Sarah-Jayne Curry v Wesley Mission Queensland
[2024] FWC 2311
•30 AUGUST 2024
| [2024] FWC 2311 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sarah-Jayne Curry
v
Wesley Mission Queensland
(C2024/4059)
| COMMISSIONER SIMPSON | BRISBANE, 30 AUGUST 2024 |
Application to deal with contraventions involving dismissal – not dismissed – constructive dismissal – alleged bullying – resignation at initiative of Applicant – jurisdictional objection upheld – application dismissed.
On 15 June 2024, Ms Sarah-Jayne Curry (Curry / the Applicant) applied to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Wesley Mission Queensland (the Respondent).
The Respondent raised a jurisdictional objection that the Applicant was not dismissed, and instead resigned voluntarily, or if she did not resign, remains an employee of the Respondent. The Applicant accepted that she had resigned from her employment but argued that it was under duress, such that she was dismissed within the meaning of section 386(1)(b) of the Act.
On 15 July 2024, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was held on 15 August 2024.
Ms Gemma Adams, a Solicitor at GLR Law was granted leave under section 596(2)(a) to appear on behalf of the Applicant, and Mr Cosgrove, the General Manager of Industrial Relations for Wesley Mission Queensland appeared for the Respondent.
Ms Lucy Hirst, Fundraising Manager provided an initial witness statement dated 22 July 2024 for the Respondent,[1] and a supplementary witness statement dated 7 August 2024.[2] The Wesley Mission Queensland ‘Raising and Responding to Grievances Policy’ (the Policy) was also entered into evidence through Ms Hirst[3].
Ms Curry provided a witness statement dated 29 July 2024.[4]
Evidence
At the outset I note that the Applicant has alleged several instances of bullying during her employment with the Respondent. I will not traverse each allegation in great detail as this is not a section 789FC bullying application, but a section 365 application where I must be persuaded that the Respondent’s conduct caused the Applicant to feel that she had no choice but to resign. To that end, the summary below is exactly that.
The Applicant commenced employment with the Respondent on 30 June 2023 and alleged that from on or around 11 August 2023 she has been subjected to workplace bullying and harassment.
On 6 September 2023 the Applicant alleges that she first made complaints about workplace bullying to Ms Hirst about a colleague. The Applicant submitted that Ms Hirst called it ‘teething issues.’ Ms Hirst denied that this complaint was made to her as she submitted that she has no documented conversation and or complaints received on this date or prior.
Ms Hirst asserted that she had a weekly one on one conversation with the Applicant where she advised that she would be conducting an interim probation meeting with her and confirmed this in writing by email later that day.
There were further weekly one on one meetings between the Applicant and Ms Hirst on 12 September 2023 where the interim probation meeting continued, and on 28 September 2023. After the meeting on 28 September 2023 the Applicant sent Ms Hirst a signed and agreed upon copy of the performance review. The Applicant submitted that in this meeting Ms Hirst told her to be “less [her].” Ms Hirst denied this. Ms Hirst said there was no reference to any bullying by the Applicant at this time.
On 13 November 2023, an incident occurred between the Applicant and two colleagues. Ms Hirst proposed that the three colleagues involved and Ms Hirst organise a meeting to reach an outcome and move forward. It was put to Ms Hirst that the incident involved the Applicant and Ms Tanya Salter only. Ms Hirst said the incident involved three staff members, the Applicant, Ms Elizabeth Burnett and Ms Salter and the initial complaint was not raised by the Applicant. Ms Hirst explained that Ms Burnett raised the issue that she had received a photograph from the Applicant of something written on a whiteboard, and the Applicant never raised the issue directly with her.
Ms Hirst gave evidence that it was subsequently discovered that the words written on the whiteboard were written by a child of a staff member.
On 30 November 2023 a further incident took place involving the Applicant and the colleagues.
On 6 December 2023 Ms Hirst conducted a mediation between the Applicant and the colleagues involved, to resolve the 30 November issue. Ms Hirst submitted that this session had resolved the tension between the colleagues. The Applicant disagreed and stated she felt nothing had been resolved by this session.
Ms Hirst continued to maintain during her oral evidence that the Applicant did not raise concerns that she had been the subject of an ongoing campaign of bullying. Ms Hirst said the mediation on 6 December 2023 was about a one-off incident not an ongoing campaign, and in her view the interaction between the Applicant and Ms Salter had “[fallen] apart” and did not indicate more bullying by one than the other. Ms Hirst said at the end of the mediation on 6 December 2023, everyone agreed to move forward.
The Applicant claimed in her evidence that after the mediation she said to Ms Hirst she wanted to go forward with a complaint and have it formally recorded and that Ms Hirst discouraged her from doing so. The Applicant said she provided an email to Ms Hirst on 30 November 2023 about the incident prior to the mediation. The Applicant said she wanted it recorded that Ms Salter had been abusive to her in the car and this was not aligned with the Respondent’s values.
It was put to the Applicant that she was sent an email by the Respondent regarding the outcome of the mediation. The Applicant said she did not recall that.
Ms Hirst rejected the proposition that the Applicant was having issues with Ms Salter as far back as 11 August 2023, saying the first issue raised with her was the incident of 30 November 2023.
On 26 March 2024 the Applicant brought her child to a work event. Ms Hirst agreed the Applicant did this and Ms Hirst said she was notified after the fact. Ms Hirst agreed she raised the issue with the Applicant, however said she did from a workplace health and safety perspective. Ms Hirst said she explained to the Applicant she understood her circumstances as a single mother, and if her child needed to attend an event with her that could occur, she just could not be the primary carer if she was on the clock for the Respondent.
The Applicant was referred to her own evidence where she said she felt excluded in the workplace and asked how she felt bullied. The Applicant referred to closed door meetings and Ms Hirst speaking to other team members but not her. Ms Hirst gave evidence to the effect that given the days that staff worked in the office, this was not possible.
On 4 April 2024, an incident occurred where Ms Hirst gave the Applicant her credit card to purchase set items. The Applicant purchased those items and also additional items. When she returned from purchasing the items Ms Hirst discussed the unauthorised additional purchases with the Applicant. Ms Hirst’s and the Applicant’s version of events vary on how that conversation took place and the tone of the discussion. In oral evidence Ms Hirst maintained her position that there was unauthorised use of the credit card under the policy as she had told the Applicant herself what she was authorised to purchase.
Ms Hirst said the Applicant was authorised to purchase two books and a pen, and the Applicant came back with ten books. It was put to Ms Hirst that she said to the Applicant “did I give you too many instructions?” Ms Hirst agreed she said that. She said she just wanted to understand, so the incident didn’t happen again, and asked whether she gave too many instructions such that it was unclear, and did she overcomplicate it for the Applicant. Ms Hirst said she did not mean to be condescending.
On 19 April 2024, the Applicant was issued a ‘Request to Meet’ letter for a meeting on 23 April 2024 about “concerns surrounding [her] behaviour.” The letter set out the issues to be discussed, including allegations of gossiping and set out a timeline of this having been discussed with the Applicant previously on:
· 13 March 2024;
· 15 March 2024;
· 19 March 2024; and
· 4 April 2024.
The letter went on to allege that the Applicant had made inappropriate comments about colleagues and that she took lengthy personal calls during work hours. The Applicant’s evidence was that these issues were vexatious and disingenuous.
Later that day, the Applicant requested a postponement of the meeting to allow her to get industrial advice from her union. The meeting was rescheduled to 2:00pm on 2 May 2024.
On 22 April 2024, Ms Hirst contacted the Applicant via Microsoft Teams message about her being offline for two and a half hours. The Applicant notified Ms Hirst that she had been in a psychologist appointment which had run overtime and apologised for this. The Applicant said she attended the appointment due to being distressed about Ms Hirst’s allegations. During that week, the Applicant accessed personal leave on 23 and 24 April 2024.
On the morning of 2 May 2024, Ms Hirst received a call from the Applicant’s union representative asking if the Applicant would be able to supply a written response to the allegations rather than attend a meeting in person. The request was accepted, and the Applicant submitted her response that morning. Ms Hirst agreed that the Applicant had expressed a desire to work from home while the issues were being worked through.
On 3 May 2024 the Applicant submitted that she wrote to Ms Hirst outlining her ongoing concerns via email and stated she would be on sick leave. Ms Hirst said the Applicant provided a medical certificate. The Applicant noted that she was going on sick leave due to ‘significant bullying’ she alleged that she had faced at work, which Ms Hirst had at all times known about. The Applicant submitted that she had had a union delegate working for her up until she engaged Ms Adams as her legal representative.
On 13 May 2024 the Applicant contacted Ms Hirst and stated that she would need to extend her stress leave as the “prospect of returning to the office still overwhelms [her] with anxiety and [she] believe[s] taking additional time is necessary for [her] health.” A medical certificate was attached to that email. The Applicant also sought to be informed of the outcomes from the meeting “at a distance that allows [her] time to process the information comfortably.”
Later that day, an ‘Outcome Letter’ was sent to the Applicant, noting a Final Warning had been issued as on the balance of probabilities, the allegations were substantiated. It was put to Ms Hirst that the Applicant was put on a performance plan whilst on sick leave. Ms Hirst explained in her oral evidence that the Respondent had no intention of contacting the Applicant whilst she was on sick leave, and Ms Hirst was only following an email request from the Applicant to be notified of the outcome of the Request to Meet letter. It was on this basis that the Respondent provided it to her.
On 21 May 2024, Ms Hirst emailed the Applicant following a call that morning, seeking to check in as the medical certificate had expired on 20 May 2024 and she had anticipated the Applicant’s return to work that day. The email also sought an amended return to work date.
Later that day, the Applicant responded to Ms Hirst stating that she required more time to recover and would provide a medical certificate to cover an “extended period of absence” as soon as she received it. In response, Ms Hirst sought that the Applicant return her laptop and mobile so the Respondent could action work in her absence. Ms Shelly Spencer, P&C Specialist followed this up by seeking the assets be returned by close of business the following day so as to not affect operational services further.
Ms Hirst said in her oral evidence that as the Applicant was unable to provide a return date, the Respondent requested the return of the property so that it could continue business operations. It was put to Ms Hirst that the Respondent’s systems and therefore the Applicant’s work data and information, would be on the cloud. Ms Hirst said not all information. Ms Hirst said there is also no way to track (and therefore action) phone calls or texts sent to the Applicant’s work mobile phone when she is on extended leave.
On 27 May 2024, the Applicant, through her solicitor Ms Adams, issued a letter to the Respondent notifying it that she believed it had breached the general protection provisions of the Act through “long standing bullying and humiliation” by employees of the Respondent. The letter included allegations of complaints made but not actioned, bullying and micromanagement by Ms Hirst between September 2023 and May 2024 and bullying by Ms Salter. The Letter concluded:
“As a result of the above, and due to our client’s deteriorating mental health, she has felt she has no choice but to leave her employment due directly to the actions of Ms Hirst in dealing with her complaint and the actions of other staff in bullying her. To be clear, our client she has been constructively dismissed from her position, and we reserve our client’s right to take any and all action available to her either by way of unfair dismissal (constructive dismissal) or pursuant to the general protections regime.” (sic)
On 3 June 2024, the Respondent responded to the letter asserting that there were no documented conversations or complaints received from the Applicant for any of the alleged actions. The Respondent wrote that a mediation session was held, and that the Applicant had a positive working relationship with Ms Salter. Regarding the credit card discussion the Applicant raised, the Respondent asserted that this occurred during a weekly meeting and that concern had been raised with the Applicant about her card use and it was explained that the use was deemed an unauthorised charge. The Respondent refuted that the Applicant was yelled at.
The Respondent’s letter concluded by stating that the Applicant was welcome back at work and sought confirmation of when she would be returning to full duties by 7 June 2024. The Applicant did not respond to this correspondence.
On 14 June 2024, the Respondent issued a follow up letter to the Applicant’s representative seeking confirmation of when the Applicant would be returning to full duties. On 15 June 2024 the Applicant lodged her application with the Commission.
I asked Ms Hirst whether the Respondent had a policy in relation to bullying and she confirmed the Respondent did. Ms Hirst gave evidence that the Applicant had twice completed online training in relation to the Policy. Ms Hirst said there was no complaint made by the Applicant under the Policy. The Policy was produced by the Respondent. Under cross examination it was put to the Applicant that she had received training in the Policy. The Applicant said she did recall having to do “a whole heap of mandatory training” and that she recalled the process for a formal complaint is to speak to your supervisor or manager, which she said she had done.
The Applicant was asked about why she felt she had no choice but to resign. She said she felt she was left with no other decision, because Ms Hirst asked for her devices back when the whole of the Respondent was cloud based. The Applicant said she had an out of office message on and the Respondent had access to all of her information on her devices anyway. It was put to the Applicant that the reason the Respondent asked for the devices to be returned was because her most recent medical certificate could not give an indication of a date of return and there was information on the devices that the Respondent needed access to in order to continue to operate its business. The Applicant did not accept that.
The Respondent submitted that the phone was still active and had stakeholder contact details on it, and the laptop was required because of data stored on it that the Respondent couldn’t access. It was put that the information was required, and the devices were not requested to be returned until the Respondent was made aware the Applicant would be on extended leave. The Applicant said the information was email based, and she may have saved some documents on the computer but they were not ‘make or break’. The Applicant accepted she still has the Respondents keys and an ID card and is still receiving payslips. The Applicant maintained that she did resign through her solicitor.
I asked the Applicant when it was her intent that the resignation would have effect from. The Applicant responded that from the moment it was sent she considered herself no longer employed by the Respondent. The Applicant also raised that the reason she felt she was no longer welcome back was that Ms Hirst and herself had been connected on social media on Instagram, and from 24 April 2024 she noticed that Ms Hirst had blocked her, and unfollowed her, and she had also noticed that Ms Salter and another colleague who were connections on LinkedIn had now disconnected from her, which made her feel that this was not a confidential matter, and the rest of the team knew what is going on. The Applicant accepted that Ms Hirst and herself are still connected on LinkedIn.
Submissions
In her submissions, the Applicant asserted that she resigned or was constructively dismissed on 27 May 2024 by her complaints and concerns being denied, dismissed or failed to be responded to up until that point. In her Form F8 application, the Applicant contended that she had been constructively dismissed on 3 June 2024, when the response from the Respondent was received dismissing her allegations. I asked for clarification from the Applicant’s representative at the commencement of proceedings of when it was argued that the employment came to an end, and the Applicant’s representative confirmed 3 June 2024.
The Respondent’s position is that the Applicant remained an employee of the Respondent as at the time of the hearing.
The Applicant submitted that she was subject to a sustained campaign of harassment and bullying from 11 August 2023 until the dismissal and was subject to reprisals such as performance management plans and reduction in duties.
The Applicant alleged that she was left with no option but to resign as her complaints to Ms Hirst regarding her colleagues, and Ms Hirst’s own actions, had been dismissed without being properly addressed or recognised. She alleged that the incidents between her and certain colleagues were related and demonstrated a course of conduct which was not rectified by Ms Hirst or the Respondent.
The reduction in duties referred to by the Applicant was explained to be because the Applicant was asked to return her work devices and her access to emails being revoked after she did not provide a return to work date when asked. The Respondent submitted that it required the devices returned in order for them to have someone complete the Applicant’s role in her absence for the unknown length of time the Applicant remained on sick leave.
The Applicant argued that the Respondent was or ought to have been aware of issues in the workplace, even if it did not agree that the Applicant had made complaints, as there was at least one incident that occurred in front of Ms Hirst, and one mediation session held.
The Respondent contended that it had no formal complaints made by the Applicant during her employment as per the Policy. The Respondent stated that the Applicant had completed training in raising complaints under the Policy when her employment commenced in or around August 2023 and again in April 2024.
As the Applicant had not raised her concerns in line with the Policy, the Respondent did not consider that it was aware of what the Applicant referred to as an “ongoing campaign of harassment and bullying.” It was instead of the view that any incident had been dealt with when it arose and that as the Applicant had not raised any issues formally or had not agreed with the manner in which the Respondent had informally dealt with matters as they arose, the Respondent had not taken the action the Applicant appeared to expect of it.
Relevant Legislation
The Applicant alleges she was dismissed within the meaning of section 386(1)(b). Section 386 reads as follows:
“386 Meaning of dismissed
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.”
Consideration
The Respondent in closing oral submissions referred to the decision in Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941. The Full Bench in that decision said the following at paragraph [47]:
[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.
The Applicant had never asserted she resigned in the “heat of the moment”. The Respondent’s case is that the Applicant remains an employee. The Applicant has pressed her case relying on section 386(1)(b). I am satisfied on the basis of the evidence that there has been no dismissal within the meaning of section 386(1)(a).
In assessing whether the Applicant’s resignation was ‘forced’, it is necessary to consider the conduct of the Respondent, including whether the purported conduct of the Respondent was engaged in by the Respondent with the intention of bringing the Applicant’s employment to an end, or whether the termination of the Applicants employment was the probable result of the purported conduct such that the Applicant had no effective or real choice but to resign.
The relevant conduct appears from the Applicant’s case to be based on a case of bullying and exclusion.
The Applicant perceived she had been subjected to bullying, and Ms Hirst did not take steps to properly investigate the matter. In addition, Ms Hirst herself engaged in conduct that excluded the Applicant. I found Ms Hirst to be a consistent, direct and reliable witness. I am inclined to prefer her evidence that the Applicant did agree to move on after the mediation session on 6 December 2023. It is apparent the Applicant did not engage the stage under the Grievance Policy to formalise a complaint against Ms Salter at that time.
The Applicant also maintained that the issues raised by the Respondent in its ‘Request to Meet’ letter of 19 April 2024 were vexatious and disingenuous. It is my view on the basis of the evidence, that the Respondent’s actions in seeking an explanation from the Applicant were reasonable and the Applicant was given an opportunity to respond to the allegations. The evidence supports the conclusions that the Respondent reached were open to it, having considered the Applicant’s written response, and the warning issued to the Applicant did not force the Applicant to resign.
I have also concluded that it was not unreasonable for the Respondent to have requested the return of certain devices that the Applicant had in her possession at a time when the Applicant was on an unspecified period of leave, in order that the Respondent could make use of that equipment. That issue, on an objective assessment does not provide a proper basis to sustain the Applicant’s case that she was forced to resign.
The Applicant formed a subjective opinion that she was being bullied and excluded on an ongoing basis, however the evidence indicates the Respondent attempted to resolve issues between Ms Salter and the Applicant, and the evidence does not support a conclusion that any alleged bullying was ongoing or that the Respondent had unreasonably sided with one employee over the other.
I am not satisfied that the probable result of the steps taken by the Respondent in managing issues concerning the Applicant to mean that on an objective assessment, the Applicant had no real choice but to resign. The Applicant could have formalised a complaint under the Policy or filed an application under section 789FC of the Act. The Applicant has not called any evidence from a treating medical practitioner suggesting she was not capable of doing so.
Conclusion
The Applicant gave clear evidence it was her intent that the resignation she instructed her legal representative to provide the Respondent on 27 May 2024 was intended to have immediate effect, and that she regarded herself as no longer employed from that point.
The evidence indicates the Applicant had other alternatives to resigning. I accept this is not a case of a ‘forced’ resignation. I am satisfied that the Applicant’s resignation was an exercise of her choice, and on that basis the Commission does not have jurisdiction to deal with the application and it is dismissed.
I do not agree with the Respondent’s view that the Applicant remains its employee because the Applicant has voluntarily resigned from her employment. However, even if I were to be wrong about that, it would remain the case that the Applicant’s employment has not been terminated within the meaning of section 386(1)(a) or (b).
An order dismissing this application will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
G Adams, Solicitor for the Applicant
J Cosgrove and S Spencer of the Respondent
Hearing details:
2024
By Microsoft Teams video
15 August.
[1] Exhibit 1.
[2] Exhibit 2.
[3] Exhibit 3.
[4] Exhibit 4.
Printed by authority of the Commonwealth Government Printer
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