Peta Broughton v Kimberley Land Council Aboriginal Corporation
[2010] FWA 7059
•9 SEPTEMBER 2010
[2010] FWA 7059 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peta Broughton
v
Kimberley Land Council Aboriginal Corporation
(U2010/9164)
COMMISSIONER WILLIAMS | PERTH, 9 SEPTEMBER 2010 |
Termination of employment - jurisdiction - high income threshold - abandonment of employment - extension of time.
[1] Ms P. Broughton, the applicant, has applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is the Kimberley Land Council Aboriginal Corporation (the respondent).
[2] The application was the subject of a conference before a conciliator however the matter has not been resolved.
[3] The applicant was employed on 29 September 2009 and her employment ended in May 2010.
[4] The respondent objects to the application because it says the applicant was not terminated on the employer’s initiative and so was not dismissed, in any event the applicant was not protected from unfair dismissal because her earnings exceeded the high income threshold and finally because the application was lodged out of time.
[5] The parties were invited to provide written submissions and affidavits in support of their respective positions. The respondent did so and the applicant provided a reply to this. Following this the respondent requested the opportunity to make a further submission. This was allowed however the respondent subsequently chose not to provide any further materials to the tribunal.
The legislation
[6] Section 382 of the Act prescribes when a person is protected from unfair dismissal as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[7] Next s.385 prescribes when a person has been unfairly dismissed:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.”
[8] Section 386 then defines “dismissed” as follows:
“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.”
[9] Section 394 then specifies the time frames for lodging an unfair dismissal application as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[10] Finally there is a requirement for the tribunal to decide certain jurisdictional matters before considering the merit of the application as specified below:
“396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; it will
(d) whether the dismissal was a case of genuine redundancy.”
Background
[11] The applicant was employed as a senior legal officer with the respondent. On 10 May 2010 the applicant met with the respondent’s chief executive officer, Mr Bergmann, who told her that she was no longer working on “the gas project” and she was to report to the respondent’s principal legal officer, Mr Powrie, and to move to the respondent’s Pembroke Street offices by the end of the week.
[12] After this meeting the applicant left and did not return to work.
[13] The respondent then received a letter dated 12 May 2010 from the applicant’s solicitors which says that the meeting with Mr Bergmann effectively meant the applicant’s employment had been terminated and that the actions of the respondent confirm the applicant has been constructively dismissed and that the applicant sought various payments as a consequence.
Was the applicant protected from unfair dismissal?
[14] The respondent argues that the applicant’s earnings exceed the high income threshold and so the applicant does not meet the criteria in s.382(b)(iii) and consequently is not protected from unfair dismissal.
[15] In reply, the applicant points out that s.382(b) specifies that only one of the criteria specified in s.382(b)(i), (ii) or (iii) need apply for a person to be protected from unfair dismissal, assuming they satisfy the requirements of s.382(a). Further, it is argued by the applicant’s representative, that the applicant was covered by an enterprise agreement and so meets the requirement of s.382(b)(ii).
[16] The applicant submits that the Kimberley Land Council Enterprise Agreement 2004 (the agreement) 1 applied to her.
[17] I have reviewed this agreement and it is clear that the respondent is bound by the agreement by virtue of Clause 5 Parties Bound.
[18] The applicant’s evidence is that she was offered the job by way of a written offer of employment 2. I note that on page 5 of this offer of employment under a heading “Salary Schedule” the offer indicates that the “KLC Level” will be “EL 2.2”. Schedule A - Kimberley Land Council Salary Scales of the agreement includes various classifications including a classification of EL 2.2.
[19] Schedule A-1 Kimberley Land Council Position and Classification Bands 2004 also includes a position of Legal Officer with a corresponding classification of KLC Level 6. The agreement then does cover the legal officer position in which the applicant was employed however it seems her salary may have been at a level higher than required by the agreement.
[20] I also note that in various other places throughout the offer of employment there are references to particular provisions of the “KLC enterprise agreement” being applicable.
[21] The respondent has not challenged the submissions on behalf of the applicant that the agreement was applicable to her.
[22] Considering these matters I find that the Kimberley Land Council Enterprise Agreement 2004 3 did apply to the applicant at the time her employment ended.
[23] I am therefore satisfied that the applicant does meet the criteria specified in s.382(b)(iii) and regardless of whether the applicant’s earnings did exceed the high income threshold within the meaning of s.382 of the Act she is protected from unfair dismissal.
Was the applicant dismissed?
[24] Considering then the circumstances in which the employment ended, the applicant’s evidence is that the legal unit in which she worked was divided into three sections, being Native Title, Agreements and Regional Solutions. Because the Regional Solutions Unit was physically separate from the main office of the respondent, Mr Powrie did not have direct daily supervision of her but rather her direct daily supervisor was Ms Christine Robinson.
[25] The applicant says she was interviewed by Mr Powrie for the position. She recalls being told by him that she was to work primarily on the gas project, but that she may be required to work on the Pluton project, which is an iron ore project managed out of the Agreements Unit.
[26] She met with the Respondent’s Chief Executive Officer, Mr Wayne Bergmann, on 10 May 2010. Mr Bergmann told her that she was no longer on the gas project and that she was to report to Mr Powrie at the main Pembroke Street office. She says she told Mr Bergmann that she was not a Native Title lawyer, that she was a commercial lawyer. Mr Bergmann made no comment in reply to this but told her to move to the other office by the end of the week. As a result of this conversation the applicant says she believed she was being directed to work on Native Title matters.
[27] The applicant says that after the meeting with Mr Bergmann she informed Ms Robinson that he had removed her from the gas project and that she would be away from the office to consider her options regarding her employment.
[28] The applicant’s evidence is that because she had no Native Title experience if she was directed to work in that area she would be unable to fulfil her professional responsibilities and so she considered that she had no option but to leave her employment with the respondent.
[29] Her evidence is that her decision was communicated to the respondent by letter from her solicitor dated 12 May 2010 4.
[30] In support of her application it is argued that the applicant was forced on 12 May 2010 to accept the respondent’s repudiation of her employment contract and resign, due to the conduct of her employer in removing her from her duties as a senior legal officer in the Regional Solutions Unit and directing her to work on Native Title matters of which she had no knowledge or experience and which tasks she was unable to perform. The applicant submits therefore that her resignation falls within the provisions of s.386(1)(b) of the Act and constitutes a dismissal of her employment.
[31] For the respondent the evidence of Mr Powrie is that on Monday, 10 May 2010 Mr Bergmann advised the applicant by e-mail, which was copied to Mr Powrie, that she was no longer to be engaged in the gas negotiations and was to report to Mr Powrie before the end of the week.
[32] Mr Powrie says that afternoon he spoke to Mr Bergmann to clarify the situation regarding Ms Broughton’s employment and was told by Mr Bergmann that he could not have the applicant working on the gas team any more as it was just not working and it was too important to stuff up 5. Mr Powrie then said that there was no point in the applicant doing Native Title work because she didn’t have any experience. Mr Bergmann replied that there was plenty of agreement work she could do, it was just the gas work he didn’t want her to work on. Mr Bergmann said she could start on pulling together the precedent agreements to ensure they got the best practice documents together or she could assist with other negotiations. Mr Powrie’s evidence is that he told Mr Bergmann to leave it with him and that he would get the applicant working on that or perhaps the KMG agreement.
[33] The respondent has not provided any submissions on the question of whether the applicant’s resignations falls within s.386(1)(b) other than to point out that the onus is on the applicant to show that she was dismissed.
Consideration
[34] In this case it is acknowledged by the applicant that the respondent did not dismiss her, however, the applicant claims that her resignation falls within the provisions of s.386(1)(b) of the Act and therefore constitutes a dismissal of her employment.
[35] The question for the tribunal posed by s.386(1)(b) is whether the applicant was forced to resign because of the conduct, or a course of conduct, engaged in by her employer.
[36] The only evidence of what happened in the conversation between the applicant and Mr Bergmann is that of the applicant and I accept this evidence.
[37] The applicant was told she was no longer to be on the gas project and she was to report to Mr Powrie and to move to the Pembroke Street office by the end of the week.
[38] The applicant told Mr Bergmann she was not a Native Title lawyer but he did not respond specifically to this.
[39] The applicant has provided the tribunal with the written offer of employment she received after her interview. The offer of employment which the applicant accepted says at paragraph number 1 that she has been successful in her application “for the position of Senior Legal Officer with the Regional Solutions Unit.” 6
[40] Numbered paragraph 1 of the offer of employment then reads as follows:
“You should be aware that there may be changes from time to time in your job description and the Corporation's Employment Policies and Procedures. This will require you to take a flexible approach to your work, which we hope will create job satisfaction as well as good productivity.”
[41] The numbered paragraph 3 of the offer of employment states that the applicant reports to Mr Powrie, the Principal Legal Officer.
[42] Page five of the offer of employment includes the following under the heading “Duties”:
“1. Lead and manage a team of legal practitioner’s, in consultation with Principal Legal Officer, to ensure effective delivery of legal services to members, and staff of the Kimberley Land Council and to Aboriginal Communities and Groups throughout the Kimberley Region of Western Australia.
2. Provide high level legal advice to the members and staff of the Kimberley Land Council on matters relevant to the work of the Land Council and provide and/or oversee the legal advice and services to Aboriginal Communities and Groups throughout the Kimberley Region in relation to:
(a) the preparation and conduct of Applications for Determination of Native Title;
(b) the conduct of non-claimant applications and future Act applications;
(c) the protection of Aboriginal heritage sites and areas of significance under the State and Commonwealth Aboriginal Heritage Acts;
(d) other matters of relevance to the aspirations and needs of the Aboriginal people of the Kimberley consistent with the organisation's objectives;
(e) negotiation of commercial contracts, joint ventures and land use agreements;” 7
[43] The applicant says as a result of the conversation with Mr Bergmann she believed she was being directed to work on Native Title matters. Why she assumed this to be the case when her evidence is that Mr Bergmann had not mentioned this and did not comment on her statement that she had no Native Title experience but told her only she was no longer to work on the gas project and to report to Mr Powrie, is not explained by the applicant.
[44] Importantly this assumption by the applicant was central to her deciding that she had no option but to leave her employment. She says she decided she had no choice but to leave because she had no Native Title experience and would therefore be unable to fulfil her professional responsibilities if directed to work in that area.
[45] The applicant’s view that the actions of the employer in removing her from the gas project and telling her to report to Mr Powrie at the other office, involved a fundamental breach of her contract of employment must be considered in the context of the fact that:
- at interview she was advised she may be required to work on an iron ore project out of the Agreements unit;
- the Native Title Unit is only one of three units within the organization;
- her offer of employment which she accepted specifies that there may be changes to her job description and that she will be required to take a flexible approach to her work; and
- the duties specified in the offer of employment do not mention the gas project, are not limited to any particular project nor can they be interpreted as excluding work on Native Title.
[46] Accepting the applicant’s evidence that she has no experience in Native Title this of itself is not sufficient in my view to support her conclusion that if she was required by the respondent to work in the Native Title Unit she would be unable to fulfil her responsibilities. Whatever her lack of experience in this particular area there were a range of options for her if indeed she was required to work in this area, which was far from certain, such as requesting training or mentoring from others who are experienced in this area.
[47] In any event the evidence of the respondent which is not contested is that Mr Powrie was of the view that there was no point in her doing Native Title work because she didn’t have experience and that Mr Bergmann’s response to this observation was that there was plenty of other agreement work she could do. Mr Bergmann and Mr Powrie discussed a number of options with regard to what work she might do. Ultimately it was left with Mr Powrie to decide what work she would be required to do. This evidence shows that the respondent had not made a decision as to what work the applicant would be directed to do for the future.
[48] Because the applicant never returned to work following her discussion with Mr Bergmann she never did report to Mr Powrie to find out what work she would be directed to do.
[49] In these circumstances is it correct to say that the applicant was forced to resign from her employment because of the conduct or a course of conduct of the respondent?
[50] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 8, with respect to constructive dismissal the Court observed that:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”
[51] In this case the employer’s actions complained of by the applicant were to advise her she was no longer to be working on the gas project and she was to report to her supervisor at another office. The applicant’s view that this amounted to a fundamental breach of the contract of employment is in my opinion an overstatement of the situation when one considers that at the interview other areas of work beyond the gas project were discussed and that the offer of employment makes no mention of the gas project work at all but rather includes a number of provisions as mentioned above which demonstrate that the contract of employment envisaged a broad scope of various types of work that the applicant might be directed to undertake.
[52] Whilst the applicant made an assumption as to what work Mr Powrie would direct her to do and believed she would not be able to do this work, I do not accept that she was necessarily correct in either respect. The evidence does not support a finding that the work she would be directed to undertake was Native Title work and in any event even accepting the applicants lack of experience on Native Title there were a number of obvious ways this difficulty could have been dealt with.
[53] Whilst the applicant may have had reason to be upset with the respondent’s actions, in all of these circumstances it cannot be said that the actions of the respondent would directly or consequently result in the applicant resigning. The applicant had been directed to report to her supervisor and the respondent clearly expected that she would do so and she would then be directed by him to do other duties and she would remain in the respondent’s employment.
[54] The concept of constructive dismissal as explained by the Court in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 9 is that:
“When an employee has no effective or real choice but to resign it can hardly be said that the termination of his or her employment is truly at the employee’s initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee.”
[55] In this case the applicant had a number of other options available to her rather than resigning. The most obvious choice she had was to report to Mr Powrie as directed. Given his evidence that he recognized the applicant’s lack of experience in Native Title it seems in all likelihood that this is not an area of work that he would have directed her to undertake. In any event regardless of what work he might ultimately have directed her to do if the work she was to undertake was work that she was unable to do then there were a number of options for her to deal with this problem which would be something the respondent would also need to resolve.
[56] Another option for the applicant was for her to pursue a grievance or claim regarding her situation through Clause 28 Procedure to Avoid Industrial Disputation of the Kimberley Land Council Enterprise Agreement 2004.
[57] This clause allows an employee to follow the process laid out therein and requires the parties to confer in good faith with a view to resolving the matter. Ultimately if the matter is not satisfactorily resolved through internal consultations the applicant under subclause 28.2(d) had the option to refer the matter to the “AIRC” for resolution or settlement. Given the applicant was a legal officer she was well placed to pursue this alternative.
[58] I do not accept then that in all the circumstances that the actions of the respondent were such that the applicant had no effective or real choice but to resign. The applicant was not in my view forced to resign because of the conduct or a course of conduct of the respondent.
[59] Rather in my view the applicant chose to resign voluntarily and so has not been dismissed by the respondent. Accordingly within the meaning of section 385 the applicant cannot have been unfairly dismissed. Consequently this application must be dismissed.
Was the application lodged within time and/or should an extension of time to lodge be allowed?
[60] Given the finding that there was no dismissal of the applicant the question of whether the application was lodged within 14 days after the dismissal took effect cannot be answered and is not relevant.
COMMISSIONER
1 Attachment PB 1 to the affidavit of Peta Broughton.
2 Attachment PB 2 to the affidavit of Peta Broughton.
3 AG835560
4 Annexure B to the affidavit of Robert Powrie.
5 Paragraph 15 of the affidavit of Robert Powrie.
6 Attachment PB 2 to the affidavit of Peta Broughton.
7 Ibid.
8 (1995) 62 IR 200 at 205.
9 Ibid at 206.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR501542>
0
1
0