Sharlene Ryan v ISS Integrated Facility Services Pty Ltd T/A ISS Facility Services

[2014] FWCFB 8451

[2014] FWC 5714 [Note: An appeal pursuant to s.604 (C2014/1747) was lodged against this decision - refer to Full Bench decision dated 27 November 2014 [[2014] FWCFB 8451] for result of appeal.]

DECISION

Fair Work Act 2009 s.394—Unfair dismissalSharlene Ryan
v
ISS Integrated Facility Services Pty Ltd T/A ISS Facility Services
(U2013/17067)

DEPUTY PRESIDENT MCCARTHY PERTH, 29 AUGUST 2014

Application for relief from unfair dismissal.

Background

[1] This matter concerns an application for Unfair Dismissal Remedy (the Application) lodged by Mrs Sharlene Ryan (the Applicant). The Applicant claims that she was unfairly dismissed from her employment with ISS Integrated Facility Services Pty Ltd T/A ISS Facility Services (the Respondent).

[2] The Respondent asserts that the Applicant is not protected from unfair dismissal. They argue that the Applicant resigned from her employment with the Respondent on 28 November 2013.

[3] The Fair Work Act 2009 (the FW Act) provides in that regard at s.386(1) that:

(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.

[4] Due to the interrelated nature of the disputed facts concerning whether the Applicant was dismissed and if she was dismissed whether the dismissal was unfair I decided to conduct a hearing to deal with the facts regarding both the jurisdictional issue and the merit of the Application concurrently.

[5] The Applicant was employed by the Respondent in April 2008. Another employee, Ms Natasha Piwowarski was appointed as a casual reliever in August 2009. In November 2009 the Applicant was appointed to the position of Manager of the Post Office at Pannawonica. Ms Piwowarski was then, in November 2009, appointed part-time to the role of Post Office Assistant.
[6] Throughout the period from November 2009 the Applicant says she was concerned about Ms Piwowarski’s performance.

Ms Piwowarski’s evidenced that the Applicant had harassed and bullied her throughout much of her period of employment. Ms Piwowarski’s concerns resulted in her formally complaining on 20 November 2012.

It seems that the consequences of the Applicant’s concerns about Ms Piwowarski’s performance and the complaint by Ms Piwowarski and how both issues were dealt with by the Respondent gave rise to the severing of the employment relationship. What first needs to be determined is whether that severing was a dismissal or not.

Importantly this Application is not concerned with determining whether Ms Piwowarski was harassed and bullied. Nor is it concerned with determining whether the performance of Ms Piwowarski was satisfactory. Whilst both of those matters are inherently interwoven with the facts relating to the Application, and are therefore unavoidably related to the events that occurred such that they require some mention and attention, they are not matters that need to be determined one way or the other here.

The Evidence and the Facts

It does not appear to be in dispute, and in any event it is obvious, that the relationship between the Applicant and Ms Piwowarski was what the Respondent described as “problematic”.

As early as February 2010 the Applicant approached managers and raised some concerns regarding Ms Piwowarski. In 2010 both the Applicant and Ms Piwowarski were involved in counselling regarding the relationship but apparently it did not resolve their differences. It seems for the period since that time the relationship did not improve.

On 25 October 2012 the Applicant met with her managers regarding Ms Piwowarski’s performance and her conduct. The Applicant stated that on the previous day she had “had words” with Ms Piwowarski after “she had been very rude to [her] in front of a customer and shouted at [her] when[she] tried to help her solve a problem”.

On 20 November 2012 Ms Piwowarski lodged a formal complaint alleging bullying and harassment by the Applicant. In Ms Piwowarski’s evidence she states that:

“4. For the three years following October 2009, I experienced regular bullying and harassment from Ms Ryan. This behaviour included:

(a) a failure to provide proper supervision and training in my duties and then complaining about my performance to ISS management and customers;
(b) using demeaning language to me and to others about me;
(c) pulling faces behind my back in the view of customers;
(d) providing inconsistent instructions and blaming me for errors or problems that were not my fault;
(e) unwarranted scrutiny and criticism of my work;
(f) ignoring me at work; and
(g) unpredictable moodiness and verbal intimidation.

5. ... In or about November 2012, Ms Ryan was absent from work for a period due to what I believe was a workers compensation claim. During this period I complained to the site manager Clinton White regarding Ms Ryan’s conduct. Mr White advised me that Nerida Robertson, Regional Human Resources Manager was coming to the site the following week and referred my complaint to her. I subsequently met with Ms Robertson and detailed my complaint to her and advised I did not wish for Ms Ryan to return to the Post Office as I felt I could no longer tolerate her behaviour. I also advised Ms Robertson that I did not wish to be transferred away from the Post Office and felt it would be unfair if I was moved given Ms Ryan’s behaviour.

6. I understand from Ms Robertson and Matt Dixon from the Australian Workers Union, that Ms Ryan was transferred away from the Post Office in order to address my complaint. I was satisfied with this outcome and continued to perform my role at the Post Office under the management of Margaret Stevens, Retail Manager.

7. In or about April 2013, Ms Robertson contacted me regarding my complaint, advising Ms Ryan was disputing it and asking whether I was willing to work with her. I explained that I would not be comfortable with Ms Ryan returning to the Post Office as I did not believe her behaviour would improve if she was disputing my complaint.

8. In or about June or July 2013, I had a period of annual leave and Ms Ryan covered my absence at the Post Office. On my return from annual leave, Dan Holman, Site Manager and Ms Stevens advised me that Ms Ryan would be returning to the Post Office and that if I didn’t want to work with her, I could be transferred to the supermarket or another location. I immediately called Ms Robertson and Mr Dixon to voice my displeasure at this change to the previously agreed outcome regarding my complaint and explained I would not be comfortable working with Ms Ryan and had no desire to move to an alternate role or location. As a result of Ms Robertson and Mr Dixon’s intervention, no change was made to my working arrangements and Ms Ryan did not return to the Post Office.”

The Applicant evidenced that on 20 November 2012 just after midday she was called to a meeting in Mr Clinton White’s office. Mr White was the Site Manager. Ms Nerida Robertson and Mr Neil Delaney, Senior Contracts Manager, were also at the meeting. The Applicant was told that due to the complaint of bullying against her by Ms Piwowarski that she was going to be transferred to work in the Bank agency. The Applicant asserts that she was stood down from work on that day. At this meeting the Applicant asserts that she was told:

“... that there was a complaint made by Natasha. I was shocked to hear this and I asked what the complaint was regarding. Nerida said that I was bullying Natasha and this is a serious matter. Nerida then went on to say that I would no longer be working in the post office and that I would be going to work in the ANZ Bank.”

The Applicant also evidenced that at that meeting:

“... She [Ms Robertson] then said no she does not want to hear my story. I asked why and I said that’s it’s unfair as it’s one sided which Nerida then said that there’s too much water under the bridge and because I’m classed as the aggressor that I must move out of my work place. I was crying and upset at this stage was told to go home and take the next day off and to think about the new job offer.”

A further meeting was held with the Applicant and her husband on 21 November 2012 and Ms Robertson and Mr Delaney where the complaint and transfer to the bank agency were confirmed. On 22 November 2012, Ms Robertson emailed the Applicant and provided details of the bank manager role which was to commence Monday 26 November 2012.

The Applicant did not attend for work on 26 November 2012. On 29 November 2012 a further meeting was held and attended by the Applicant and her husband, together with a Union representative and Mr Delaney. It is not disputed that the Applicant was told at that meeting that she would have to move from the Post Office. The Applicant alleges that she requested details of the bullying complaint at that meeting but those details were refused to be provided.

The Respondent asserts that it took the decision to move the Applicant because of the serious emotional state of Ms Piwowarski and a risk to her welfare. No evidence was provided to support their views about Ms Piwowarski.

The Applicant did not attend for work during December 2012 nor January or February 2013. She recommenced work on 11 March 2013 providing general administrative support across all of the services at Pannawonica to Mr Daniel Holman, who was responsible for contracted services and financial management at Pannawonica. The Applicant then spent six weeks working in the Post Office whilst Ms Piwowarski was on leave. Ms Piwowarski returned from leave on 8 July 2013.

On 11 July 2013, the Applicant says she was told by Mr Holman and Ms Margaret Stevens (the Retail Manager) that it was intended that she return to work in the Post Office. But then on 12 July 2013 she was told by those same persons that she would not be returning to work there. Mr Holman evidenced that he and Ms Stevens advised the Applicant at that meeting that they “were unable to proceed with moving the Applicant back to the Post Office” due to “a previous resolution with the union.”

Mr Holman’s account of that exchange was as follows:

“13. Later on 11 July 2013, sometime after meeting with Ms Piwowarski, I was contacted by Matt Dixon, union official from the Australian Workers Union and Ms Robertson, to whom Ms Piwowarski had complained about our intention to appoint the Applicant as the Post Office manager and offer Ms Piwowarski redeployment. As a result of those discussions I was advised that our intended changes at the Post Office could not proceed as they were contrary to the resolution agreed previously and that Ms Piwowarski would not be required to transfer to an alternate location.”

With respect to the so-called resolution Ms Stevens evidenced that:

“My understanding was that the union had made the decision that [Ms Piwowarski] was to remain in the post office and therefore we could not put the two - [Ms Piwowarski] and [the Applicant] together.”

On 17 July 2013, the Applicant says she was then told that she would be working in the supermarket on the cash register. The Applicant says that she did not like that work and thus after 22 July 2013 “did not go into work but continued to try and have the complaint against me [the Applicant] resolved”.

Mr Holman then evidenced that “shortly after this, the Applicant provided a medical certificate that she was unfit for duty and did not return to work”.

The Applicant wrote her letter of resignation on the 28 November 2013.

Consideration and Findings

The first issue to determine here is whether the Applicant resigned from her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent. Essentially, did the Applicant have any other course of action other than to resign?

The Respondent argues, and I accept the argument, that they had a right to transfer the Applicant in her employment. That however is not the issue here. The issue here is the reasons for transferring the Applicant and in the manner that she was transferred, was the Respondent creating a situation where the Applicant had no other course other than to resign.

It is clear that the Applicant was a conscientious worker, competent and was endeavouring to pursue the best interests of the Respondent by dealing with an employee that reported to her by trying to improve her conduct and performance. It could easily be perceived to be a circumstance where the Applicant’s reward for furthering the Respondent’s interests was to be transferred herself, thus giving every appearance of rewarding an underperforming employee who complained.

This matter is not concerned with the fairness of the transfer, but rather whether the dismissal was forced. An apparent unfairness in treatment does not in itself create a forcing of resignation. Clearly the Applicant could consider herself unfairly treated but that did not, in my view, create a circumstance where she had no other option but to resign, or was forced to resign. In short I find that the Applicant was not forced to resign.

I therefore find that the termination of employment of the Applicant was her own decision and not one forced upon her. Thus, the Applicant is precluded from making an application of this nature. The Application that was made is dismissed for that reason.

DEPUTY PRESIDENT

Appearances:

P Mullally of Workclaims Australia for the Applicant.

J Moore for the Respondent.

Hearing details:

2014.

Perth:

May 20.

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