Sarah Baker v Total Beauty Network T/A Total Beauty Network Pty Ltd

[2015] FWC 6993

[2015] FWC 6993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Baker
v
Total Beauty Network T/A Total Beauty Network Pty Ltd
(U2015/1548)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Ms Sarah Baker resigned her employment with Total Beauty Network Pty Ltd on 13 March 2015 and lodged an unfair dismissal application on 7 April 2015. Ms Baker said she was given no option but to resign.

[2] The question that needs to be determined is whether Ms Baker was forced to resign because of conduct or a course of conduct engaged in by her employer.

[3] The test for constructive dismissal was considered by the Full Bench in Kylie Bruce
v Fingal Glen Pty Ltd (in liq): 1

“[13] The test of constructive dismissal in the context of the unlawful termination provisions of the Industrial Relations Act 1998 was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v Huxley Marketing Pty Ltd (Rheinberger). The commonly quoted statement of principle in Mohazab is that:

"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". 

[14] It is important that this passage be read in the context of the judgment as a whole.  It is clear that the requirements set out by the Full Court in the passage quoted are necessary, but not sufficient, to establish that employer action constitutes constructive dismissal.

[15] These principles of constructive dismissal have been applied to the unfair dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the Australian Industrial Relations Commission in Pawel v Advanced Precast Pty Ltd (Pawel)and ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering), and we accept the Applicant's submission that those decisions are relevant to any consideration of s.386(1)(b) of the Act.

[16] In Pawel the Full Bench said that:

"[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee..."

[17] In ABB Engineering, the Full Bench said that:

"Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."

[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O'Meara v Stanley Works Pty Ltd (O'Meara) as follows:

"[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." [Footnotes not reproduced]

[4] I will adopt the approach of the Full Bench in determining this matter.

Background

[5] Ms Baker commenced employment as a full-time sales coordinator on 16 January 2014. It is not disputed that during that year Ms Baker’s mother became seriously ill. Ms Baker took 33 days leave due to her mother’s illness. In addition, she was granted annual leave in advance in September 2014. In addition to approving this leave, Ms Baker was allowed to work from home and have flexible working hours to enable her to assist her mother. This was approved by her employer.

[6] On 6 March 2015, after being absent from work for three days, Ms Baker approached her manager Ms Angela Kabiri because she was unsure of how to complete her leave form. Ms Kabiri approached Ms Cheryl Carter, the office manager, to get advice. As a result, Ms Kabiri, Ms Carter and Ms Baker discussed the matter. Ms Carter advised Ms Baker that she had used all her accrued entitlements and had a negative annual leave balance of 99.07 hours.

[7] Ms Carter and Ms Kabiri said that they advised Ms Baker that she was a valued employee and that they wished to assist her during this difficult time. It was their evidence that they proposed that Ms Baker could take a leave of absence or leave without pay to care for her mother and return when she was able to fully commit to her work. It was their evidence that Ms Baker advised that she could not financially afford to take a leave of absence without pay. It was their evidence that they asked her if there were any other options she would consider, such as committing to a certain number of hours each week and sharing the caring responsibilities for her mother with other family members. Ms Baker indicated that she was going to think about this over the weekend. It is not disputed that at the meeting Ms Baker was told that this was a full-time job.

[8] Ms Baker’s evidence in relation to what occurred at this meeting is different. She said she felt under attack at the meeting and guilty because her mother was unwell. She said that her return to work following her days off had been stressful and she had not felt welcome. She says she was asked to think over the weekend about whether she wanted to resign or make the decision to commit to full-time work with no further days off moving forward. She says she was told that the role was not part-time and required someone to work in a full-time capacity. Ms Baker accepted that this was a full-time job and had not asked to be made part-time.

[9] While there is some question as to whether Ms Baker returned to work the following week, on 13 March 2015 she told Ms Kabiri that she was going to resign her employment. Ms Kabiri gave evidence that she asked Ms Baker if she was sure that was what she wanted to do. Ms Baker said it was, so Ms Kabiri told her she needed to put it in writing and as a consequence Ms Baker sent an email resigning her employment and giving four weeks’ notice. Ms Baker explained that she needed to work the four weeks so that she could pay off some of the annual leave paid for in advance.

[10] It is not disputed that Ms Baker was upset at the meeting on 6 March 2015.

Conclusion

[11] I find that Ms Baker voluntarily resigned her employment.

[12] There are a number of factors which support this finding. Ms Baker was not asked to resign at the meeting on 6 March 2015. Further, she was provided with an opportunity to consider her options over the weekend and there was no attempt by either Ms Carter or Ms Kabiri to require her to advise them of her decision during the next week. Even when she advised Ms Kabiri that she was resigning, she was asked if she was sure.

[13] The employer had already shown that it was prepared to provide Ms Baker with flexible working arrangements to accommodate her mother’s illness. To this date, leave had been provided to Ms Baker on full pay. It was not unreasonable for Ms Carter to alert Ms Baker that she had negative leave. Nor was it unreasonable for Ms Carter and Ms Kabiri to advise her that future leave would be unpaid. I do not accept that either Ms Carter or Ms Kabiri told Ms Baker that she was not able to take any more time off.

[14] I am unable to conclude that either Ms Carter or Ms Kabiri said at the meeting on 6 March 2015 anything that was intended to bring the employment relationship to an end or had the probable result of bringing the employment relationship to an end. I am unable to conclude on the evidence before me that Ms Carter or Ms Kabiri wanted Ms Baker to resign. Yes, the job was a full-time job, however they had accommodated over a significant period of time Ms Baker’s need to take time off to be with her mother. Further, the fact that they proposed further leave without pay or modified hours, provided they were known in advance, does not support a finding that they were giving Ms Baker no choice but to resign.

[15] The test is an objective test and while I do not doubt that Ms Baker was under significant pressure at the time and torn between her need to work and her need to be with her mother, the evidence supports a finding that Ms Baker voluntarily chose to resign her employment rather than attempt to reach a mutually acceptable arrangement with her employer.

[16] In those circumstances, I find that Ms Baker was not dismissed and therefore her unfair dismissal application must be dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Ms S Baker on her own behalf.

Mr A McNab of Counsel for the Respondent.

Hearing details:

2015.

Melbourne:

October 9.

 1   [2013] FWCFB 5279.

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