Ms Sondra Zoumas v Sydney Physiotherapy 1 Pty Ltd
[2023] FWC 2403
•18 SEPTEMBER 2023
| [2023] FWC 2403 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Sondra Zoumas
v
Sydney Physiotherapy 1 Pty Ltd
(C2023/4194)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 18 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – Whether employee dismissed within the meaning of s.365(a)
Ms. Sondra Zoumas (the Applicant) has applied under s.365 of the Fair Work Act 2009 (Cth) (the FW Act) for the Fair Work Commission (the Commission) to deal with a dispute relating to her alleged dismissal by Sydney Physiotherapy 1 Pty Ltd (the Respondent). The Applicant claims that the alleged dismissal was in contravention of Part 3-1, General Protections, of the FW Act. The Respondent has submitted that the Applicant was not dismissed and that she terminated her own employment. Further, the Respondent says that the Applicant has not alleged that any dismissal was in contravention of the General Protections provisions of the FW Act.
Section 365 of the FW Act 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.
Applications made under s.365 are dealt with under s.368 of the FW Act. In order for the Commission to be able to deal with the dispute under s.368 of the FW Act, it must determine that the Applicant has been dismissed within the meaning of s.365.[1] The Commission must conclude that the relevant dismissal has actually occurred as a matter of jurisdictional fact. It is not sufficient that the applicant merely alleges that they were dismissed. If there is a contest as to whether the alleged dismissal the subject of the application has occurred, this is an antecedent question which has to be determined before the powers to deal with the dispute conferred by s.368 can be exercised.[2]
For the reasons which follow I have concluded that the Applicant was not dismissed within the meaning of s.365.
Preliminary Issue
Before describing the context in which the present dispute arose, it is necessary to refer briefly to a preliminary issue that emerged at the commencement of the hearing on 21 August 2023. On that date and after submissions and evidentiary material had been filed, the Applicant asked that her application be treated as a “non-dismissal dispute” on the basis that she had inadvertently filed the incorrect application form. Applications of that kind are dealt with under s.372 of the FW Act. There were limited references in the Applicant’s material to a non-dismissal dispute. In the Applicant’s Outline of Submissions there was a reference in a heading to an “F8C General Protections application.”[3] A Form F8C is used when an application is made under s.372. In the same document, under the heading “Outcome and Remedy”, the Applicant submitted “My constructive dismissal (general protections F8C) is and was valid.”[4] In her witness statement the Applicant said:
On Friday 14 July 2023, I downloaded F8-the wrong form and submitted it. Apologies-it was an F8C Form no-dismissal form I was required to submit, as instructed by Fair Work.[5]
The Respondent resisted any attempt by the Applicant to recast her application as a non-dismissal dispute. The Respondent said it had prepared its case on the basis of the application as filed and would be disadvantaged by a change of course, including by having incurred costs in the preparation of the matter. In its written submissions in reply dated 18 August 2023, the Respondent referred to the Applicant’s references to a “Form F8C” and said that it had not been served with such an application.
It appeared from the material that had been filed by the Applicant that, notwithstanding the advice that the Applicant said she had received that she should lodge an F8C non-dismissal dispute form, the substance of the Applicant’s claim was that she was alleging that she had been dismissed by the Respondent within the meaning of s.386(1)(b). After hearing from the parties and providing the Applicant with an opportunity to obtain some further advice as to whether she wished to press her original application under s.365 or to pursue an alternate course, the Applicant advised that she wanted to proceed with the s.365 application and the matter was dealt with on that basis.
Background
The Applicant commenced employment with the Respondent as a receptionist/support services worker at the Respondent’s physiotherapy business in Sydney on or about July 2014. She was employed under the Health Professionals and Support Services Award 2020.
In March 2021, the Applicant’s employment with the Respondent became part-time and her hours of work were reduced to 19.5 hours per week. In July 2022, the Applicant’s hours of work were again reduced such that the Applicant only worked 6.5 hours per week with the Respondent. This arrangement continued until 19 June 2023 when the Applicant provided the Respondent with a letter to say that she was resigning her employment. Thereafter, the Applicant continued to work with the Respondent until 5 July 2023 when her employment ceased.
In summary, the Applicant maintains that the letter of the 19 June was not a voluntary resignation. The Applicant says that she was forced to resign by her employer because the Respondent would not bring what she said was to be a temporary reduction of hours to an end and that this resulted in overwhelming financial hardship that left her with no other option but to resign.
The Respondent submitted that the reduced working hours were agreed to by the Applicant and that Applicant’s resignation on 19 June 2023 was entirely voluntary.
The Applicant’s Evidence
The Applicant’s evidence was that in June 2022 she had a conversation with Mr. Jerome Murphy, the managing director of the Respondent. She said that Mr. Murphy indicated that he could no longer afford to keep the Applicant in employment and that the business had no money to pay out the Applicant’s entitlements because of the downturn caused by the pandemic. According to the Applicant, Mr. Murphy said he could only afford to have the Applicant work one day per week. The Applicant said she agreed to work for one day a week in order to assist the Respondent but that she only agreed on the basis that it would be for a trial period and not an indefinite arrangement. The Applicant said that in early July 2022, shortly after the conversation with Mr. Murphy, Mr. Murphy gave her a copy of a document to sign acknowledging the reduction of her hours to 6.5 hours per week.[6] The Applicant said she refused to sign the document because it made no reference to the arrangement being a trial arrangement only. She said that she asked for this omission to be rectified but it was not changed. The document remained unsigned by the Applicant.
From 11 July 2022 the Applicant worked 6.5 hours per week. This was her only paid employment from that period until her employment with the Respondent came to an end in July 2023.
The Applicant said her efforts after 11 July 2022 to secure another part-time role to supplement her income proved to be unsuccessful. She said her economic circumstances became extremely difficult. She said she raised this problem with Mr. Murphy repeatedly, but he ignored her concerns or brushed them aside.
The Respondent’s Evidence
Mr. Murphy gave evidence that in June 2022 he had to make a decision about reducing the business’s operating costs. He said that one option he was considering was to make the position of the Applicant redundant. He denied that he said to the Applicant that he was unable to pay out entitlements, including redundancy entitlements and said the company would not have been required to make redundancy payments in any event as it was a small business employer. He said that he spoke to the Applicant in early July 2022 about the situation and asked her if she would agree to reduce her hours to 6.5 hours per week. Mr. Murphy said the Applicant agreed to reduce her hours and did so from 11 July 2022. He said that those hours were worked by the Applicant on a single day each week. Mr. Murphy denied that there was any agreement that the reduced hours arrangement was a trial only.
Mr. Murphy said the Applicant made him aware in January 2023 that she was looking for other part-time work. He said he spoke to a colleague who was looking for a part-time employee on or about 9 February 2023 and shortly thereafter spoke to the Applicant and suggested she contact this person and provide Mr. Murphy’s name as a referee. He said the Respondent’s business placed no restrictions on the Applicant obtaining other part-time (or full-time) employment. He said the Respondent could not be responsible for any difficulty the Applicant might have had in obtaining other part-time or full-time employment.
The Respondent also relied on the terms of the Applicant’s letter of 19 June 2023 which is set out in full below:
Dear Jerry,
It is with great sadness that I announce my resignation today from my position of Practice Manager/Receptionist/Personal Assistant/Marketing Department/Interior Design/I.T Department/Kitchen Hand/Plumber/Carpenter/Electrician/Function Coordinator/Cleaner/Company Entertainer/Covid Marshall.
I feel so lucky to have worked with such a talented, honest and exceptional Physiotherapist boss and various fun and strange work colleagues throughout my nine years here. I’ve learned and grown so much from you and the various team members who have passed through these doors. While I am excited about the future, I’m sad to leave, I’m sad that I won’t be able to share a morning coffee with you and try and guess the coffee blend, or argue with you about which coffee cup to use, chat about our not-so-inspiring Instagram dinner pics and what we cooked over the weekend, our politically incorrect topics. I will miss the unique way you pretend to listen to my stories, but I did the same haha! It’s been a great pleasure working with you and representing Sydney Physiotherapy & Ortho. I will forever remember my time here. Of course, this isn’t goodbye, I know we will keep in touch (I will pop in). Thank you for all your support and friendship.
Your employee and friend.
Mr. Murphy said that after he received the letter, he discussed the end of the Applicant’s employment with her, and it was agreed that she would work out a notice period and finish on 5 July 2023.
The Respondent also relied on an email that the Applicant had sent to the Commission on 1 August 2023 which the Commission had forwarded to the Respondent. In that email the Applicant said “I was forced to do a constructive dismissal. My employer did not terminate me he wouldn’t terminate me – because he knew he would have to pay me out.”
Further, the Applicant sent an email to Mr. Murphy on 11 July 2023 in which she said “I had no choice, as you did not make any further action to terminate my employment, your inactions forced me to resign as I had no real alternative.”
Submissions
The Applicant submitted that the conduct engaged in by her employer left her with no choice but to resign her employment on 19 June 2023. The Applicant said the temporary trial part-time arrangement that she agreed to was to assist the Respondent overcome financial difficulties but that the Respondent refused to acknowledge or recognise the financial problems that the arrangement led to for her. She said that she complained about her lack of income to Mr. Murphy and he must have known the dire financial predicament she was in. The Applicant said that the Respondent knew that it was not feasible for her continue working a small number of hours each week and that eventually this would lead to a resignation and relieve the Respondent of paying out entitlements such as long service leave. The Applicant claimed that it was the inaction of the Respondent and the refusal to recognise that the situation was not sustainable that deprived her of any other option but to resign. She said she had no choice but to resign because of economic hardship and “pressing necessities”.
In her application the Applicant sought as a remedy her long service leave entitlements and a revision or “rectification” of her annual leave.
The Respondent submitted that there was no “forced resignation” by the Applicant. The Respondent said that the letter from the Applicant of 19 June was clear evidence of a voluntary resignation. The Respondent said that the Applicant had conceded in writing that the Respondent did not terminate her employment and that in reality the Applicant was simply seeking to create a legal fiction that she had been constructively dismissed to enable her to pursue a claim for long service leave to which she was not entitled. The Respondent said that the Applicant had voluntarily agreed to enter into the reduced part-time work arrangement. The Respondent said they had assisted the Applicant in trying to obtain other work and that the Respondent wanted the Applicant to continue to work part-time in the Respondent’s business. The Respondent said there was no conduct, including any omission, that deprived the Applicant of any real choice and thereby forced her to resign. The Respondent submitted that the Applicant had made written admissions that supported the view that there was no conduct on the part of the Respondent that forced the Applicant’s resignation.
Consideration
Section 386 of the FW Act sets out the circumstances in which an employee can be said to have been ‘dismissed’ for the purposes of s.365.[7] That section 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.
‘Forced Resignation’
The Applicant’s submission was that the Applicant had resigned but had been forced to do so by the Respondent and that this constituted a dismissal within the meaning of s.386(1)(b). The test for a dismissal of this kind was described by a Full Bench of the Commission in the matter of Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli.[8] In that matter the Commission said:
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 (sic) 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.[9]
Where it is alleged that an employee was forced to resign, the onus is on the employee to prove, by an objective measure,[10] that they did not resign voluntarily and that the conduct or course of conduct engaged in by the employer forced them to resign.[11]
I have no doubt in this case that the circumstances that the Applicant found herself in created serious hardship for her. The Applicant had agreed to an arrangement which she had understood would be temporary only and had done so for well-intentioned reasons, namely, to assist her employer to recover from losses incurred during the pandemic. In relation to the reduction of the Applicant’s hours in mid-2022, I prefer the Applicant’s evidence that she indicated at the time that she would work the reduced hours on a “trial” basis. This version of events is supported by the fact that the document recording the arrangement was not signed by the Applicant. The Applicant said she did not sign the document because it did not state that the arrangement was a trial only and I accept that to be the case. However, it is also the case that the period of operation of any such trial was indeterminate. I accept that the Applicant raised her difficult economic circumstances with her employer on more than one occasion in an effort to obtain more work and by doing so, sought to bring any trial period to an end. The Respondent appeared to be indifferent to her requests and ultimately did not offer her any more work.
I also accept that the Applicant was a dedicated employee who gave 9 years of service to her employer and in those circumstances could not understand why her employment ended in the way it did. However, looking at the circumstances overall I am not satisfied that it was the conduct of the Respondent that brought the employment to an end or had that probable result.
The Applicant was, at the time her employment ended, working 6.5 hours per week on one day of the week. The Respondent was made aware on at least one occasion that the Applicant was looking for other work. The Respondent did not place any restrictions on the Applicant looking for or obtaining alternative employment. Mr. Murphy took some steps to assist the Applicant obtain more work by speaking to a colleague about that prospect. I have no reason to doubt the Applicant’s evidence that she had previously been actively looking for other work but had had no success. However, I am unable to conclude on the evidence that the Respondent was fully aware of the extent to which the Applicant had sought or was seeking other work or that in the absence of the Respondent providing additional hours to the Applicant, that the Applicant was likely to resign. There was no evidence that the Applicant sought any specific amount of additional work from the Respondent or that the Respondent expressly refused a request to provide additional hours. Moreover, notwithstanding previous unsuccessful efforts and the Applicant’s decision to stop looking for part-time roles in early 2023,[12] the Applicant’s limited existing working hours did allow some scope for the possibility of additional employment without necessarily having to resign and relinquish those existing hours. In all of the circumstances I do not consider that the Respondent’s conduct negated all choice for the Applicant such that she had no choice but to resign.
The Applicant contended that it was inaction on the part of the Respondent rather than any particular conduct that forced her resignation. In Doumit v. ABB Engineering Construction Pty Ltd a Full Bench of the Commission observed:
“… 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.”[13]
In this case the Respondent’s conduct up to the point of the Applicant’s resignation was equally consistent with that of an employer who was content for the existing arrangement to continue indefinitely rather than an employer who was inactive in an effort to force the Applicant to resign.
I conclude that the Applicant was not dismissed within the meaning of s.386(1)(b). Having regard to that conclusion it is not necessary to deal with the issue as to whether the application, in its terms, alleged any breach of the General Protections provisions of the FW Act. I note in passing that at various points the Applicant contended that the action (or inaction) of the Respondent was designed to avoid the payment of long service leave payments and that the primary remedy the Applicant sought in the originating application related to the payment of those amounts. The taking of adverse action against an employee because that employee has a workplace right, such as an entitlement under a state law including the Long Service Leave Act 1955 (NSW) may constitute a breach of Part 3-1 of the FW Act. Although it was not considered in this case, the question as to whether such payments remain outstanding would be a matter for determination by the Federal Court, Federal Circuit and Family Court of Australia or an eligible New South Wales court.
For the foregoing reasons, the Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms. Sandra Zoumas, Applicant.
Mr. Mark Port, Solicitor for the Respondent.
Hearing details:
In-person at Fair Work Commission, Sydney on Monday, 21 August 2023 at 2:00pm AEST.
[1] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101 (‘Lipa’).
[2] Lipa (n 1) [4].
[3] Court Book page 38.
[4] Ibid page 43.
[5] Exhibit A3, paragraph 13.
[6] Exhibit A3, Annexure 3.
[7] See also s.12.
[8] [2017] FWCFB 3941.
[9] Ibid [47].
[10] O’Meara v. Stanley Works Pty Ltd [(2006) 58 AILR 100.
[11] Australian Hearing v Peary [(2009) 185 IR 359 at paragraph [30].
[12] Application at 3.1, Court Book page 10.
[13] Print N6999.
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