Rachel Gear v RelyOn Australia Pty Ltd

[2024] FWC 3038

[2024] FWC 3038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Rachel Gear
v

RelyOn Australia Pty Ltd

(C2024/6329)

DEPUTY PRESIDENT COLMAN MELBOURNE, 1 NOVEMBER 2024

Application under s 365 – applicant not dismissed – application dismissed

1. Rachel Gear has made an application under s 365 of the Fair Work Act 2009 (Act) which alleges that she was dismissed by RelyOn Australia Pty Ltd (company) in contravention of Part 3-1 of the Act. The company objects to the application on the ground that Ms Gear was not dismissed, but freely resigned.

1. In brief summary, Ms Gear’s evidence was that she was forced to resign because the company demoted her by no longer allowing her to lead projects and by preventing her from travelling for work because it wrongly believed that she had a spatial disability. Ms Gear said that she does have a disability, but not a spatial one, and that she never told the company what her disability was, but that the company made offensive assumptions about it. Ms Gear said that Erica Peters, the people manager, told her that the general manager, Matthew Peters, and a colleague, ‘Brad’, no longer wanted to work with her, and that the company then cut off her access to its systems. Ms Gear said that she was demoted and placed in a position where she had no choice but to resign. Ms Peters denied saying that Mr Peters or Brad did not want to work with her. She said that Ms Gear’s access to company systems was not cut off, but that if that did happen it could only have been a mistake, because the company needed her to continue to have access. Mr Peters denied saying that he did not want to work with Ms Gear. He said that the company had operational reasons for deciding that Ms Gear would no longer travel to client sites and that such travel was not a condition of her employment. He also said that Ms Gear was not employed to lead projects. Ms Peters and Mr Peters denied that Ms Gear was demoted. They also said that they did not want her to resign because she had been working on an important project and her departure had made things difficult for the company.

1. I find that Ms Gear was not demoted. She was not employed to lead projects and travel was not a condition of her employment. Ms Gear’s contract of employment was submitted to the Commission. It did not state that Ms Gear would lead projects. It stated that Ms Gear’s role was that of a learning and development specialist, that her employment location was in Scoresby, and that visits to client sites would be ‘as directed’. Ms Gear said that her interview notes confirmed that she would be able to travel and to lead projects. But these are merely brief records of precontractual discussions. They are not terms of her contract. I find that Ms Gear remained at all times a learning and development specialist and was paid the daily rate to which she was entitled under her contract. I further find that Mr Peters did not say to anyone that he did not want to work with Ms Gear, and that Ms Peters did not relay words to that effect to Ms Gear. They denied doing so, and I prefer their evidence to that of Ms Gear on this point. I further find that if Ms Gear’s access to company systems was indeed cut off, this was a mistake. I find that the company still wanted and needed her to have this access, and to work on the important project. In Ms Gear’s written materials, she noted that in her last telephone discussion with Ms Peters on 21 August 2024, Ms Peters asked her whether she was willing to speak with her and Brad together. This was a clear indication that the company was willing to work through the relevant problems. However Ms Gear’s response was to say to Ms Peters that a discussion would be futile.

1. I note that in the lead up to the end of the employment, there were numerous disagreements between Ms Gear and the company about reimbursement of travelling expenses and other matters. I find that there is no reason why Ms Gear could not have pursued any claims or grievances about these matters while remaining in her employment. I find that Ms Gear was incensed that the company had decided that she would no longer travel. This is clear from her resignation message, where she stated that she was saddened that the company had refused to make a minor internal procedural adjustment so that she could continue to lead interviews onsite interstate. I consider that Ms Gear had lost satisfaction in her work as a result of no longer being able to travel. But this would be a good reason for her to resign. It is not a matter that forced her to resign. Ms Gear said that when she did not receive a termination letter on 21 August 2024, she submitted her resignation. But nothing compelled her to do this. I find that if she had not done so, she would have continued to be employed by the company.

1. In conclusion, I find that there were no circumstances of compulsion associated with the conduct of the employer that forced Ms Gear to resign, nor was she dismissed on the employer’s initiative. She was therefore not dismissed within the meaning of s 386 and was not eligible to make an application under s 365. The jurisdictional objection is upheld. Ms Gear’s application under s 365 is dismissed.

DEPUTY PRESIDENT

Appearances:

R. Gear for herself
E. Peters and M. Peters for the respondent

Hearing details:

2024
Melbourne (by Microsoft Teams)
1 November

Printed by authority of the Commonwealth Government Printer

<PR780892>