Phyllis Dodd v Thomas & Naaz Pty Ltd

[2020] FWC 6783

[2020] FWC 6783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phyllis Dodd
v
Thomas & Naaz Pty Ltd
(U2020/10882)

DEPUTY PRESIDENT BOYCE SYDNEY, 18 DECEMBER 2020

Application for an unfair dismissal remedy — whether applicant was dismissed — resignation of applicant — applicant alleges forced resignation through conduct of the employer — Fair Work Act 2009 (Cth), ss 386(1)(a), 386(1)(b) — no dismissal — application for unfair dismissal remedy dismissed.

Introduction

[1] On 11 August 2020, Mrs Phyllis Dodd (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Applicant claims that she was dismissed from her employment with Thomas & Naaz Pty Ltd (Respondent) on 23 March 2020, and that her dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] On 27 August 2020, the Respondent filed a Form F3 (Response). The Respondent asserts that the Applicant was not “dismissed” within the meaning of s.386 of the Act.

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing by telephone to resolve the Application. Mr D O’Sullivan of Counsel, instructed by Mr Brian Dodd (Solicitor, Rishworth Dodd and Co), appeared for the Applicant. Mr P Moorhouse of Counsel, instructed by Mr S Marriott (Solicitor, Moray & Agnew Lawyers), appeared for the Respondent.

[4] Having had regard to the evidence and submissions before me, I have determined that the Applicant was not “dismissed” within the meaning of the Act. My reasons for this decision follow.

Representation by a lawyer or paid agent

[5] Both parties sought to be represented by a lawyer in this matter. Neither party opposed the other being represented. Pursuant to the discretion afforded to me under s.596 of the Act, I granted such permission to both parties. I did so having had regard to the fact that the proceedings concerned a question of “dismissal” (which is a kind of matter that has been considered by this Commission to be “complex”). 1 Based upon this complexity, I determined the hearing would be conducted in a more efficient manner with the parties being legally represented.

Background

[6] The relevant facts appear to me to be uncontested despite both parties having cross-examined witnesses. I surmise those facts as follows:

(a) The Respondent is a company that operates across four separate medical practices in Sydney’s north-western region, being:

(i) The Windsor Family Practice (Windsor Site);

(ii) The Ponds Family Medical Practice (Ponds Site);

(iii) The Galston Family Practice (Galston Site); and

(iv) MacKenzie House Specialist Centre.

(b) From May 2018, the Applicant was employed by the Respondent as a Receptionist. The Applicant was engaged on a casual basis but worked a regular and systemic shift pattern. The Applicant primarily worked at the Galston Site.

(c) On 14 July 2020, the Applicant met with Dr Lubna Naaz (Director, Respondent). During that meeting, the Applicant was informed her work performance was “highly rated”. Further, Dr Naaz disclosed that there had been staffing shortfalls across the Respondent’s practices and employees were asked to rotate across the sites. At that time, the Applicant agreed to work at the Windsor site on Saturdays.

(d) On 20 July 2020, and having re-considered her offer to work at the Windsor Site, the Applicant emailed Dr Naaz, noting that she could only work from the Galston Site due to “lack of time and other work obligations”.

(e) Later that same day, Dr Naaz wrote to the Applicant and requested that the Galston Site would need to be shared between three staff members (which would require hiring an additional person). Dr Naaz requested that the Applicant discuss the matter with her colleague (who was also a receptionist, working the days the Applicant did not), and determine the minimum hours that they would each prefer to work so that the Respondent could appropriately advertise for a third staff member.

(f) Later that same day, the Applicant responded to Dr Naaz in writing, informing Dr Naaz that she would prefer to work Tuesday and Wednesday, while her colleague would prefer Monday and Thursday.

(g) On 21 July 2020, Ms Sharon Alexander (Accounts Manager, Respondent) wrote to the Galston Site employees (including the Applicant) as follows:

“Dear Staff,

The owners of the business have just made me aware that a Female Doctor has joined their business as a consultant and not as an employee. Dr Naaz and Dr Thomas except the Doctor to work Tuesdays and Wednesdays from the week starting 17th August 2020
This consultant may choose to bring their own staff onsite and therefore your services will no longer be required on those days at the Galston Site.

These decision will be reviewed from time to time to suit the business.
We at Thomas & Naaz suggest the following two options since you both are casual staff we suggest that if you are in need of more hours you may move to our other practice locations”.

(set in context)

(h) On 22 July 2020, the Applicant resigned from her employment by way of written notice sent to Dr Naaz (Resignation Letter). For completeness sake, that correspondence is as follows:

“Dr Naaz

I refer to your various recent emails the details of which are apparent from this email. Could I make the following points: many of the documents and emails are written in very poor English and English grammar: perhaps you should ensure that the persons who write these emails and documents can write proper English so that the staff have a chance to understand what is meant.

I refer to your email of the 21 July at 9.36pm: your concept of work ethics and your expectations of staff are to me contradictory. Perhaps you should forward a separate letter setting out your expectations.

The desire not to rotate through other practices has nothing to do with not learning the staff duties but is obviously geographical. That is, I live and work at Galston which is a ten-minute drive so why would I travel for over an hour to Windsor?

I have consistently asked for additional training and my requests have been consistently ignored except one training day with Sharon. Much more could have been achieved by your staff if a better training regime had been in place.

Your recent emails and behavior constitutes in my mind intimidating and bullying behavior. The recent loss of seven staff and now myself surely indicates a massive problem with staff management and retention.

You expect members of staff to be team players and when indeed I went to the Galston practice on a Saturday and a Sunday both non work days Dr Thomas requested that I pay the lock smith out of my funds ,even though at that stage I had not been paid for the previous fortnight. You might view this as team work but I do not. It is attempt to exploit me as an employee to the extent that I was at the practice on a non-work day: it was in fact exploitative.

I refer to the recent email from Sharon 21 July 2020. In line with my comments about poor English mentioned above there seems to be an inability to understand that the word except is not the word accept, also in the same email there is a reference to two options but on my perusal only one is offered. Clearly your wish is to push me into working at other practice locations when I have already told you I am not interested is due to family, study and distance reasons.

In light of the above I tender my resignation effective immediately.

Phyllis Dodd”.

(set in context)

Relevant law

[7] Section 385 of the Act provides for when a person has been “unfair dismissed”:

“What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed;

…”.

[8] Whether described as a “threshold issue” or matter of the Commission’s jurisdiction to award an unfair dismissal remedy, sub-para (a) nonetheless requires the Commission be satisfied a person has been “dismissed” if it is to then find that person was “unfairly dismissed”.

[9] The relevant definition of dismissal is provided for in s.386 of the Act:

“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”.

[10] Sub-section (1) provides the relevant definition of dismissal. Sub-paragraph may be considered to provide the “exception” to sub-s.(1), while sub-s.(3) may be considered to provide an “exception to the exception” in sub-s.(2). I note neither party put that sub-ss.(2) or (3) applied in this matter. Likewise, I do not see either as having any relevance to the circumstances.

[11] However, the parties were in dispute as to the applicability of s.386(1) of the Act. The Applicant says that her resignation is of the kind caught by the operation of either limb of that section. The Respondent disagrees. Thus, the two question before the Commission are:

(a) whether the Applicant’s employment with the Respondent was terminated on the employer's initiative; or

(b) whether the Applicant resigned her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[12] I turn now to answer those questions. That said, I will start with the latter question, as it formed the main thrust of the parties’ submissions and evidence, while the former question appeared only to be briefly addressed by the Applicant in closing submissions.

Whether the Applicant resigned her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent

[13] In Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa v Tavassoli), 2 the Full Bench posited the relevant tests to be applied in respect to s.386(1)(b):

“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s. 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) …

(2) A resignation that is ‘forced’ by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s. 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether the termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign”. 3

[14] I agree with and adopted the test laid down in Bupa v Tavassoli.

[15] Relevantly, the Respondent made the following submissions:

(a) The type of resignation imagined in s.386(1)(b) of the Act is similar in many respects to the common law concept of repudiation. The Respondent says that in respect of a casual employee, such a concept may not be open, 4 especially in a situation in which casual employment is expected to be relatively flexible and where employment ends at the end of each shift. In such a circumstance, a casual employee who no longer wishes to work for an employer simply refuses to work further shifts. Further, the Applicant did not have a contractual entitlement to work the Tuesday and Wednesday shifts.

(b) In the alternative, the Respondent did not intend to act in such a way as to “force” the Applicant to resign. Having regard to the email communications between the Applicant, Dr Naaz and Ms Alexander, an objective bystander would not conclude that resignation was the probable result of the Respondent’s conduct.

(c) In regard to Ms Alexander’s email of 21 July 2020, the Respondent says that correspondence:

(i) only proposed a hypothetical, and addressed a situation that might come to pass (with emphasis on the words “This consultant may choose to bring their own staff). There was nothing at that time to suggest that the new doctor (should that doctor have commenced employment) would definitely bring her own staff. Further, the Applicant made no effort to challenge that decision or negotiate an alternative;

(ii) gave the Applicant the choice of different locations to work at in the event that it did come to pass;

(iii) could not objectively had been interpreted as being a take it or leave it ultimatum;

(iv) can't be reasonably or objectively read as suggesting that Applicant was being terminated with immediate effect; and

(v) the email referred to an event that may occur in four weeks’ time and so there was no reason whatsoever for the Applicant to believe that her employment had come to an end, or that she was not required to come to work the following day.

(d) In regard to the Applicant’s Resignation Letter, the Respondent submits that at no point does the Applicant expressly state that she felt she had no option but to resign or no effective choice but to resign. Instead, the Resignation Letter is a “litany” of generalised complaints about the Respondent’s business.

(e) Further, and in the alternative (and in the event that the Applicant establishes that she was required to move either to the Windsor Site or to the Ponds Site), such a direction would have been a reasonable and not one that could be said to have forced the Applicant to resign. 5

[16] The Applicant made the following submissions:

(a) The Respondents submission concerning to s.386(1)(b) of the Act and repudiation should be rejected. The Respondent erroneously submits that a termination pursuant to s.386(1)(b) is similar in many respects to the common law notion of repudiation. Such a submission relies on the adoption of the notion of “constructive dismissal” — an approach which has been rejected by the Full Bench of this Commission and its predecessor. 6

(b) On any objective view, the actions of the Respondent in unilaterally changing the location for which the work was to be performed was either intended to bring about the dismissal of the Applicant or left the Applicant with no choice other than to resign.

(c) In the absence of a contractual term which requires an employee to work in different work locations, a direction to do so which the employee is unable to meet and leads to the ending of the employment falls within the test Bupa v Tavassoli,

(d) Given the Applicant’s inability to perform work at either the Windsor and Ponds practices, due to other commitments, the direction to work at these practices was and is one which the Applicant had no choice other to resign and the Commission has jurisdiction to deal with this application. Further, the email of 21 July 2020, also makes it clear that the intention of the Respondent was to bring the employment to an end.

[17] In reply, the Respondent submitted the following:

(a) Considered objectively, the conduct of the Respondent did not leave the Applicant with no effective or real choice but to resign, and/or her resignation was not the probable result of her employer’s conduct. Following receipt of Ms Alexander’s email on 21 July 2020, the Applicant had at least the following options available to her (which were not mutually exclusive options):

(i) continuing to work on Tuesdays and Wednesdays for the next four weeks;

(ii) waiting to see if the new consultant doctor did in fact bring her own reception staff;

(iii) responding by pressing an entitlement to work one or both of her existing days in preference to, or perhaps in addition to, any new reception staff;

(d) from the week commencing 17 August 2020, and if the new consultant doctor did bring her own reception staff, negotiating to change the allocation of the remaining shifts at the Galston Site so that the Applicant and the other receptionist both had some of the remaining shifts; and/or

(e) performing some shifts at another practice location.

[18] Firstly, as to whether s.386(1)(b) operates akin to common law doctrine of repudiation, and whether that section can apply to casual employment, I decline to make any findings or comment on the parties’ submissions. The parties’ dispute on the law is a needless complication that does not need to be resolved when a determination can be made having regard to the test in Bupa v Tavassoli. Indeed, a case may arise when such a dispute would need to be resolved, but this is not such an occasion.

[19] Secondly, on the balance of probabilities, I do not find that the Respondent’s conduct vis-à-vis the email correspondence between 20 July 2020 and 21 July 2020 evinces an intention to bring about the Applicant’s resignation. I have no reason to doubt Dr Naaz’s or Ms Alexander’s witness evidence, whereby both expressly deny that either held such an intention on behalf of the Respondent. 7 Nothing arose in cross-examination that would make me find otherwise.

[20] Thirdly, I reject the Applicant’s submission that “on any objective view” the Respondent’s conduct had the probable result of bringing about the Applicant’s resignation. Putting aside hypothetical options the Applicant could have taken in response to the email of 21` July 2020, I accept the email was clearly worded in such a way as to propose a future possibility and the upshot of that possibility. Taking into account the consultative nature between Dr Naaz and the Applicant only the day before, the only objective conclusion is that Ms Alexander’s email was a continuation of the spirit of consultation.

[21] The Applicant either misread or wilfully ignored the information before her. Either way, the Respondent’s conduct leading up to and at the time of that email could not be said to bring about a “probable” resignation. If anything, the Respondent was attempting to continue conversation with the Applicant and keep her abreast of imminent potential changes to her regular working pattern. Had the Applicant placed the correspondence in context (that is, where she had been told she was a high performing employee and Dr Naaz’s attempts to best accommodate her in view of changing business needs), in my view, an objective bystander would think resignation is an unlikely response.

[22] Finally, having made the finding above, I decline to make findings as to the validity and/or reasonableness of the Applicant having to work from the Windsor Site or Pond Site. If not for the fact that no actual direction was expressly made, there is no need to engage with these submissions in circumstances where the Applicant’s resignation was an improbable outcome during on-going and inconclusive discussions about rostering, working patterns, and location of work.

[23] In view of the foregoing, I conclude that the Applicant’s resignation was neither the intended consequence of the Respondent’s conduct, nor the probable outcome of same. I therefore find that s.386(1)(b) of the Act is not satisfied on the facts before me.

Whether the Applicant’s employment with the Respondent was terminated on the employer's initiative

[24] The Applicant submits that Ms Alexander’s email dated 21 July 2020 constituted a dismissal within the meaning of s.386(1)(a) of the Act.

[25] The Respondent submits that email does not give notice of termination, or specify a termination date, or say that the Applicant would not be offered any further shifts. In fact, it can only reasonably be read as showing an expectation that the Applicant and the other casual receptionist at the Galston practice would continue to work for the employer in some capacity.

[26] In my view, on no reasonable or objective basis can the impugned email be said to caught by s.386(1)(a) of the Act. I reject the Applicant’s submission in this regard, and do so in reliance upon the Respondent’s submission on this point.

[27] During the hearing, Mr O’Sullivan referred me to Bupa v Tavassoli and the relevant test in regard to s.386(1)(a):

“There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer”. 8

[28] Mr O’Sullivan submits that the Applicant’s resignation was one made in the “heat of the moment” as described in Bupa v Tavassoli. In accepting that resignation without seeking to clarify, the Respondent’s conduct is caught by s.386(1)(a) of the Act. Mr O’Sullivan says that a “heat of the moment” decision to resign is not strictly one that occurs “instantaneously” in the workplace. 9

[29] I agree with Mr O’Sullivan that it would be wrong to only characterise a “heat of the moment” decision as being made “there and then”. That said, I do not accept that the Applicant’s resignation was a “heat of the moment” decision that required the Respondent to clarify the Applicant’s intentions. The Resignation Letter was clearly thought out, being a letter that the Applicant had spent nearly a full day considering. In making this finding, I do not place any specific reliance upon the amount of time that has passed. Instead, I find that the “heat” of the moment had since simmered down, and that the Applicant made a decision to resign with the benefit of a cool, level head.

[30] Furthermore, the Applicant raises concerns unrelated to the content of the email of 21 July 2020. She was clearly disgruntled about many a thing, not just the content of that email Her decision to resign appears to be a multifaceted one. I find that the Applicant was “fed up” with the Respondent’s way of doing business, and harboured these feelings notwithstanding of the email of the 21 July 2020. In my view, the Respondent was under no obligation to double-check that the Applicant meant what she said, or the reasons she said it (either within the test in Bupa v Tavassoli, or more generally). Indeed, given the context of the Resignation Letter, it is hardly surprising that the Respondent chose to accept the Applicant’s resignation.

[31] For the reasons provided above, I find that s.386(1)(a) is not enlivened in this matter.

Conclusion

[32] The Applicant was not “dismissed” within the meaning of s.386 of the Act. Naturally, her claim for an unfair dismissal remedy must be dismissed. An order to that effect will be made in due course.

DEPUTY PRESIDENT

Appearances:

Mr D O’Sullivan of Counsel, instructed by Mr Brian Dodd (Solicitor, Rishworth Dodd and Co), appeared for the Applicant.

Mr P Moorhouse of Counsel, instructed by Mr S Marriott (Solicitor, Moray & Agnew Lawyers), appeared for the Respondent.

Hearing details:

A hearing was held, by telephone, on 3 November 2020.

Printed by authority of the Commonwealth Government Printer

<PR725486>

 1   See: CEPU v UGL Resources Pty Limited [2012] FWA 2966 at [23] (Richards SDP).

 2   [2017] FWCFB 3941.

 3 Ibid at [47].

 4   See: Kim v ORC International Pty Ltd[2016] FWC 1029 (Gooley DP), which was upheld on appeal: Kim v ORC International Pty Ltd[2016] FWCFB 2642, and cited with approval: City of Sydney RSL and Community Club Ltd v Balgowan[2018] FWCFB 5 at [27].

 5   See: Ghate v Winder Controls Australia Pty Ltd[2017] FWC 5831 (McKenna C), where a direction to travel an additional 34km travel per day to attend the workplace was held to be reasonable, and thus not a “forced resignation”; APESMA v Transgrid[2018] FWC 6335 (Sams DP) held that a relocation from Ultimo, NSW to Eastern Creek, NSW did not result in an employee’s redundancy.

 6   See: Allison v Bega Valley Council (1995) 63 IR 68 at 72; Mohzab v Dick Smith Electronics (No 2) (1995) 62 IR 205; Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [40].

 7   Witness Statement of Dr Lubna Naaz dated 28 September 2020 at [20]; Witness Statement of Ms Sharon Alexander dated 19 October 2020 at [9] to [10].

 8   [2017] FWCFB 3941 at [47].

 9   Transcript PN376 to PN390.