Sara Davies v The Trustee for the Bella Trust
[2023] FWC 2438
•23 OCTOBER 2023
| [2023] FWC 2438 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sara Davies
v
The Trustee For The Bella Trust
(C2023/3265)
Oliviah Hancock
v
The Trustee For The Bella Trust
(C2023/3275)
| COMMISSIONER LIM | PERTH, 23 OCTOBER 2023 |
Application to deal with contraventions involving dismissal
Ms Sara Davies and Ms Oliviah Hancock have both applied pursuant to s 365 of the Fair Work Act (Cth) (Act), alleging that The Trustee for the Bella Trust (the Respondent) contravened Part 3-1 of the Act by dismissing them from their employment (Applications).
The Respondent has raised a jurisdictional objection alleging that Ms Davies and Ms Hancock were not dismissed; they resigned from their employment.
It is uncontroversial that for the matter to proceed, Ms Davies and Ms Hancock need to have been dismissed. In Coles Supply Chain Pty Ltd v Milford[1] (Coles v Milford), the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must determine that issue before exercising its powers under s 368 of the Act.[2]
Ms Davies is Ms Hancock’s mother. Both Ms Davies and Ms Hancock were employed by the Respondent, and the Applications arise from the same series of events. Accordingly, in the interests of efficiency, both matters were listed and heard together. However, each application must be determined on its own merits.
The matter was allocated to my Chambers and a mention was held on 1 August 2023. Directions were issued to the parties for the filing of material in relation to the jurisdictional objection.
A determinative conference was conducted via MS Teams on 26 September 2023. At the hearing, Ms Davies and Ms Hancock represented themselves. The Respondent was represented by Ms Marie-Lize be Bruyn, who is a part-owner and manager of the Respondent.
Having considered the evidence and submissions of the parties, I am satisfied that both Ms Davies and Ms Hancock were dismissed.
My detailed reasons for my decision follow.
Observations on the evidence
I found Ms Davies, Ms Hancock and Ms De Bruyn to all be generally honest and genuine people. It was clear that for most of the employment relationship, Ms Davies and Ms de Bruyn held each other in high regard, and I appreciated the courtesy that all parties extended to each other during the determinative conference.
There were few significant factual disputes between the parties. To the extent where there were disputes on facts, I found they were more to do with different matters of interpretation of events based upon each witness’s understanding of the situation.
Where witnesses expressed opinions on matters that are for the Commission to decide, I have treated such ‘evidence’ as submissions.
What are the events that led to the Applications?
The Respondent operates a boutique guesthouse in Geraldton, Western Australia that offers short and long-stay accommodation. The Company has three directors: Mr Jacobus de Bruyn (Ms de Bruyn’s husband), Mark Rossiter and Steven Muir. Mr and Ms de Bruyn are part-owners of the business.
Ms de Bruyn oversees the day-to-day operations of the Respondent. Ms de Bruyn manages employee matters such as recruitment and rostering of shifts. Ms de Bruyn also handles the operational side with guesthouse bookings and stock management.[3]
Generally, the Respondent hires two employees on a casual basis to perform housekeeping duties for the guesthouse. The guesthouse requires housekeeping every day of the week, and the two housekeepers split the days of the week between themselves. Each day’s hours of work depend on factors such as how many rooms have been booked and whether there are guests checking in or out.[4]
Ms Davies commenced employment with the Respondent in August 2021 on a casual basis. Ms Davies was initially employed to perform ironing duties. However, after one of the housekeepers resigned Ms Davies also moved into a housekeeper role on 26 August 2021.
There was a break in Ms Davies’ employment from 28 January 2022 to 7 April 2022 as Ms Davies could not meet the vaccine mandate requirements that applied at that time to the WA tourism and hospitality sectors.[5]
On 7 April 2022, Ms Davies recommenced her role as a housekeeper with the Respondent.[6] From 7 April 2022 onwards, Ms Davies was paid $33 per hour for all hours worked with the Respondent in her housekeeping role.[7]
At all material times, Ms Davies was classified as Level 1 pursuant to the Hospitality Industry (General) Award 2020 (Award).
In May 2022, Ms de Bruyn hired Ms Hancock on a casual basis. Ms Hancock’s evidence is that she offered to work alongside Ms Davies to assist with the long hours Ms Davies was working. Ms de Bruyn’s evidence is that Ms Davies asked if Ms Hancock could start working alongside her during her shifts to help with the demand.[8] The two accounts are not mutually exclusive.
Neither Ms Davies nor Ms Hancock received a written employment contract.
During the determinative conference the parties explained the following about how the Respondent paid Ms Davies and Ms Hancock:
The Respondent did not require Ms Davies or Ms Hancock to clock on or off.
Each day would have a set number of hours that Ms de Bruyn would allocate based on how much work there was (Allocated Hours). Ms de Bruyn’s evidence was that she makes the decision on the quantum of Allocated Hours based on her experience of guesthouse operations.
The Respondent’s position is that this is a fairer way of paying staff, given that different employees will complete the tasks at different speeds. This means that paying on actual time worked is disadvantageous to staff who work quickly.
Discussions about workplace matters routinely took place on a Facebook Messenger group chat called ‘Zebras Angels’. The members in the group chat were Ms de Bruyn, Ms Tina van Rooyen, Ms Davies and the other housekeeper at the time. Ms van Rooyen is Ms de Bruyn’s sister and would stand in for Ms de Bruyn’s duties when Ms de Bruyn was away. Ms Hancock was not a participant in the group chat.
Ms de Bruyn gave evidence that the housekeepers would attend the guesthouse at 10am for their rostered days. Ms de Bruyn would generally give one day’s notice of the tasks that needed to be performed the next day, as well as the Allocated Hours. Ms de Bruyn would do this through the Zebras Angels group chat.
Even if Ms de Bruyn was unable to inform the rostered housekeeper of the required tasks the day before, the housekeeper knew that they were still to attend the guesthouse at 10am. Ms Davies corroborated this and gave evidence that there was never a day where she was not required to attend on one of her rostered days.
Ms de Bruyn gave evidence that at all relevant times, Ms Hancock never communicated directly with her about her employment; all communications came through Ms Davies.[9]
However, the parties provided email evidence that showed that Ms Hancock had emailed Ms de Bruyn about workplace matters.[10] All parties also agreed that Ms Hancock and Ms de Bruyn would acknowledge and speak with each other when they were both at the guesthouse.
Around April 2023, the Respondent made the decision to change the rostering structure as there was difficulty covering the guesthouse on all days.
On 25 April 2023, Ms de Bruyn advised Ms Davies that the Respondent wanted to implement a new roster structure and informed Ms Davies of the different options being considered. Ms de Bruyn asked Ms Davies what her preferences were.
Ms Davies felt that the new roster options were disadvantageous to her. Ms Davies’ evidence is that she communicated that she wanted to move into an ironing only role but agreed to continue with housekeeping duties until the Respondent hired new housekeepers. This is supported by a Facebook message from Ms de Bruyn on 26 April 2023,[11] which stated:
“Thank you so much that you are willing to continue until we find someone suitable.
I will go in today but will not be able to do Thursday and Friday.
I will also have the sheets done off site as mentioned until we can handover with the new girls.
And I will be very happy for you to continue with the ironing from then onwards. Thank you so much! We will work out something for collect and drop off that will work for you.”
It was anticipated by the parties that the ironing-only role would be done on a piece rate, where Ms Davies would be paid $2.00 per sheet and $0.75 per pillowcase.[12]
It was not challenged by Ms de Bruyn that there was an agreement that Ms Davies would continue in her housekeeping role until end of May, or until new housekeepers were hired and trained by Ms Davies, to take over Ms Davies’ housekeeping duties from 1 June 2023.
On 1 May 2023, Ms Davies contacted the Fair Work Ombudsman for advice on her pay entitlements. She was advised to contact the Respondent to clarify her hourly rate and classification.
On 1 May 2023, Ms Davies sent Ms de Bruyn a message via the Zebras Angel group chat asking that all contact pertaining to workplace matters be made through her email address or through the Zebras Angel group chat.[13]
Both Ms de Bruyn and Ms Davies agreed that the working relationship and communication began to deteriorate from this point.
On 3 May 2023, Ms de Bruyn and Ms Davies met to discuss the new roster structure. It was Ms de Bruyn’s evidence that Ms Davies:
advised that she would continue working for the Respondent but was considering working in an ironing-only role;
informed Ms de Bruyn that Ms Hancock was considering resigning from her role as she had been offered alternative employment in a retail position; and
did not tell Ms de Bruyn what days of the week would be suitable for her.
Ms Davies contested during the determinative conference whether she had told Ms de Bruyn that Ms Hancock was considering resigning. However, Ms Davies did agree that she had told Ms de Bruyn that Ms Hancock was considering her future options.
During the determinative conference, Ms de Bruyn accepted that Ms Davies did not provide specifics around Ms Hancock resigning and that Ms Hancock continued to work for the Respondent after the meeting. Clearly, Ms Hancock did not resign her employment at this point in time.
Ms Davies’ evidence was that she had been clear in that she would proceed in an ironing-only role but agreed to continue working in the housekeeper role until the Respondent hired new housekeepers.[14] I find Ms Davies’ recollection more credible given the evidence outlined in paragraphs [28] – [31] above.
On 8 and 10 May 2023, Ms de Bruyn contacted Ms Davies to ask whether she wanted to undertake a housekeeping role going forward but did not receive a response from Ms Davies.
On 10 May, Ms Davies wrote to Jennifer Wann, Bookkeeper for the Respondent, asking her to confirm the classification and award rate for Ms Hancock and herself.
Later that day, Ms Wann replied to Ms Davies. Ms Wann’s email in effect stated that:[15]
Ms Davies and Ms Hancock are paid under the Hospitality Industry (General) Award (MA000009) at the Level 1 Guest Service Grade 1 rate.
The Respondent pays the same hourly amount for weekdays, weekends and public holidays. This hourly amount is based on the previous year’s average rate.
At the end of each financial year, the Respondent does a ‘better off overall test’ (Award Reconciliation), where the Respondent calculates what the employee would have earned if they had been paid the relevant award rates for the Allocated Hours, then compares it to what the employee was actually paid.
If the employee has received more than what they would have earned on the Award, there is no further action. If the employee has received less than what they would have earned on the Award, the Respondent pays the difference.
Ms Wann informed Ms Davies that she had not completed Ms Davies’ Award Reconciliation yet. Ms Wann indicated that she could provide Ms Davies with her Award Reconciliation if Ms de Bruyn gave permission.
During the determinative conference, Ms de Bruyn explained that when the Award Reconciliation is conducted, it takes the employee’s Allocated Hours then compares what the employee was paid against what they would have earned under the Award on the Allocated Hours. The comparison is not done against the Award on actual hours worked.
At 10:07am on 12 May 2023, Ms Davies forwarded Ms Wann’s email to Ms de Bruyn.[16] Ms Davies asked Ms de Bruyn to give Ms Wann permission to provide the Award Reconciliation for herself and for Ms Hancock. Ms Davies also asked that the Award Reconciliations be provided by close of business that day.
At 10:33am that same day, Ms de Bruyn replied to Ms Davies. Ms de Bruyn indicated that she had no issues with Ms Wann providing the Award Reconciliations, but that it was not something that could be done in the timeframe requested. Ms de Bruyn stated that Ms Davies would receive the Award Reconciliations within the next week. [17]
At 12:05am on 16 May 2023, Ms Davies sent the below email detailing concerns and requests regarding her wages (Wage Dispute):[18]
“Marie-Lize,
Further to our separate discussions that took place in person at Zebras on Friday 12th May 2023 at approximately 12pm and again at 2pm.
I spoke to you in regards to seeking advice relating to specific matters that have taken place since my employment in August 2021.
I expressed to you that I had put my heart and soul into my job to ensure the high standard of cleaning was maintained and going above and beyond for each guest ensuring every need was met during their stay.
Unfortunately I feel my good nature has been taken advantage of and I expressed to you that I took it in “good faith” you were doing the right thing by me.
Marie-Lize you stated verbatim “if I have unknowingly made a mistake hand on my heart I will honour that and rectify”
I appreciate the fact this matter can now be resolved amicably and in a timely manner.
Please acknowledge and rectify the following.
Each rostered workday is a minimum of 5.5 to 6 hours. The tracking of working hours on the timesheet does not show a true and correct accuracy of time spent on the property working.
Oliviah and I did not sign a contract in agreement to $30 or $33 average pay rate or one wage shared.
Shared wages between Oliviah Hancock, [redacted], [redacted], [redacted] and [redacted][19] should be acknowledged as individual wages for hours spent on the property working.
All entitlements for weekend, public holidays and overtime to be paid for hours spent on the property working.
I have been advised our award is level 2 guest service hospitality industry (general) award (MA000009).
Please ensure that the (BOOT) test that is due this week is rectified to reflect the above mentioned.
You have my consent to forward this email to past and present stakeholders of Zebras Tina Van Rooyen and Mark Rossiter to ensure the finalisation of backpay for Oliviah and I is made within 7 days.
Thank you.
Kind regards,
Sara Davies”
At 9:27am that same day, Ms de Bruyn responded with (the 16 May Email).:
“Good morning Sara
In response to the below, the BOOT test will be ready no later than Thursday.
After receiving it, I prefer to meet with you at Zebras on Thursday 18th May at 12:30pm to discuss the outcome with you in person.
A copy will be sent to you then for further perusal.
I suggest that until this current matter is resolved, best is if you do not continue at Zebras purely to not add further hours and disputes or rates of pay etc. to the mix.
Lets’ work through what we are dealing with now first and hopefully, it will be resolved in due time without any further and unnecessary complications.”
During oral evidence, Ms de Bruyn confirmed that she intended for Ms Davies to not attend work that day and to not work until the matter was resolved. Ms de Bruyn’s evidence was that she had no intention of severing the employment relationship; she believed the pay dispute would be resolved at the meeting scheduled in two days on 18 May and that Ms Davies would then resume her regular shifts.
Ms Davies was on her way to work when the 16 May Email came through. Ms Davies read the email, then returned home. Ms Davies’ took the 16 May Email as a dismissal based on the following:
the email was explicit in stating that she was to not continue working to prevent adding more hours to the Wage Dispute; and
the Wage Dispute was complicated. Ms Davies thought it could take weeks, and the 16 May Email did not give a timeline or firm date for her to resume her duties.
After returning home on 16 May 2023, Ms Davies asked several of her friends for their opinion on how to interpret the 16 May Email and gave evidence that they all agreed that she had been dismissed.
Ms Davies also called the Fair Work Ombudsman (FWO) helpline for advice on whether she had been dismissed. Ms Davies’ evidence is that she read the 16 May Email to a FWO phone Adviser. The phone Adviser then sent Ms Davies an email stating, ‘…as per our earlier conversation I have attached a link to the workplace advice service who will be able to provide a free legal service regarding your dismissal’.[20]
Ms Davies relied on the email from the FWO as proof that she had been dismissed. No evidence was led as to what specific information was provided to the FWO phone Adviser and the advice that was received. With the greatest respect to the FWO, Ms Davies, and Ms Davies’ friends, this evidence is of low probative value, as whether she has been dismissed is a matter for the Commission to determine.
After speaking with the FWO, Ms Davies drove to the guesthouse and placed her set of work keys to the guesthouse in the secure mailbox. Ms Davies’ evidence was that she returned the keys this way as another employee had recently been dismissed and there had been an issue over the return of the guesthouse keys.
At 3:00pm that same day, Ms Davies sent the below:
“Good afternoon Marie-Lize,
At 2pm today, 16th May 2023
I have returned my set of work keys
(4 in total)
They have been placed in the secure mailbox used for guests when they leave room keys at Zebras Guesthouse 2 Glendinning Rd, Tarcoola Beach.
Can you please confirm via email today that the keys are now in your possession.
Can you please also provide me with a separation certificate at your earliest convenience.
Thank you
Kind regards,
Sara Davies”
Ms de Bruyn’s evidence is that she understood Ms Davies’ email, her returning the guesthouse keys, and the request for a separation certificate to be a resignation. At 6:59pm, Ms de Bruyn replied:
“Hi Sara
I acknowledge receipt of the keys, thank you.
I will forward the certificate as soon as possible.
Thanks
Marie-Lize”
During the determinative conference I asked Ms de Bruyn why she had not questioned Ms Davies’ email, as it seemed at odds with other evidence where she had praised Ms Davies as invaluable to the business. Ms de Bruyn stated that the working relationship and communication with Ms Davies had broken down since 1 May 2023. Ms de Bruyn’s evidence was that she had made multiple attempts to communicate with Ms Davies about the new roster with no answer and Ms Davies had made it clear that she wasn’t happy. Against that backdrop, Ms de Bruyn took Ms Davies’ email as a resignation.
After this email, Ms de Bruyn sent separation certificates for both Ms Davies and Ms Hancock. On part 4 of the separation certificates, the reason for separation is marked as ‘employee ceasing work voluntarily’.
During oral evidence, Ms de Bruyn agreed that Ms Davies had only asked for a separation certificate for herself, and that she had assumed that Ms Hancock also wanted a separation certificate.
At 12:51pm on 17 May 2023, Ms Davies sent the following email to Ms de Bruyn:[21]
“Good morning Marie-Lize,
I will in fact disregard all copies of the separation certificates you have provided today, Wednesday 17th May 2023.
Due to the fact there seems to be a discrepancy in regards to the reason for separation.
Please refer to your email 16th May 2023 at 9:27am
The precise reason is as follows and I quote, “I suggest that until this current matter is resolved, best is if you do not continue at Zebras”
Please amend our separation certificates as soon as possible to give a true account of what has actually transpired.
Thank you
Kind regards,
Sara Davies”
At 7:28pm that day, Ms de Bruyn replied:
“Hi Sara
I was very surprised when you brought your keys back as I did not imply that you do not have a job at Zebras anymore.
I certainly have not terminated your employment. If that was the case, I would have been very clear in the email that you have been terminated. Any it would have been noted as such on the Separation Certificate. I would also have requested that you return the keys.
What I stated was that it is best at this point in time not to add more to your current hours and rates/pay as I would like to resolve the queries you have about the hours and wages first.
Then once the matter had been resolved, we could have continued with the working relationship should you have wished to do so.
…”
On 24 May 2023, Ms de Bruyn sent the following[22]
“Hi Sara
Unfortunately, when you have requested the separation certificate and returned the keys out of your own will, your employment has ended.
I have been certain that an amicable resolution of your concerns would have been reached without need of ongoing correspondence. As a result of you declining my invitation to meet, nor offer another opportunity to resolve your concerns in person with me, I can no longer engage in further correspondence with you and have instructed my payroll officer not to reply to your queries.
Marie-Lize”
At some point in time, Ms de Bruyn removed Ms Davies from the Zebras Angel group chat. When a participant is removed from a Facebook messenger group chat, there is a notification in the group chat (Removal Notification). Currently with Facebook messenger groups there is no timestamp shown with Removal Notifications.
Both Ms Davies and Ms de Bruyn provided screenshots of the Zebras Angel group chat that showed the Removal Notification for Ms Davies, which read “Marie-Lize de Bruyn removed you from the group”.
However, neither Ms Davies nor Ms de Bruyn could provide a screenshot that could objectively prove when Ms Davies was removed from the group chat.
Ms Davies’ position is that Ms de Bruyn removed her from the group chat on 16 May 2023 after sending the 16 May Email, but before Ms Davies sent her email reply. Ms Davies provided a screenshot of the group chat at 9:42am on 16 May 2023, but the bottom part of the screenshot is obscured by the photo metadata, and so does not show whether Ms Davies was removed at that time. Ms Davies’ position is that she took the screenshot at 9:42am on 16 May 2023 because that is when she was removed from the group.
Ms de Bruyn’s evidence is that she did not remove Ms Davies from the group chat on 16 May 2023. Ms de Bruyn’s evidence was that she was confident that she and Ms Davies could work out their issues and so there was no need to remove her from the group chat. Ms de Bruyn’s evidence was that she removed Ms Davies from the group chat when she was served the section 365 application from Ms Davies on 5 June 2023, as that is when she realised that the working relationship could not be fixed.
However, this is inconsistent with a screenshot of the Zebras Angel group chat showing the Removal Notification that was taken by Ms Davies at 9:28pm on 1 June 2023. This means that Ms Davies was at the very least removed from the group chat before she lodged her application with the Commission.
On the balance of probabilities, I find that Ms Davies’ version of events in relation to when she was removed from the group chat more credible, and that she was removed from the group chat on 16 May 2023.
Submissions
Ms Davies
Ms Davies submits that Ms de Bruyn’s email constituted a dismissal as she was told to ‘not continue’ working half an hour before her rostered shift. Ms Davies also relies on Ms de Bruyn removing her from the Zebras Angels group chat.
Ms Davies further submits she did not resign her employment as she did not use clear or unambiguous words of resignation. However, in her written submissions, Ms Davies also contended that she was forced to leave her employment, was placed in an unfair situation, and was not given a specific date of reinstatement. In written submissions Ms Davies further contended that she was not given the option to continue working in the ironing-only based role, and that her actions were based on the severe deterioration of the working relationship.
Ms Davies also submitted that the Respondent should have clarified whether she intended to resign her employment.
With regards to Ms Davies, the Respondent submits that it did not:
dismiss her;
inform her that she may be dismissed; or
engage in any conduct that would have forced her to resign.
The Respondent submits that Ms Davies resigned on her own volition, and when Ms de Bruyn became aware that Ms Davies had interpreted the 16 May Email as a dismissal, she promptly clarified that Ms Davies’ employment had not been terminated.
The Respondent further submits that Ms Davies was not forced to resign.
Ms Hancock
Ms Hancock submits that she was dismissed. Ms Hancock further submits that she was not included in any of the correspondence between Ms Davies and Ms de Bruyn and that she did not resign her employment.
The Respondent contends that Ms Hancock’s employment was not dismissed and that she resigned on her own volition. The Respondent submits that:
on 16 May 2023, Ms Davies emailed Ms de Bruyn seeking separation certificates for both herself and Ms Hancock; and
at the meeting on 3 May 2023, Ms Davies had advised Ms de Bruyn that Ms Hancock was resigning because she had secured alternative employment.
Relevant legislation
The Application was made pursuant to s 365 of the Act, which provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
‘Dismissed’ is defined in s 12 of the Act, which refers to s 386. Section 386 of the Act relevantly provides:
“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.
It is helpful to traverse the authorities relevant to this section.
In Mohazab v Dick Smith Electronics Pty Ltd (Mohazab),[23]a decision made prior to the passage of the Fair Work Act, the Full Court of the Industrial Relations Court of Australia considered the meaning of ‘termination at the initiative of the employer’. The Full Court stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of the employee”.
and at 5: -
“I agree with the proposition that termination may involve more than one action.
But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa),[24] a Full Bench of the Commission considered an appeal of a decision where the member at first instance found that the dismissal was within the meaning of s 386(1). The matter concerned a ‘forced resignation’, and the Full Bench provided the following guidance at [33] on the definition of dismissal in s 386(1):
“Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer.
(see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations;
·where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
·where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
And at [47]:
“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
Consideration
Ms Davies
I find that Ms Davies did communicate a resignation. However, I find that Ms Davies did not resign voluntarily, but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent. Accordingly, I find that Ms Davies was dismissed within the meaning set out in s 386(1)(b) of the Act.
In the 16 May Email, Ms de Bruyn clearly communicated that Ms Davies was to not continue working until the Wage Dispute was resolved. Though Ms de Bruyn’s evidence was that she believed the Wage Dispute would be easily resolved at the meeting on 18 May 2023, it is clear from the parties’ evidence that the parties had opposing views on Ms Davies’ correct Award classification; what Ms Davies’ hourly rate incorporated; the actual hours worked each day versus the Allocated Hours; accuracy of timesheets; and how the Award Reconciliation should be conducted.
Ms Davies’ correspondence did not explicitly set out how far back she was seeking backpay. However, the evidence of the Respondent is that the Award Reconciliation was done each year. As such, the time involved in the Wage Dispute was at least one year. These factors in combination objectively do not support a finding that the Wage Dispute could be easily resolved.
On the balance of probabilities, I also find that Ms de Bruyn removed Ms Davies from the Zebras Angel group chat on 16 May 2023 prior to Ms Davies sending her resignation email. The group chat was how Ms Davies was informed of her Allocated Hours and duties for each working day. I find that termination of Ms Davies employment was the probable result of the Respondent sending the 16 May Email and removing Ms Davies from the group chat, such that Ms Davies had no effective choice but to resign.
Ms Hancock
I find that Ms Hancock was dismissed within the meaning set out in s 386(1) of the Act.
Ms de Bruyn conceded during the proceedings that she had assumed that Ms Davies was seeking a separation certificate for both herself and Ms Hancock. However, Ms Hancock at no point communicated to Ms de Bruyn that she was resigning.
In its written materials, the Respondent relied on Ms Davies informing Ms de Bruyn at the meeting on 3 May that Ms Hancock was looking for other work. However, during the determinative conference Ms de Bruyn acknowledged Ms Hancock continued to work for the Respondent after the meeting on 3 May 2023, and that neither Ms Davies nor Ms Hancock gave more detailed information about Ms Hancock finishing up her employment with the Respondent. As such, this point does not support the Respondent’s case.
Ms de Bruyn also acknowledged that Ms Davies’ email on 16 May 2023 only requested a separation certificate, not separation certificates.
I accept that Ms Davies generally spoke on Ms Hancock’s behalf during their employment with the Respondent. However, Ms Hancock is over the age of 18 and is a separate employee to Ms Davies. As such, it was incumbent on the Respondent to clarify with Ms Hancock what her intentions regarding the employment relationship were.
I find that Ms Hancock did not resign, and that by sending Ms Hancock’s separation certificate, the Respondent terminated her employment.
Accordingly, both Ms Davies and Ms Hancock’s applications pursuant to s 365 are within jurisdiction. Both matters will be listed for conference pursuant to s 368 of the Act.
COMMISSIONER
Appearances:
S Davies, Applicant
O Hancock, Applicant
M de Bruyn for the Respondent
Hearing details:
2023.
Perth (via Microsoft Teams)
26 September 2023
[1] [2022] FCAFC 152.
[2] Ibid at [51].
[3] Witness statement of Marie-Lize de Bruyn, Exhibit R1, at [8].
[4] Ibid, at [11] – [12].
[5] Ibid, at [15].
[6] Ibid, at [16].
[7] Ibid, at [19].
[8] Witness statement of Sara Davies, Exhibit A1, attachment 29(18).
[9] Witness statement of Marie-Lize de Bruyn, Exhibit R1, at [18].
[10] Digital Court Book, p 179.
[11] Witness statement of Sara Davies, Exhibit A1, attachment 102(15).
[12] Ibid.
[13] Ibid, attachment 52(3).
[14] Ibid, attachment 50(2).
[15] Ibid, attachment 114(16).
[16] Ibid, attachment 114(16).
[17] Ibid, attachment 114(16).
[18] Ibid, attachment 59(4).
[19] Names of former employees who are not directly involved in this matter have been redacted to preserve their privacy.
[20] Witness statement of Sara Davies, Exhibit A1, attachment (6).
[21] Witness statement of Sara Davies, Exhibit A1, attachment 87(12).
[22] Ibid, attachment 93(13).
[23] [1995] IRCA 625.
[24] [2017] FWCFB 3941.
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