Sepide Ghate v Winder Controls Australia Pty Ltd T/A Winder Controls
[2017] FWC 5831
•14 NOVEMBER 2017
| [2017] FWC 5831 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sepide Ghate
v
Winder Controls Australia Pty Ltd T/A Winder Controls
(U2017/7898)
| COMMISSIONER MCKENNA | SYDNEY, 14 NOVEMBER 2017 |
Application for an unfair dismissal remedy.
Sepide Ghate (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), concerning the termination of her former employment with Winder Controls Australia Pty Ltd T/A Winder Controls (“the respondent”). The circumstances of the termination of employment arose against the background of a decision by the respondent to relocate its premises, being a relocation which resulted in the applicant not presenting for work at the new premises and, in due course, effecting a termination of employment through written advice concerning the giving of notice.
The applicant contends that, properly considered, the termination of her employment constituted a dismissal within the meaning of s.386(1)(b) of the Act; and as the dismissal was harsh, unjust or unreasonable that she should have an order in her favour for compensation concerning an unfair dismissal remedy. The respondent opposes the application on the bases of both jurisdiction and merits grounds, and contends that the applicant’s application for an unfair dismissal should be dismissed. As to preliminary matters of jurisdiction, the respondent contends the applicant’s employment was not terminated on the respondent’s initiative and nor was she forced to resign; instead, the applicant refused to comply with a lawful and reasonable direction to relocate her principal place of work, and voluntarily resigned from her employment.
Before turning to consider the application, it is apposite to note that (since the application was lodged, the employer’s response was lodged and written outlines of submissions were lodged pursuant to directions earlier given by a member to whom the matter was previously allocated), the parties’ positions have been subject to change or refinement, or both. It is not necessary to address in this decision issues which were not finally pressed by the parties, but, in passing, they initially concerned matters including, but not limited to, the Small Business Fair Dismissal Code, redundancy/genuine redundancy, questions as to the effective date of termination of employment, constructive dismissal, and the like. By the time the matter proceeded to hearing before me on 7 November 2017, and partly as a result of clarification sought by me of the representatives as to matters which were being pressed, the respective cases were narrowed significantly in scope as against what at first appeared might necessarily have arisen for determination given the substantial amount of material by way of evidence and submissions that otherwise was before the Commission. I acknowledge the assistance of the representatives who appeared in the proceedings in such respects.
Background
By way of background (albeit not summarising all that went between the parties or their solicitors, or both, in the time preceding the lodgement of the application for an unfair dismissal remedy), the applicant commenced employment with the respondent (formerly known as Siemag Tecberg (Australia) Pty Limited) in September 2012. The respondent, which is involved in design and installation of mining equipment, employed the applicant as a full-time sales/project engineer underpinned by two successive contracts of employment. The first employment contract relevantly specified “Sydney” in the “Location” clause; the premises where the applicant worked under the first contract was located at Macquarie Park, New South Wales.
The respondent was considering, for operational reasons, relocating its operations to a different premises. Partly in connection with that anticipated relocation, a further contract of employment was proposed by the respondent and subsequently signed by the parties (“the second employment contract”). The second employment contract contained provisions which differed from the first employment contract concerning the work location (and differed in relation to some other matters, such as altered requirements for notice periods – with such changes as to notice sought and included in the second employment contract at the applicant’s request). The applicant continued to work at Macquarie Park for a period of time under the second contract of employment. Clause 5 (Location) of the second employment contract read in part: “5.1 … the Employee’s principal place of work is the address stated in Item 5 of the Schedule or as otherwise agreed or directed by the Company”; and Item 5 of the Schedule to the second employment contract, in turn, read: “Macquarie Park, New South Wales or such other location in the greater metropolitan area of Sydney, New South Wales as the Company reasonably directs.”
Following various developments which are not necessary to detail in this decision, the respondent entered arrangements concerning a relocation of its premises from Macquarie Park to Glendenning, New South Wales. Google maps-derived information suggests the distance between Macquarie Park and Glendenning is approximately 34km; and the actual time taken to travel that distance would vary given traffic conditions (relevantly, in relation to the applicant, also involving such travelling time which was additional to the travelling time between her residence in Frenchs Forest). The respondent kept the employees informed with updates about developments concerning the relocation and anticipated relocation dates.
The applicant held concerns about the additional travelling time that would be involved as between her residence and the new Glendenning premises, without what she considered to be off-setting arrangements of a compensatory nature. The applicant and the respondent engaged in communications about such matters up to and around the time of the relocation of the business operations. In the proceedings, the applicant’s evidence referred also to other matters including work/life balance, personal well-being and health-related issues. Communications between the applicant and the respondent’s representative/s did not result in any agreed outcome (and nor did subsequent communications between the parties’ solicitors). Relevantly, the respondent required the applicant to work at Glendenning – being a direction the applicant considered was unreasonable and not in accordance with the second contract of employment.
The respondent relocated to the Glendenning premises on or about 26 May 2017 and commenced trading at that location from on or about 1 June 2017. The applicant, while confirming through her solicitors that she continued “to be available to work in accordance with her contract”, declined to relocate to, or perform work from, Glendenning. Further communications ensued between the parties’ solicitors (for example, including, for the respondent, correspondence giving direction to attend work and correspondence, for the applicant, about unreasonableness-related matters). The respondent, in circumstances of the applicant’s non-attendance at or for work, did not pay the applicant in the period following the cessation of operations at Macquarie Park and the applicant’s consequential cessation of performance of work.
On 6 June 2017, the applicant’s solicitors advised the respondent’s solicitors “should your client not make a sensible proposal by close of business tomorrow, our client will have no choice but to consider your client as having repudiated the contract or alternatively as having constructively dismissed her, and will commence proceedings against your client without further notice. Such proceedings will give rise at the least to a claim for payment in lieu of notice, an amount equivalent to her redundancy entitlement, and an amount reflecting the time it will take our client (beyond those periods already accounted for) to obtain comparable alternative employment.” The respondent’s solicitors responded by, among other matters: noting certain offers that had been made to the applicant in connection with the relocation; noting the terms of the second contract of employment; denying there had been repudiation of the second employment contract or constructive dismissal; and advising that if the applicant wished to resign the respondent would accept that resignation (or, failing that, that the applicant should attend for work at Glendenning as had all other employees). On 16 June 2017, the applicant’s solicitors wrote to the respondent’s solicitors advising of, among other matters, the applicant’s intention to terminate the contract of employment, effective 14 July 2017 with advice as to that being confirmed in further correspondence from the applicant’s solicitors on 19 June 2017. That resignation was accepted by the respondent.
Consideration
Section 396 of the Act specifies that the Commission must decide certain matters in relation to this application before considering the merits of the application. I turn now to consider those matters.
Whether the application was made within the period required in subsection 394(2): I conclude the termination of employment/termination of the contract of employment coincided with the conclusion of the period of notice given by the applicant to the respondent - namely, on 14 July 2017. Approached another way, my consideration of the evidence and submissions concerning the matrix in this case would not lead me to conclude that the termination of employment/termination of the contract of employment properly could be found to have taken effect on any date earlier than 14 July 2017. As the application was lodged on 21 July 2017, the application was made within time.
Whether the person was protected from unfair dismissal: There was no dispute between the parties, and I otherwise conclude, that the applicant was a person protected from unfair dismissal. Relevantly, for example, regardless of whether the applicant’s employment was covered by a modern award, the applicant’s income was below the high income threshold.
Whether the dismissal was consistent with the Small Business Fair Dismissal Code: There was (in the end) no dispute between the parties, and I otherwise conclude, that the respondent was not a small business and, thereby, questions concerning consistency with the Small Business Fair Dismissal Code do not arise in this application.
Whether the dismissal was a case of genuine redundancy: There was (similarly, in the end) no dispute between the parties, and I otherwise conclude, that this application does not turn on questions concerning whether the termination of employment was a case of genuine redundancy.
With those foregoing findings as the initial matters required by s.396 of the Act to be decided, I turn next to s.386 of the Act. Here, the applicant contended the termination of employment involved a dismissal within the meaning of s.386(1)(b) of the Act, whereas the respondent contended that was not the case. Relevantly, s.386 of the Act provides the following meaning of “dismissed”:
“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. …”
In a recent decision, Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mossman v Shahin Tavassoli[2017] FWCFB 3941 (“Tavassoli”), the Full Bench commented as follows:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW [Fair Work] 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 probably 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.
[48] …
[49] We do not consider it is particularly helpful in applying s.386(1) to refer to the concept of “constructive dismissal” - an expression nowhere used in the FW Act. In saying this, we acknowledge that the expression has been used in a number of the authorities and also in the passage from the explanatory memorandum earlier quoted. However, as explained by Greg McCarry in his 1994 article “Constructive Dismissal of Employment in Australia” the concept of “constructive dismissal” in UK law was not a development of the common law, but rather a description of a statutory extension to the ordinary meaning of dismissal to encompass a situation where “the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct”. That is a much wider concept than just “forced” dismissal and is conducive of confusion, as McCarry warned:
“If the forced resignation is now to be regarded as a dismissal, at least under some statutes, then so be it. But it is not and should not be called a “constructive dismissal”, nor should that term come to be regarded as a separate concept in its own right, as may be happening. To regard “dismissal” as including constructive dismissal without the aid of a definition of extension is reading a lot into a statute by English and Australian standards of statutory interpretation, although as we shall see American courts have had no trouble doing just that. Moreover, unnecessary or loose use of the phrase “constructive dismissal” brings with it the inevitable, and erroneous, tendency to draw on English judicial pronouncements and examples which arise in the quite different situation adverted to earlier. Given the way the extended definition in England is to be interpreted, all kinds of breaches of contract and repudiatory conduct, as determined by the common law rules, can legitimately come within the statutory extension. There are good reasons for arguing that similar definitions should be inserted into our statutes, but at the moment they are not there. So care is needed that decisions on the English regime are not misunderstood or misapplied.”
[50] In the different statutory context of the NSW unfair dismissal scheme in the Industrial Relations Act 1991, a Full Bench of the Industrial Relations Commission similarly warned in Allison v Bega Valley Council, in relation to forced dismissal, that the term “constructive dismissal” could “deflect attention from the real inquiry ... Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?” In the current statutory context of s.386(1), the breadth of the concept of “constructive dismissal” may cause confusion and deflect attention away from whether a dismissal within the meaning of paragraph (a) or paragraph (b) is being considered. That occurred in this case.” (endnotes not reproduced)
Here, as I have noted earlier, the submissions for the applicant were that she was dismissed within the meaning of s.386(1)(b) of the Act – namely, where “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.”
On what was before me the applicant did not resign from her employment in circumstances where she was forced to do because of conduct, or a course of conduct, engaged in by the respondent. To borrow from what was said by the Full Bench in Tavassoli at paragraph [53], no conduct on the part of the respondent could be considered as having the intended or probable result of terminating the employment such as to leave the applicant with no choice but to resign, because there was no such conduct. The respondent determined for exigencies associated with operational reasons - its operations had outgrown the former site - to relocate from Macquarie Park to Glendenning; and it wished to keep the applicant’s employment on foot. At one point, for example, the respondent’s solicitor advised “[The respondent] has neither the wish nor the intention to make your client’s position redundant, in fact our client urgently requires your client to return to work.”
There was competing evidence in the parties’ cases about the additional travelling time that would have been involved for the applicant, with the respondent’s Google maps-type estimates differing from the applicant’s evidence about what I might describe as her own road-runs in connection with the preparation of evidence for these proceedings. As a minimum, it seems the additional travel between Macquarie Park and Glendenning was approximately 34km each way, with the additional travel time involved being a variable depending on traffic conditions. I am not unsympathetic to the applicant’s concerns about the impact of the additional travelling time that the relocation would have entailed for her. Regardless of the precise amount of travelling time, undoubtedly additional travelling time - and unpaid time at that - would be involved with its consequential impact on work/life balance.
The evidence indicated, nonetheless, that the applicant’s concerns about the exigencies in such respects would have been allayed – sufficiently allayed, at least, for her to agree to relocate - if the respondent had been prepared to agree to provide a company car to the applicant for her exclusive use. The respondent would not, however, agree to the applicant’s proposal that she be provided with a company car for her exclusive use in connection with the relocation (and none of the other employees refused to relocate, and some live as far away or further from the new premises as the applicant). Moreover, the applicant’s concerns were not allayed by the respondent’s alternative proposals including arrangements such as defraying certain costs (at least as an interim measure) through the payment of road tolls, fuel costs or the like in connection with use of her private vehicle. Issues about what was contended to be the objective unreasonableness of the respondent’s expectation that the applicant should relocate to the new premises tend to fall away somewhat when considered in the context of the applicant’s preparedness to undertake additional work-related if commuting under arrangements using a company car for her exclusive use as opposed to undertaking such commuting in her private vehicle.
Conclusion
It is a jurisdictional prerequisite in relation to an application and unfair dismissal remedy that the applicant had been dismissed. That is, s.385 of the Act specifies that a person has been unfairly dismissed if the Commission is satisfied, among other matters, that the person has been dismissed; and the meaning of “dismissed”, in this application, arises for consideration in the context of s.386(1)(b). A consideration of the evidence does not lead me to the view that the applicant was, within the meaning of the Act as considered in the context of the analysis by the Full Bench in Tavassoli, dismissed.
In view of my acceptance of the respondent’s jurisdictional objection to the application, the application is dismissed. An order dismissing the application issues separately.
COMMISSIONER
Appearances:
T. Howard, solicitor, for Sephide Ghate.
D. Chin of counsel, for Winder Controls Australia Pty Ltd T/A Winder Controls.
Hearing details:
2017.
Sydney:
November 7.
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