Rebekah White v Ignite Travel Group, Mycruises
[2024] FWC 352
•8 FEBRUARY 2024
| [2024] FWC 352 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Rebekah White
v
Ignite Travel Group, Mycruises
(C2023/7550)
| COMMISSIONER SIMPSON | BRISBANE, 8 FEBRUARY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection of no dismissal – jurisdictional objection upheld – application dismissed.
At the conclusion of a Jurisdictional Hearing on 8 February 2024 in this matter, I issued a brief oral decision upholding a jurisdictional objection to the application and dismissing the application, and I advised the parties written reasons would follow later in the day. Below are those reasons.
On 2 December 2023, Ms Rebekah White (Ms White / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (FW Act) for an application to deal with contraventions involving dismissal. The Respondent in the matter was named as Ignite Travel Group, Mycruises (the Respondent).
The Respondent raised a jurisdictional objection on their Form F8A Employer Response that the Applicant was not dismissed.
On 22 January 2024, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was listed on 8 February 2024.
At 2:04pm on 8 February 2024 the Applicant emailed my chambers indicating that she would not be participating in the hearing. On that basis, I proceeded with the hearing in the Applicant’s absence.
The Respondent relied on written submissions submitted on 30 January 2024 and the witness statements of Ms Amanda Carrington[1] and Ms Rhian Purcell. [2]
JURISDICTIONAL OBJECTION
Background
The Respondent is a travel consulting group operating out of Broadbeach, Queensland. The Applicant commenced employment with the Respondent on 30 April 2021. The Applicant was employed as a Cruise Support Consultant – Documents in the Respondent’s “My Cruises” division.
On 14 November 2023, the Applicant resigned from her position effective immediately.
Events Leading up to the Resignation
The Respondent operates an online system called KIOSK which its employees use to request leave. The Respondent has a practice to approve any leave requests on a first come first served basis.
The Respondent submitted that in or around November 2022, the Applicant submitted an annual leave request for the period from 23 December 2023 to 8 January 2024 (Leave Request), and the Leave Request was immediately approved because it was submitted much earlier than others in the Applicant’s team.
It was submitted that in or around November 2023, the Applicant’s direct manager Rhian Purcell (Ms Purcell) was notified that the Applicant did not have sufficient leave balance to cover her full Leave Request. Therefore, Ms Purcell invited the Applicant to a meeting to discuss the Leave Request and her leave balance and the meeting took place on 14 November 2023. It was submitted that during the meeting of 14 November 2023 Ms Purcell and the Applicant discussed the following:
· Ms Purcell explained to the Applicant that she did not have sufficient annual leave balance for the Leave Request.
· Ms Purcell advised the Applicant that she would work with her to work out a plan to cover the Leave Request.
· Ms Purcell proposed that the Applicant could work additional hours to accrue more leave or that the Applicant could propose other ways to cover the Leave Request.
Ms Purcell’s evidence was that she did not cancel the Leave Request during the meeting of 14 November 2023 or at any other time. Her intention was to assist the Applicant in working out a plan to cover the Leave Request. However, instead of working with Ms Purcell, the Applicant became upset and left the workplace.
The Respondent submitted that subsequently the Applicant commenced emailing Ms Purcell and the Respondent’s People and Culture Leader, Amanda Carrington (Ms Carrington), in an aggressive and disparaging manner.
Ms Carrington invited the Applicant to come back and discuss her leave issue with her, however, the Applicant refused to return.
It was submitted that after refusing to return and discuss her leave issue, the Applicant resigned from her position effective immediately.
On 23 November 2023, the Applicant was paid her final pay including all entitlements.
The Respondent submitted that the Applicant was not dismissed from her employment and accordingly, there has been no dismissal within the meaning of section 386(1) of the Act. It was further submitted that the Applicant resigned of her own volition and was not forced to resign. It was submitted the Respondent took all reasonable steps to work with the Applicant regarding her leave issue but she refused to work with Ms Purcell and Ms Carrington to resolve the issue of insufficient leave balance.
Law
The Respondent objects to the Application as there has been no dismissal.
For a person to bring an application involving dismissal, it is first necessary for that person to in fact be dismissed.
It was submitted that the Applicant was not dismissed as:
a.the Applicant’s employment was not ended at the Respondent’s initiative; and
b.the Respondent did not engage in any conduct that would have forced the Applicant to resign.
Section 386(1)(a) of the Act
It was submitted that the Respondent did not terminate the Applicant’s employment and the Applicant resigned from her position of her own volition. Therefore, it was submitted for the purposes of 386(1)(a) of the Act, the Applicant was not terminated.
Section 386(1)(b) of the Act
In respect of section 386(1)(b) of the Act, the Respondent submitted that the relevant test is whether the employer engaged in 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. It was submitted that the Applicant was not forced to resign.
The Respondent submitted that the Applicant resigned following being told that she did not have sufficient leave balance to cover the Leave Request. The Applicant alleged that she resigned because the Leave Request was cancelled. However, the Respondent never cancelled the Leave Request and made it clear that it had all intentions to work with the Applicant to accommodate the Leave Request.
The Respondent submitted that the Applicant failed to engage constructively with the Respondent and proceeded to resign effective immediately.
Therefore, the Respondent submits there has been no dismissal within the meaning of section 386(1)(b) of the Act.
Respondent’s Position
The Respondent denies that the Applicant was dismissed. The Respondent submitted that at no point did the Respondent:
a)dismiss the Applicant;
b)inform the Applicant that she was dismissed; or
c)engage in any conduct that would have forced the Applicant to resign.
The Respondent submitted that the Applicant resigned of her own volition. As there has been no dismissal, the Respondent’s position is that the Applicant cannot bring the general protections claim involving dismissal.
Applicant’s Position
Whilst the Applicant made a deliberate decision not to participate in the hearing, they did file written material in response to the Respondent’s objection.
This material included an explanation of the process to follow to apply for annual leave, and that the Applicant had applied for annual leave, and it was approved almost a year prior to the dates of the leave. The Applicant claimed in her written material that around the time the leave was initially approved Ms Purcell had indicated to her that she would be able to take the annual leave even if she did not have sufficient leave accrued.
The Applicant maintained in her written material that once annual leave is approved it cannot be retracted by the employer without the Applicant’s consent. The Applicant’s written material presented a different version to that of Ms Purcell about the exchange between them concerning her scheduled annual leave from 22 December 2023 to 8 January 2024. Ms Purcell’s evidence was to the effect that she did not say the Applicant’s leave was cancelled, and Ms Purcell’s evidence was that she told the Applicant she did not have sufficient leave accrued and they needed to work out an arrangement in the circumstances. The Applicant’s written material filed was to the effect that she was told by Ms Purcell she could not take the leave, and there was no mention of working out a plan, and instead the Applicant was told to send an email and Ms Purcell would send it to someone ‘higher up’.
The Applicant said she later sent an email to the Respondent describing Ms Purcell’s actions as ‘illegal’ and also saying that she had a panic attack at the time. The Applicant also made general assertions about the discriminatory actions being taken against younger employees like herself and also a general assertion of those with children being given priority for leave. The Applicant also asserted she had been subjected to bullying because of her age.
Consideration
Given the Applicant made a deliberate decision not to appear at the hearing the Respondent’s evidence was admitted uncontested, and the Applicant’s written material was not adopted as evidence, and the Applicant could not be subjected to cross examination about her claims. In the circumstances I accept the evidence of Ms Purcell and Ms Carrington and on the basis of that evidence, I accept that the Applicant was not told her annual leave was cancelled, but instead the Respondent attempted to engage with the Applicant about coming to agreed understanding with the Applicant about her planned leave in circumstances where the Applicant did not have sufficient leave accrued to cover the period. The Respondent’s conduct was not unreasonable, and certainly not illegal and could not be taken to have forced the Applicant to resign as the Applicant subsequently decided to do. At no point did the Applicant seek to withdraw her written resignation.
I am satisfied on the evidence that the Applicant was not dismissed by the Respondent and therefore the Commission has no jurisdiction to deal with the section 365 general protections application, and I must dismiss the application. An order will be issued separately and concurrently with this decision to that effect.
COMMISSIONER
Appearances:
Ms Joy Kaur of Employsure Law Pty Ltd for the Respondent.
Hearing details:
2024
By Microsoft Teams Video
8 February
[1] Exhibit 1.
[2] Exhibit 2.
Printed by authority of the Commonwealth Government Printer
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