 was also consistent with the Applicant’s previously communicated decision to resign.

2. The Respondent accepted the resignation on 14 February 2024. 

1. It was not until the 15 February 2024 that the Applicant did anything inconsistent with a resignation, when she sought to withdraw it. The resignation once given can only be withdrawn by agreement, and this did not occur.

1. I am not persuaded that the evidence supports the Applicant’s resignation being made in the heat of the moment. 

1. I am not persuaded that the conduct of Metricon or Mr Gribble forced the Applicant to resign.

1. I am not satisfied that Metricon repudiated the Applicant’s contract of employment.

1. I find that the Applicant resigned voluntarily (despite the suggestion she was suffering from an Adjustment Disorder).

1. I find that the Applicant was not dismissed, and the jurisdictional objection is therefore upheld, and the general protections application dismissed.

COMMISSIONER

Appearances:

Ms Azadegan as the Applicant.
Mr Manuel for the Respondent.

Hearing details:

30 May, 28 June
2024

[1] PR774338.

[2] Digital Court Book (DCB), pg.187.

[3] Ibid, pg.37, pg.46-48.

[4] Ibid, pg.36.

[5] Ibid pg.39.

[6] Exhibit A3.

[7] DCB, pg.129.

[8] Exhibit A3.

[9] DCB pg.135.

[10] Ibid, pg.44.

[11] O’Meara v Stanley Works Pty Ltd (1995) 62 IR 200.

[12] PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006).

[13] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli Shahin[2017] FWC 3941, [47].

[14] Birrell v Australian National Airlines Commission (1984) 9 IR 101, 110.

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