Philasande Dladla v Uconnex Pty Ltd
[2024] FWC 1648
•24 JUNE 2024
| [2024] FWC 1648 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Philasande Dladla
v
Uconnex Pty Ltd
(U2024/163)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 24 JUNE 2024 |
Application for an unfair dismissal remedy – Applicant resigned from her employment in writing – whether Applicant forced to resign by her employer – evidence does not support a finding of forced resignation – no “dismissal” within the meaning of s.386(1)(b) of the Fair Work Act 2009 – unfair dismissal application dismissed for want of jurisdiction.
Introduction
Ms Philasande Dladla (Applicant) has filed an application for an unfair dismissal remedy with the Fair Work Commission (Commission), against her former employer, Uconnex Pty Ltd (Respondent).
The Respondent has raised a jurisdictional objection that it did not “dismiss” the Applicant from her employment. Rather, the Respondent says that the Applicant voluntarily resigned.
The Applicant claims that she was forced to resign on 16 December 2023 and thus “dismissed” within the meaning of s.386(1)(b) of the Fair Work Act 2009 (Act).
I conducted a hearing on 9 April 2024 to resolve the jurisdictional objection (i.e. as to whether or not the Applicant was “dismissed” by the Respondent). At the hearing, the Applicant appeared for herself, and the Respondent was represented (with permission) by Mr Murphy Hawkins, Principal Solicitor, Cogent Legal.[1]
Factual findings
I make the factual findings that follow for the purposes of these proceedings.
The Respondent is a registered National Disability Insurance Scheme (NDIS) provider.
The Applicant was employed by the Respondent on 11 April 2023 as a casual Disability Support Worker. She subsequently accepted the role of Human Resources Compliance Officer (in July 2023) on a casual basis with the Respondent.
In or around early December 2023, the Applicant recruited a worker (New Recruit) to commence work as soon as possible.
On 14 December 2023, Ms Victoria Malou (Case Manager – Melbourne Region), who was tasked with onboarding the New Recruit, identified that the New Recruit had given birth two days prior and was thus not fit to commence work. The New Recruit was advised to contact the Respondent when she was ready to resume working, and the onboarding process being conducted by Ms Malou would then recommence at that time.[2] In other words, the New Recruit did not have her offer of employment withdrawn by the Respondent,[3] and is now working for the Respondent.[4]
On 14 December 2023 (4:39pm), Ms Katherine Dang (Chief Operating Officer),[5] sent an email to the Applicant, Ms Malou, Ms Alice Huang, and Ms Heidi Haddad, which reads:
“Hi HR,
How comes she gave birth and being interviewed at the same time ?
Is HR not aware of it at all ?
Please verify
Thanks
Katherine”
Following Ms Dang’s email, the following responses from the Applicant and Ms Malou ensued:
· From: the Applicant
“Hi Katherine,
I was not aware of this at all. I interviewed her two weeks ago.
And plus in an interview I can only see someone’s head and not their body.”
· From: Ms Malou
“Maybe it would be vital to ask if there may be any barriers to them commencing work before we send them the offer letter ?
Just a suggestion…
Regards,”
· From: the Applicant
“Hi Vicky,
Thanks for this. We normally do hence we ask their availability of when they can start.
Unfortunately some cases we do get misled and I know this wouldn’t be the first time.”
To which Ms Dang responded to the Applicant (14/12/23 4:44pm):
“I need to talk to your department ASAP tomorrow as it is not acceptable at all.
This is HR responsibility to verify their working conditions and reference check before getting them onboarding.
And HR also needs to ask when she can commence her employment. She clearly stated that she gave birth 2 days ago and we looked like not doing our due diligence enough before getting her onboarding.
Speak soon and thread closes now
Katherine”
To which the Applicant (shortly thereafter) responded to Ms Dang:
“I understand that if I had asked her about any Barriers and she said she’s pregnant. That’s discrimination unfortunately. If she furthered her enquiry then it will be discovered that I personally discriminated against her since her skills met our standards and she declared she’s able to start as soon as I requested.
I'd also like to personally mention that in this role I've been deligent (sic) and very much ticked all references and policies set in place by Uconnex, NDIS code of conduct and antidiscrimination legislation.
Our department has found a replacement as soon as the CMS told us, so I'd like to mention we got a solution to all of this. And In saying so she was interviewed two to three weeks ago my perspective is different from CMS in that regard.
Problem was handled suitably by replacing the candidate. Due to human error these things do happen in every company. So to not hear out an excuse for me is definitely unfathamoble (sic) and bit distressing if I must say if we look at all the KPI and staff onboarding I've initiated in the last months.
Happy to talk more tomorrow @Katherine Dang and I appreciate your email closing the thread but this is me practicing freedom of information and speech and showing how undermined I feel.
I'm usually very understanding but with this matter I'd like to raise my concerns especially since you have a due deligence (sic) as my employer to listen to my end of the matter.
Regards,”
In her evidence, Ms Dang describes the Applicant’s recruitment of the New Recruit as recruitment in a hurry without any due diligence by the Applicant.[6] Ms Dang also says that the Applicant has not done any reference checks for any employees that she has interviewed for recruitment since she started in human resources.[7] The Applicant disputes this claim.
On Friday, 15 December 2023, a weekly human resources Zoom meeting occurred at 2:00pm (15 December Meeting). In attendance at this meeting were Ms Dang (Host), the Applicant, Ms Huang, and Ms Haddad. The Applicant arrived one hour late for this meeting. The weekly human resources Zoom meetings normally commence at 3:00pm on a Friday. This time was changed by Ms Dang to 2:00pm at short notice.[8]
In her evidence, Ms Dang describes the Applicant’s conduct at the 15 December Meeting as one where the Applicant “cannot explain for her working performance in the relation then she turned into personal attack to me – Katherine Dang (as the host of that meeting) by calling me as “discrimination” approach when asking a person when they can start off the work.”[9]
There are disputes amongst the attendees as to exactly what was said at the 15 December Meeting, and/or differing opinions as to how certain conversations or statements are to be characterised. However, there is agreement as to the contents of the minutes of the 15 December Meeting, which (relevantly) read:
“Kath [Ms Dang] has raised the recommendation about getting to know employees in interview process (their background, families, children, pregnancy or timetable for organising other family commitment) so HR can be well aware of their working preferences to allocate their work suitability.
[The Applicant] and [Ms Haddad] disagreed about this recommendation and they both argued this is illegal and unethical steps in HR process. [Ms Dang] requested to see legislation and framework behind this comment/decision from [Ms Haddad] and [the Applicant] hence the Board can be consulted with the legal advice.”
I note that the Applicant’s laptop battery ran out of power prior to the conclusion of the 15 December Meeting. In other words, the discussion occurring at the 15 December Meeting, as it concerned the Applicant, was cut short and did not conclude due to the Applicant’s laptop shutting down.[10]
Within a couple of hours after the conclusion of the 15 December Meeting, the Applicant sent a text or WhatsApp message to two other employees of the Respondent, Ms Huang and Ms Haddad, advising them that she was sending her resignation in that night.[11] She subsequently texted and advised that she was being emotional when she sent that text.
At 5:45pm on 15 December 2023, Ms Haddad sent Mr Nguyen her written resignation, addressed to the “Uconnex Board and HR Team”.
At 12:33pm on Saturday, 16 December 2023, the Applicant sent the following email resignation to the Respondent’s Board and HR Team:
“Dear Board and HR Team,
I am writing to formally tender my resignation from my position at Uconnex effective
immediately, as of today, 16 December, at 12:30 PM. As a casual worker, I understand my rights regarding notice periods, and I am choosing to exercise the option to resign without providing notice.The primary reason for my resignation is the persistent undermining I have experienced in my role over the past few months, despite consistently meeting key performance indicators (KPIs) and fulfilling all job requirements. I have found the work environment increasingly challenging due to what I perceive as unethical practices within the company.
One significant concern is the hiring process, where it appears that qualified individuals are not being selected for roles and are subsequently being underpaid. I raised this issue during our meeting in October, expressing the need for fair compensation for the staff. Unfortunately, I have not seen any tangible improvements in this regard.
Furthermore, the discussion during our meeting yesterday regarding the consideration of marital status and parental responsibilities as barriers to employment deeply concerns me. This issue was also addressed in our email thread from Thursday. Such practices are not only ethically questionable but also in violation of basic employment principles. My attempts to address these concerns professionally and constructively have often been perceived as attacks rather than constructive criticism.
Regrettably, these circumstances have led to a hostile and unenjoyable work environment for me.
Despite my belief in the potential of the company, I find it increasingly difficult to contribute positively when my efforts to advise are consistently misinterpreted.
I have fulfilled my required working hours, and I expect my pay for Wednesday to accurately reflect this. Additionally, I will be contacting Cloud Native to arrange the pickup of my work assets promptly.
I wish the company success in the future, and I hope that my concerns will be considered for the betterment of the work environment.
Thank you for your understanding.
Sincerely,”[12]
At 12:58pm that day (16/12/23), Mr James (Trang) Nguyen, Chief Executive Officer, accepted the Applicant’s resignation via the following email response:
“Hi Philasande.
I hope that you are well.
I am sad to receive your letter of resignation. However, I must respect your decision, and I will let the payroll department know to process your payroll as usual.
I will be taking all your constructive feedback to discuss with the board. As you know, the company set up an office in 2024, and staff will be working on-site for better productivity and to minimize unnecessary conflict within the department. I hope setting up an onsite office will improve communication channels and create a good working environment for all staff.
I truly appreciate your contribution to our company, and I wish you all the best of luck for your employment future.
I will ask Alice to contact Cloud Native on your behalf to cancel your company credentials.
Please send Uconnex equipment back to Cloud Native to the address below.
Cloud Native Pty Ltd.
Level 10, 70 Phillip St Sydney, NSW 2000Best Regards,”[13]
At 3:29pm that day (16/12/23), the Applicant provided this further email response to Mr Nguyen:
“Hi James,
Just letting you know I'm experiencing extreme PTSD and anxiety from all of this. I can't go about my life as usual due to toxic work environment and animosity.
Thanks for your email but you've disregarded everything I've said. This had nothing to do with working at office it has everything to do with legal, ethics and the bullying nature of your counterpart.”[14]
On 4 January 2024, the Applicant filed her unfair dismissal application (being the subject of these proceedings).
Legislation and case law
Section 386(1) of the Act reads:
“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.”
The phrase “terminated on the employer’s initiative” under s.386(1)(a) of the Act is treated as a termination in which the action of the employer is the principal contributing factor (directly or consequentially) that leads to (or has the objective probable result of leading to) the termination of the employment relationship. That is, had the employer not taken the action that it did, the employee would have remained employed.[15] Given the Applicant resigned, she does not rely upon s.386(1)(a) of the Act in these proceedings.
In normal circumstances, where unequivocal words of resignation are used or conveyed by an employee, an employer is entitled to immediately accept the resignation (without further question) and act accordingly.[16] Once proffered, a resignation may not be withdrawn unilaterally by an employee; it may only be withdrawn with the mutual consent of the employer. In other words, a resignation cannot be proffered by an employee and then unilaterally withdrawn prior to acceptance by an employer – the employer must always consent to its withdrawal.[17]
Under s.386(1)(b) of the Act, a forced resignation occurs where an employee has no other choice but to resign. The onus is upon an employee to prove that their resignation was ‘forced’ by their employer.[18] In other words, an employee must be able to prove on the balance of probabilities that his or her employer took relevant action/s with the intent, or objectively probable result, of bringing the employment relationship to an end.[19] The fact that a resignation may have been foreseeable, or a reasonable response to the actions of an employer, is not the test. Rather, the focus is upon whether the employee’s resignation was the objective probable result of his or her employer’s action/s having regard to, or in light of, other avenues or options equally open or available to the employee.
In Rheinberger v Huxley Marketing Pty Ltd[20], Justice Moore stated:
“However it is plain from these passages [in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200] that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct”.[21]
In Doumit v ABB Engineering Construction Pty Ltd[22], the Full Bench of the AIRC stated:
“Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”[23]
Whilst in O’Meara v Stanley Works Pty Ltd[24], the Full Bench of the AIRC stated:
“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”[25]
Applicant’s submissions
In her Form F2,[26] her written submissions,[27] and in her oral evidence and submissions during the hearing,[28] the Applicant raises the following issues (or makes the following points):
a) Ms Dang constantly disregarded the Applicant’s opinions and/or silenced her;
b) Ms Dang was attempting to push the Applicant out of the company (via marginalising Ms Haddad from HR responsibilities);
c) Ms Dang was blaming the Applicant in relation to the New Recruit, and using the situation as a way to pick a bone with the Applicant and force her to resign;
d) Ms Dang was constantly bullying the Applicant and undermining her work. Other employees of the Respondent (e.g. Ms Huang) had witnessed the bullying and undermining, but were too nervous or scared to come forward;
e) Ms Dang was asking the Applicant at the 15 December Meeting to engage in illegal and/or unethical conduct during future recruitment processes (which the Applicant could never be a part of);
f) Ms Dang changed the meeting time from 3:00pm to 2:00pm on 15 December 2023 to undermine the Applicant;
g) the Applicant is not to blame for the New Recruit’s recruitment, rather it highlights systemic failures in the Respondent’s systems which Ms Dang and Mr Nyguen bear ultimate responsibility;[29]
h) despite the Applicant’s attempts to raise the foregoing issues with Mr Nguyen and Ms Dang, neither were interested in resolving the underlying issues;
i) the Applicant’s resignation did not occur in the heat of the moment;[30] and
j) the Applicant’s situation did not align with Ms Haddad (who resigned separately on 15 December 2023). The Applicant would have resigned even if Ms Haddad had not resigned.[31]
In relation to her ‘reason’ for resignation on 16 December 2023, the Applicant says that she resigned because she was given an illegal instruction – “being made to do illegal instruction”.[32] That alleged illegal instruction concerns Ms Dang’s purported requirement to “discriminate against the woman” or “sex discrimination” as contained in the 15 December Meeting minutes (see paragraph [17] of this decision), whereby the Applicant says that Ms Dang requested her to ask female employees questions to the effect of “When are you getting pregnant, what is your timetable?”[33] I note that this assertion as to the reason for her resignation being an ‘illegal instruction’ is contrary to the words of the Applicant’s own resignation, which states: “The primary reason for my resignation is the persistent undermining I have experienced in my role over the past few months …”.[34]
As to being ‘forced’ (or as the Applicant puts it, “coerced”) to resign, the Applicant submits that she had no other choice because firstly, she was told to perform an illegal instruction, and secondly, the only people she could complain to about receiving the illegal instruction were Ms Dang (COO) or Mr Nyguen (CEO), who would both protect each other and not do anything about the illegal instruction. In other words, the Applicant had no form of redress within the Respondent to make complaints to, so she was forced (or had no other choice but) to resign.[35]
Respondent’s submissions
The Respondent submits that whatever way one might seek to characterise the Respondent’s conduct, none of that conduct rises to the level that would give rise to the Applicant being ‘forced’ to resign. Nor is it to be accepted that the Applicant had no real choice but to resign (i.e. she had plenty of choices other than resignation). Relevantly, the Respondent submits that:
a) the Applicant has repeatedly accepted that the contents of the minutes of the 15 December Meeting are reflective of the discussion that occurred at that meeting;
b) the Applicant did not put to any witness in these proceedings during cross-examination that the minutes of the 15 December Meeting are incomplete, or an inaccurate reflection of the discussion that occurred at that meeting;
c) the 15 December Meeting minutes do not contain an ‘instruction’ to do anything;
d) the Applicant is not in a position to say what really happened at the 15 December Meeting. She can only rely upon the minutes of the 15 December Meeting. The Applicant came late to the 15 December Meeting, and left early. The Applicant made no attempt whatsoever to plug her laptop into a power source and rejoin the 15 December Meeting. The Applicant’s assertion that she left the 15 December Meeting because she ran out of power on her laptop ought be treated with extreme caution. The more likely scenario is that the Applicant left the 15 December Meeting because she was unable to accept responsibility for her failures on the New Recruit, not because she lost laptop power;
e) nothing in the evidence, at the 15 December Meeting or otherwise, extends beyond ordinary management decision-making processes and interactions; and
f) the simple fact is, if an employee (such as the Applicant in this case) disagrees with the manner in which his or her employer is conducting its business (for whatever reason), he or she can simply resign, which is what the Applicant did. There is nothing unusual or extraordinary in an employee resigning because they are not happy at work (for whatever reason), but that does not mean that the employee can then file an unfair dismissal claim and seek to air their personal grievances and defend their unprofessional conduct at a hearing before the Commission.
Consideration
In limiting my findings in this matter to the evidence and submissions of the parties that are necessarily relevant to the determination of the jurisdictional objection raised by the Respondent (i.e. whether or not the Applicant has been “dismissed”), I have adopted the general proposition or approach of ‘confinement’ stated by Callinan J in the High Court case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd[36]:
“But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case.”[37]
The minutes of the 15 December Meeting are agreed between the parties as reflecting the discussion that occurred at that meeting. The Applicant is not in a position to disagree with the minutes of the 15 December Meeting because she was not in attendance for the start, or the end, of that meeting.
A plain reading of the minutes of the 15 December Meeting highlights that Ms Dang sought a “recommendation” as to the manner in which future interview processes are to be conducted, so that the Respondent’s human resources department can be aware (or know) exactly what an employee’s circumstances are when allocating them work and/or determining their work suitability. In doing so, the minutes of the 15 December Meeting identify that Ms Dang’s request for a recommendation was essentially for the purposes of making the Respondent’s Board aware of any ‘substance’ to the issues or concerns (including legal concerns) that had been brought to her attention by the Applicant and/or Ms Haddad at the meeting. It follows that to the extent that the Applicant asserts in these proceedings that she was “instructed” to do anything illegal or unethical by Ms Dang at the 15 December Meeting, I find that this assertion is not supported by the evidence.
Given that the Applicant has misconstrued or misinterpreted the so-called ‘instruction’ she was given at the 15 December Meeting, her case that she was forced to resign by the Respondent immediately falls away. In other words, one who wrongly asserts a repudiation, and acts upon that wrongful assertion of a repudiation (e.g. via resigning, or bringing a contract to an end), commits a repudiatory act themselves. That said, it is appropriate (for the sake of completeness) that I also make the findings that follow as being against any notion that the Applicant was forced (or coerced), or had no choice but, to resign. In this regard:
a) no one at the Respondent called for the Applicant’s resignation, or requested that she resign;
b) there is no evidence that any special events or circumstances involving the Applicant and the Respondent, and/or the Respondent’s workplace, occurred on Saturday, 16 December 2023 (being the date of the Applicant’s resignation). In other words, there is no evidence to suggest that the Applicant ‘needed’ to resign on that specific Saturday;
c) there is no foundation on the evidence to support the Applicant’s contention that she was unable to clarify the minutes of the 15 December Meeting directly with Ms Dang post the 15 December Meeting (which she did not do before she resigned). Indeed, after the Applicant’s laptop battery ran out of power, the Applicant was not present for the remainder of the 15 December Meeting (meaning she missed the conclusion of the 15 December Meeting, and there was every reason, in such a circumstance, for her to seek further clarification from Ms Dang as to what had occurred at the meeting after her laptop had run out of power, prior to making a decision to resign);
d) there is no foundation on the evidence to support the Applicant’s contention that she was unable to raise any concerns she had with the contents of the minutes of the 15 December Meeting directly with Ms Dang or Mr Nyguen (which she did not do before she resigned). Importantly, there is no suggestion on the evidence that Ms Dang or Ms Nyguen would simply dismiss the Applicant’s concerns;
e) the Applicant could have done as the minutes of the 15 December Meeting suggest, and supplied Ms Dang with the “legislation and framework” to support her [the Applicant’s] contention that Ms Dang’s recommendation was illegal or unethical, but she [the Applicant] chose not to do so. I do not accept that the Applicant suggesting that the recommendation is contrary (in the general sense) to the NDIS Code of Conduct, legislation, or a webpage link ( is sufficient. Ms Dang was seeking something more specific that she could take to the Board for consideration. There is no reason as to why the Applicant could not have provided such specific information to Ms Dang post the 15 December Meeting (i.e. as opposed to resigning before providing such specific information to Ms Dang).
f) the Applicant did not put an ultimatum to the Respondent before she resigned, e.g. ‘Unless this instruction or recommendation is withdrawn I will resign’;
g) even if the Applicant did receive an instruction at the 15 December Meeting, the time for its performance had not yet arrived, and there is no evidence that the Respondent had formally adopted the recommendation (rather, it was being further investigated at Board level as at 16 December 2023 when the Applicant chose to resign);
h) at no time did the Applicant seek to retract her resignation; and
i) the evidence discloses that the Applicant did not raise an internal grievance, make an internal complaint of bullying, file a bullying claim with the Commission, or file a dispute with the Commission (under s.739 of the Act), prior to tendering her resignation on Saturday, 16 December 2023 (being a day that she was not at work).
The Applicant’s resignation, via email on 16 December 2023, is clear, considered and unambiguous. On the evidence before me, it was not unreasonable for the Respondent (through Mr Nyguen) to immediately accept it.
I am unable to identify (on the evidence before me) any conduct of the Respondent that can be described as demonstrating an intention to bring the Applicant’s employment to an end. I am equally unable to identify any conduct of the Respondent (on the evidence) that might be said to bring about a “probable” end to the Applicant’s employment. In my view, it was not “probable” that the Applicant would resign in response to a concern being raised with her at the 15 December Meeting, or a ‘recommendation’ being made at that meeting (with a request for further and more specific information from her in respect of her opposition to such a recommendation). The Applicant had various choices or options as at Saturday, 16 December 2023. One of those choices or options was resignation, which the Applicant chose. But she also had various choices other than resignation. The Applicant chose not to avail herself of any of those other choices. Instead, she voluntarily chose to resign and end her employment with the Respondent.[38]
I make the following four concluding findings:
a) the Applicant’s employment with the Respondent ended at the hand of the Applicant herself. It was the action of the Applicant in voluntarily resigning that brought her employment to an end (i.e. the ending of the Applicant’s employment was at her own personal initiative);
b) consistent with case law authority (Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941; Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279 and Australian Hearing v Perry (2009) 185 IR 359, at 367-368; [209] AIRCFB 680), on the evidence before me, and in the facts and circumstances of this case, the Applicant’s resignation was not forced or coerced, nor did it have any kind of compulsory element to it whatsoever. There is no basis to suggest that the Respondent sought to, in any way, procure the Applicant’s resignation from her;
c) the Applicant had choices open to her other than resignation on Saturday, 16 December 2023,[39] and thereafter. It was her choice to resign, rather than pursue the other choices or options open to her; and
d) on the basis of (a) to (c) above, the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act.
Given that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act, the Commission has no further jurisdiction to deal with the Applicant's unfair dismissal claim. An Order [PR776347] has been issued dismissing the Applicant’s case.
DEPUTY PRESIDENT
Appearances:
The Applicant, Ms Philasande Dladla, appeared for herself.
The Respondent (Uconnex Pty Ltd) was represented (with permission) by Mr Murphy Hawkins, Principal Solicitor, Cogent Legal.
Printed by authority of the Commonwealth Government Printer
<PR776346>
[1] See s.596 of the Fair Work Act 2009. See also Direction [2] of the Directions issued on 19 February 2024, following the case management hearing conducted on 16 February 2024 (at which permission was granted for the Respondent to be legally represented generally in these proceedings).
[2] Email from Victoria Malou, 14/12/23 1:13pm.
[3] As I understand it, as at the date of the hearing, the New Recruit has already commenced working for the Respondent.
[4] Transcript, PN988.
[5] Ibid, PN725 and PN745.
[6] Ibid, PN820-PN823.
[7] Exhibit 1, Dang Statement, at [4(b) and (c)].
[8] Transcript, PN781-PN783, PN796-PN806, and PN817.
[9] Exhibit 1, Dang Statement, at [4(b) and (c)].
[10] Transcript, PN1348 and PN1409.
[11] CB, p.15.
[12] CB, pp.5-6.
[13] CB, p.4.
[14] Ibid.
[15] Mohazab v Dick Smith Electronics (2005) 62 IR 200, at 205 to 206. See also: O'Meara v Stanley Works Pty Ltd [2006] AIRC 496, at [19] to [23]; Mahony v White [2016] FCAFC 160, at [23]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, at [75]; Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, at 160.
[16] Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 378. See also Ngo v Link Printing Pty Ltd (1999) 94 IR 375, Print R7005, AIRCFB (McIntrye VP, Marsh SDP and Harrison C), 7 July 1999, and the authorities cited at 377-378, [12]-[16].
[17] Birrell v Australian National Airlines Commission (1984) 5 FCR 447, at 458. See also Saddington v Building Workers Industrial Union of Australia (1993) 49 IR 323, at 336-337; Emery v Commonwealth [1963] VR 586; Australian Wool Selling Brokers Employers’ Federation v Federated Storemen and Packers Union of Australia (1976) 176 CAR 884.
[18] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941. See also Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279 and Australian Hearing v Perry (2009) 185 IR 359, at 367-368; [209] AIRCFB 680.
[19] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, at [47]; Kylie Bruce v Fingal Glen Pty Ltd (in liq)[2013] FWCFB 5279; Pawel v Advanced Precast Pty Ltd AIRC Print S5904 (12 May 2000).
[20] (1996) 67 IR 154.
[21] Ibid, at 160-161.
[22] Unreported, Print N6999 (Munro J, Duncan DP, Merriman C, 9 December 1996). The print does not contain page or paragraph numbers.
[23] Ibid.
[24] AIRC Print PR973462 (11 August 2006).
[25] Ibid, at [23].
[26] See especially submissions under the Applicant’s Form F2 at the heading titled “The Applicant’s dismissal”, 4 January 2024.
[27] Applicant’s Written Submissions, 20 March 2024.
[28] Transcript, PN550, PN683 and PN697.
[29] Ibid, PN832, PN844, PN855, PN865-PN866, and PN933-PN940.
[30] Ibid, PN1230, and PN1516.
[31] Ibid, PN1281, and PN1285-PN1289.
[32] Ibid, PN963, PN973, PN1337, PN1350, PN1374, PN1384-PN1385, PN1406-PN1408, PN1482, and PN1503-PN1507.
[33] Ibid, PN992-PN1026, and PN1506.
[34] See paragraph [21] of this decision.
[35] Ibid, PN1209, PN1217, PN1234-PN1235, PN1389-PN1390, PN1393, PN1486-PN1487, and PN1496.
[36] (2006) 229 CLR 577.
[37] Ibid, at 634, [172].
[38] See paragraph [39] of this decision.
[39] Ibid.
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