Noelle Neary v Lopigear Pty Ltd T/A Pandora Penrith

[2019] FWC 948

[2019] FWC 948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Noelle Neary
v
LOPIGEAR PTY LTD T/A Pandora Penrith
(U2018/9526)

COMMISSIONER CAMBRIDGE SYDNEY, 21 FEBRUARY 2019

Unfair dismissal - jurisdictional objection - s. 386 - alleged forced resignation - application dismissed.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Noelle Neary (the applicant). The respondent employer is LOPIGEAR PTY LTD T/A Pandora Penrith (the employer).

[2] The application was filed at Sydney on 15 September 2018, and it indicated that the date that the applicant was allegedly forced to resign from employment was 5 September 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The employer filed a response dated 24 September 2018, which raised a jurisdictional objection to the application on the basis that the applicant was not dismissed. The matter was listed for conciliation on 11 October 2018. However, a communication dated 26 September 2018, was sent to the employer on behalf of the Fair Work Commission (the Commission) which, inter alia, stated “If you do not intend to participate in the conciliation, please contact the Commission to discuss the matter further.” On the next day, 27 September 2018, the employer responded to this communication and indicated, inter alia, “We confirm that we do not wish to participate in conciliation.” Consequently, the conciliation proceedings were cancelled, and the matter proceeded to arbitration which dealt with the determination of the jurisdictional objection raised by the employer, which involved the question of whether the applicant was a dismissed employee, together with the substantive merits of the claim.

[4] At a Pre-Hearing Conference held on 16 October 2018, both Parties indicated that they would be represented by lawyers or paid agents, and the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. The Hearing was conducted at Sydney on 11 December 2018. At the Hearing, the applicant represented herself, and she gave evidence as the only witness who was called in support of the unfair dismissal claim. The employer was represented by Ms J Summerville, a paid agent, who introduced evidence from a total of three witnesses.

Factual Background

[5] The applicant commenced employment with the employeron 23 September 2011. The applicant was engaged as a casual retail sales assistant, and she worked on a regular and systematic basis for on average, between 20 to 25 hours per week. The applicant worked at the employer’s retail premises located in the Westfield shopping centre in the Sydney suburb of Penrith (the Penrith store). The employer relevantly conducts a retail jewellery outlet trading as Pandora Penrith.

[6] The applicant had a commendable work record and she was a valued employee. On Sunday 5 August 2018, a bracelet valued at $2,800, was stolen from the Penrith store. The applicant was working at the time of the theft but she did not notice the larceny. The loss of the bracelet was not discovered until the following day, Monday 6 August, when the Penrith store manager, Ms Subritzy, realised that the bracelet was missing.

[7] The applicant was not working on Monday 6 August 2018, and Ms Subritzy sent her a text message inquiring as to any knowledge that the applicant may have regarding the missing bracelet. The applicant confirmed that she was unaware that the bracelet was missing. Ms Subritzy reviewed CCTV surveillance footage from the previous day which showed that a young boy had stolen the bracelet at a time that the applicant had turned her back when serving a customer.

[8] On the following day, Tuesday 7 August 2018, the applicant went into the Penrith store although she was not rostered to work until Thursday 9 August. The applicant was very concerned about the theft of the bracelet, and she apologised to Ms Subritzy and she sought to discuss the matter further. However, Ms Subritzy told the applicant that further discussion about the theft and an opportunity for the applicant to view the CCTV footage would be provided on the applicant’s next rostered shift, Thursday 9 August.

[9] On Thursday 9 August the applicant attended for work at the Penrith store, and about 30 minutes prior to the end of her shift the applicant was asked to meet Ms Subritzy in a back room of the Penrith store where the two women watched the CCTV surveillance footage from the previous Sunday. After the CCTV footage had been viewed, Ms Subritzy commenced to read from a pre-prepared document headed “Record of Discussion”. The applicant confirmed that the “Record of Discussion” included a written warning regarding the applicant’s failure to take proper security measures in respect of the larceny of the bracelet event. The applicant challenged the issue of a written warning, and she protested that she had not been first provided with a verbal warning. Although she was clearly aggrieved the applicant signed the “Record of Discussion” document at the time.

[10] The applicant was greatly aggrieved by being provided with the written warning contained in the “Record of Discussion” document. The applicant felt that as a long serving employee with an exemplary work record, it was unjust and harsh to have been issued with a written warning. Over the following days and weeks the applicant’s grievance developed into a state of emotional distress which was clearly evident during her subsequent work engagements. The applicant experienced a level of anxiety which caused her to consult a medical practitioner and she was provided with a period of medical incapacity for work between 19 August and 21 August 2018.

[11] The applicant’s ongoing level of anxiety was recognised by the employer who decided to hold a meeting with her in order to discuss the applicant’s ongoing display of general unhappiness at the workplace. Consequently, on 5 September 2018, at 9:50 am, Ms Subritzy sent the applicant an email which invited her to attend a meeting on the following day which would include; Ms Subritzy; Ms Woolfeden, (the Penrith store operations manager); and Ms Ely (the employer’s Director and business owner). The invitation also offered the applicant an opportunity to bring a support person to the meeting.

[12] At 11:47 am on 5 September, the applicant sent an email response to the meeting invitation indicating that her support person was unavailable because of the short notice provided for the meeting. Later that day, at 3:56 pm, Ms Subritzy sent a further email to the applicant proposing an alternative meeting date of Friday the 14^th and requesting that the applicant confirm that this date was suitable. In addition, this email advised that the applicant’s shifts were suspended until the matter had been resolved.

[13] The applicant did not provide an email response to this second email sent by Ms Subritzy on 5 September 2018. Instead she typed out a written resignation letter and in the company of her husband, she went to the Penrith store to hand deliver her resignation letter. In addition to her resignation letter, the applicant provided the employer with a written response to the “Record of Discussion” of 9 August, and she also handed in her work uniform.

[14] The applicant and her husband attended the Penrith store at about 4:45 pm on 5 September 2018. The applicant had her resignation letter in one envelope, and in a separate envelope she had included a written response to the “Record of Discussion” of 9 August, and her work uniform was in a plastic bag. The applicant provided these items to Ms Subritzy, and told her that one of the envelopes contained her resignation from employment. There was then an unpleasant scene which involved, in particular, the applicant’s husband swearing and making disparaging remarks directed at Ms Subritzy and the CCTV surveillance camera. The applicant and her husband subsequently left the Penrith store at the request of Ms Subritzy. Ms Subritzy was very upset as a result of the unpleasant scene, particularly the comments and actions of the applicant’s husband, and she reported the incident to the police.

[15] Later on the evening of 5 September 2018, Ms Woolfeden sent the applicant a text message asking her if she would like to discuss the events of earlier that day and her resignation from employment. The applicant declined this proposition, and she indicated that she was too upset.

The Applicant’s Case

[16] The applicant made submissions which stressed that she believed that the disciplinary action taken by the employer in respect to the bracelet theft of 5 August 2018, was harsh, unjust and unreasonable. The applicant said that because of the lack of support and understanding from her managers during this horrific event she felt that she had no other option than to resign to escape from that treatment.

[17] The applicant stressed that she had worked hard and bought a lot of money into Pandora Penrith over nearly seven years of employment. The applicant acknowledged that the bracelet had been stolen but that because of her long employment, a written warning about that event was harsh and unfair. The applicant said that she never got any support from the managers and the way that she had been treated was unfair, unjust and harsh. The applicant also said that she wished to emphasise that her husband did not swear at Ms Subritzy and that he was directing any abuse at the CCTV camera.

[18] The applicant further submitted that within the last two years there had been a lot of changes in the Penrith store and the workplace had been going downhill. The applicant said that this had been recognised by many customers and that nobody was happy in the store anymore and everybody felt under pressure and stressed.

[19] The applicant also submitted that there was other staff in the Penrith store at the time that the bracelet was stolen and yet the entire responsibility for the theft had been put on her. Further, she said that it was very short notice for the meeting which took place about a month after the bracelet had been stolen, and when she received the second email from Ms Subritzy on 5 September she felt she had no other option but to resign from her employment.

[20] The applicant said that she was seeking compensation for loss of six months of wages as a result of her unfair dismissal. The applicant also said that she was seeking pro rata long service leave payment. In addition, the applicant said that she had been actively seeking work but had been unable to obtain any other employment. The applicant said that the whole matter had greatly impacted upon herself and her husband.

The Employer’s Case

[21] Ms Summerville, who appeared for the employer, made verbal submissions opposing the unfair dismissal claim on the basis that the applicant had not been dismissed from her employment. Ms Summerville said that the applicant had been clearly dissatisfied with the course of action taken by the employer in relation to the bracelet theft incident. Further, Ms Summerville acknowledged that as a result of the disciplinary action taken by the employer the applicant did not feel trusted or valued within her position and that she was greatly upset.

[22] However, Ms Summerville submitted that the disciplinary action of a first written warning was entirely appropriate and proportionate to the circumstances. Ms Summerville said that the disciplinary action taken by the employer was not unreasonable, and the applicant had clearly made some error by turning her back and failing to observe proper security measures.

[23] The submissions made by Ms Summerville stressed that there may be a level of dissatisfaction that an employee might experience due to the actions of the employer, however, this did not provide causation or motivation to satisfy the requirement that the termination of the employment was at the initiative of the employer. Further, Ms Summerville submitted that the applicant had a reasonable choice to continue working and attend the meeting that had been rescheduled. Ms Summerville submitted that there were a number of other actions that the applicant could have taken including, contacting the employer’s Director and business owner, Ms Ely, to discuss the matter, or putting in a formal complaint and awaiting the outcome of her grievance.

[24] Ms Summerville submitted that the applicant did not provide the employer with an opportunity to respond to her concerns, and instead, she decided to resign from her employment. Ms Summerville said that the circumstances which involved the applicant’s dissatisfaction with employment did not meet the criteria to establish a forced resignation.

Consideration

[25] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[26] In this case there was a jurisdictional objection raised in respect to that element contained in subsection 385 (a) of the Act, specifically whether the applicant was a person who had been dismissed. The question of whether or not a person has been dismissed from employment involves mixed findings of both fact and law. Further, section 386 of the Act prescribes a meaning of “dismissed”. Relevantly, sub-section 386 (1) of the Act is in the following terms:

“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.”

[27] In this instance the applicant provided a written resignation from her employment in a letter dated 5 September 2018. The applicant has asserted that she was forced to resign from her employment because of conduct, including a course of conduct, engaged in by the employer. These circumstances are often described as a constructive dismissal in that it is asserted that it was the desire of the employer to have the applicant resign from employment, and/or that it was the action of the employer that essentially compelled the applicant to resign.

[28] There is a significant amount of case law authority on the question of constructive dismissal. One case which is often referred to is that of Mohazab v Dick Smith Electronics (No2) 1(Mohazab) which succinctly summarised the concept of constructive dismissal as follows:

“However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.” 2

[29] In Mohazab, the Full Bench of the Court also referred to another authority in the case of Allison v Bega Valley Council  3 (Allison). The following extracts from the Decision in the Allison case is particularly helpful for application in the present circumstances:

“Although the term “constructive dismissal” is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?”

and

“In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee...”

[30] In the present case, the relevant actions of the employer were connected with the disciplinary action taken by the Penrith store manager when she issued the applicant with the “Record of Discussion” on 9 August, which included a written warning regarding the incident involving the theft of a bracelet on 5 August 2018. The applicant was greatly aggrieved by the provision of a written warning in circumstances which she believed warranted only a verbal warning. The perceived injustice and unfairness of the written warning created considerable anxiety and emotional distress for the applicant.

[31] The employer recognised that the applicant was greatly aggrieved by what she believed to be the injustice perpetrated upon her. The employer was concerned about the clear unhappiness that the applicant displayed in the workplace and which arose from her ongoing grievance about the treatment she had received in connection with the bracelet theft. The employer valued the applicant as an employee, and it commenced to implement a process that was aimed at dealing with the applicant’s manifest display of unhappiness at the workplace.

[32] As a first step in addressing this problem, the employer attempted to arrange a meeting so that the applicant’s grievance could be discussed openly and hopefully resolved. Unfortunately because of the short notice provided for the meeting, the applicant could not arrange for a support person to be present. Logically, a subsequent date for the meeting needed to be agreed upon. Unfortunately the employer decided to suspend the applicant from work until the deferred meeting could be held. This suspension from work exacerbated the emotional distress of the applicant.

[33] Although the applicant would have understandably been further upset at the prospect of being suspended from work until such time as the deferred meeting was held, she hastily responded by typing out a written resignation from employment. The applicant would have been entitled to require that she be paid during any period of suspension but instead of agitating that issue she allowed her heightened state of emotional distress to cause her to resign.

[34] Importantly, the evidence clearly established that the employer was not acting in a manner that was seeking to have the applicant resign or to otherwise bring the employment to an end. The employer’s desire to maintain the applicant as an employee was reflected by the text message that Ms Woolfeden sent to the applicant on the evening after the unpleasant incident at the Penrith store involving the applicant’s husband and during which the applicant provided her typed resignation. In this message, the employer was seeking to further engage the applicant in discussion which would have logically continued the employment relationship. The employer was acting with some caution so as to ensure that the resignation was genuinely intended. The employer took this conciliatory approach despite the unpleasant incident at the Penrith store involving the abusive conduct of in particular, the applicant’s husband.

[35] In reality, the applicant had a number of options open to her other than to resign from her employment. In particular, she could have sought to meet separately with the employer’s Director and business manager, Ms Ely, so as to advise Ms Ely that her emotional distress was at such a level that she had a strong intention to resign. The following evidence provided by Ms Ely during the Hearing, indicated that there was strong prospect that Ms Ely would have taken some action so as to placate the concerns of the applicant. Ms Ely made the following statement during the Hearing:

“I do wish that Ms Neary had come and spoken to me. I feel as though a hasty decision was made and we wouldn’t be here today, she would be gainfully employed still as she was one of our great sales people who we miss on the floor.” 4

[36] These are comments that clearly demonstrate that it was not the intention of the employer to bring the employment of the applicant to an end. The evidence established that there would have been considerable prospect that the concerns of the applicant may have been able to have been properly addressed and perhaps the written warning contained in the “Record of Discussion” may have been withdrawn. Unfortunately, the applicant’s hasty resignation meant that there was no opportunity for the employer to repair any of the damage that the applicant experienced as a result of the disciplinary action that was initiated by Ms Subritzy.

Conclusion

[37] The determination of this matter has involved a contest about whether or not the applicant was a person dismissed from employment. Upon application of the relevant tests and an analysis of the evidence involving the circumstances of the termination of employment, it has been established that the resignation of the applicant was not caused by conduct, or a course of conduct, on the part of the employer.

[38] It was very regrettable that no conciliation of this matter was conducted. The absence of any conciliation was a somewhat understandable result of the suggestion made to the employer that it may not intend to participate in a scheduled conciliation conference.

[39] Unfortunately, the applicant has appeared to misconstrue the concept of constructive dismissal. A constructive dismissal is not established simply because an employee decides to resign as a result of emotional distress created by the employer’s conduct. The conduct of the employer will be the true initiator of the termination of employment only if it can be objectively and properly established to have been incompatible with the continuation of the employment.

[40] As a matter of fundamental fairness between the Parties, the applicant was obliged to accept the invitation of the employer to engage in further discussion about her concerns. If, after further discussion, the employer made little or no attempt to resolve or otherwise mitigate legitimate residual issues, only then could the concept of constructive dismissal be potentially enlivened. In this instance, the applicant had obvious options as alternatives to resignation, and in such circumstances she was not forced to resign.

[41] Consequently, a careful analysis of the circumstances in this instance has established that the applicant was not forced to resign because of conduct, or a course of conduct, engaged in by her employer. Indeed, the employer wanted the applicant to continue as she was a valued employee. The applicant was not a person dismissed from employment, and the jurisdictional objection as advanced by the employer must be upheld.

[42] The application is dismissed as it is without jurisdictional foundation. An appropriate Order shall be issued accordingly.

COMMISSIONER

Appearances:

Ms N Neary appeared unrepresented.

Ms J Summerville appeared for the employer.

Hearing details:

2018.

Sydney:

December, 11.

Printed by authority of the Commonwealth Government Printer

<PR704924>

 1 Mohazab v Dick Smith Electronics Pty Ltd (No.2), (1995) Industrial Relations Court of Australia, 62IR 200.

 2   Ibid @ page 207.

 3 Allison v Bega Valley Council, (1995) Full Commission of the Industrial Relations Commission of NSW, 63IR 68.

 4   Transcript @ PN323.