Raffaelina Dellicastelli v Healius Pathology Pty Ltd t/a Dorevitch Pathology
[2022] FWC 2747
•14 OCTOBER 2022
| [2022] FWC 2747 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Raffaelina Dellicastelli
v
Healius Pathology Pty Ltd t/a Dorevitch Pathology
(U2022/6785)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 14 OCTOBER 2022 |
Application for an unfair dismissal remedy – resignation not forced – application dismissed
This decision concerns an application for an unfair dismissal remedy made by Ms Raffaelina Dellicastelli under s 394 of the Fair Work Act 2009 (Act). From April 2018 until June 2022 Ms Dellicastelli was employed as a pathology collector team leader by Healius Pathology Pty Ltd, which trades as Dorevitch Pathology (Dorevitch). On 6 June 2022, Ms Dellicastelli sent the company a letter in which she resigned from her employment effective from 10 June 2022. Ms Dellicastelli contends that she was forced to resign because of the conduct of the company, and that her constructive dismissal was unfair. Dorevitch objects to the application on the ground that Ms Dellicastelli was not dismissed. It contends that Ms Dellicastelli freely resigned on her own initiative.
The background may be summarised as follows. In early April 2022, Dorevitch received a complaint about Ms Dellicastelli’s conduct from members of her team. They alleged that Ms Dellicastelli had made persistent and intimidating telephone calls, during which she had yelled at them. On 12 April 2022, Ms Michelle Murphy, the company’s business manager, sent a letter to Ms Dellicastelli setting out the allegations. The next day, Ms Dellicastelli attended a meeting with Ms Murphy and Mr David Boundy from human resources. Ms Dellicastelli denied the allegations. Ms Murphy and Mr Boundy said that the company would continue to investigate the matter. On 19 April 2022, Ms Dellicastelli sent an email to the company further responding to the allegations. On 20 April 2022, Ms Dellicastelli commenced a period of sick leave which, save for a number of days, would continue for the remainder of her employment.
Ms Dellicastelli gave evidence that on 30 April 2022 her union representative, Ms Megan Reid, called her and said that she had spoken to Mr Boundy, and that he had indicated that the company was going to dismiss her. However, on 20 May 2022, Mr Boundy called Ms Dellicastelli and said that he was not going to dismiss her and that other action would be taken instead. Mr Boundy told Ms Dellicastelli that he wanted her to return from sick leave and attend a meeting, but Ms Dellicastelli did not agree to this. During the telephone call, Mr Boundy and Ms Dellicastelli also discussed a request that had been made by Ms Dellicastelli sometime earlier that the company agree to cash out two weeks of her annual leave. Mr Boundy said that the company would not agree to this, but that if Ms Dellicastelli decided to resign, all of her accrued leave would be paid out.
On 6 June 2022, Ms Dellicastelli sent a letter to her supervisor, Ms Julia Barwick, in which she stated the following:
“It is with a heavy heart that I am resigning from my position as team leader with Dorevitch Pathology.
I understand that under the EBA agreement I am supposed to give 4 weeks’ notice, however, due to the current situation and the conversation that I had with David Boundy from HR, he has given me the indication that the best thing for me is my immediate exit from the company. I also believe that it will be in the best interest of my health due to the mental stress the company is currently putting me through.
With this in mind, my last day will be at the end of this pay period … ending 10th June 2022. I will take this opportunity to say thank you for the experience and wonderful opportunity that you have given me with Dorevitch. I am sad to go however I have taken this opportunity to leave with my own dignity and integrity in tack (sic). I have worked with some wonderful staff and have developed friendships that I will treasure beyond the scope of this workplace. I still have outstanding entitlements that I will work out with payroll.”
Ms Dellicastelli said in her evidence that she was forced to resign for a number of reasons. She said that Mr Boundy had tried to intimidate her, however she did not provide details of this, other than to say that he was rude on the telephone. She said that she had been suffering stress, and that during her absence on sick leave she was seeing a doctor because she was getting chest pains and panic attacks whenever she thought about her employer. Ms Dellicastelli said that she had a ‘past’ which some team members had been gossiping about, and that she had complained about this to Ms Barwick but that no action was taken. She did not identify the team members or explain what they were saying about her. Ms Dellicastelli said that during her employment she had been bullied by staff and treated unfairly by staff and management. In this regard, she said that she had been put down in front of doctors and nurses but did not say when or how or by whom. Ms Dellicastelli said that she had had things thrown at her; when questioned about this, she explained that in November 2021 a co-worker had thrown some paper at her, and that her supervisor had seen this and spoken to the co-worker about it. She also said that management had sided with the employees who were gossiping about her. Ms Dellicastelli said that she had no option but to resign because, for the sake of her mental and physical health, she could not go back to work.
Ms Dellicastelli filed brief outlines of evidence that would be given on her behalf by several former colleagues, as well as by Ms Reid, however none of these witnesses attended the hearing. Ms Dellicastelli did not seek to rely on the outlines of evidence.
Mr Boundy did not give evidence. He left the company in September 2022. Mr Anthony Blaney, Dorevitch’s human resources manager, gave evidence for the company. Mr Blaney said that Mr Boundy had reported to him for several months prior to his departure and that he understood from Mr Boundy that, at the time of Ms Dellicastelli’s resignation, no outcome had been determined in respect of the investigation into the allegations against her.
Summary of the parties’ submissions
Ms Dellicastelli contended that she had been forced to resign because of gossip and bullying and because false claims had been raised against her by her co-workers whom the company was supporting. She said that the company was disrespectful to staff, that she was stressed, and that she could not continue to work there. Ms Dellicastelli contended that she had no option but to resign in the interests of her health. As she had been forced to resign, she had been constructively dismissed. Her dismissal was unfair because Dorevitch had no valid reason to dismiss her, nor was she notified of any valid reason or given an opportunity to respond to allegations. Ms Dellicastelli submitted that the Commission should award her three months’ pay in compensation.
Dorevitch submitted that Ms Dellicastelli had freely resigned after allegations had been raised about her conduct and following a long period of sick leave. Ms Dellicastelli had ample opportunity to seek advice from her union. She had not been forced to resign by any conduct or course of conduct by Dorevitch. Because there was no forced resignation, Ms Dellicastelli had not been dismissed, and her claim must fail.
Consideration
In order for a person to have been unfairly dismissed, the Commission must first be satisfied that the person has been ‘dismissed’ (s 385(a)). Section 386(1) states that a person has been dismissed if the person’s employment was ‘terminated on the employer’s initiative’ (s 386(1)(a)) or the person 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’ (s 386(1)(b)).
In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3941, the Full Bench stated, at [47]:
“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 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.”
I do not accept that Ms Dellicastelli was forced to resign from her employment because of the conduct, or a course of conduct, of Dorevitch. The company told Ms Dellicastelli in early April 2022 that complaints had been made about her behaviour and that these complaints would be investigated. Ms Dellicastelli attended a meeting about these matters and was then largely absent from the workplace for nearly two months. During this time, Ms Dellicastelli had the opportunity to consult with her union, and did so. On 6 June 2022 she told the company that she had decided to resign. It was Ms Dellicastelli’s decision to resign. She made this decision freely and on her own initiative.
Contrary to the suggestion of Ms Dellicastelli, I find that Mr Boundy did not pressure her to resign. On 20 May 2022, Mr Boundy called her to request that she attend a meeting to discuss the allegations. He had previously told her that she would not be dismissed. Ms Dellicastelli did not want to attend a meeting. She was not directed to do so. She remained on sick leave. During their discussion on 20 May 2022, Mr Boundy told Ms Dellicastelli that Dorevitch would not agree to her request to cash out two weeks of annual leave. I note that Ms Dellicastelli did not have a right to take leave in advance or to cash leave out. Under clause 36 of the Healius Pathology Pty Ltd Trading as Dorevitch Pathology Support Employees Enterprise Agreement 2021, annual leave may only be taken in advance or cashed out by agreement with the employer. Mr Boundy told Ms Dellicastelli that if, however, she were to resign, her leave would be paid out. This was a perfectly reasonable observation. Section 90(2) of the Act requires an employer to pay an employee any untaken annual leave on termination of employment. The company was not proposing to dismiss Ms Dellicastelli. If she wanted to resign however, Dorevitch would have to pay out her leave.
Ms Dellicastelli said in her resignation letter that Mr Boundy had told her that the best thing for her was her immediate exit from the company. But in her evidence, Ms Dellicastelli said that she had inferred this from Mr Boundy’s tone. Ms Dellicastelli could not point to any words spoken by Mr Boundy that indicated that he thought it best that she leave the company. I find that Mr Boundy did not indicate any such thing. But even if Mr Boundy had said or implied that it would be in Ms Dellicastelli’s best interests to resign, nothing required her to take this course. She could have ignored Mr Boundy. She could have contacted her union to seek advice, as she had done previously.
Ms Dellicastelli’s claim that she was subjected to bullying is simply too general to be accepted. She did not explain who had allegedly bullied her, how they did so, or when and where this conduct occurred. The only incident in respect of which Ms Dellicastelli provided some level of detail was the one in November 2021 when a co-worker threw paper at her. But this was addressed by the company; the supervisor spoke to the relevant person about their behaviour. I reject any suggestion that Mr Boundy bullied Ms Dellicastelli. It has not been demonstrated that he acted unreasonably. As to the alleged gossiping, it is unclear to me what the co-workers were said to be gossiping about. Ms Dellicastelli said that she had complained to Ms Barwick about the gossiping and that no action was taken about it, but even if this represents a failing on the part of the company, Ms Dellicastelli did not establish why any gossip rose to the level of forcing her to resign.
Ms Dellicastelli claimed in her application to have PTSD and anxiety but no medical evidence was submitted, nor did she explain how these conditions were relevant to her argument that the company forced her to resign. There is no evidence that the company knew or ought to have known that she had PTSD or anxiety, or why these matters meant that her resignation was not voluntary.
Ms Dellicastelli believed that the company had unfairly sided with her accusers. I do not accept that the company sided with anyone. The investigation into the allegations against Ms Dellicastelli was not concluded. It is not known what the outcome of the investigation would have been had Ms Dellicastelli not resigned, other than that Mr Boundy was not proposing to dismiss Ms Dellicastelli, and that other action would be taken. Perhaps the outcome would have involved efforts to reconcile the complainants and Ms Dellicastelli.
I find that Ms Dellicastelli did not want to return to the workplace for her own reasons. Ms Dellicastelli was stressed in part because of the investigation into her behaviour. But such stress is commonplace in disciplinary investigations. Ms Dellicastelli could have participated in the investigation, presented her account of events and pressed her own concerns about the conduct of the co-workers. But she did not want to do these things. She wanted to resign. She had time to reflect and to seek the advice of her union. I accept that Ms Dellicastelli felt stress associated with her job more generally and that this likely contributed to her decision to resign. But this was not caused by the conduct of Dorevitch, nor did it force her to resign.
Ms Dellicastelli suggested that it was unfair or inappropriate of Mr Boundy to contact her on 20 May 2022 while she was on sick leave. I reject this submission. The company did not need Ms Dellicastelli’s permission to contact her during this period.
Finally, there is no evidence that Ms Dellicastelli ever told the company that she felt compelled to resign, whether because of bullying, gossip, her medical condition, or for any other reason. Ms Dellicastelli was confronted with allegations about her own behaviour. She sought help from her union. She was absent for several months. She then resigned. This was her choice. It was a voluntary decision.
Conclusion
Dorevitch did not engage in conduct with the intention of bringing the employment to an end, nor was resignation the probable result of its conduct. Ms Dellicastelli chose to resign. She was not forced to do so by the conduct of the company. Ms Dellicastelli’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
R. Dellicastelli for herself
K. Mullally for Healius Pathology Pty Ltd
Hearing details:
2022
Melbourne
13 October
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