Mya Kay Khaing Nyunt v International Institute of Business and Technology Australia
[2023] FWC 2811
•27 OCTOBER 2023
| [2023] FWC 2811 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mya Kay Khaing Nyunt
v
International Institute Of Business And Technology – Australia
(U2022/10078)
| COMMISSIONER SCHNEIDER | PERTH, 27 OCTOBER 2023 |
Application for an unfair dismissal remedy
Ms Mya Kay Khaing Nyunt (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) in relation her dismissal by International Institute of Business and Technology (Australia) Pty Ltd (the Respondent).
The Respondent has objected to the application on the grounds that the Applicant was not dismissed. This decision will first determine whether the Applicant was dismissed at the initiative of the Respondent and, if she has been dismissed, the merits of the matter.
Background
The Applicant commenced her employment with the Respondent on 1 September 2019.
The Applicant was initially employed as a Sessional Lecturer.
During her employment, the Applicant also took on duties as the Vocational Educational Training (VET) Coordinator.
On 4 October 2022, the Applicant received a promotion to the position of Academic Dean by the Respondent.
The parties are in dispute over transpired between 10 to 13 October 2022, however, at the conclusion of this period, the Applicant’s employment with the Respondent came to an end.
The Respondent also terminated the Applicant’s Sessional Lecturer position effective 14 October 2022. That dismissal was subject to a separate application before the Commission and is not considered in this decision.
The parties were unable to resolve the matter at conciliation.
The matter was then listed for hearing, on 27 April 2023, regarding the Respondent’s objection and the merits of the matter.
Disappointingly, the Respondent failed to attend the hearing as directed.
The hearing was later rescheduled for 28 June 2023. The parties filed materials in respect of their positions.
However, it should be noted that the Respondent’s materials are inexcusably brief.
As required by the Act, I will first consider the objection prior to considering the merits of the matter.
Submissions and evidence
Applicant
The Applicant, at the time of her dismissal, was employed as the Academic Dean by the Respondent.
The Applicant provided a copy of an email sent to her by Ms Michelle Lau (Executive Assistant), on 4 October 2022, with a copy of the Academic Dean contract in support of her position that she was employed as the Academic Dean.
The Applicant submits that, on the morning of 10 October 2022, several events occurred which resulted in the termination of her employment from the Respondent.
The Applicant had a discussion with Ms Tracey Hopkins (Ms Hopkins), the Principal Executive Officer (PEO), at around 7:15AM, on 10 October 2022. During this conversation, the Applicant states that Ms Hopkins terminated her employment as Academic Dean with immediate effect.
The Applicant submits that Ms Hopkins was rude and very aggressive during the meeting, telling the Applicant that she could not contact Mr Charles Shiao (Mr Shiao), the CEO, and that all communication was to occur through her.
The Applicant was advised that she could continue her duties as VET Coordinator.
The Applicant submits that Ms Hopkins told her she did not have the qualifications to fulfil the position of Academic Dean.
The Applicant submits that she spoke to Mr Shiao, at around 12:30PM, on 10 October 2022.
The Applicant submits that, during the course of this conversation, Mr Shiao outlined that Ms Hopkins did not have the authority or right to dismiss the Applicant from her position as Academic Dean.
Mr Shiao also advised the Applicant that Ms Hopkins had not yet signed her contract of employment for the position of PEO as she was still considering the job.
In support of her position that Ms Hopkins terminated her employment on 10 October 2022, the Applicant provided the below evidence:
· A copy of an email from Ms Hopkins to a student’s mother (which the Applicant submits was sent on 10 October 2022 at 9.10am), in which Ms Hopkins refers to herself as PEO/Academic Dean of the Respondent. In this email Ms Hopkins also refers to the Applicant is the VET Coordinator.
· A copy of an email dated 11 October 2022 from the Applicant to Mr Shiao and Ms Hopkins in which the Applicant states the below:
The second email is outlined below:
“Dear Charles,
I write to you about a very distressing episode at work yesterday 10 October 2022.
Contrary to what Tracey Hopkins told you about work yesterday in which she informed you everything was great with Htay, ‘no problem at all’, she did not convey the truth to you.
On Monday morning, soon after Tracey Hopkins arrived at the Perth campus, she directly told me that I’m no longer Academic Dean and that she will be taking over that role along with position of PEO. This announcement was reiterated in an email she sent to a parent that morning in which she stated she is the Academic Dean/PEO and that I’m the VET Coordinator. A copy of this email has been forwarded to you.
On the 4 October 2022 I signed a contract with you and IIBT for the role of Academic Dean. You informed me that you had confirmed my role as Academic Dean to Tracey Hopkins in discussions with her. I want you to clarify with me what authority Tracey has, to usurp your authority and immediately terminate my contract with you and IIBT.
Tracey Hopkins has ignored my contract with you and IIBT, by summarily dismissing me from my role as Academic Dean without notice or cause or giving me an opportunity to respond.”
The Applicant submits that no response was received by the Respondent in response to the above email.
The Applicant sent an email to the Respondent, at 2:25PM, on Tuesday 11 October 2022, which stated:
“Kindly accept this letter notifying my intention to resign from the post Academic Dean and VET Coordinator at IIBT effective immediately today, 11 October 2022, as per our conversation.”
The Applicant sent a further email to the Respondent, at 2:09PM. on Wednesday 12 October 2022, which stated:
“This is to rectify my email sent yesterday, 11 October 2022, notifying my intention to resign from the post Academic Dean and VET Coordinator at IIBT.
Kindly be informed that I am only resigning to the VET Coordinator post, not as Academic Dean. As per you direction, you have appointed as Academic Dean, dated 4th Oct 2022, and dutifully I take on responsibility in the midst or aftermath of the company crisis IIBT encountered most recently, as you are aware of. However, your new PEO appointee, Tracey Hopkins, stood me down from the Academic Dean post and demoted me to the previous position as VET Coordinator without due cause last Monday, 10th October 2022 at around 9.00am. To further verify this unjustified action, further evidence will be provided later.”
The Applicant submits that it was a mistake to send the email of 11 October 2022 outlining her resignation from the position of Academic Dean as the conduct of Ms Hopkins was such that she had already dismissed the Applicant from this position the day prior, on 10 October 2022.
Respondent
The conduct of the Respondent’s management in these proceedings left a lot to be desired.
The Respondent’s lack of respect, not only for the Commission but also the Applicant, during these proceedings frustrated the process and reflected a substantial lack of professionalism.
The Respondent failed to attend the initial hearing, on 23 March 2023.
The Respondent was then offered the opportunity for a Member Assisted Conciliation before Deputy President Beaumont. However, again, the Respondent failed to attend this session in a timely or respectful manner.
The Respondent’s failure to file any adequate submissions or evidence clearly demonstrates that the internal dysfunction of the business and their lack of care in handing Human Resources issues.
The Respondent, despite being offered repeated opportunities to file submissions and having the severe brevity of their materials highlighted as an issue, continuously provided only basic materials written informally and lacking any notable detail or support.
The Respondent submits that the Applicant resigned from her position of Academic Dean to Ms Hopkins, on the morning of 10 October 2022.
The Respondent confirmed, at the hearing, that Ms Hopkins was no longer employed by the Respondent and, as a result, was not available to provide any evidence in support of the position that the Applicant resigned.
The Respondent relies on the email from the Applicant, sent on 11 October 2022, stating she resigned from her employment as Academic Dean as the primary evidence to support its position that the Applicant was not terminated at the initiative of the Respondent.
The Respondent has not provided any evidence in support of the position that the Applicant herself did in fact resign, on 10 October 2022, during her conversation with Ms Hopkins.
The Respondent submits that they were under no obligation to restore the Applicant’s employment following her resignation on 11 October 2022.
Legislation - Objection
Section 385 of the Act provides as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
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 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.
(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 her remuneration or duties; and
(ii) he or she 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.”
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 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.”
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 (Bupa).[1]
In this matter, the Applicant tendered a resignation following a confrontation with the Respondent. The Applicant subsequently attempted to withdraw her resignation. In assessment of the circumstances, it appears there is a course of conduct by the Respondent which the Applicant submits gave rise to her termination.
Therefore, in this matter, I find it necessary to examine the resignation against both tests.
Having determined that both section 386(1)(a) and section 386(1)(b) of the Act are the relevant tests for this matter, I now turn to consider whether there has been a dismissal at the initiative of the Respondent.
Consideration - Objection
From the submissions and evidence provided by the parties it is clear that circumstances surrounding the events that occurred from 10 to 14 October 2022 were messy and poorly executed by the Respondent.
It is clear, from the evidence provided, that the Applicant was given a contract of employment and promoted to the position of Academic Dean, on 4 October 2022.
Having considered the evidence of the Applicant, I have found the Applicant to be a credible witness.
It is clear that the days leading up to the end of the Applicant’s employment were stressful and confusing for the Applicant.
The conduct of the Respondent and its staff left the Applicant in a situation where she was clearly unsure of her status or role.
The conduct of the Respondent made it apparent that the Applicant was unwanted and undervalued within the organisation.
It is clear that, in the heat of the moment, the Applicant hastily put in writing, on 11 October 2022, that she had resigned from her position as Academic Dean.
In the circumstances where it was confirmed that Ms Hopkins’ actions were highly questionable, it should have been incumbent on the Respondent to make further enquiries regarding the validity of this resignation, instead of seeking to rely on such communication.
This is further supported by the Applicant’s email, which shortly followed, clearly reflecting the questionable soundness of the resignation.
That being said, on the evidence before the Commission and on the balance of probabilities, I have come to the conclusion that the Applicant had in fact been dismissed from this position by Ms Hopkins, on 10 October 2022.
The Respondent, despite being given every opportunity to do so, has failed to provide any notable or credible evidence in support of its position that Ms Hopkins did not partake in the conduct which the Applicant has alleged.
From the evidence provided, it is evident that by the early morning of 10 October 2022 Ms Hopkins was already referring to herself as the “PEO/Academic Dean”, as seen in an email to a student’s parent.
I find that it is illogical for Ms Hopkins to refer to herself with this title unless she had already dismissed the Applicant from the position of Academic Dean.
In such circumstances, I am satisfied that the dismissal of the Applicant came about at the initiative of the Respondent. Primarily, I am satisfied that Ms Hopkins actioned this dismissal. In the alternative, if I have erred, I am further satisfied that the Respondent had engaged in conduct or a course of conduct which left the Applicant no real choice but to resign. Further, also in the alternative, I am satisfied that the Applicant resigned in the heat of moment and such resignation should not be relied upon without further enquiries by the Respondent.
Accordingly, I am satisfied that the Applicant was dismissed by the Respondent, and, in the alternative, her resignation amounts to dismissal by the Respondent pursuant to both tests outlined in Bupa pursuant to section 386(1)(a) and 386(1)(b) of the Act.
Legislation - Merits
Preliminary matters
The Act requires that I determine several initial matters before considering the merits of the Applicant’s application. Following my findings above regarding the dismissal of the Applicant, I am satisfied that none of the usual preliminary issues require attention.[2]
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied.
I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
As has been established, I am satisfied that the Applicant is protected and therefore I must now consider the second limb.
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account several criteria.
Section 387 of the Act reads:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[3]
Consideration - Merits
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
It is well established that the factual basis for the reason for dismissal will not of itself demonstrate the existence of a valid reason.[4]
It must, as section 387(a) of the Act makes clear, be a valid reason for dismissal.
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[5] and should not be “capricious, fanciful, spiteful or prejudiced”.[6]
As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity”.[7]
The Commission must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.[8]
Having considered the evidence of the Applicant, I have found the Applicant to be a credible witness. The Applicant is understandably upset over the circumstances of her dismissal, but I have no reason to believe that the Applicant’s version of events is inaccurate, illogical, or manufactured in any way.
From the submissions and evidence provided by the parties it is clear that circumstances surrounding the events that occurred from 10 to 14 October 2022 were messy and poorly executed by the Respondent.
It is clear, from the evidence provided, that the Applicant was given a contract of employment and promoted to the position of Academic Dean, on 4 October 2022, and she was continuing employment under this newly assumed role.
From the evidence before the Commission, the Applicant’s employment was terminated for the reason that she did not have the relevant qualifications to hold such a position.
Losing or not holding the correct licenses and qualifications to fulfil the inherent requirements of one’s role can indeed give rise to a valid reason for dismissal. However, there is no evidence before the Commission to suggest that applies to the circumstances in this matter.
There is no evidence presented that suggests the Applicant was unable to fulfil the requirements of the position as Academic Dean, as was Ms Hopkins’ assertion. There is no evidence that the Applicant was provided with a valid reason, pursuant to the Act, as to why her employment as Academic Dean was being terminated.
I am satisfied that there was no valid reason related to the Applicant’s capacity or conduct.
Was the Applicant notified of the valid reason and given an opportunity to respond to any valid reason related to their capacity or conduct?
Although the employer is not required to take any ‘particular steps’ in carrying out the dismissal, it is commonly accepted practice that notice in explicit and plain and clear terms must be given regarding termination of an employee.[9] It is a statutory protection derived from the principle of procedural fairness that require employees to be treated fairly before a decision is made.[10]
As I have found there is no valid reason related to capacity or conduct, the Applicant could not have been given the opportunity to respond to such reason.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
There is no positive obligation on an employer to offer an employee the opportunity to have a support person and is only relevant when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses.[11]
There is no evidence to suggest that the Respondent unreasonably refused the Applicant the right to a support person.
Was the Applicant warned about unsatisfactory performance before the dismissal?
The dismissal was not as a result of poor performance. I do not consider this to be a relevant factor in determining whether the dismissal was harsh, unjust, or unreasonable.
Impact on procedures caused by size of employer’s enterprise and absence of dedicated human resources management
The Applicant and Respondent did not raise these factors as an issue of contention in their submissions.
However, it is painfully evident that the Respondent, whilst having the benefit of a human resources department, allowed for an extremely flawed dismissal to occur.
It appears that the Respondent’s Human Resources Management department had no involvement or oversight over the conduct of the Respondent’s management during this period.
It would also appear that, on the submissions provided, the Respondent’s human resources team have been unable to provide any real evidence in support of the conduct of the Respondent during this period.
In all likelihood, the lack of human resource management support available to the Applicant during this period only added to the confusion of the situation.
Despite having the resources available to enact a procedurally fair process, the dysfunctional nature of the organisation allowed for such a flawed termination to occur.
Other matters that the Commission considers relevant
Neither party have made any other substantive submissions or evidence that I feel warrants consideration by the Commission.
That being said, it is clear that the Applicant’s termination has had a significant impact on her. I have given due weight to the impact on the Applicant’s personal circumstances in my consideration of the matter.
Conclusion
Due to the reasons outlined above, I am satisfied that the dismissal of the Applicant was harsh and unjust.
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 365 of the Act.
Directions for a hearing on remedy will be issued in due course.
COMMISSIONER
[1] [2017] FWCFB 3941.
[2] The application was made within the relevant time period (s.394(2)). As I have found above, the Applicant was dismissed at the initiative of the employer (s.386). The Applicant is a person protected from unfair dismissal as; the Applicant did not earn over the high-income threshold, the Applicant’s employment was subject to a Modern Award or Enterprise Agreement, and it is not disputed that the Applicant has served the minimum employment period (s.382). The Applicant’s dismissal was not a case of genuine redundancy (s.389). The Small Business Fair Dismissal Code is not applicable (ss.385; 388(1)). Additionally, the Hearing was held in compliance with section 397. Neither party requested permission to be represented by a lawyer or paid agent.
[3] [2011] FWAFB 7498, [14]; PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[4] [2016] FWC 3009.
[5] (1995) 62 IR 371, 373.
[6] Ibid.
[7] [2021] FWC 4, [118].
[8] [2016] FWCFB 4185, [46]; citing (1998) 81 IR 410, 413.
[9] (2000) AIRCFB, [41]; Print S2679 (McIntyre VP, Marsh SDP and Larkin C); [2000] 98 IR 137, 73; Print Q3730 (AIRC, Holmes C, 6 October 1998). The principles still apply to the provisions of s.389(b) and (c) of the Fair Work Act 2009 (Cth); see [2021] FWC 3122; upheld in [2021] FWCFB 6036.
[10] [2000] 98 IR 137 at 73 (Ross VP, Acton SDP and Cribb C).
[11] Explanatory Memorandum to Fair Work Bill 2008, 1542.
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