Quinn Carnegie v Services Australia
[2023] FWC 3083
•22 DECEMBER 2023
| [2023] FWC 3083 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Quinn Carnegie
v
Services Australia
(C2023/5339)
| DEPUTY PRESIDENT BINET | PERTH, 22 DECEMBER 2023 |
Application to deal with contraventions involving dismissal
On 31 August 2023, Ms Quinn Carnegie (Ms Carnegie) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging that Services Australia (Respondent) contravened the general protection provisions of the FW Act by dismissing her from her employment.
On 4 October 2023, Services Australia filed a Form F8A – Response to General Protections Application alleging Ms Carnegie was not dismissed by Service Australia and had in fact resigned (Jurisdictional Objection).
The Application was subsequently allocated to my chambers.
In Coles Supply Chain Pty Ltd v Milford[1] (Coles Decision) the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must first determine whether the person was dismissed.
Directions for the filing of materials in advance of the Hearing were issued to the parties on 24 October 2023 (Directions).
There were a number of delays which prevented the Jurisdictional Objection being heard.
On 1 November 2023, Services Australia emailed Chambers advising that the parties had engaged in without prejudice discussions and requested that the Directions to be either temporarily vacated or extended to allow the parties to explore a resolution to the matter in dispute.
The parties were granted a one week extension to comply with the Directions. Amended Directions were issued on 3 November 2023.
On 9 November 2023 Services Australia advised Chambers that an offer had been put to Ms Quinn, however the matter was not yet resolved.
Ms Carnegie failed to file her materials in accordance with the Amended Directions on 9 November 2023. On 10 November 2023 Ms Carnegie was notified of her non-compliance and invited to make submissions as to why the Application should not be dismissed and to provide evidence supporting those reasons.
On 14 November Services Australia advised Chambers that it had not received any materials or correspondence from Ms Carnegie.
In the absence of Ms Carnegie filing any materials on 15 November 2023, Chambers asked Services Australia to file any materials they wished to be considered in determining the Jurisdictional Objection. The parties were advised that in the absence of any materials being filed by Ms Carnegie the Jurisdictional Objection would be determined based on the materials before the Deputy President.
Evidence
The Amended Directions required Ms Carnegie to file an outline of submissions, a signed and dated witness statement from any witness she intended to call, a copy of any authorities on which she relied and a copy of any document on which she relied by 4pm on 9 November 2023. As stated above, Ms Carnegie did not file any materials.
In accordance with the direction to file materials in Chamber’s email dated 15 November 2023, the Respondent filed a written outline of submissions in support of the Jurisdictional Objection, a witness statement setting out the evidence in chief of Ms Corinne Shields (Ms Shields) with annexures, a bundle of authorities and a document list. Ms Shields was Ms Carnegies supervisor during Ms Carnegie’s employment with Services Australia.
In the absence of any request from the parties to make oral submissions I have determined the Jurisdictional Objection on the materials available to me without a hearing.
In reaching my decision, I have considered all the materials filed by the parties even if not expressly referred to in these reasons for decision.
Background
Ms Carnegie commenced employment with Services Australia as a Service Officer at a APS3 classification level on 1 May 2023 on a 12 month non-ongoing part-time employment contract. Her employment ceased barely three months later.
Services Australia says commencing shortly after Ms Carnegie engagement various issues arose with respect to her:
a.Commitment to the role (noting her expressed desire to work in a different operational area despite that being distinct from the position for which she held
b.Attendance and adherence to expectations in the event of a potential absence from work and
c.Attainment of necessary performance standards and expectations
Services Australia argues that it took the necessary steps to appropriately manage the above circumstances through a range of initiatives consistent with applicable policies, procedures, and guidance.
At the time of Ms Carnegie’s resignation on 11 August 2023, Services Australia notes that:
a.Ms Carnegie had foreshadowed a request for a further extended absence (of between six to twelve weeks) to undergo and recover from surgery for a non-work related injury.
b.Services Australia had indicated a willingness to consider any such request but had sought additional details to make the necessary determination.
c.Ms Carnegie had been consulted on a Probation Review Report that foreshadowed a number of concerns with respect to her performance.
d.Services Australia had conveyed the anticipated need to progress to a more formal stage of performance management comprising of a performance plan however this was deferred until further information was known about Ms Carnegie’s potential further absences and return to work.
e.Services Australia had not sought to progress or implement any steps to terminate the employment of Ms Carnegie.
f.Ms Carnegie was aware of but did not lodge or pursued any formal grievance or complaint process during the employment relationship.
Consideration
The Application was made pursuant to section 365 of the FW Act. Section 365 of the FW Act provides that:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The term ‘dismissed’ is defined in section 12 of the FW Act by reference to section 386. The term ‘dismissed’ is defined at section 386 of the FW Act as follows:
“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.”
It is not contested, and I am satisfied that sub section 386(2) of the FW Act has no application in this case.
According to the Explanatory Memorandum to the Fair Work Bill 2008:
“Clause 386 - Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
·where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
·where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
While section 386 is found in Part 3-2 - Unfair Dismissal of the FW Act the definition of ‘dismissed’ contained in section 386 of the FW Act has been applied by the Courts to section 365 general protections matters and I have adopted that approach in this Application.
Ms Carnegie submits that she was forced to leave his employment because of conduct engaged in by Services Australia which left her with no reasonable choice but to resign. Ms Carnegie filed no evidence in support of her assertion.
In circumstances where an employee alleges they were forced to resign, the employee bears the onus of proving that they did not resign voluntarily, and must prove that the employer forced their resignation.[2]
It is generally accepted that whilst the line between conduct of the employer that forces a resignation and an employee resigning at their own initiative is narrow, it is a line which must be closely drawn and observed.[3]
The legal test for determining whether a resignation has been forced is summarised in the decision of O’Meara v Stanley Works Pty Ltd:[4] as follows:
“(there must 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’. And further, ‘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… [employee] had no effective or
real choice but to resign.”
In effect, in order to show that she was (constructively) dismissed, Ms Carnegie must show the resignation was, on an objective assessment, due to the conduct of Services Australia
that was intended to bring about the end of the employment relationship or had the probable result of doing so.
There is no evidence before me to suggest that the acts or omissions on the part of Services Australia were intended to or objectively caused Ms Carnegie’s employment to come to an end.
To the contrary the evidence suggests that Services Australia were endeavouring to support Ms Carnegie to maintain her employment in multiple ways including by bringing to her attention the changes they needed her to make in her performance of her duties and by endeavouring to accommodate her ill health.
While Ms Carnegie might have been aggrieved by being placed on a performance improvement plan or by being asked to substantiate her leave requests as noted in Ashton v Consumer Action Law Centre[5] in which an employee resigned after being placed on a performance improvement plan:
“It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign’.”
If Ms Carnegie was aggrieved by any decisions made in relation to her performance, absences or injury she had multiple internal mechanisms available which she could have pursued and preserved her employment.
I am not satisfied that Ms Carnegie was dismissed for the purposes of section 365 of the FW Act by Services Australia.
I therefore uphold the Jurisdictional Objection and dismiss the Application.
An Order[6] to this effect will issue with this decision.
DEPUTY PRESIDENT
[1] [2020] FCAFC 152.
[2] Australian Hearing v Peary (2009) 185 IR 359, 367 [30].
[3] Doumit v ABB Engineering Construction Pty Ltd (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N699 12.
[4] [2006] AIRCFB PR973462 (11 August 2006).
[5] [2010] FWA 9356.
[6] PR769839.
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