Rebecca Tiller v Gilmour Property Agents Pty Ltd T/A Gilmour Property Agents

[2021] FWC 4012

[2021] FWC 4012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Tiller
v
Gilmour Property Agents Pty Ltd T/A Gilmour Property Agents
(U2021/2372)

DEPUTY PRESIDENT BOYCE SYDNEY, 10 AUGUST 2021

Application for an unfair dismissal remedy – jurisdictional objection by respondent – respondent asserts applicant was not “dismissed” within the meaning of s.386(1)(b) of the Fair Work Act 2009 – applicant resigned - alleged forced resignation – alleged no choice but to resign - return to work after maternity leave – whether part-time role permanent or temporary – direction by respondent for applicant to return to work full-time after maternity leave – applicant asserts employment contract unilaterally varied by respondent – applicant asserts respondent repudiated employment contract – alleged failure to accommodate family/carer’s responsibilities – alleged failure to accommodate parental rights after maternity leave – alleged discrimination – alleged breaches of Fair Work Act 2009 - applicant asserts position made redundant – whether applicant had reasonable choices or options other than resignation - whether applicant utilised and exhausted reasonable choices or options prior to resigning – no forced resignation - applicant not “dismissed” – application dismissed

Introduction

[1] On 23 March 2021, Ms Rebecca Tiller (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy in relation to her alleged dismissal by her employer, Gilmour Property Agents Pty Ltd T/A Gilmour Property Agents (Respondent). The Applicant says that she was forced to resign because of conduct engaged in by the Respondent, and relies upon the terms of s.386(1)(b) of the Fair Work Act 2009 (Act) in this regard.

[2] The Respondent asserts that it did not “dismiss” the Applicant from her employment. Rather, the Applicant resigned (voluntarily) after making an assessment of her own personal circumstances.

[3] Following the receipt of submissions and evidence in accordance with Directions made, I held a hearing in Sydney on 10 June 2021 to resolve the jurisdictional dispute between the parties (i.e. as to whether the Applicant was dismissed by the Respondent). The Applicant appeared for herself, assisted by her father-in-law, Mr David Tiller. Ms Angela Kardamis, Senior Workplace Relations Advisor of the Real Estate Employer’s Federation (REEF), appeared for the Respondent.

Evidence before the Commission

[4] The Respondent relies upon the following submissions and evidence:

(a) Respondent’s Outline of Submissions, dated 28 April 2021;

(b) Respondent’s Outline of Submissions In-reply, dated 21 May 2021;

(c) Respondent’s Closing Submissions, dated 15 June 2021;

(d) Respondent’s Closing Submissions In-reply, dated 29 June 2021;

(e) Witness Statement of Ms Caddie Dabaja, dated 28 April 2021;

(f) Witness Statement of Ms Caddie Dabaja, dated 20 May 2021; and

(g) Oral evidence of Ms Jamie Fitzroy, former Office Manager of the Respondent. 1

[5] The Applicant relies upon the following submissions and evidence:

(a) Applicant’s Outline of Submissions, dated 13 May 2021;

(b) Applicant’s Closing Submissions, dated 22 June 2021; and

(c) Witness Statement of Ms Rebecca Tiller, dated 9 May 2021.

Respondent’s evidence

[6] The Respondent is a licensed real estate agency, involved in property sales, management and administration. 2

[7] The Applicant commenced employment with the Respondent on 9 June 2015 under a written contract of employment (Employment Contract) of the same date. 3 The Employment Contract relevantly provides that the Applicant is engaged as a full-time employee working 8.30am to 5.30pm, Monday to Friday, pursuant to the terms of the Employment Contract and the Clerks (Private Sector) Award 2010 (Clerks Award).4 At the time that her employment came to an end, the Applicant was employed as a Marketing Coordinator.

[8] After her first period of maternity leave commencing in December 2017, the Applicant requested to return to work part-time, three days per week (Part-time Request). Ms Caddie Dabaja, Owner and Principle, of the Respondent, gives evidence that the Part-time Request was agreed upon only as a “temporary arrangement” and was in place (as agreed) “until such time that the business needs were such that [Ms Dabaja] needed [the Applicant] to return to work full-time”. 5 It appears that the Part-time Request was made in or around July 2018 (during or at the end of the Applicant’s first period of maternity leave).6

[9] I note at this point that the Applicant’s evidence is that the Part-time Request was agreed to by Ms Dabaja on the basis that the Applicant would only return to her full-time role if mutually agreed. 7

[10] Prior to giving birth to her second child, the Applicant took a second period of maternity leave commencing in May 2020.

[11] On 2 March 2021, the Applicant retuned to work for one day at the Respondent’s office. Ms Dabaja approached the Applicant in the office kitchen and stated “we need to discuss the nature of your return work on 1 June 2021”.  8

[12] Ms Dabaja’s evidence is that she approached the Applicant to return to work full-time (starting 1 June 2021) as she wanted the business to engage in more marketing to improve its sales market share in the area. She offered to pay for the Applicant to undertake (or complete) a marketing course. According to Ms Dabaja, the Applicant stated in response “I know I am not the best marketing coordinator. I would be happy to come back and do something else”. Ms Dabaja advised the Applicant that there were no alternative roles available. Ms Dabaja’s evidence is that the Applicant advised her that she would talk over returning to work on a full-time basis with her husband, but did not state (or otherwise assert) that she had a part-time (three days per week) role on a permanent basis. 9

[13] On 4 March 2021, the Applicant and Ms Dabaja had a further discussion about returning to work full-time. During this discussion, the Applicant advised Ms Dabaja that she could not return to work full-time, and that she could not undertake the marketing role as she was “not in the right headspace to study with two young children”. Ms Dabaja advised the Applicant “in no uncertain terms” that the business required her to return to work on 1 June 2021 on a full-time basis. She also advised the Applicant that she wanted her to complete a marketing course as she felt that the marketing of the business to date had been lacklustre. Ms Dabaja advised the Applicant that she needed to determine what she wished to do as a full-time role was required from 1 June 2021. 10 Ms Dabaja’s evidence is that she never advised the Applicant that if she could not return full-time she would need to resign.11

[14] According to Ms Dabaja, the Applicant advised her that as she did not wish to return to work full-time, she would be leaving her employment with the Respondent, and she would provide her resignation in writing. The Applicant also requested that she be made redundant (with a severance payment). 12 Ms Dabaja responded by advising the Applicant that her position was not redundant as it was still required to be performed, and that the Respondent would now have to advertise for a new employee to fill the Applicant’s role. The Applicant stated to Ms Dabaja that her father-in-law had advised her that it was a redundancy. However, Ms Dabaja advised the Applicant that whilst her view was that this was not a case of redundancy, she would double check with REEF (the Respondent being a member of REEF).13

[15] At the end of the meeting Ms Dabaja understood that the Applicant did not wish to return to work full-time from 1 June 2021, and would be providing her resignation in writing. Accordingly, Ms Dabaja advised employees in the Respondent’s property department that the Applicant would be ceasing employment with the Respondent and not returning to work. 14 She also arranged for a job advertisement to be placed with SEEK for a full-time Marketing Coordinator.15

[16] On 5 March 2021, Ms Dabaja advised the Applicant that she had spoken to REEF. She advised the Applicant that it was the Respondent’s position that the Marketing Coordinator position was not being made redundant. Ms Dabaja also advised the Applicant that as she was resigning she needed to provide 4 weeks’ notice, however, the Respondent would pay this notice period out in lieu. When the Applicant queried as to whether that payment would be calculated at 4 weeks’ notice at 3 days per week, or full-time (5 days per week), Ms Dabaja advised that it would be payment in lieu of notice at five days per week (as per the Employment Contract which provides for a full-time role). 16

[17] Ms Dabaja relevantly goes on to give the following evidence:

“On 5 March 2021 at 2:37pm, Rebecca sent an email stating ‘Is it okay if I send an email saying I won't be returning to work? I think it would be good since I won't be seeing everyone until Monday…Honestly, thank you so much for the past 3 and a bit years! It has been so good working with you’. … I took this email to be the written resignation that Rebecca had stated she would provide me.

On 5 March 2021 at 2:40pm, I responded to Rebecca's email stating that I believed everyone knew she would not be returning to work. I told her that I and the team wanted her to come in on Monday [8 March 2021] so we could thank her and wish her well. I also bought a gift so I [could] present it to her. …

On 5 March 2021 at 2:42pm, Rebecca responded saying ‘Okay, thanks Caddie’. …

Early in the morning on 8 March 2021, I received a text message from Rebecca stating she would not be attending Monday's farewell as her son was not well. I deleted this text message shortly after receiving it.

A lunch was held on 8 March 2021 to farewell Rebecca and Jamie. I was unable to attend due to work commitments. At this lunch, Jamie mentioned that she had spoken to Rebecca and that Rebecca had asked her to provide an employment reference.

On 9 March 2021 at 9:42am, I received an email from Rebecca in which she stated that she had received advice from the Fair Work Ombudsman in relation to her employment. Her email stated that I had asked her to resign. She also mentioned that she was on ‘a mutually agreed 3 day per week employment contract’…

I was very shocked to receive this email and could not believe its content as I did not ask her to resign, nor was there ever any previous understanding or mention of ‘a mutually agreed 3 day per week employment contract’. I tried calling her on 9 March at 10:29am to discuss the contents of her email but she did not pick up or call me back. …

At no stage prior to this email had Rebecca stated that she was on a 3 day per week employment contract. At no previous time did Rebecca indicate she believed she was employed on a permanent part-time basis, nor was her return to work on a full-time basis to be mutually agreed. The email from Rebecca was in direct opposition to our discussions had on 2 and 4 March 2021.

Rebecca’s email took me by surprise, as she concluded the email by seeking 55 days’ pay and that she was happy to sign a deed of release. It was clear to me that Rebecca simply wanted to be paid out some money. This was obvious from her seeking a redundancy payment in the meeting on 4 March 2021.

…

On 9 March 2021 at 4:16pm, I responded to Rebecca's email stating that I never asked her to resign and that her full-time position was still available for her to return to on 1 June 2021. Even though I had uploaded a job advertisement I was happy to have her return to work full-time from 1 June 2021. I had made it clear in all our discussions that operationally I required the role to be full-time. …

On 15 March 2021 at 9:10am, I received a reply from Rebecca. In her email, Rebecca referred to ‘[a]n Individual Flexibility Agreement (IFA)’. This was the first time Rebecca raised the idea of an IFA with me. At no time had we ever entered into an IFA and in 2019, when the temporary part-time arrangement was agreed to, she had never requested formally in writing for a change to her working arrangements. I do not know where the concept of an IFA derived from. …

In this email, she also stated we had agreed in 2019 that any changes to her employment arrangements ‘would need to be mutually agreed’. She also stated she ‘suggested some options’ in our meeting on 4 March 2021 relating to easing back into full-time work.

At no time did I ever say or agree that her return to work on a full-time basis would need to be agreed. Further, at no stage during the meeting on 4 March 2021 did Rebecca offer any alternative solutions to working five days per week. She had never raised the possibility of continuing to work three days per week until she secured childcare and then revert to full-time work or extending her maternity leave until early 2022, until this email.

Rebecca’s email also stated that I said in the meeting on 4 March 2021 I ‘would look after’ her. This is correct. My comment was in relation to finding out if I could make Rebecca's position redundant and, if I could, I would then pay her out the required redundancy. As I required Rebecca's position to be done and on a full-time basis, I could not make her position redundant.

Rebecca’s email of 15 March 2021 also stated she was on a ‘three day per week verbally agreed contract’. I refute this statement entirely. Rebecca's contract was never permanently varied to be three days per week. I had made it clear that it was only temporary.

On 16 March 2021 at 1:32pm, I responded to Rebecca's email and reiterated that her employment agreement was never permanently varied, nor was her position redundant. Rebecca never responded to this email. …

On 25 March 2021, I received Rebecca's application for unfair dismissal.” 17

[18] The cross-examination of Ms Dabaja elicited the following evidence:

(a) No individual flexibility agreement (IFA) was entered into with the Applicant regarding her working three days, instead of five days, per week. Indeed, there was never any suggestion that an IFA would be entered into. 18

(b) Ms Dabaja is adamant that she advised the Applicant, at the time that Ms Dabaja agreed to the Part-time Request, that it was “only temporary”. 19

(c) There were no other available jobs for the Applicant to perform, other than the Marketing Coordinator role (on a full-time basis), in the Respondent’s business. 20

(d) The Employment Contract was not updated when the Applicant moved from her original role of Receptionist to the Marketing Coordinator role. 21

(e) The email from Ms Dabaja to the Applicant dated 16 March 2021 (set out at paragraph [33] of this decision) reflects Ms Dabaja’s acceptance (on behalf of the Respondent) of the Applicant’s resignation. 22 This is consistent with the Applicant’s resignation stated as being 15 March 2021 on the Form F3 filed by the Respondent.23 Notwithstanding this, Ms Dabaja maintains that the Applicant resigned on 4 March 2021.24

(f) Whilst Centrelink advised the Applicant that her maternity leave payments would be made directly by Centrelink (and not the Respondent) for the period 15 March 2021 to 9 May 2021, Ms Dabaja is not aware as to why Centrelink would be using the date 15 March 2021. 25

[19] The evidence of Ms Fitzroy (in summary) is as follows:

(a) Ms Fitzroy was the Respondent’s Office Manager before she resigned her employment on 26 February 2021. 26

(b) Ms Fitzroy did some job sharing in the role of Marketing Coordinator with the Applicant (whilst the Applicant was working three days per week). During the period that the Applicant was off work on full-time maternity leave, Ms Fitzroy performed her own role (Office Manager), as well as the Applicant’s role (Marketing Coordinator) at the same time. She considers that in undertaking both jobs she “managed all right”. 27

(c) On 5 March 2021, Ms Fitzroy spoke to the Applicant in relation to the Applicant’s “departure” from the Respondent. 28

(d) Ms Fitzroy was asked by Ms Dabaja to put together an advertisement for a full-time Marketing Coordinator role to be advertised on SEEK sometime between 1 and 5 March 2021. 29

Applicant’s evidence

[20] The Applicant has two children, one 3 years, and the other 10 months, old. Her husband works full-time.

[21] The Applicant started at the Respondent as a Receptionist, and moved into the Marketing Coordinator role in early 2016. She performed each of these roles (during the relevant period prior to her return to work from her first period of maternity leave) on a full-time basis.

[22] In late July 2018, whilst on her first period of maternity leave, the Applicant had a discussion with Ms Dabaja, whereby it was agreed that the Applicant could return from maternity leave working three days per week. Because an IFA was not entered into (in respect of this 3 day per week arrangement), the Applicant “understood” that her change from full-time to part-time was permanent, with any changes into the future to be mutually agreed. 30

[23] According to the Applicant, she attended a meeting with Ms Dabaja on 2 March 2021, where she was advised by Ms Dabaja that she would be required to return to work full-time upon her return to work after her second period of maternity leave (from 1 June 2021), and that Ms Dabaja would pay for her to attend a marketing course. 31

[24] On 3 March 2021, the Applicant reviewed the Fair Work website, and consulted with her father-in-law about Ms Dabaja’s requirement that she return to work full-time. Her father-in-law’s advice was that the requirement could give rise to a redundancy, and that the Applicant should ask for an alternative role at the Respondent. 32

[25] On 4 March 2021, the Applicant met again with Ms Dabaja, and advised her that she could not obtain five days per week care for her second child. She advised Ms Dabaja that she proposed to return to work three days per week until such time as she could secure five days per week childcare for her child (which would likely occur in January 2022). Alternatively, the Applicant offered to extend her current period of maternity leave until January 2022. The Applicant states that Ms Dabaja was adamant that she required her to return full-time from 1 June 2021. The Applicant stated to Ms Dabaja that she did not know where this left them, that she did not wish to leave her employment, and queried whether her role was redundant. Ms Dabaja advised the Applicant that she would speak to REEF and come back to her. 33 The Applicant states that her impression at the end of the meeting was:

“At this meeting it became apparent to me that whilst I was willing to return to work 3 days per week this was not an option for the business. As such it appeared I would not be returning to work for Gilmour Property Agents.

The meeting was left amicably as I felt confident that Caddie would look into the appropriate course of action. Caddie mentioned that should I ever want a reference or if I was looking for 5 days per week work to contact her as we did work well together.” 34

[26] Ms Dabaja called the Applicant on 5 March 2021 to advise her that she had spoken to REEF, and that the Applicant’s position was not redundant.

[27] The Applicant goes on to give the following evidence as to the 5 March 2021 conversation:

“At this time I asked if she mentioned to them that I had been working 3 days per week prior to maternity leave. Caddie responded with words to the effect; you knew you needed to return 5 days per week at some point. I replied with words to the effect; that it would need to be mutually agreed to increase the days just as we mutually agreed to decrease the days.

…

During this call Caddie also said that REEF advised her that she only needs to pay me 2 weeks should I resign.

During this call Caddie said that she wanted to do a little more than 2 weeks and offered me 4 weeks pay in lieu of notice because I had been with the company for 5½ years.

I concluded this call [by] saying I would need to talk to my husband and look into the matter a little more. I said we should be able to work something out on Monday (8 March 2021) at the Office Manager's farewell that I was going to attend.” 35

[28] On 9 March 2021, the Applicant sent an email to Ms Dabaja, which reads:

“Dear Caddie,

I understand that you would like me to work 5 days per week because of a recent employee resignation and restructure. Unfortunately due to family carers responsibilities I am not able to do this at the moment.

Last week you asked me to resign because you have been advised you can’t make my position redundant as you believe that I am on a 5 day per week contract.

In respect to your request I have sought my own advice from the Fair Work Ombudsman. I have received conflicting advice. I have been advised:

1. I am on a mutually agreed 3 day per week employment contract. This contract could be changed subject to any mutually agreed variation.

2. Resignation is at the sole discretion of the employee.

3. Any forced termination would be unfair or unlawful (General Protections/Adverse Action) because of the lack of any valid reason or because I am exercising an employment right.

4. My position is redundant because of a recent resignation and subsequent business restructure.

Because my position is redundant I would be entitled to:

Based on a 3 day working week:

•  4 weeks notice (to be worked or paid)

•  10 weeks redundancy (5-6 years service as per Award/NES)

•  4.335 weeks pro rata long service

This equates to 55 days pay if the notice is paid or 43 days should the notice be worked.

Should we reach agreeable terms I am happy to sign a Deed of Release.

I hope we can reach agreeable terms of separation.

Sincerely,
Rebecca” 36

[29] Ms Dabaja, sent an email response to the Applicant on 9 March 2021, which reads:

“Dear Rebecca,

We are writing to respond to the email you have sent to Gilmour Property Agents on Tuesday 9 March 2021.

Further to the email we must raise the following:

1. Upon your return from the first maternity leave period on February 2019, we allowed for you to work on a temporary 3 day part-time position until the employer required you to return to your 5 day full-time position. Your position remains full-time and as you have commenced your second maternity leave period in May 2020, you are entitled to return into this position in a full-time capacity on 1st June 2021.

2. It is undisputed that resignation is at the employee’s discretion, however, we have not asked you to resign. In fact, we require that you continue your employment in the full-time role.

3. To reiterate, we have not forced you to terminate your employment and you still maintain your full-time position in Gilmour Property Agents.

4. You have not been made redundant as your original position of 5 day full-time role remains and is available for you following your return from maternity leave.

To clarify, we expect that you return to work on 1st June 2021 in the full-time Marketing Coordinator position.

In the meantime we have someone to cover your work until then.

Regards Caddie” 37

[30] The Applicant became aware on 11 March 2021 that the Respondent had advertised on SEEK for a full-time Marketing Coordinator position. 38

[31] The Applicant again attempted to obtain five days’ childcare but was unable to do so. The only documentary evidence in this regard is a response from Gracelands Early Education Centre, dated 12 March 2021, which reads:

“Hi Rebecca

Chloe is on our waitlist however at this point in time there are no positions available. I’m unable to give you a time frame on the availabilities as it depends on if existing families drop days or leave the centre. Hope this helps, if you have any further questions please don’t hesitate to call.” 39

[32] The Applicant sent a resignation email to Ms Dabaja on 15 March 2021, which reads:

“Dear Caddie,

In response to your email on Tuesday 9 March 2021.

I do not accept that I am currently employed on a 5 day per week employment contract. When I returned from maternity leave in February 2019 my original 5 day per week contract was changed to a 3 day per week contract by mutual agreement. An Individual Flexibility Agreement (IFA) was not entered into.

We did agree that we would revisit my employment arrangements at a later date, however, any changes would need to be mutually agreed.

Gilmour Property Agents (Gilmour) now require me to work 5 days per week because of a recent employee resignation and restructure. When I met with you on Thursday 4 March 2021:

I indicated that I could not work 5 days per week because of my family carer’s responsibilities, specifically I have been unable to secure day-care for my 8 month old. At this time, I suggested some options, such as working 3 days per week until I could secure day care and then work 5 days per week and even potentially extending my maternity leave to the start of 2022 when I would be able to undertake 5 days. These suggestions were rejected as 5 days was now required. You said you would seek guidance on how to proceed. You also stated that you would look after me whether it was deemed a redundancy or resignation, this was in reference to severance pay and the long service leave after being with the company over 5 years.

On Friday 5 March 2021 we spoke on the phone regarding the advice you received from the Real Estate Employment Federation (REEF):

You advised me their response was that you couldn’t make me redundant because of the 5 day signed contract and they suggested I needed to resign if I couldn’t fulfil 5 days.

I indicated that I believed my position was becoming redundant, after informing me I could check for myself, you provided me with REEF’s contact number. REEF were unable to speak with me as they can only advise you and you directed me to the Fair Work Ombudsman. This led to my email on Tuesday 9 March 2021 as they confirmed the position could be made redundant based on the three day per week verbally agreed contract. Your corresponding email stated that my position was not redundant and I would have to agree to working 5 days per week.

I understand that other employees at Gilmour believe that I have resigned, even though I have not. I also note that on 4 March 2021 Gilmour started advertising my position on Seek. I note that this was for the 5 day per week position.

All of this has had a significant impact on my family life and mental health.

Gilmour’s actions have directly and consequentially left me with no other alternative than to resign effective immediately.

Had Gilmour’s not taken this action I would have happily continued working at Gilmour’s.

I believe that Gilmour’s actions were intended to make me resign so they would not have to pay redundancy.

Sincerely,

Rebecca” 40

[33] Ms Dabaja responded to the Applicant on 16 March 2021 via reply email, which reads:

“Hi Rebecca,

I refer to your email dated 15 March 2021.

I am genuinely sorry to hear that this situation has had a negative impact on your mental health.

I reiterate that your employment agreement was never permanently varied from full-time to part-time at 3 days per week as your role as Marketing Coordinator is a full-time role. When you requested to go part-time following your first parental leave period in February 2019, I agreed for you to do so on a temporary basis, until such time that I would require you to return to work full-time. This mutual understanding was expressed again in our meeting on 2 March 2021 when I told you that I needed you to return to work full-time and would be happy to pay for you to complete a course in marketing. You said you would need to talk this over with your partner before providing me with an answer.

In our meeting on 4 March 2021, you told me that you could not return to full-time work and asked whether I would make your position redundant. I reiterate that your position is not redundant as I require you to return to work full-time in your role as Marketing Coordinator, as per your employment agreement, at the end of your parental leave period on 1 June 2021. The meeting ended amicably with you stating you cannot return to full-time work and as a result, would have to resign. I asked you to provide your formal resignation in writing, which you agreed to do.

On 15 March 2021, you resigned from your position with immediate effect in writing.

I wish you all the best in your future endeavours.

Regards Caddie” 41

[34] The cross-examination of the Applicant elicited the following evidence:

(a) The Employment Contract was never formally varied (in writing) from full-time to part-time employment; 42

(b) No IFA was entered into regarding the Applicant working three days instead of five days per week. 43

(c) The Applicant’s change from full-time to part-time, and then back to full-time employment on a future date, was agreed between the Applicant and Ms Dabaja to be reassessed later. There is no dispute that the agreement as to part-time employment would be a “temporary arrangement”. Albeit, the Applicant’s understanding is that any return to full-time employment (from part-time) would only be by way of “mutual agreement”. 44

(d) Ms Dabaja’s request that the Applicant undertake a marketing course was not a mandatory request. 45

(e) The fact that Ms Dabaja gave the Applicant notice on 2 March 2021 that she required her to return to work full-time on 1 June 2021 gave the Applicant three months’ notice of same. 46

(f) On 4 March 2021, the Applicant advised Ms Dabaja that she was unable to return to work with the Respondent in a full-time capacity from 1 June 2021. 47 However, the Applicant says that this did not mean that she had resigned on 4 March 2021.48

(g) The Applicant made two attempts to seek childcare for her youngest child, one verbally, and one in writing (for the latter, see email response set out at paragraph [31] of this decision). 49

(h) Whilst the Applicant made a suggestion to Ms Dabaja that she could extend her current period of maternity leave, she never did so in writing. 50

(i) The reason the Applicant could not return to work full-time was because she could not secure appropriate childcare arrangements to enable her to do so. 51

(j) Based upon advice she received from the Fair Work Ombudsman (FWO), the Applicant considered that as her part-time position no longer existed that she was entitled to a redundancy (severance) payment. Albeit, the advice she received from the FWO was based upon what the Applicant (herself) had told the FWO about her circumstances. 52

Respondent’s evidence in-reply

[35] Relevantly, Ms Dabaja gave the following evidence in-reply:

“… [I]n one of Rebecca’s office visits in February 2019, during her first unpaid parental leave period, Rebecca instigated the discussion with me seeking to return to work 3 days per week on a temporary basis. I replied with. words to the effect of “I will do that for as long as I can but when I need you to return full-time, you will need to come back full-time”. Rebecca was very happy and grateful for my response and never asked for this to be a permanent arrangement…

… [A]n Individual Flexibility Agreement was never entered into, nor did Rebecca ever raise an Individual Flexibility Agreement in this meeting. I do not agree that an Individual Flexibility Agreement is the correct form of agreement that should be entered into with the effect of varying an employee's work hours because our agreement was for Rebecca to temporarily reduce her hours from full-time to 3 days per week.

In this meeting, my verbal agreement with Rebecca, upon her request, was to reduce her hours from full-time to 3 days per week on a temporary basis. Rebecca agreed to return to work on a full­ time basis when business needs required her to do so….

… [T]here was no discussion with Rebecca in relation to reverting to full-time hours when she sought her second period of maternity leave. Rebecca taking a second period of maternity leave did not change the fact that the agreement between Rebecca and I for her to work 3 days per week was a temporary arrangement…

… [o]n 2 March 2021 Rebecca did not specifically request to work in the role of Office Manager. She said words to the effect of “I know I am not the best marketing coordinator. I would be happy to come back and do something else”. At this point I was aware that Jamie Fitzroy had resigned as the Office Manager. I have not rehired for Jamie's position as I am covering her duties and no longer require a dedicated Office Manager….

… Rebecca's role as Marketing Coordinator was substantively a full-time role and it was only temporarily reduced to part-time. It was her substantive position which I required her to perform when she was due to return from maternity leave in June 2021….

… Rebecca did not mention in this meeting [on 4 March 2021] that she could not secure full-time childcare placements for both her children until January 2022….

… Rebecca did not seek to extend her maternity leave until January 2022. In this meeting [on 4 March 2021], Rebecca was purely interested to know whether I would make her position redundant. She did not suggest any alternatives to returning to work full-time from June 2021. Rebecca indicated to me that she could not return to work full-time and therefore, would not be returning to Gilmour….

… I cannot recall whether I offered Rebecca an employment reference [or full-time employment at some point in the future] during this meeting, however, I know that had she asked me for one following this meeting, I would have provided it for her as we had a good working relationship….

… I never told Rebecca in this meeting that she would have to resign…

… Rebecca never mentioned a mutual agreement to increase and/or decrease days. Up to, and including, this point, there had not been a disagreement between us about her returning to work full-time. I reiterate that in this meeting, Rebecca was only concerned as to whether I would make her position redundant…

… I did not mention 2 weeks’ notice. I told Rebecca that I checked with REEF and her situation was not a case of a genuine redundancy. I told Rebecca words to the effect of “If you were to give notice, you would have to give 4 weeks’ notice.

…

… Rebecca had indicated to me in our meeting on 4 March 2021 that she could not return to work full-time and therefore, would not be returning to Gilmour. In this meeting, she agreed to provide a written letter of resignation. As her role was one that I needed filled, an advertisement for her role was uploaded to SEEK in the afternoon of that same day.” 53

Respondent’s Closing Submissions

[36] The Respondent relevantly made the following closing submissions:

“7. We submit that the Applicant resigned on her own accord verbally and in person to the Respondent's Principal and Owner, Caddie Dabaja, on 4 March 2021 and then in writing to her on 15 March 2021. Throughout the Applicant’s evidence, she repeatedly stated it was in her meeting with Caddie Dabaja on 4 March 2021 where it became evident to her that she could not return to work in a full-time capacity and made the decision to resign from her employment. 54 It is abundantly clear from the Applicant’s evidence at PN304 that she agrees she resigned to Caddie Dabaja on 4 March 2021.

8. The Applicant’s verbal request to work part-time in February 2019, after her first parental leave period, was granted by the Respondent on a temporary basis only. It was the expectation that the Applicant would return to work on a full-time basis when the Respondent’s business needs required her to do so. It is abundantly clear from the Applicant's evidence that she agreed the arrangement of 3 days per week was to be on a temporary basis only and simply assumed her temporary arrangement at the time would continue when she returned from parental leave on 1 June 2021. 55 Further, from the evidence of Caddie Dabaja, it is also clear that this was communicated and agreed to by the Applicant.56

9. The request for flexible work after the Applicant’s first period of maternity leave was not made in accordance with section 65(3) of the Fair Work Act (Cth) as it did not set out details of the change sought and/or the reasons for the change in writing. This is clear from the Applicant’s evidence. 57

10. The parties had, however, verbally agreed to temporarily reduce the Applicant’s hours of work and the Applicant worked to these reduced hours up until she went on her second period of parental leave. This can be seen from the evidence of Caddie Dabaja. 58 This verbal arrangement was agreed to between the Applicant and the Respondent on a temporary basis only and could be ended at the Respondent’s sole discretion.

11. As per the Applicant’s evidence, the Applicant’s employment agreement clearly refers to her as a full-time Marketing Coordinator and at no stage was this permanently varied. 59 The evidence demonstrates that it was only ever a temporary variation. The Respondent’s direction for the Applicant to return to work full-time in June 2021 was in line with the Applicant’s employment agreement, ending the Applicant’s temporary agreement to work part-time.

12. We submit the Applicant’s pre-parental leave position was substantially a full-time role as Marketing Coordinator. In the meeting between the Applicant and Respondent on 2 March 2021, the Respondent made clear to the Applicant that she had to return to work full-time from 1 June 2021, thereby giving the Applicant 3 months’ notice of the requirements and operational reasons for such. In her evidence, the Applicant acknowledges she was given 3 months’ notice of the Respondent’s requirement for her to return to work full-time from 1 June 2021. 60

13. The evidence of Caddie Dabaja clearly demonstrates that even if the Applicant had posed alternatives to returning to work full-time, such as taking on an administrative role, the Respondent had no such role available for the Applicant to perform, including that of the resigned Office Manager, other than her substantive full-time role as Marketing Coordinator. 61

14. We submit the Applicant was never employed under a part-time employment agreement and therefore, her maximum weekly hours equal those of a full-time employee, being 38 hours per week. It is abundantly clear from the Applicant’s evidence that in her meeting with Caddie Dabaja in February 2019, she acknowledged and accepted that her 3-day arrangement was only temporary. 62 This understanding was once again conveyed in the Applicant’s meeting with Caddie Dabaja on 2 March 2021 where the Applicant never stated to Caddie Dabaja that she was permanent part-time even after Caddie Dabaja informed the Applicant that she required the Applicant to return full-time time from 1 June 2021.63 The Applicant’s original employment contract was not replaced by a new part-time contract or varied to contain terms favourable to a 3-day per week arrangement and the Applicant agreed she never signed a part-time employment agreement.64

15. As per the Applicant’s evidence, we reiterate the Applicant’s employment agreement clearly refers to her as a full-time Marketing Coordinator and at no stage was this permanently varied. 65 The Respondent's direction for the Applicant to return to work full-time in June 2021 was in line with the Applicant’s employment agreement, ending the Applicant's temporary agreement to work part-time.

16. Whilst we agree that a verbal agreement to temporarily reduce the Applicant’s hours is not void, the Respondent only ever accommodated the Applicant’s desire to work part-time on a temporary basis. It was never an ongoing arrangement and was also subject to the operational requirements of the business. This is also supported by the Applicant’s evidence where she fails to classify her employment status as permanent part-time. 66 The Respondent consistently maintains this position as evidenced in Caddie Dabaja’s evidence.67

17. The evidence of Caddie Dabaja and the Applicant demonstrates the Respondent never mentioned an Individual Flexibility Agreement to the Applicant and that such an agreement was never entered into. 68

…

19. The Respondent’s evidence demonstrates that the Applicant never raised alternatives to working 5 days per week in the meetings held on 2 and 4 March 2021. However, even if the Commission was to find that the Applicant raised alternatives to working full-time, the Applicant, in her evidence, demonstrates that she did not make any serious attempt to explore alternate solutions, namely securing full-time childcare from June 2021 or extending her period of parental leave until January 2022. 69 The Respondent asserts that had the Applicant made either of these recommendations it would have considered accommodating the Applicant's recommendation(s). However, it is clear the Applicant had decided to resign from her employment at this point, rather than explore any alternate options.

20. The evidence from the Applicant and that of Caddie Dabaja demonstrates that the Applicant had resigned in person prior to the Respondent uploading the job advertisement to SEEK. 70 Therefore, we submit that the uploading of the job advertisement was undertaken post-resignation and should not impact the Commission's decision.

21. It is the position of the Respondent that there is no objective evidence to show that it was anything but the intention of the Respondent to have the Applicant continue to work. In establishing that there was a forced resignation the Applicant must satisfy the Commission that the Respondent took action with the intent of bringing the employment relationship to an end. We say that the Applicant has not done this and from the evidence of Caddie Dabaja, it is clear that even now she would have the Applicant return to work, however, as operational requirements dictate, on a full­ time basis.

22. The evidence clearly demonstrates that the Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the Respondent. The Applicant has brought this claim because she no longer wanted to fulfil her substantial role as a full-time Marketing Coordinator and assumed her temporary part-time arrangement would simply continue following her return to work on 1 June 2021. When the Respondent could not accommodate the temporary part-time arrangement for operational reasons, the evidence clearly shows the Applicant resigned of her own accord on 4 March 2021. 71 Accordingly, we respectfully submit that the matter should be dismissed.”72

Applicant’s Closing Submissions

[37] The Applicant relevantly made the following closing submissions:

“5. The Respondent asserted during cross examination of Mrs Tiller that because Mrs Tiller could not accommodate the Respondent's need for her to move from part­ time to full-time, Mrs Tiller then became motivated in securing a redundancy pay out because she needed the money. 73

6. We submit that this could not be any further from the truth, and the evidence shows this.

7. We say that this assertion displays a clear absence of respect, compassion, dignity or kindness on behalf of the Respondent.

8. It was Mrs Tiller’s evidence that all she wanted was to stay employed at Gilmour’s. 74

9. It was Mrs Tiller’s evidence that she enjoyed working at Gilmour’s and she liked the people she worked with. 75

10. The evidence shows that the business no longer required Mrs Tiller to work in her part-time position.

11. The evidence shows (or the lack of evidence on behalf of the Respondent) that the Respondent has not made any genuine effort to accommodate Mrs Tiller’s protected workplace rights. The evidence shows that the Respondent treated Mrs Tiller less favourably by reason of her family responsibilities.

12. It is the Respondent’s evidence that Mrs Tiller gave the Respondent the sole right to determine the number of days per week she could work or not work. 76

13. It was Mrs Tiller’s evidence that she never agreed to such a repugnant arrangement.

Forced Resignation

14. The evidence shows that Mrs Tiller wanted to continue working at Gilmour’s. 77

15. The evidence shows that Mrs Tiller was even willing to re-negotiate her part-time contract so she could continue working at Gilmour's. 78

16. The abundance of evidence shows that Mrs Tiller was forced to resign by the ultimatum given by Caddie Dabaja that Mrs Tiller had to work full-time.

Workplace Law

17. The accumulation of evidence shows that the Respondent breached workplace laws.

18. We submit that when the Respondent breached workplace laws, they repudiated Mrs Tiller's employment contract.

…

Pre-parental Leave Position

27. The evidence shows Mrs Tiller was working part-time (3 days per week) before she went on parental leave.

28. The evidence shows Mrs Tiller has not worked full-time since December 2017.

Parental Rights

29. The abundance of evidence shows that the Respondent did not recognise Mrs Tiller’s parental responsibilities. There was no evidence produced by the Respondent that shows they even considered her parental rights.

30. The abundance of evidence shows that the Respondent was not prepared to allow Mrs Tiller to return to her pre-parental leave position on ending her period of unpaid parental leave. The Applicant wanted to Continue Working for the Business.

31. The evidence shows that Mrs Tiller wanted to return to the position she held before going on parental leave. Mrs Tiller even offered alternatives. 79

Reasonable Business Grounds

32. The evidence shows that the Respondent has not proven there were reasonable business grounds. There was no evidence indicating:

a. the new working arrangements would be too costly;

b. the business has no capacity to change the working arrangements of other employees to accommodate;

c. it would be impractical to change the working arrangements of other employees or recruit new employees to accommodate;

d. the new working arrangements would be likely to result in a significant loss in efficiency or productivity; or

e. the new working arrangements would be likely to have a significant impact on customer service. 80

33. It was Caddie Dabaja’s evidence that the business needed to perform more marketing to increase sales market share in the area. 81 We submit that this is not a reasonable business case.

Individual Flexibility Agreement

34. The evidence shows that an Individual Flexibility Agreement was not entered into.

35. We submit that the Respondent cannot argue for the flexibility of an Individual Flexibility Agreement (a temporary agreement where either party can bring the flexibility term to an end) if one has not been made.

36. It is common practise for returning mothers to the workplace to enter into an Individual Flexibility Agreement or permanently vary their full-time contact to a part-time contact.

37. The advantage of the Individual Flexibility Agreement is that either party can bring this agreement to an end by giving notice.

38. The advantage of varying the full-time contact to a permanent part-time contact is that neither party can bring this contact to an end without the other party agreeing.

Part-Time Contract or Full-Time Contract

39. The evidence shows Mrs Tiller has not worked full-time since December 2017.

40. The evidence shows that somewhere between late July 2018 or February 2019 key terms and conditions in Mrs Tiller’s employment contract were varied. This was done verbally between Mrs Tiller and Caddie Dabaja.

41. The evidence of Mrs Tiller shows that this change was permanent and could only be changed by mutual agreement. 82

42. It was the Respondent’s abundance of evidence that it is at their sole discretion to determine when Mrs Tiller can work, because Mrs Tiller agreed to such an arrangement.

43. It was the Respondent’s evidence that even if Mrs Tiller wanted to work 5 days a week, the Respondent could refuse this request. 83

44. It was Mrs Tiller’s evidence that at no time did she agree that her working arrangements could be changed at the sole discretion of the Respondent.

45. The evidence shows that the Respondent believes they can put Mrs Tiller in such a precarious employment position where the Respondent can change key terms and conditions of Mrs Tiller’s employment contract without any justification or consultation. Such action is repugnant.

Resignation Date

46. The evidence shows that Mrs Tiller resigned on the 15th of March 2021 via email. 84

47. It was the Respondent’s evidence that they accepted this resignation on the 16th March 2021 via email. 85

48. The Respondent’s email of the 16th March 2021 was in response to Mrs Tiller’s resignation email of the 15th March 2021. In the Respondent's email Caddie Dabaja states ‘On 15th March 2021, you resigned from your position with immediate effect in writing’. It is the Respondents own evidence that Mrs Tiller resigned on the 15th March 2021.

49. The evidence shows Respondent’s Form F3 - Employer response to unfair dismissal application the Respondent states at 1.3, 3.1 (7) and 3.2 (4) that the Applicant resigned from her position on the 15th March 2021. Exhibit 1.

50. The evidence shows that at no time before the 15th of March 2021 did Mrs Tiller say she resigned or tender a resignation. The evidence shows that Mrs Tiller indicated to others that it looks like she may have to leave because the business no longer required her to work in her part-time position and it looked like she would not be able to take on the full-time position because she could not access full-time day-care at that time.

51. The evidence strongly suggests that the employment relationship had not been terminated before 15th of March 2021. 86

52. The evidence shows Mrs Tiller was still conducting employment activities after the 4th of March 2021. 87

53. Exhibit 3 strongly indicates that the Respondent informed them that Mrs Tiller had resigned on 15th of March 2021.

Pay in Leu of Notice

54. The evidence shows Caddie Dabaja offered to pay Mrs Tiller 4 weeks' pay in lieu of notice if she resigned. 88

55. Mrs Tiller has not received this payment.

56. It was Caddie Dabaja’s evidence that they did not pay it because she did not know what was going on. 89

Advertising the Position

57. The Respondent maintains that Mrs Tiller is employed under a full-time contact. If this is the case this position was advertised on SEEK while Mrs Tiller was still employed. The evidence show that Mrs Tiller resigned on the 15th of March 2021.

58. We submit that when the Respondent advertised this position the Respondent repudiated the employment contract. We submit that the Respondent showed an intention to no longer be bound by the employment contract.

…

Conclusion

61. We submit that in determining whether Mrs Tiller’s termination was at the initiative of the Respondent, an objective analysis of the Respondent’s conduct is required to determine whether:

a) it was of such a nature that resignation was the probable result; or

b) that Mrs Tiller had no effective or real choice but to resign. 90

62. It is our submission that the jurisdictional objection raised by the Respondent be dismissed and the unfair dismissal application proceed.” 91

Respondent’s Closing Submissions In-reply

[38] The Respondent relevantly made the following closing submissions in-reply (noting that there is some repetition of submissions previously made):

“9. The Applicant’s verbal request to work part-time in February 2019, after her first parental leave period, was granted by the Respondent on a temporary basis only. It was the expectation that the Applicant would return to work on a full-time basis when the Respondent’s business needs required her to do so. It is abundantly clear from the Applicant’s evidence that she agreed the arrangement of 3 days per week was to be on a temporary basis only and the Applicant simply assumed her temporary arrangement at the time would continue when she returned from parental leave on 1 June 2021. 92 Further, from the evidence of Caddie Dabaja, it is also clear that this was communicated and agreed to by the Applicant.93

10. The Respondent refutes the Applicant’s submission that the Respondent failed to accommodate the Applicant’s protected workplace rights because it could not sustain the Applicant’s temporary part­ time arrangement from 1 June 2021. We submit the Applicant’s pre-parental leave position was substantively a full-time role as Marketing Coordinator. In the meeting between the Applicant and Respondent on 2 March 2021, the Respondent made clear to the Applicant that she had to return to work full-time from 1 June 2021, thereby giving the Applicant 3 months' notice of the requirements and operational reasons for such. The Applicant subsequently failed to make a request for flexible work in accordance with section 65(3) of the Fair Work Act 2009 (Cth). In her evidence, the Applicant acknowledges she was given 3 months’ notice of the Respondent’s requirement for her to return to work full-time from 1 June 2021. 94 Therefore, we assert that if the Applicant truly believed this then she would have brought this matter to the Commission in the form of a general protections claim.

11. The Applicant’s submission that the Respondent possessed ‘the sole right to determine the number of days per week [the Applicant] could work or not work’ supports the Respondent’s position that Caddie Dabaja gave her best efforts to accommodate the Applicant’s carer’s responsibilities on a part-time basis. It was always agreed that the Applicant would return to full-time duties when the Respondent’s business needs required her to do so. Therefore, we vehemently deny the Applicant’s submissions that the Respondent breached workplace laws and consequently repudiated the Applicant’s employment agreement.

12. We refute the Applicant’s submission that Caddie Dabaja’s evidence should be ‘treated with caution’ because Caddie Dabaja witnessed the statutory declaration of Craig Alexis as this is immaterial. Caddie Dabaja did not consider the inference that could possibly be drawn by her witnessing the Mr. Alexis’ statutory declaration. Further, as evidenced by the cross-examination of Caddie Dabaja, Caddie Dabaja was not aware of the contents of Mr. Alexis’ statutory declaration prior to witnessing it.

13. We refute entirely the Applicant’s submission that the Respondent failed to recognise the Applicant’s parental responsibilities. In February 2019, when the Applicant verbally requested to work part-time on a temporary basis, Caddie Dabaja willingly and wholeheartedly accommodated this request because she wanted to help the Applicant fulfil her parental responsibilities. We submit that if Caddie Dabaja did not recognise the Applicant’s parental responsibilities then she would never have accommodated the Applicants’ request to temporarily work part-time initially in February 2019.

14. We refute entirely the Applicant’s submission that the Applicant offered alternatives. The Respondent’s evidence demonstrates that the Applicant never raised alternatives to working 5 days per week in the meetings held on 2 and 4 March 2021. However, even if the Commission was to find that the Applicant raised alternatives to working full-time, the Applicant, in her evidence, demonstrates that she did not make any serious attempt to explore alternate solutions, namely securing full-time childcare from June 2021 or extending her period of parental leave until January 2022. 95 The only evidence the Applicant was able to provide to support her claim that she contacted her children’s childcare to arrange for full-time care is in an email dated 11 March 2021, being seven days after she provided her verbal resignation to the Respondent. The Respondent asserts that had the Applicant made either of these recommendations it would have considered accommodating the Applicant's recommendation(s). However, it is clear the Applicant had decided to resign from her employment at this point, rather than explore any alternate options.

15. We submit Caddie Dabaja’s evidence that the Respondent needed to perform more marketing to increase its sales presence in the Hills area and therefore, required the Applicant to return to her substantial full-time role, is consistent with the reasonable business ground that allowing the Applicant to continue working on a temporary part-time basis would likely result in a significant loss in efficiency or productivity.

16. The evidence of both Caddie Dabaja and the Applicant demonstrates the Respondent never mentioned an Individual Flexibility Agreement to the Applicant and that such an agreement was never entered into.

17. We refute the Applicant's assertion regarding Caddie Dabaja’s ability to refuse the Applicant’s request to work full-time. This is immaterial and does not detract from the Respondent’s position that the Applicant's arrangement to work part-time was agreed to by the Respondent on a temporary basis only. As per the Applicant’s evidence, the Applicant’s employment agreement clearly refers to her as a full-time Marketing Coordinator and at no stage was this permanently varied. 96 The evidence demonstrates that it was only ever a temporary variation. The Respondent’s direction for the Applicant to return to work full-time in June 2021 was in line with the Applicant’s employment agreement, ending the Applicant’s temporary agreement to work part-time.

18. Consequently, we refute that the Respondent proposed to change a key term of the Applicant’s employment contract without justification. The Applicant’s employment contract states her employment status was full-time. Further, we submit that when asked during cross-examination the Applicant did not claim that her employment status was permanently varied to part-time. 97

…

20. The evidence of Caddie Dabaja clearly shows the Applicant resigned in person on 4 March 2021. Further, the Applicant’s email to the Respondent on 5 March 2021 is consistent with the fact that the Applicant resigned on 4 March 2021 and had no intention of returning to work for the Respondent.

21. We refute entirely the Applicant’s implication that as she performed employment activities after 4 March 2021, she was still employed by the Respondent. It is not uncommon for a newly terminated employee to be contacted by the employer for follow up matters where there has not been a handover. Further, it is abundantly clear from the evidence of Caddie Dabaja that the Applicant resigned in person on 4 March 2021.

22. The evidence from the Applicant and that of Caddie Dabaja demonstrates that the Applicant had resigned in person prior to the Respondent uploading the job advertisement to SEEK. 98 The act of uploading a job advertisement for the Applicant’s position following her resignation does not show that the Respondent no longer intended to be bound by the employment contract. Therefore, we submit that the uploading of the job advertisement was undertaken post-resignation and should not impact the Commission's decision.”99

Legal principles – forced resignation

[39] It is not in contention that the Applicant resigned from her employment with the Respondent (albeit the Applicant asserts that she was forced to do so). In these circumstances, my determination in this matter is based upon whether the Applicant was dismissed within the meaning of s.386(1)(b) of the Act.

[40] 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.”

[41] A forced resignation arises where an employee had no choice but to resign. The onus is upon an employee to prove their resignation was forced by their employer such that their employer took action with the probable result of bringing the employment relationship to an end (considered objectively). 100

[42] In Bupa Aged Care Australia Pty Ltd v Tavassoli 101, a Full Bench of the Commission considered the authorities on resignation and their application to s.386 of the Act, and concluded that, in considering whether a resignation is ‘forced’ for the purposes of s 386(1)(b), the test 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.” 102

(my emphasis)

[43] It is also relevant to highlight for the purposes of this decision that ‘contractual constructive dismissal’, being serious breach or repudiation and the acceptance of same, does not automatically result in a “forced resignation” withing the meaning of s.386(1)(b) of the Act. Equally, an employee may well be found to have been forced to resign in circumstances falling short of serious breach giving rise to repudiation. In my view, the term “forced” is the cornerstone of the causal connection to a resignation for the purposes of s.386(1)(b), and attention must be focused upon the reasonableness of an employee’s decision to resign, having regard to all the circumstances of the case. In other words, the Commission must answer questions such as: “Did the employee resign voluntarily?” and/or “Did the employee have no effective (or realistic) and/or reasonable choice other than resignation?” Answering these questions requires a determination as to whether, at the time the employee resigned, he or she had reasonable choices open to him or her other than resignation. 103 Put another way, at the time it occurred, was the employee’s decision to resign ‘reasonable’, in that such a decision was the only effective and/or reasonable choice (or option) open to the employee at that specific time? Alternatively, were there other reasonable choices (or options) available to the employee in all the facts and circumstances of the case? Whether an employee had other avenues to address an employer’s conduct, and went about engaging with and/or exhausting such avenues prior to resigning, forms part of all of the circumstances of a case. Given the objective test to be applied, an employee’s subjective assessment that he or she was forced to resign is not the substantive foundation upon which any assessment is to be made.104

The Applicant says she was forced to resign by the Respondent

[44] The Applicant’s case in this matter is quite straightforward. She says that she was forced to resign from her employment because:

(a) Ms Dabaja advised her on 2 March 2021 (or shortly thereafter) that the Respondent required her to return to work full-time from 1 June 2021 (upon her return to work from her second period of maternity leave);

(b) this requirement (to return to work full-time) was being made in circumstances where the Applicant had previously converted from full-time to part-time employment (the latter on a three day per week basis) upon her return to work from her first period of maternity leave;

(c) the Applicant was not able to make suitable childcare arrangements for her children on a full-time basis from 1 June 2021;

(d) the Applicant considered her position as a part-time employee (on a three day per week basis) was permanent in that she alleges she made an agreement with Ms Dabaja that any change to her part-time role (beyond three days per week) would only occur via mutual agreement; 105 and

(e) in the circumstances, the Applicant was left with only two choices (or options). One, return to work with the Respondent on a full-time basis from 1 June 2021. Or two, not return to work with the Respondent, and resign immediately. The Applicant chose the latter, but was forced to make this choice given her circumstances, and the absence of other options available to her. 106

[45] According to the Applicant, it equally follows from the foregoing that because her role as a permanent part-time employee was no longer required by the Respondent, in that the role was now required to be performed on a full-time basis, and there were no suitable alternative positions available for the Applicant to perform (on a part-time basis), her position (as a part-time Marketing Coordinator) was redundant.

On what date did the Applicant resign?

[46] The parties are in dispute as to the date of the Applicant’s resignation. The Respondent submits that the date is 4 March 2021, and the Applicant submits that the date is 15 March 2021.

[47] In my view, the evidence discloses that the date of the Applicant’s resignation was 15 March 2021. Her resignation was made in writing (see paragraph [32] of this decision) and did not provide any notice. The resignation was accepted by Ms Dabaja in writing on 16 March 2021 (see paragraph [33] of this decision). Whilst an employee may communicate an intention to resign, until such time as that intention formally crystalises, in most cases, a resignation will not have occurred.

[48] Notwithstanding the foregoing, I also find that the evidence discloses that the Applicant verbally communicated her ‘intention’ to resign to Ms Dabaja on 4 March 2021. In this regard, I accept Ms Dabaja’s evidence as to the conversation that took place between her and the Applicant on 4 March 2021 about the Applicant’s intention to resign, which was also confirmed by the Applicant herself during cross-examination:

Ms Kardamis: “And on 4 March, in that meeting with Kattie [Ms Dabaja], you stated that you wouldn't be returning to Gilmour, because Kattie required the role to be done full-time, didn't you?”

Ms Tiller: “Yes.” 107

[49] The position is equally reflected in the email from the Applicant to Ms Dabaja on 5 March 2021 which states:

“Is it okay if I send an email saying I won’t be returning to work? I think it would be good since I won’t see everyone until Monday [8 March 2021] and saves people asking questions or creating a grapevine haha.” 108

[50] For the purposes of the issues to be resolved in this matter, I do not consider it to have been unreasonable for Ms Dabaja to have relied upon, and made plans consistent with, the Applicant’s stated intention to resign on and from the time that the Applicant communicated her intention to do so (i.e. on and from 4 March 2021).

[51] In making my finding that the Applicant verbally communicated her ‘intention’ to resign to Ms Dabaja on 4 March 2021, I reject the assertion by the Applicant, only found in the Applicant’s email to Ms Dabaja on 9 March 2021, that Ms Dabaja asked the Applicant to resign (either on 4 March 2021, or at any other time). 109 This is not a case where the Applicant (employee) was asked to resign by the Respondent (employer). Whilst being asked to resign may well be the Applicant’s belief, because she could not return to work full-time, as a matter of fact, I find that the evidence does not support this conclusion.

Was the Applicant engaged as a ‘permanent’ part-time employee, or a ‘temporary’ part-time employee?

[52] The Employment Contract, to which the Applicant agreed to serve the Respondent, is for a full-time position. It does not state (at Item 4 of its Schedule) what the Applicant’s role (job title) with the Respondent is. It provides that the Applicant’s terms and conditions of employment with the Respondent “will be as they appear in this [Employment Contract]”. In my view, the evidence does not disclose any basis to find that the Employment Contract has ceased to apply or be other than binding as between the Applicant and the Respondent. That said, the evidence does disclose that the Applicant and the Respondent agreed, upon the Applicant’s return to work from her first period of maternity leave, for the Applicant to work part-time (three days per week) (Part-time Arrangement).

[53] The Part-time Arrangement flowed from the Part-time Request made by the Applicant. In other words, the Part-time Arrangement was an indulgence granted to the Applicant by the Respondent to suit the Applicant’s personal family/carer’s responsibilities upon her return to work from her first period of maternity leave.

[54] Whilst the Applicant asserts that the Part-time Arrangement was permanent, in that any change to her status as a part-time employee could only occur by way of mutual agreement, in my view, a fair assessment of the evidence does not support this conclusion.

[55] The Applicant and Ms Dabaja have given conflicting evidence as to whether the Part-time Agreement between them, at the time it was entered into, was permanent or temporary. Ms Dabaja is adamant that the Part-time Arrangement was agreed to by her (on behalf of the Respondent) on the express proviso, and consistent with unambiguous statements made by her to the Applicant at the time, that the Part-time Arrangement was always only temporary, and that it could be brought to an end by the Respondent based upon the needs of the business (upon appropriate notice to the Applicant).

[56] In contrast, the Applicant, in her evidence, was not so unequivocal. Indeed, the Applicant’s evidence is that her “understanding” or “belief” was that if the Part-time Arrangement was to be brought to an end, “options” would be discussed, and it would be mutually agreed as to whether the Applicant went back to five days per week (from three days per week). 110 The Applicant’s understanding in this regard is partly based upon her belief that because an IFA was not entered into, any changes to the Part-time Arrangement would need to occur via mutual agreement.111 However, this assertion is undercut by the Applicant’s concession during cross-examination that the Part-time Arrangement was indeed “temporary”.112

[57] Faced with the unequivocal evidence of Ms Dabaja that the Part-time Arrangement was temporary and agreed to on the basis that it was to be subject to future change based upon the needs of the business, as compared to the Applicant’s evidence, which is based upon her “understanding” or subjective “belief” as to its permanency (with change only by mutual agreement), I accept Ms Dabaja’s evidence.

[58] I therefore find that the request for the Part-time Arrangement was made by the Applicant (so as to suit the needs of the Applicant upon her return to work from her first period of maternity leave), granted (or agreed to) by the Respondent on indulgence to the Applicant, and was:

(a) firstly, temporary; and

(b) secondly, subject to change into the future based upon the needs of the Respondent’s business, including the Respondent’s operational priorities as they might evolve over time.

[59] The foregoing finding is equally supported by the fact that both Ms Dabaja and the Applicant agree that there was never any discussion about an IFA at the time the Part-time Arrangement was entered into. There would be no need to enter into an IFA under clause 5 of the Clerks Award as the Part-time Arrangement does not alter any of the terms of the award (i.e. part-time employment is a term of the Clerks Award (see clauses 8 and 10) and may be agreed to, as a “type of employment”, between an employer and employee without altering any of the terms of the award). Any such agreement as to part-time employment may also have conditions placed upon it as to its permanency, and when and in what circumstances such part-time employment may otherwise revert back to full-time employment (including via the unilateral election of one party). 113

[60] In respect of a Request For Flexible Working Arrangements under s.65 of the Act (Flexible Request), that section requires an employee to make any such request in writing (note also the terms of clause 6 of the Clerks Award). The Applicant did not make such a request at the time the Part-time Arrangement was entered into, such that, in my view, any assumption as to the absence of this request cannot be said to reasonably justify an “understanding” as to the permanency of the Part-time Arrangement (which can only later be varied by mutual agreement).

[61] Given that I have found that the Part-time Arrangement was temporary, and/or subject to change based upon the business needs of the Respondent, the core foundation to the Applicant’s claim that she was “forced” to resign falls away. Indeed, a person who insists upon a wrong or mistaken interpretation or application of a contract, even on a bona fide basis, themselves evinces an intention not to perform that contract according to its terms. 114

Did the Respondent fail to comply with the return to work guarantee under s.84 of the Act, thereby forcing the Applicant to resign?

[62] The Applicant contends that because the Respondent failed to comply with the return to work guarantee under s.84 of the Act, she was forced to resign. This contention requires a finding by me that the Respondent acted inconsistently with s.84 of the Act in relation to the Applicant’s return to work from her second period of maternity leave. There are two reasons as to why I do not make such a finding:

(a) Firstly, in view of my finding at paragraph [58] above, the Applicant’s “pre-parental leave position” was that of a full-time Marketing Coordinator. That is the position to which s.84(a) of the Act attaches. 115 The Part-time Arrangement was temporary. The Respondent offered the Applicant her pre-parental leave full-time position upon her return to work from her second period of maternity leave commencing 1 June 2021. Neither the Act nor the Clerks Award contain any provisions which guarantee an automatic right for an employee to return to work from paternity leave on a part-time basis (i.e. when their pre-parental leave position was full time).

(b) Secondly, even if I am wrong as to Part-time Arrangement being temporary, the evidence is that a part-time Marketing Coordinator is not an “available” role within the Respondent’s business. Section 84 does not provide an unqualified entitlement to return to work. The ‘available’ full-time Marketing Coordinator role was offered to the Applicant, but she refused that offer. 116

[63] In view of (a) and (b) above, I reject that the Respondent has failed to comply with the return to work guarantee under s.84 of the Act, and/or that the Applicant was forced to resign because of the Respondent’s non-compliance with same.

Did the Applicant have reasonable choices or options other than resignation as at 15 March 2021 (being the date that she resigned)?

[64] Although my finding that the Part-time Arrangement was temporary may be said to be fatal to the Applicant’s claim that she was forced to resign (i.e. in terms of the specific case that the Applicant has chosen to advance in these proceedings), this finding is not the end of the matter (i.e. a forced resignation may arise where an employee is forced to resign absent a contractual constructive dismissal). In this regard, the Applicant, although not squarely, also advances the contention that she was forced to resign because the Respondent failed to comply with statutory requirements concerning her family/carer’s responsibilities. The facts that the Applicant relies upon to support of this contention are:

(a) the Applicant was returning to work after a period of maternity leave;

(b) upon her return to work from maternity leave, the Applicant had family/carer’s responsibilities that prevented her from returning to work full-time;

(c) the Applicant sought to return to work part-time because of her family/carer’s responsibilities (or otherwise maintain the Part-time Arrangement she had been working under prior to taking her second period of maternity leave); and

(d) the Respondent’s refusal to allow the Applicant to return to work from maternity leave on a part-time basis, allegedly without consideration for the Applicant’s family/carer’s responsibilities, forced her to resign.

[65] As I state in paragraph [43] of this decision, in order to resolve the issue as to whether the Applicant was forced to resign in light of the foregoing facts and circumstances, I need to determine whether the Applicant had no effective and/or reasonable choice other than to resign.

[66] In my view, the following matters have led me to find that the Applicant did have effective and/or reasonable choices other than resignation:

(a) Firstly, at the time the Applicant resigned, her return to work was at least 11 weeks (nearly three months) away. In other words, the assessment of a forced resignation is focused upon the time that it occurs, albeit all the facts and circumstances are to also be taken into account. In this case, as at the time the Applicant asserts that she was forced to resign, there was no requirement for her to return to work (i.e. she was still on maternity leave). In my view, the Applicant had a choice as to the timing of her resignation. In other words, I do not accept that at the specific time that the Applicant resigned (or indicated her intention to resign), she reasonably had no other choice but to do so, or was otherwise forced to do so by the conduct of the Respondent. Rather, in my view, the Applicant made a voluntary choice to resign at the time that she did. In doing so, she cut short her ability and/or opportunity to exhaust other options available to her prior to resigning (as elaborated upon following).

(b) I make the foregoing finding also taking into account the fact that when the Applicant first notified Ms Dabaja of her intention to resign on 4 March 2021, it was only two days after she was first told (on 2 March 2021) that she would be required to return to her full-time position from 1 June 2021. The discussion between the Applicant and Ms Dabaja on 4 March 2021, the further conversation with Ms Dabaja on 5 March 2021, and the email from the Applicant to Ms Dabaja on 9 March 2021, all primarily concern the Applicant asserting that she was being made redundant and was entitled to a redundancy (severance) payment. Indeed, on the evidence, from at least 9 March 2021 (if not earlier), it is apparent that the Applicant had very much determined that the situation confronting her was a straight-up ‘redundancy’. 117 This is consistent with Ms Dabaja’s evidence:

“… Rebecca did not seek to extend her maternity leave until January 2022. In this meeting [on 4 March 2021], Rebecca was purely interested to know whether I would make her position redundant. She did not suggest any alternatives to returning to work full-time from June 2021. Rebecca indicated to me that she could not return to work full-time and therefore, would not be returning to Gilmour.” 118

(c) I note that the Applicant asserts that Ms Dabaja wanted an answer “as soon as possible” as to whether she would be returning to work on a full-time basis. 119 However, it does not appear to me from the evidence that this meant that the Applicant had no choice but to resign at the time she did (or flag her intention to resign as early as 4 March 2021). Ms Dabaja’s evidence is that even though the Respondent had already placed an advertisement for a new Marketing Coordinator, she was still willing to withdraw that advertisement and have the Applicant return to work from 1 June 2021.120 In my view, this evidence highlights that, at the time that the Applicant resigned, there was no genuine urgency (or necessity) for her to do so.

(d) Secondly, the central reason that the Applicant advances as to her inability to return to full-time employment is that she was unable to secure childcare arrangements for her second child from 1 June 2021. However, the evidence is that at the time the Applicant resigned, she had only made enquiries of one childcare facility (being two enquiries over the period of about a week). 121 The Applicant had the ability to make enquiries of other childcare services, but for reasons unexplained, did not do so. In my view, it would have been reasonable for the Applicant to have made appropriate enquiries of other childcare services prior to forming the view that she had no choice but to resign (because she could not obtain childcare from 1 June 2021). Whilst I accept that it is preferable to have all siblings at the same preschool or childcare facility, this is not always possible. A preference does not give rise to an absence of choice, but merely the absence of a preferred choice.

(e) Thirdly, and importantly, prior to resigning, the Applicant had every ability and opportunity to make:

(i) a formal written Flexible Request under s.65 of the Act (noting clause 6 of the Clerks Award); 122

(ii) a formal written request to extend her period of maternity leave under s.76 of the Act; and/or

(iii) initiate the dispute resolution procedure under clause 40 of the Clerks Award (noting clause 6.5 of the Clerks Award).

(f) The Applicant did none of the foregoing things. The Act and the Clerks Award contain generous provisions (or request rights) for employees to make formal requests for the extension of maternity leave, and formal requests concerning the accommodation of family/carer’s responsibilities. The ability to make use of such request rights was available to the Applicant prior to any decision being made by her to resign. It was her decision not to make use of such request rights, on a formal basis, prior to resigning. 123 In my view, these provisions of the Act and the Clerks Award as to request rights are to be characterised as not only generous rights for employees, but also as reasonable options (or choices) for employees to utilise and exhaust (i.e. prior to the employee claiming that they have been forced to resign due to an employer’s failure to accommodate their personal circumstances and/or their family/carer’s responsibilities).124 Indeed, the existence of these request rights, in my view, will always be such that they wholly or substantially undercut and/or undermine any suggestion as to a forced resignation (or an asserted absence of choice) when the relevant employee concerned has not properly sought to make practical and effective use of same prior to resigning. Further, given these request rights are found in legislation and modern awards, there can hardly be a suggestion that the failure to utilise such request rights prior to resigning would be reasonable in a forced resignation situation (albeit each case will be resolved based upon its own facts and circumstances).

(g) Fourthly, and finally, given the detailed submissions by the Applicant in these proceedings as to Flexible Requests under s.65 of the Act, and the extension of her maternity leave under s.76 of the Act, it is apparent that the Applicant was well aware of the ability to avail herself of these options (or had every opportunity to obtain information about these options, as she did on the issue of redundancy). However, instead of formally engaging with these options prior to resigning, the evidence highlights that the Applicant’s sole focus between 4 and 15 March 2021 was the pursuit of a redundancy (severance) payment. 125

(h) Further to the foregoing subparagraph, the Applicant has submitted that the Respondent’s business grounds for requiring her to return to work full-time (and end the Part-time Arrangement) are unreasonable. 126 It is not apparent to me how a business seeking to reorganise its operations, so as to improve its marketing capabilities (both as to quality and scope), and thus attempt to expand its profile and overall market share, can be said to be unreasonable (at least in the facts and circumstances of this case having regard to the evidence of Ms Dabaja). Equally, the fact that this business reorganisation or refocus also coincides with the Respondent’s decision not to replace the role of Office Manager (departed by Ms Fitzroy), does not alter the position (on the question of reasonableness). What the Applicant’s arguments in this regard identify, however, is the fact that if the Applicant sought to raise questions of unreasonableness, she should have done so prior to resigning (as part of the process associated with a formal Flexible Request or a formal request to extend her period of maternity leave).

[67] I am cognisant of the fact that the Applicant says that in her discussions with Ms Dabaja on 4 March 2021, the Applicant “briefly mentioned extending [her] maternity leave to January 2022, but acknowledged that [Ms Dabaja] seemed eager to start growing the business and having someone 3 days would not suit her”. 127 The Applicant’s email to Ms Dabaja dated 15 March 2021 also relevantly reads:

“At this time [4 March 2021], I suggested some options, such as working 3 days per week until I could secure day care and then work 5 days per week and even potentially extending my maternity leave to the start of 2022 when I would be able to undertake 5 days. These suggestions were rejected as 5 days was now required.”

[68] However, these assertions and evidence are to be considered against Ms Dabaja’s contradictory evidence, which reads:

“… Further, at no stage during the meeting on 4 March 2021 did [Ms Tiller] offer any alternative solutions to working five days per week. She had never raised the possibility of continuing to work three days per week until she secured childcare and then revert to full-time work or extending her maternity leave until early 2022, until this email. 128

… [o]n 2 March 2021 Rebecca did not specifically request to work in the role of Office Manager. She said words to the effect of ‘I know I am not the best marketing coordinator. I would be happy to come back and do something else’. At this point I was aware that Jamie Fitzroy had resigned as the Office Manager. I have not rehired for Jamie's position as I am covering her duties and no longer require a dedicated Office Manager.

… Rebecca's role as Marketing Coordinator was substantively a full-time role and it was only temporarily reduced to part-time. It was her substantive position which I required her to perform when she was due to return from maternity leave in June 2021.

… Rebecca did not mention in this meeting [on 4 March 2021] that she could not secure full-time childcare placements for both her children until January 2022.

… Rebecca did not seek to extend her maternity leave until January 2022. In this meeting [on 4 March 2021], Rebecca was purely interested to know whether I would make her position redundant. She did not suggest any alternatives to returning to work full-time from June 2021. Rebecca indicated to me that she could not return to work full-time and therefore, would not be returning to Gilmour.” 129

[69] In resolving the issue as to what “options” were or were not discussed between the Applicant and Ms Dabaja on 4 March 2021, I prefer the evidence of Ms Dabaja, for the following reasons:

(a) The “options” that the Applicant asserts she put to Ms Dabaja on 4 March 2021 were not repeated in the Applicant’s email to Ms Dabaja on 9 March 2021.

(b) In her witness statement, the Applicant only refers to having briefly discussed an extension to her maternity leave. Her witness statement does not mention having discussed with Ms Dabaja, on 4 March 2021 or otherwise, the option of continuing to work three days per week until she finds appropriate childcare.

(c) The Applicant’s email to Ms Dabaja on 15 March 2021 is very much a one-sided summary of events leading up to the Applicant’s resignation, and reads to me as an email that has been drafted primarily for the purposes of being relied upon in litigation. I therefore do not consider its contents to be reliable for the purposes of resolving the conflicting evidence in these proceedings as to what “options” were discussed (on a contemporaneous basis) between the Applicant and Ms Dabaja on 4 March 2021.

[70] It is equally appropriate to point out that even if I am wrong as to the options that were discussed between the Applicant and Ms Dabaja on 4 March 2021, the Applicant “briefly” raising such options verbally with Ms Dabaja does not satisfy me that the Applicant genuinely utilised and exhausted all of her options prior to making a decision to resign from her employment. In this regard, I reiterate the points I have previously made at paragraph [66] of this decision.

[71] In her submissions, the Applicant relies heavily upon the case of Rind v Australian Institute of Superannuation Trustees (Rind). 130 In that case, the employee concerned made a formal written request under the applicable enterprise agreement applying to her employment to return to work part-time after a period of maternity leave. The employee also raised a formal dispute under the enterprise agreement’s dispute procedure when this request was rejected. Ultimately, the employee was informed by her employer that if she did not return to work on a full-time basis she would be deemed to have abandoned her employment. The employer later advised the employee that she was considered to have either abandoned her employment, or resigned without notice. In my view, the facts and circumstances in Rind are not on all fours with the facts and circumstances of this case, especially having regard to the steps taken by the employee in Rind to formally exhaust all of her available options prior to resigning.

Other matters

[72] The Applicant also raises a range of other issues and related arguments which are not relevant to the issue of whether the Applicant was dismissed under s.386(1)(b) of the Act. These other issues include alleged breaches of the Sex Discrimination Act 1984 (based upon the Applicant’s family and caring responsibilities); alleged adverse action taken by the Respondent because the Applicant exercised alleged workplace rights; allegations that the Applicant was required to attend “mandated training” in marketing as a condition of returning to work; 131 allegations concerning the impartiality of Ms Dabaja as a Justice of the Peace; and the Respondent’s failure to pay the Applicant notice of termination (despite the Applicant resigning without notice).132 In reaching my findings and ultimate determination in this matter, including having regard to the very limited submissions advanced by the Applicant as to these other issues, I do not consider that they warrant relevant resolution.

Disposition of proceedings

[73] On the basis of the evidence, the submissions of the parties, and the findings I have made in this decision, I do not accept that the Applicant reasonably had no choice or other option but to resign, either at the time she communicated her intention to do so to Ms Dabaja on 4 March 2021, or at the time she actually resigned on 15 March 2021. Objectively, the Applicant’s conduct highlights that she did not genuinely seek to engage with and exhaust her available options prior to making her decision to resign, especially having regard to the fact that she was not required to return to full-time employment until 1 June 2021.

[74] I find that the Applicant was not forced to resign within the meaning of s.386(1)(b) of the Act. Rather, I find that the Applicant resigned voluntarily. This is not a case whereby the Respondent has engaged in conduct with the intention of bringing the Applicant’s employment to an end. Nor is this a case where the termination of the Applicant’s employment was the probable result of the Respondent’s conduct, such that the Applicant had no effective or other reasonable choice open to her but to resign. 133

[75] Given that I have found 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 claim for unfair dismissal. Accordingly, an Order dismissing the Application will be issued with this Decision.

DEPUTY PRESIDENT

Ms Rebecca Tiller, assisted by Mr David Tiller, for the Applicant.

Ms Angela Kardamis, Senior Workplace Relations Advisor, of the Real Estate Employer’s Federation (REEF), for the Respondent.

Printed by authority of the Commonwealth Government Printer

<PR731517>

 1   Ms Fitzroy’s evidence was provided orally at the hearing following an Order made for her to attend before the Commission and give evidence.

 2 Exhibit R1, Dabaja Statement, at [3].

 3   Ibid Annexure ‘A’.

 4   Now the Clerks (Private Sector) Award 2020.

 5   Exhibit R1, Dabaja Statement, at [7]-[9].

 6   Transcript at PN84-PN86.

 7   Ibid.

 8 Exhibit R1, Dabaja Statement, at [11].

 9   Ibid at [13]-[14].

 10 Ibid at [19].

 11 Ibid, at [20].

 12   Ibid at [21], [23]-[25].

 13   Ibid at [21]-[24].

 14 Ibid at [28].

 15 Ibid at [29].

 16 Ibid at [30].

 17   Ibid at [31]-[48].

 18   Transcript at PN88.

 19   Ibid at PN92-PN93; PN134.

 20   Ibid at PN103.

 21   Ibid at PN138.

 22   Ibid at PN154.

 23   Ibid at PN161-PN162. See also Form F3, dated 1 April 2021, at paragraph [7] of Item 3.1.

 24   Ibid at PN167 (Re-examination). Noting also Form F3, dated 1 April 2021, at paragraphs [5]-[6] of Item 3.1.

 25   Transcript at PN161-PN162.

 26   Ibid at PN15.

 27   Ibid at PN18, PN35, PN38.

 28   Ibid at PN20.

 29   Ibid at PN53.

 30 Exhibit A1, Tiller Statement, at [9].

 31   Ibid at [13]-[18].

 32   Ibid at [17]-[19].

 33   Ibid at [20]-[23].

 34   Ibid at [24]-[25].

 35   Ibid at [24]-[25].

 36   Ibid, Annexure ‘E’.

 37   Ibid, Annexure ‘F’.

 38 Ibid at [42].

 39   Ibid, Annexure ‘I’.

 40   Ibid, Annexure ‘J’.

 41   Exhibit R1, Dabaja Statement, Annexure ‘M’.

 42   Transcript at PN227.

 43   Ibid at PN228-PN229.

 44   Ibid at PN230-PN234.

 45   Ibid at PN247-PN249.

 46   Ibid at PN251.

 47   Ibid at PN252. See also PN269, PN281-PN287, PN290-PN294, and PN310-PN312.

 48   Ibid at PN281-PN287, PN290-PN294, and PN310-PN312.

 49   Ibid at PN257, PN261-PN262, PN267

 50   Ibid at PN270-PN271.

 51   Ibid at PN276. See also PN281-PN287, PN290-PN294, and PN310-PN312.

 52   Ibid at PN299-PN303.

 53   Exhibit R2, Dabaja Statement In-reply, at [3]-[16].

 54   Transcript at PN269, and PN281 to PN282,

 55   Ibid at PN232 and PN233.

 56   Ibid at PN134 and PN135.

 57   Ibid at PN218 to PN225.

 58   Ibid at PN89 to PN93, and PN134 to PN135.

 59   Ibid at PN213 to PN214, and PN226 to PN227.

 60   Ibid at PN251.

 61   Ibid at PN103.

 62   Ibid at PN232 and PN233.

 63   Ibid at PN238 and PN239.

 64   Ibid at PN226.

 65   Ibid at PN226 and PN227.

 66   Ibid at PN280, PN302 and PN315.

 67   Ibid at PN89 to PN93, PN95 to PN96, PN134 to PN135 and PN145.

 68   Ibid at PN88, and PN228-PN229.

 69   Ibid at PN267 and PN271.

 70   Ibid at PN247, PN144 and PN147.

 71   Ibid at PN233, PN241, PN257 and PN304.

 72   Respondent’s Closing Submissions dated 15 June 2021.

 73   Transcript, PN313 - PN3l 8, PN325.

 74   Ibid at PN313.

 75   Ibid.

 76   Ibid at PN89-PN91.

 77   Ibid at PN313.

 78   Ibid at PN254.

 79   Ibid at PN245; Exhibit A1, Tiller Statement, at [14] and [21].

 80   Ibid at PN105 - PN106.

 81 Exhibit R1, Dabaja Statement, at [13].

 82   Transcript at PN223, PN234, PN235.

 83   Ibid at PN89.

 84   Exhibit A1, Tiller Statement, Annexure ‘J’.

 85   Transcript at PN153 - PN154, PN166; Exhibit R1, Dabaja Statement, Annexure ‘M’.

 86   Exhibit R1, Dabaja Statement, Annexure ‘K’; Exhibit A1, Tiller Statement, Annexure ‘E’.

 87 Exhibit A1, Tiller Statement, at [40].

 88 Exhibit R1, Dabaja Statement, at [30].

 89   Transcript at PN144.

 90   O’Meara v Stanley Works Pty Ltd, PR973462, 11 August 2006 per Giudice J, Watson VP and Cribb C, at [23].

 91   Applicant’s Closing Submissions dated 22 June 2021.

 92   Transcript at PN232 and PN233.

 93   Ibid at PN134 and PN135.

 94   Ibid at PN251.

 95   Ibid at PN267 and PN271.

 96   Ibid at PN213 to PN214 and PN226 to PN227.

 97   Ibid at PN232.

 98   Ibid at PN247, PN144 and PN147.

 99   Respondent’s Closing Submissions in Reply dated 29 June 2021.

 100   O’Meara v Stanley Works Pty Ltd[2006] AIRC 496, at [23].

 101   [2017] FWCFB 3941.

 102 Ibid at [47].

 103   Appeal by Bruce [2013] FWCFB 5279.

 104   See Bruce v Fingal Glenn Pty Ltd (in liq)[2013] FWCFB 5279, especially at [22]-[24], and [29], albeit note Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613, at [35]. See also Australian Hearing v Peary (2009) 185 IR 359; [2009] AIRCFB 680, at [29]-[30]; Pawel v Freshmore Pty Ltd - Advanced Precast Pty Ltd [1998] AIRC 643, at [13].

 105   Transcript at PN279.

 106   Ibid at PN281-PN287.

 107   Ibid at PN810. See also PN811-PN812, and the evidence of Ms Fitzroy at PN53, whereby Ms Fitzroy was asked to place an advertisement for a full-time Marketing Coordinator position between 1 and 5 March 2021 (i.e. being evidence consistent with Ms Dabaja’s evidence as to her reason for the advertisement being placed – that the Applicant had advised Ms Dabaja that she would not be returning to work).

 108   Exhibit R1, Dabaja Statement, 28 April 2021, Annexure ‘E’. See also Annexure ‘F’.

 109   Note Exhibit R1, Dabaja Statement, 28 April 2021, Annexure ‘H’. The assertion (as to being asked by Ms Dabaja to resign) was not repeated by the Applicant in her email resignation to Ms Dabaja on 15 March 2021 (Exhibit R1, Dabaja Statement, 28 April 2021, Annexures ‘L’), despite Ms Dabaja’s contemporaneous rejection of the assertion in her reply email to the Applicant on 9 March 2021 (Exhibit R1, Dabaja Statement, 28 April 2021, Annexure ‘K’). Nor was it repeated or otherwise referred to in Ms Tiller’s own witness statement (Exhibit A1). Ms Dabaja denies ever having asked the Applicant to resign (Exhibit R1, Dabaja Statement, at [20]).

 110 Transcript at PN234; Exhibit A1, Tiller Statement, at [9].

 111   Exhibit A1, Tiller Statement, at [9]; Transcript at PN234; Exhibit R1, Dabaja Statement (28 April 2021), Annexure ‘L’.

 112   Transcript, atPN232, PN315.

 113   That is, having regard to the specific terms originally agreed to between the relevant parties to the part-time arrangement at the time it was entered into.

 114   DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, at 432.

 115   Stanley v Service to Youth Council Incorporated [2014] FCA 643, at [229].

 116   I accept the evidence of Ms Dabaja in these proceedings that the full-time Marketing Coordinator role was the only role available upon the Applicant’s return to work from maternity leave.

 117   Especially having regard to the Applicant’s email to Ms Dabaja dated 9 March 2021.

 118 Exhibit R2, Dabaja Statement (20 May 2021), at [10].

 119 Exhibit A1, Tiller Statement, at [17].

 120 Exhibit R1, Dabaja Statement (28 April 2021), at [41].

 121   Transcript at PN257, PN261-PN267, PN274; Exhibit A1, Tiller Statement, Annexure ‘I’.

 122   See Re Family Friendly Working Arrangements[2018] FWCFB 5753.

 123 I note that the Applicant’s evidence is that she made a request to Ms Dabaja (on or about 4 or 5 March 2021) to extend her period of maternity leave from June 2021 to January 2022, but that this request was refused. For Ms Dabaja’s part, her evidence is that this request was never made, and that the Applicant’s suggestion in this regard is false. The short point is that a request to extend a period of maternity leave under s.76 of the Fair Work Act 2009 requires the request to be made in writing. The evidence is that the Applicant made no such written request to extend her period of maternity leave with the Respondent prior to resigning. (Note Exhibit R1, Dabaja Statement, at [44], and Annexure ‘L’).

 124   This is especially so in the facts and circumstances confronting the Applicant in this matter.

 125   In the case of Poppy v Service Youth Council Inc [2014] FCA 656, White J held that a failure by an employee to specify in a written flexibility request the “circumstances” giving rise to such a request did not mean that the flexibility request was invalid or never made. However, in this case before the Commission, the Applicant has failed to make a written request at all. I reject any suggestion that a flexibility request will have been made, or is otherwise valid, if it has been made only orally, especially when the evidence as to whether such oral flexibility request was made at all is disputed by a Respondent. Section 65 of the Act may well need to be construed beneficially, however, not even a beneficial construction could remove the need for a flexibility request to be made in writing.

 126   Applicant’s Closing Submissions dated 22 June 2021, at [32]-[33].

 127 Exhibit A1, Tiller Statement, at [21]. Transcript, PN270. The use of the term “seemed eager” does not to me connote Ms Dabaja forming a final view, or being directly requested (even orally) to form a final view as to the Applicant’s request to extend her maternity leave until January 2022.

 128 Exhibit R1, Dabaja Statement (28 April 2021), at [44].

 129   Exhibit R2, Dabaja Statement (20 May 2021), at [7]-[10].

 130   [2013] FWC 3144; Applicant’s Outline of Submissions dated 13 May 2021, at [23]-[36].

 131   Transcript at PN247 (note also PN98 and PN100).

 132   Whilst Ms Dabaja originally agreed to pay the Applicant four weeks’ notice, this appears to have been superseded by the Applicant resigning without notice on 15 March 2021.

 133   Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941.