Sarah Singleton v Aussie Guard Rail Pty Ltd
[2024] FWC 2083
•5 AUGUST 2024
| [2024] FWC 2083 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sarah Singleton
v
Aussie Guard Rail Pty Ltd
(C2024/1461)
| COMMISSIONER SCHNEIDER | PERTH, 5 AUGUST 2024 |
Application to deal with contraventions involving dismissal
Ms Sarah Singleton (the Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving her alleged dismissal by Aussie Guard Rail Pty Ltd (the Respondent).
The Respondent has raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed. The Applicant is of the position that the conduct of the Respondent left her with no option but to resign from her employment.
The Commission must determine whether the Applicant was dismissed before the matter may proceed.
The jurisdictional objection was the subject of a Hearing on 16 June 2024. The Applicant gave evidence on her own behalf and Mr Harrison Haggarty (Mr Haggarty), Director, Mr Ben Bushby (Mr Bushby), Operations Manager, and Ms Vandra Logan (Ms Logan), Payroll Officer, gave evidence on behalf of the Respondent.
Background
The Applicant commenced employment with the Respondent in April 2023 on a full-time permanent basis in a Customer Services/Sales Support position.
The Applicant communicated to the Respondent in November 2023, that she had medical issues and provided the Respondent with medical certificates as evidence.
The Respondent communicated to the Applicant, on 28 November 2023, that it could not accommodate her request for reduced hours or work from home arrangements.
The Respondent directed that the Applicant could not return to work until she had been signed off as fit for full duties by her General Practitioner.
The Applicant did not return to the Respondent’s workplace after this date.
Legislation
[1]Section 365 of the Act provides as follows:
“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.”
[2]The meaning of “dismissed” is provided at section 386 of the Act:
“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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
This decision deals only with the jurisdictional objection to be determined.
Submissions
Respondent
The Respondent submits that the Applicant was not dismissed for the purposes of section 365 of the Act.
Evidence – Harrison Haggarty
It was the evidence of Mr Haggarty that, following his return from an overseas trip, he was advised by the Human Resources (HR) and Payroll department that the Applicant had contacted the Respondent on 13 February 2024 requesting to return to work.
It was the evidence of Mr Haggarty that this was despite of her being advised by the Respondent on 27 November 2023 that a full medical clearance to resume full duties. It was the evidence of Mr Haggarty that the Applicant did not seek to contact the owners or HR to discuss her return to work.
Mr Haggarty suggests that, following the correspondence from the Respondent to the Applicant in November 2023, the Applicant should have been fully aware the Respondent would not have entertained the possibility of the Applicant returning to the workplace without a full medical clearance.
Mr Haggarty said that, despite the above, the Respondent considered if a working from home arrangement or part time solution was available to accommodate the Applicant. However, the Respondent determined that this was not possible.
Evidence – Ben Bushby
Mr Bushby was not employed in the position of Operations Manager when the Applicant was advised she could not return to work until a full medical clearance was provided on 27 November 2023.
It was the evidence of Mr Bushby that, on 13 February 2024, he received an email from the Applicant and forwarded the email to HR/Payroll as he was unaware of the circumstances for the Applicant’s absence from work.
Mr Bushby gave evidence that HR/Payroll advised him that the matter needed to be discussed with the Owner/Director as there was limited information supplied at the time. It was the evidence of Mr Bushy that the Owner/Director was overseas at the time for an extended period and was not contactable.
Mr Bushby gave evidence that on 10 March 2024, he was advised by the Owner that if the Applicant had a full medical clearance she could return to work.
Evidence - Vandra Logan
It was the evidence of Ms Logan that, on 28 November 2023, she received a copy of an email sent by the previous Operations Manager to the Applicant confirming that the Applicant could not return to work without a full medical clearance.
Ms Logan was advised that the business could not facilitate the request from the Applicant to work from home or for reduced hours due to the impact it would have on the operations of the Respondent.
Ms Logan confirmed that the Respondent is a small business and, in November 2023, only employed five staff members in the office area. It was the evidence of Ms Logan that the Respondent considered the request of the Applicant but deemed it was not feasible.
Ms Logan confirmed that the Applicant was advised that once she had a full medical clearance she could return to work. Ms Logan confirmed that the previous Operations Manager resigned in December 2023 and departed the business.
Ms Logan confirmed that there was no contact between the Applicant and the Respondent until 13 February 2024.
Applicant
The Applicant submits that the conduct of the Respondent resulted in the Applicant forming the view that the Respondent was intending to terminate the Applicant’s employment or had terminated the Applicant’s employment.
The Applicant submits that:
“as noted in Bupa, the intent of s386(1) was to preserve the common law circumstances often described as constructive dismissal. In Thomson v Orica Australia Pty Ltd, Allsop J observed: “It will be taken to be a dismissal (hence the word ‘constructive’) if the employer has behaved towards the employee in a way that entitles the employee to treat the employment as at an end…Olson J in Blaikie v South Australian Superannuation Board…expressed the principle with clarity…His Honour said:
…it is a manner of objectively looking at the employer's conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”
The Applicant submits that cases where employee departures were held to have been at the employer’s initiative, due to the employer’s conduct, are wide and varied. In each case, it involves a factual assessment as to which party brought about the state of affairs. Examples include a direction to perform different duties or reduced hours of work, or reduction in pay however, these are merely examples of an uncontroversial proposition long accepted.
The Applicant submits that the Respondent emailed the Applicant asserting the need to “take in regard the health and safety of your own wellbeing and as a result we will not be able to have you at work in your current role effect from the 29/11/2023”.
The Applicant submits that the Respondent made no reference in the correspondence to operational requirements preventing a flexible working arrangement being considered.
The Applicant submits that the Respondent made no enquiries of the Applicant or her medical advisor as to the recommendation about reduced hours or working from home, including how many hours might be involved, or the extent to which a combination of reduced hours in the workplace and hours worked from home might be managed.
The Applicant submits that the Respondent did not make any attempt to contact her as to her status and progress towards the fitness requirement advised in the November 2023 email.
The Applicant submits that, on 13 February 2024, she wrote to the Respondent seeking to return to the workplace. The Respondent did not respond to this correspondence until after receiving a copy of this application, on 11 March 2024, nearly a month later.
The Applicant submits that the Respondent has refused to engage in any flexible work arrangement, without even knowing what might have been proposed, nor consulting about how that might be accommodated.
The Applicant submits that she did as she was directed by the Respondent; go away and come back when she was confident her health did not require any flexibility in hours. The Applicant submits that she was totally ignored for nearly a month with not even an acknowledgment of her email or advice that her email was under review.
The Applicant submits that it was incumbent on the Respondent, having improperly declined to engage on a flexible work arrangement, to respond in a timely way and restore the Applicant to full duties.
The Applicant submits that the Respondent’s conduct clearly made it reasonable for the Applicant to assume her employment was at an end; at the least, the probable result of the Respondent’s conduct was that the Applicant would not sit on indefinite unpaid leave while the Respondent decided if and when it would respond.
In the Applicant’s submission, a month to respond is wholly unacceptable and unreasonable.
Evidence of Applicant
It was the evidence of the Applicant that she was employed with the Respondent in a Customer Service/Sales Support position. The Applicant states that her duties involved administration, as well as scheduling of work and drawing CAD designs for the Respondent.
It was the evidence of the Applicant that she believed she could complete her duties working from home if the Respondent had allowed her to do so.
In November 2023, the Applicant was having personal medical issues and was admitted to hospital on 9 November 2023. The Applicant was provided with medical certificates on 13 and 27 November 2023.
The Applicant states that, following further discussions with her doctor on 27 November, her doctor suggested she look at a reduction in working hours or working from home for a temporary period.
The Applicant states that the Respondent confirmed on the next day (28 November 2023) that any temporary change in working hours or working from home could not be considered by the Respondent.
The Applicant gave evidence that, on 29 November 2023, she had a discussion with Mr Page, former Operations Manager of the Respondent, who confirmed the below:
· It was not his decision to decline her request or send the email of 28 November.
· Mr Page had been instructed to send the email by Mr Scott Haggarty and Ms Logan.
· Mr Haggarty had told Mr Page that he did not want the Applicant to return to the business.
· Mr Haggarty had expressed to staff that “Sarah’s not coming back”.
The Applicant gave evidence that, apart from the email and phone call with Mr Page, no one from the Respondent contacted her to discuss the situation.
The Applicant states that, following the response from the Respondent, she focused on addressing her medical issues.
The Applicant states that, on 13 February 2024, she wrote to the Respondent about returning to the workplace, however, did not receive any response.
The Applicant states that, on 5 March 2024, having not received any response from the Respondent the Applicant filed this application.
Consideration
Central to the consideration in this case is the operation of section 386(1) of the Act. The word ‘dismissed’ is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act. Section 386(1) of the Act reads:
“(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.”
This definition contains two elements. The first concerns termination on the employer’s initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct. The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1]
I accept and acknowledge that the Respondent is not a large employer and, in all likelihood, lacks the experience and internal HR resources to manage such a situation.
That being said, the Respondent, after directing the Applicant to not attend work until she had provided a full medical clearance, took no action to maintain any form of relationship or contact with the Applicant.
The Applicant reached out to the Respondent, on 13 February 2024, seeking a return to work and did not receive a response or even an email to acknowledge her correspondence had been received or that the Respondent was awaiting further direction from the Owner.
The assertion that the relevant decision maker at the Respondent was totally out of contact is conveniently self-serving in these circumstances. It is not excusable for an employer to ignore such correspondence or have such a significant delay in response.
In the event that certain management staff are unavailable for such a long period of time, it is highly questionable that authority for such decisions was not conferred to other management staff or other appropriate measures put in place during the absence.
The conduct of the Respondent is especially egregious in the circumstance where it did not, at the very least, communicate the expected delay in response to the Applicant who remained in an uncertain position regarding her employment. Such conduct would surely be unacceptable if directed towards a time sensitive query from a major client, and it is equally unprofessional when directed towards a business's very own employee
I find that the Applicant had a reasonable belief on 5 March 2024 when filing this application that her employment had ended.
I am satisfied that the Applicant’s employment was terminated at the Respondent's initiative or, in the event I have erred, alternatively that, given it had not responded to her email from three weeks prior and in the broader circumstances of this matter, the Respondent’s conduct was the primary cause in the end of the employment, essentially rendering the Applicant with no alternative but to end her employment or being likely to cause such conclusion.
Conclusion
Accordingly, I am satisfied the Applicant has been dismissed within the meaning of section 386 of the Act, the jurisdictional objection is dismissed.
The parties will be contacted regarding the future programming of the matter in due course.
COMMISSIONER
Appearances:
J Wells of Mills Oakley Lawyers on behalf of the Applicant.
H Haggarty, Respondent.
Hearing details:
2024.
Perth (by video):
June 14.
[1] [2017] FWCFB 3941.
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