Olga Dobrovolskaia v AI&E Pty Ltd

[2021] FWC 6264

[2021] FWC 6264

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Olga Dobrovolskaia
v
AI&E Pty Ltd
(C2021/4469)

DEPUTY PRESIDENT LAKE BRISBANE, 3 NOVEMBER 2021

Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether Applicant was dismissed – jurisdictional objection dismissed

[1] Olga Dobrovolskaia (theApplicant) lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by AI&E Pty Ltd (the Respondent).

[2] By way of background, Aleksei Andreev is the director of the Respondent, which had two employees: the Applicant and her now ex-partner, George Thomas. The latter is also a business partner of Mr Andreev.

[3] The Applicant was employed by the Respondent from 28 September 2020. The Applicant alleges that she was notified on 13 July 2021 that she was to be dismissed, effective as of 16 July 2021. The Respondent asserts that she resigned. The jurisdictional objection was allocated to my Chambers. Directions were issued with respect to the filing of material and the matter was listed for hearing on 23 September 2021.

[4] The Respondent sought to be represented at the hearing, which was not opposed by the Applicant. Granting permission to be represented under s.596 requires the satisfaction of two elements. 1 The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3

[5] The Respondent submitted that the facts of this matter were particularly complex given they involve a Temporary Protection Order (TPO) issued against Mr Thomas, a significant debt dispute (which involves Mr Andreev) between the Applicant and Mr Thomas and the dispute regarding whether the Applicant was forced to resign. Given the complex and unusual facts and Mr Andreev’s request for an interpreter to be present, I was satisfied that that it was appropriate to grant the Respondent permission to be represented. Accordingly, Mr D Chen from NB Lawyers represented the Respondent at the hearing.

Was the Applicant dismissed?

[6] Section 386(1) of the Act relevantly provides thata 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.

[7]The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer. 4 In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.5 While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.6 It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.7 Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?8 It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.9 All the circumstances – including the conduct of both the employer and employee – must be examined.10 In other words, it must be shown 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.”11

[8] Each party provided submissions and evidence in writing and orally at the hearing. I have had regard to all the material before me. There were a myriad of personal, professional and financial issues raised throughout the evidence and submissions in this matter. However, this decision concerns only whether the Applicant was dismissed. I have tried to summarise the evidence as best I can below.

Applicant’s material

[9] The Applicant gave evidence and made submissions on her own behalf, both in writing and orally at the hearing. Her evidence was that on 8 July 2021, the Magistrates Court at Southport issued a TPO against Mr Thomas. On 9 July 2021, the Applicant provided a copy of those orders to Mr Andreev, as he employed both her and Mr Thomas.

[10] On 12 July 2021, the Applicant says that Mr Andreev called her and asked her to change the terms of the TPO so that Mr Thomas could contact her.

[11] The Applicant states that on 13 July 2021, Mr Andreev called her at 1.56pm. During that phone call she alleges that Mr Andreev stated that if she did not withdraw the TPO against Mr Thomas she would lose her job. She did not agree to withdraw the TPO and told him so. The Applicant says that she told Mr Andreev that the TPO was the only way she could protect herself from Mr Thomas and that she would not withdraw it. She started to cry. The Applicant says that Mr Andreev threatened her with physical harm if she did not do as he said. The call ended without resolution.

[12] At 4.46pm that afternoon, the Applicant claims that Mr Andreev called her again and told her to send him her resignation letter. Moments later he sent a “sweet” message which included a statement that:

“I continue to be fond of you as a friend and our home is always open for you, our child loves you and Vika [Mr Andreev’s wife] is very loyal towards you. However, what has happened between you and George, cannot go on in my company and therefore I have to ask that you and George cannot go on in my company and therefore I have to ask that you and George not work in my company. Also, from my perspective, I maintain the position we discussed last night.”

[13] The Applicant states that what Mr Andreev meant in this message was that she must resign. Her evidence was that at around the time he sent this message had called and told her that he would break her legs and threatened to use his connections in Russia to harm her family who remained there.

[14] Following those conversations and the text message, particularly given the threats of physical harm, the Applicant formed the view that she could not return to work. She submits that she had no other choice but to resign.

[15] In a state of disbelief, the Applicant texted Mr Andreev’s wife, her friend, stating that they could no longer speak. The Applicant says she was shaking all night, crying and could not sleep.

[16] The Applicant submits that Mr Andreev was keen to communicate over the phone, rather than in writing and that during their phone calls he kept asking her to withdraw the TPO. The Applicant submits that Mr Andreev is deliberately manipulative and that he would threaten her by phone but then try to cover his tracks in writing.

[17] On 13 July 2021 at 5.44pm, the Applicant sent Mr Andreev a letter of resignation by email. The email read:

“…Please find the attached letter as you requested. I have also sent the email to the accountant to calculate my unused annual leave for the final payslip. Have a lovely day!”

[18] The letter itself simply indicated that this was formal notice of her resignation and that her last day of employment would be 16 July 2021. She then wrote, “Thank you for giving me the opportunity to work in this position and I wish you and GQQG all the best for the future.”

[19] The Applicant acknowledged that the tone of this email was positive but said that was because she was scared of not doing as he told her. In the hearing, she opined that if you are threatened, you will do anything.

[20] Her employment ended on 16 July 2021 as indicated in her resignation letter.

[21] On 18 July 2021, Mr Andreev asked the Applicant if they could meet in person. She initially did not want to do so after what had happened, but she decided to give him a chance and listen to him. She thought perhaps he might offer her job back or at least apologise. That meeting took place on 20 July 2021. Since the Applicant no longer trusted Mr Andreev, she recorded the conversation. A transcript of that recording has been produced and translated into English and reads as follows:

“Female voice: When you were calling me as he was sitting next to you, what did you tell me? Withdraw the order…

Male voice: I just didn’t understand him, I explained it to you later. I simply didn’t understand him. It happens like this sometimes. I explained this to you, we do have problems with communication, I just didn’t understand him. He was saying ‘I need for all of this to stop’, and then I told you to withdraw the order. Then I ask him and he says ‘No, no, keep the order’. I said ‘I’ve already told her to withdraw the order’.”

[22] The Applicant asserts that this is evidence that Mr Andreev had in fact told her to withdraw the TPO. She says the purpose of that meeting seemed to be for Mr Andreev to tell her that it was better for her to withdraw the TPO because Mr Thomas had hired expensive lawyers and they would find a way to put her in jail. She was so shocked by this conversation that she contacted police. They in turn recommended that she contact the Commission as an employer could not force her to resign because she had not withdrawn the TPO.

[23] The Applicant submits that Mr Andreev was mostly careful to ensure that his written communications were polite and self-serving and mostly made threats orally. The Applicant further submits that Mr Andreev also attempts to rely on English being his second language to suggest that his words had been misunderstood, but that he knows exactly what he is doing when he makes threats.

[24] She says that such conduct was not without precedent and referred the Commission to an email sent from Marc Mrsic, Mr Andreev’s previous business partner. The Applicant claimed this document was evidence that Mr Mrsic had been also threatened by Mr Andreev and was so concerned by those threats that he had contacted police. It must be noted that Mr Mrsic was not called to give evidence, though the Applicant produced his email to Mr Andreev which stated:

“Aleksei,

To put your mind at ease, and given there have been no further threatening or abusive messages and phone calls from you or Vika to me and Maria today I have decided to hold off on advice provided to me by the Police yesterday – see emails [from Police] below.

Based on the spontaneous phone calls and abusive and threatening messages we both received yesterday from you and Vika in recent days we were advised to take the following actions immediately:

•  Lodge to Magistrates Court for a Peace and Good Behaviour Order

•  File a criminal complaint report with Queensland Police for Nuisance or Disturbance

If we are able to continue a positive line of communication via email that is strictly business related I have no intent to follow through with the above…”

[25] In light of all the evidence and submissions outlined above, the Applicant submits that I should be satisfied that she though resigned from her employment, she was forced to do so because of conduct, or a course of conduct, engaged in by Mr Andreev. Accordingly, she submits, I should be satisfied that she was dismissed from her employment.

Respondent’s material

[26] The Respondent submits that the Applicant was not dismissed within the meaning of s.386(1) of the Act and rejects her assertions that either she was threatened with dismissal unless she withdrew the TPO made against Mr Thomas or that Mr Andreev made verbal threats of physical harm either to her or her family which necessitated her resignation. Mr Andreev expressly and vehemently denied both allegations in his evidence.

[27] The Respondent submits that the significant financial dispute between the Applicant and Mr Thomas which emerged on 5 July 2021 is appropriately categorised as a private debt between those individuals. It was complicated by their previous personal relationship. It was not connected with the day to day business of the company, being the operation of the import and export business. The Respondent says that had the Applicant believed it to be part of her employee entitlements she would have raised it with Mr Andreev directly. Mr Andreev claims that his reluctant involvement only began after Mr Thomas told him that he had ceased contact with the Applicant because she had threatened to make a TPO against Mr Thomas. Mr Andreev became involved to care for his two employees (whom he considered personal friends) and also to avoid any significant disruption to the Respondent’s business arising out of such animosity between the only two employees.

[28] The Respondent submits, and Mr Andreev’s evidence was, that the initial stand down of the Applicant’s employment on 5 July 2021 was reasonable management action given the concerns about theft of monies that appeared credibly linked to the Applicant (based on the information supplied by Mr Thomas’ bank) and the fact that the Applicant’s responsibilities for payroll and invoicing tasks placed the Respondent’s finances at risk. It was too much of a risk to allow her to remain at work whilst an investigation took place. Further, the Respondent submits that the stand down cannot be properly construed as conduct objectively intended to bring the Applicant’s employment to an end as it was temporary and on full pay, while the allegations were investigated.

[29] Following the making of the TPO, Mr Thomas was not allowed to have any direct contact with the Applicant. Other than their legal representatives, Mr Andreev was the only person liaising between them. He engaged in this role as mediator, reluctantly, in an attempt to resolve the issue. He thought it improper to use his capacity as their employer to resolve a private dispute, so engaged as their friend. He also recognised that it was in his interests for the matter to be resolved so both employees working productively for the Respondent. However, as the Applicant was unable to produce any meaningful evidence to demonstrate Mr Thomas owed her the money, he could do little to assist her. She continued to make demands for the assistance of Mr Andreev and his family which caused considerable stress. The Applicant eventually demanded that Mr Andreev pay her the alleged money owing, which he says he only initially entertained to stop the Applicant’s incessant demands.

[30] Mr Andreev’s evidence was that during his phone call with the Applicant on 12 July 2021, he made it clear to the Applicant that he would not be signing the statutory declaration sent to him by the Applicant. He says, during that call, she told him she was tired of working for the Respondent, was looking for work in Sydney and wanted to know how to end the employment relationship. He told her that he would prefer a written letter sent to the Respondent’s official email address.

[31] On 13 July 2021, discussions ensued between Mr Andreev, Mr Thomas and the Applicant. Mr Andreev’s evidence was that he initially understood that Mr Thomas wanted the Applicant to withdraw the TPO) but this was a misunderstanding on his part, which was correctly shortly afterwards.

[32] Mr Andreev’s evidence was that he had difficulties with the English language and would, for example, use the Applicant to assist with informal translations. He stated that he could follow the discussions but sometimes had difficulties when speaking. He had the benefit of a Russian interpreter at the hearing and was instructed to interrupt and ask her to translate the proceedings if required. I note that Mr Andreev did not require her assistance often.

[33] At around this time Mr Andreev decided his continued involvement in the dispute between Mr Thomas and the Applicant would be unhelpful and so would stand both down to allow them time to resolve their conflicts. He communicated that decision to the Applicant by text on 4.46pm on 13 July 2021.

[34] He received the Applicant’s resignation letter from her at 5.44pm that evening, stating that her final date of employment would be 16 July 2021. The email, he says, did suggest any emotional distress. Given her previous intimations about accepting further employment in Sydney, Mr Andreev said he had no reason to question the written resignation. The Applicant then calculated the entitlements due upon termination and the Respondent attempted to process the Applicant’s final pay on this day.

[35] Further, following the Applicant’s resignation email, the Applicant did not cease communicating with Mr Andreev. In fact, she agreed to meet with him on 20 July 2021 and requested a reference letter on 28 July 2021 (which he provided) and accepted $2,500.00 as a gesture of goodwill. The Respondent submits that that payment was to assist with her relocation costs. The Respondent submits that such conduct is entirely inconsistent with the Applicant’s narrative that alleges Mr Andreev threatened her with physical harm. Further, the Respondent submits, that it would be “plainly inconsistent for Mr Andreev, who is in the process of applying for immigration rights in Australia, to behave in a way contrary to Australian law. His family’s future in Australia hangs on a determination by the relevant authorities that he is of good character to remain.

[36] In light of the above evidence, the Respondent submits that as at 13 July 2021, the Applicant was not placed in a position where she had no effective or real choice but to resign. Further, or alternatively, the Applicant resigned of her own volition to take up employment opportunities in Sydney. On either view, the Applicant was not dismissed.

Consideration

[37] I have had regard to the submissions and evidence given by both parties. Each witness was plainly spoken and appeared credible. However, I have been presented with two very different narratives of what occurred on or around 13 July 2021.

[38] The Applicant alleges that Mr Andreev threatened her employment if she did not agree to terminate the TPO against Mr Thomas. She says that when she refused, Mr Andreev made threats of physical harm against her and her family. Mr Andreev vehemently denied all allegations regarding threats of physical harm but conceded that the Applicant may have misunderstood him to be instructing her to withdraw the TPO but that he quickly corrected that impression. He claims that he acted as a reasonable employer would in very complex circumstances which had arisen due to the deterioration of a relationship between his only two employees. The Respondent submitted that the Applicant’s willingness to meet with Mr Andreev on 18 July 2021 and her desire to be reinstated are directly contradictory of her suggestion that she was fearful of him because of threats he had made. Accordingly, the Respondent submitted that the Applicant willingly and freely resigned her employment. Mr Andreev understood that she had done so to take up employment in Sydney.

[39] The evidence in this case is finely balanced and it may be that reasonable minds differ when analysing it. However, I am satisfied based on the testimony presented by the Applicant that Mr Andreev told the Applicant to withdraw the TPO against Mr George and that if she did not do so, her employment would be terminated because, if it continued, he could not have both individuals working for him. Given Mr Andreev’s close business and personal relationship with Mr George, it was clear to the Applicant where his loyalties lay. The question of whether threats of physical harm were made cannot be conclusively resolved on the evidence before me. It is a matter where the two individuals involved give disparate accounts. On one view, it is curious that the Applicant was willing to meet with someone who allegedly threatened her and her family with physical violence after she had resigned her employment. However, I accept her evidence that she did so to afford Mr Andreev the opportunity to redeem himself, given their longstanding professional relationship and friendship. It is perhaps most telling that she did so in a public place and with her phone covertly recording their conversation. The latter, in itself, exemplifies a high level of distrust.

[40] The email train between Mr Andreev and Mr Mrsic was produced by the Applicant to demonstrate a pattern of behaviour by Mr Andreev. However, without Mr Mrsic’s evidence, it can be given little weight and even if Mr Mrsic’s direct evidence was obtained, it does not specifically relate to the question before me, which is, was the Applicant forced to resigned from her employment because of conduct, or a course of conduct, engaged in by Mr Andreev, towards her? For that reason, I have not taken it into consideration.

[41] Nevertheless, based on the evidence and reasons set out above, I am satisfied that the Applicant was forced to resign from her employment because of Mr Andreev’s conduct and therefore, she was dismissed within the meaning of the Act.

[42] I will list the matter for further conference and attempt to conciliate the matter. If that is unsuccessful, a certificate will be issued pursuant to s.368(3).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735462>

 1   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.

 2   Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.

 3   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268 at [48].

 4   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

 5   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

 6   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 7   Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].

 8   O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006) at [23].

 9   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 10   Whirisky v DivaT Home Care [2021] FWC 650 at [77].

 11   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].