Shirley Yuk Lin Ho v Pharmacia Group Pty Ltd
[2022] FWC 2614
•4 OCTOBER 2022
| [2022] FWC 2614 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Shirley Yuk Lin Ho
v
Pharmacia Group Pty Ltd
(C2022/5607)
| DEPUTY PRESIDENT DEAN | CANBERRA, 4 OCTOBER 2022 |
Application to deal with contraventions involving dismissal – resignation – no dismissal.
Ms Shirley Yuk Lin Ho (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 to deal with a general protections dispute involving her alleged dismissal by Pharmacia Group Pty Ltd (Respondent).
The Respondent has raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed.
The Applicant does not dispute that she tendered her resignation but claims that either she was dismissed during her notice period or alternatively she was constructively dismissed.
The Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with the dispute about whether her dismissal was in contravention of the general protections provision.[1]
The jurisdictional objection was heard on 30 September 2022. At the hearing Mr Simon Chau (lawyer) appeared with permission for the Applicant and Ms Sherean Bottene (Business Owner) appeared for the Respondent. The Applicant gave evidence on her own behalf and Ms Bottene gave evidence for the Respondent.
Background
The Respondent operates a pharmacy in Kingsgrove, NSW. The Applicant commenced employment with the Respondent on 31 January 2022 as a permanent part-time pharmacist, working three days per week (Monday, Tuesday and Friday).
On 12 July 2022, the Respondent advised its staff of a change to the rosters effective the following week. The changes arose primarily as a result of the resignation of other staff whose shifts needed to be covered. The new roster required the Applicant to work Monday, Thursday (instead of Tuesday) and Friday. It is not in dispute that the roster changes affected most of the staff and were not limited to the Applicant.
On Friday 15 July 2022 the Applicant placed a letter on Ms Bottene’s desk. The letter, headed Letter of Resignation, reads as follows:
“Dear Sherean
Please accept this letter as my notice of formal resignation from the Pharmacist position at Cincotta Discount Chemist Kingsgrove, effective as of 16 July 2022.
I sincerely apologise for the abrupt timing of this announcement, however due to unforeseen circumstances, I have decided to resign.
With your mentorship, this position has been one of my most rewarding work experiences. Thankyou for every opportunity you have given me to pursue my interests in numerous areas. They have prepared me well for the challenges ahead, and I am very grateful.
Please let me know how I can be of assistance during the transition period. I wish you and the company the very best going forward.
Sincerely,
Shirley Ho”
It is common ground that Ms Bottene was not at the pharmacy when the Applicant’s Letter of Resignation was left on her desk and she did not see it until Monday 18 July 2022.
Notwithstanding the Letter of Resignation stated it would take effect the following day, the Applicant attended for work on Saturday 16 July 2022. The Applicant explained that she recorded in the letter the effective date as 16 July 2022 on the understanding that it was the date on which her required notice period commenced.
The Applicant and Ms Bottene spoke on the telephone at the conclusion of the day on 16 July. The Applicant contends that during this telephone conversation she advised Ms Bottene of her resignation and that her last day would be 22 July 2022. She says she was asked if she would be willing to extend her notice period to 29 July to allow the Respondent to find a replacement for her. Ms Bottene disputes that there was any discussion about the Applicant’s resignation during this conversation.
The Applicant attended work on Monday 18 July. While there is a dispute about when the Applicant and Ms Bottene spoke and specifically what was discussed, it is not in dispute that
a.Ms Bottene found the Letter of Resignation on her desk that day;
b.Ms Bottene asked the Applicant whether she would withdraw her resignation;
c.Ms Bottene told the Applicant she could make a temporary change to the roster to accommodate the Applicant’s childcare arrangements (which was the reason she could not commit to working on Thursdays);
d.The Applicant and Ms Bottene discussed possible changes to the roster that may work for the Applicant to allow her to remain employed; and
e.The Applicant agreed to discuss the matter with her husband and advise Ms Bottene of the outcome.
On Tuesday 19 July Ms Bottene sent a text message to the Applicant asking if she had made a decision about revoking her resignation as had been requested by Ms Bottene. The Applicant replied that after discussing the matter with her husband, she had “decided to proceed with resigning”. She went on to write the following:
“The change in the days won’t work for our family, so I will look into jobs that are more suitable. Sorry about that, and thank you for trying to make changes to the roster to make it work for me. I’ll see you on Thursday xx”
Ms Bottene replied to this text message, asking if the Applicant could make 6 August her last day of work, explaining some personal circumstances involving surgery of a family member and saying that she would appreciate the Applicant’s help.
The Applicant replied indicating that 6 August would be OK, adding: “but if I find a job that require (sic) me to start earlier, I won’t be able to work. Hope you understand”.
On Wednesday 20 July 2022 Ms Bottene sent a text message to the Applicant indicating that the Respondent accepted her resignation and there was no need for her to do further shifts. She was asked to return her keys etc so that her final payment could be processed.
The Applicant gave evidence that she considered this constituted a decision by the Respondent to terminate her employment.
Ms Bottene gave evidence that on receipt of the Applicant’s resignation on 18 July she attempted to find a way to keep the Applicant employed, including by requesting that she withdraw her resignation and looking at alternatives within the roster that might work for the Applicant.
Ms Bottene also gave evidence, which was disputed by the Applicant, that she asked the Applicant whether she would enter into a “locum contract” to cover some shifts, but no agreement was reached. Ms Bottene said that because she needed to cover all shifts with certainty, she decided to find someone else because the Applicant was unable to commit (as was clear by her text message on 19 July).
Submissions
The Applicant submitted that the required notice period under the relevant Award was one week. The result of the Applicant being agreeing to work what was in effect a two week notice period (ie until 29 July) meant “it was not open for the Respondent to either to terminate the Applicant’s employment earlier than 29 July 2022 except in accordance with the Act and the Award”.
The Applicant further submitted that by purporting to accept her resignation “effective immediately”, the Respondent terminated her employment. This was because it was not open to the Respondent to accept any earlier resignation after entering into an agreement with the Applicant for a two week notice period.
The Applicant contended that her text message indicating she would be proceeding with her resignation was little more than an indication that she did not wish to continue with her employment beyond 29 July 2022. She also contended that her inability to give a firm commitment to work until 6 August resulted in the Respondent electing to terminate her employment prior to 29 July 2022.
In the alternative, the Applicant contended that she was constructively dismissed. The submissions in this regard were that “the Respondent’s refusal to address or negotiate the concerns raised by the Applicant regarding her roster and childcare, as well as incidents referred within the application were the driving factor in the Applicant’s resignation”.
The Respondent’s submissions were simply that the Applicant resigned and had not been dismissed, that attempts had been made to have her withdraw her resignation, and that the Applicant had decided to proceed with her resignation despite those efforts which the Respondent subsequently accepted.
Legislation and Case Law
The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states:
(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 Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[2] (Bupa), a Full Bench of the Commission examined the relevant authorities at great length and summarised the definition of ‘dismissed’ under s.386(1) 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.
In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[3] Deputy President Sams, in considering the issue of ‘forced resignation’, cited the principles set out by Roberts C in Daffey v MSS Security Pty Ltd[4]. Of particular relevance to the present case are the following:
“In the case before me, Mr Daffey maintains that subsection 386(1)(b) applies in his situation.
Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. “Initiative” is relevantly defined in the New Shorter Oxford Dictionary as:
“initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.”
This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) where at p205 a Full Court of the Industrial Relations Court of Australia said, “… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”
In Mohazab, the Full Court also said:
‘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.’
The reasoning in Mohazab was adopted by Full Benches of the Australian Industrial Relations Commission (AIRC) in Essential Personnel Pty Ltd v Wray, Ngo v Link Printing Pty Ltd and Beck v Castran Gilbert Real Estate Pty Ltd, amongst others.
A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said, ‘We do not doubt that Mr Stubbs believed he had good reason to resign. However, the fact that an employee has good reason to resign does not of itself establish that the employment is not voluntarily left by the employee. To constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...’[Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].’
A Full Bench of the AIRC in ABB Engineering Construction Pty Limited v Doumit said:
‘Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. 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.’
The Full Bench went on to cite:
‘… in Minato v Palmer Corporation Ltd where Murphy JR referred to a number of cases dealing with the situation where "special circumstances" arise. He referred in particular to a UK decision where Wood J stated:
If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant …These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objective.’
In Pawel v Australian Industrial Relations Commission (Pawel) Dowsett J said:
‘When an employee resigns, he or she has usually reached a decision, taking into account many factors. Some may be entirely personal and unrelated to any "misconduct" on the part of the employer. An employee may resign because he or she has been passed over for promotion, has not received a pay increase, has a more attractive job offer or, as in the present case, finds aspects of his or her work uncongenial or undesirable. There can be any number of reasons for an employee to feel dissatisfaction, and there is always the possibility that it will lead to resignation. That dissatisfaction will often have been arguably caused (in part or in whole) by a decision or decisions of the employer. If "initiative" implies only causation, it will usually be arguable that the employer has "initiated" the termination. Although it may be good managerial practice to offer job satisfaction, it cannot be guaranteed. Many dissatisfied employees resign. The process prescribed in Division 3, which depends on termination, is too cumbersome to have been intended to resolve issues of that kind. I do not accept that any employee whose decision to resign was, to some extent, motivated by action or inaction on the part of the employer, may initiate proceedings pursuant to subs 170CE(1). Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer.’
In P O’Meara v Stanley Works Pty Ltd (O’Meara), a Full Bench of the AIRC said:
‘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 to 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.” 32 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.’
The decision in O’Meara was followed by her Honour Senior Deputy President Marsh in Beverley Hardcastle v C A Hill & Associates Pty Limited.
His Honour Senior Deputy President Richards in Hastie v Impress Australia Pty Ltd (Hastie) considered the question of constructive dismissal under previous legislation. His Honour considered the previous case law on ‘forced’ resignation and his decision is worthy of inclusion at some length in this decision:
‘It appears to me that the authorities in this area prior to the commencement of the Workchoices legislation sought to differentiate cases which attract the jurisdiction under Part 12 of the Act and those that do not. That is, it happens, that the authorities seek to distinguish between cases in which, on one hand:
• the employer’s conduct has some degree of standing in the causal chain that brings about the resignation; but
• where the employer’s conduct did not otherwise seek to bear oppressively upon the employee’s volition (either intentionally to bring about the resignation or by some other oppressive or repugnant conduct such that the resignation was the probable result); and on the other hand, where the employer’s conduct:
• has as its intention the goal to bring about the resignation directly; or
• in all probability resulted in the resignation, for reason of its particular oppressive or repugnant character and/or its impact upon the employee’s volition.
It is only when these latter circumstances are met that it can be said that the employer’s conduct or course of conduct was the principal operative reason for the resignation, such that the termination can be said to have been at the initiative of the employer.
The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.
If this were not the case, then it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignations which are the result of the conduct of the employer. This is because, for all practical purposes, most decisions by an employee to resign their employment arise from the conduct of the employer, in some manner or form. That is, employer conduct is causally responsible at some level for most resignations.
But not all the species of the conduct of an employer have the probable result of the employee’s resignation or make the resignation, on an objective view, a reasonable response to the employer’s conduct. It is only a sub set of employer conduct that ought to attract the remedy against a harsh, unjust or unreasonable termination of employment based on a termination at the initiative of the employer.
…
To describe the conduct of the employer as forcing an outcome suggest that the conduct in some manner or form compelled or mandated or obliged or necessitated the resignation of the employee. These seem to be the common dictionary meanings of “forced”.
In a narrow sense, no resignation is ever forced unless there is some observable physical intervention by the employer. Consequently, all resignations are likely to be voluntary, in a narrow sense. Such was commented on by Dowsett J in his minority decision in Pawel v Advanced Precast Pty Ltd:
“As to ‘compulsion’, it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee’s head.”
That said, to describe an employer’s conduct as forcing a resignation does not demand a narrow reading such as this. Force may be applied in a physical sense, as Dowsett J describes it, or else it may be applied indirectly, by the conduct or the course of conduct by an employer which makes an outcome. Of course, many such examples of such conduct might be provided, and a person may be forced or compelled to adopt a course of action by a variety of actions taken by their employer.
Generally, the exercise of force may take many forms, and there is little point in exploring these in detail. But common manifestations of ‘force’ will always exhibit an outcome in which a person acts contrary to their desired intention, and because of the conduct of another person that was directed at or towards them.
I do not think the definition should be limited to cases in which an employee can demonstrate that the employer took positive action of some kind that was motivated to bring about the resignation, though many cases no doubt will fall into that category. The conduct of an employer, wilful or not, may nonetheless generate circumstances in which the resignation of an employee was the probable result.
It would appear to me, then, that on an ordinary or natural reading of the term “forced”, an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonable probable response to the circumstances the employee faced at the time.’” (citations omitted)
Consideration
I find that the Applicant resigned freely and of her own accord. She was not dismissed within the meaning set out in s386(1) of the Act, in that she was not dismissed at the initiative of the Respondent, nor was she forced to resign because of conduct engaged in by the Respondent.
So much is clear from the Letter of Resignation and the Applicant’s own witness statement and oral evidence. There is no doubt that the Respondent asked her to withdraw her resignation and made attempts to find a solution to the roster changes that might work for the Applicant. The Applicant acknowledged in writing the Respondent’s attempts to make changes to the roster to “make it work” for her.
There is no evidence to support a finding that the resignation was given ‘in the heat of the moment’. The Letter of Resignation demonstrates that her resignation was a considered decision and was clearly intended to convey a real intention to resign. The Applicant was asked to withdraw her resignation but declined to do so, having had the opportunity to consider the request and discuss it with her husband.
There is no conduct engaged in by the Respondent which could objectively give rise to a finding that such conduct was intended to bring the employment to an end. In fact, the opposite is true in this case as already discussed.
It was open to the Respondent to accept the Applicant’s resignation and not require her to work out her notice period. While I make no findings in this regard, the Applicant’s case, at its highest, is that she may have been entitled to payment of the balance of her notice period, whatever that might be. Either way, I do not accept that the Respondent’s acceptance of her freely given resignation constituted a termination of the Applicant’s employment at the initiative of the Respondent.
This application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
S Chau of Carthew Chau & Co for Shirley Yuk Lin Ho.
S Bottene, for Pharmacia Group Pty Ltd.
Hearing details:
2022.
By telephone:
September 30.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
[2] [2017] FWCFB 3941.
[3] [2012] FWA 2473.
[4] [2011] FWA 3983.
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