Sidney Dee Riley v Mills Hotels Pty Ltd
[2023] FWC 856
•11 APRIL 2023
| [2023] FWC 856 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sidney Dee Riley
v
Mills Hotels Pty Ltd
(U2022/12200)
| DEPUTY PRESIDENT LAKE | BRISBANE, 11 APRIL 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – applicant resigned – show cause process – no final outcome – not forced to resign by the Respondent - application dismissed.
Ms Sidney Riley (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which her employment ended with Mills Hotels Pty Ltd (the Respondent) constituted a dismissal, and was harsh, unjust, or unreasonable.
The Applicant commenced employment with the Respondent on around 1 May 2021 and her employment came to an end on 6 December 2022. The Respondent raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed, submitting that she voluntarily resigned on 5 December 2022.
It is not in dispute that the application was made within time (s.396(a)); the person was protected from unfair dismissal (s.396(b)); the Small Business Fair Dismissal Code does not apply (s.396(c)); and the dismissal did not involve a genuine redundancy (s.396(d)). These matters were not raised by the parties, and I find that these issues are not a point of contention.
The pertinent question is whether the Applicant was dismissed within the meaning of the Act, in circumstances that constituted constructive dismissal. The Applicant also raised in their submissions, arguments which go to the merits of the dismissal – these were not considered for the purpose of this decision, given its jurisdictional scope.
Directions were set for the filing of material and the matter was dealt with by way of hearing by telephone on 3 March 2023. The Respondent filed their submissions on 16 February 2023. The Applicant filed their submissions on 23 February 2023. The Applicant sought permission to be represented by lawyers.
Granting permission to be represented under s.596 requires the satisfaction of two elements.[1] The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3] In this matter, I am satisfied of the above and permission was granted to Mr Dane Lang of Lewis & McNamara Solicitors.
The Respondent was represented by Ms Melissa Butters of the Queensland Hotels Association Union of Employers. As such, the Respondent did not need to seek permission pursuant to s.596(4)(b)(ii) of the Act.
Submissions
Applicant’s submissions and evidence
In summary, the Applicant submits they were forced to resign within the meaning of s.386(1)(b) of the Act as they assert they were bullied over a period of time and they had reported the instances to the general manager, Mr Carter, but received no assistance. The bullying continued which resulted in the Applicant’s resignation.
On 3 December 2022, the Applicant was working in the bar and stated that a duty manager was standing over her and being verbally abusive.
This was reported to the Respondent’s general manager immediately in a call and the general manager instructed the Applicant to go home and that they would discuss the issue the following day.
A meeting took place between the Applicant and Mr Carter two days later on Monday, 5 December 2022. The Applicant believes that at that meeting, Mr Carter did not consider her complaint and says she was spoken over when trying to respond to questions.
The Applicant had prepared a letter of resignation prior to the meeting and provided it to Mr Carter when she had determined that she would not be assisted in relation to her complaints and would continue to be subjected to bullying by managers.
That letter outlined the reasons for the Applicant’s resignation, being her treatment by her duty managers and lack of improvement in working conditions.
The Applicant gave notice of an intention to resign in the future and advised that she was available to work until 26 December 2022 in her letter of resignation, but Mr Carter advised the Applicant in the meeting on 5 December 2022 that she would not be rostered for any further shifts.
Mr Carter sent the Applicant correspondence terminating the Applicant’s employment on 6 December 2022 which brought the end date for the Applicant’s employment forward.
In support of the Applicant’s submission that she was dismissed within the meaning of s.386(1)(b), the Applicant relied on the general principles applied in Mrs Kerri Trail v O’Brien Group Australia (Trail):[4]
“… the general principles to be applied in this case are well settled. Stated succinctly, they include:
· the question as to whether the resignation was forced within the meaning of the Act is a jurisdictional fact that must be established by the applicant;
· a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
· the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
· conduct includes an omission;
· considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
· in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.”
In Trail, an employee was dismissed by way of a forced resignation in the context of a course of conduct by the employer which included failing to provide the employee with procedural fairness and ostracising the employee.
The Applicant submits that the Respondent’s conduct (including omissions) was the principal factor in the Respondent’s termination.
That conduct included the Respondent’s general manager failing to address the Applicant’s concerns. This resulting in an unsafe workplace that the Applicant could no longer work in.
In circumstances where the Applicant felt that she would not be safe at work and that she could not rely on the Respondent to address her concerns, she had no effective or real choice but to resign.
The Applicant gave her own evidence and provided two additional witnesses being her sister, Ms Katelin Singh, and her sister-in-law, Ms Samara Hadley.
The Applicant in her evidence recalled three prior incidents where she asserts that the duty managers and staff were disrespectful, raised their voices, and bullied her.
(a)In or around August 2022, the Applicant made a joke about Mr Jack Grainger (a duty manager) being moody. Mr Grainger misunderstood the joke, got “up in her face”, and started yelling down at her, making her scared. The Applicant apologised to Mr Grainger later, but he responded by threatening that if it happened again, he would cut the Applicant’s shifts and fire her.
(b)In or around September 2022, Mr Keil Skamperle (a duty manager) asked the Applicant to fill fridges. She filled the fridge as she was directed. However, Mr Skamperle, after looking at the fridges, referred to her work as “pathetic”. He said, “you call that full?” And told the Applicant to do it again and fill it properly this time which required her to fill the fridge with partially used six packs, contrary to how she was trained and directed.
(c)A couple of weeks prior to the end of her employment, Mr Skamperle swore at the Applicant and abused her for ordering food from the bistro. The Applicant asserts this is common practice for staff members to order dinner as takeaway to take home after their shift. The ordered food incorrectly came on a plate, which resulted in Mr Skamperle yelling, “you cannot get fucking food on your shift”. The Applicant attempted to explain that she was attempting to get takeaway for when she was finished but Mr Skamperle did not listen and stated, “well never fucking do this again”.
(d)The Applicant could not recall specifically but Mr Skamperle had called the Applicant “useless” or “pathetic”. She also felt that she was regularly singled out to do jobs that others could do but did not want to do.
(e)She tried raising these concerns with Mr Carter but did not feel that he would assist her. Specifically, she spoke to Mr Carter about the incident with Mr Grainger. Mr Carter stated that he would “sort it out” but the Applicant saw no change from Mr Grainger until a regular customer addressed the way Mr Grainger treated the Applicant.
(f)The Applicant asserts that it was not possible to speak to Mr Carter about other incidents as she works night shifts and Mr Carter was not at the hotel or was finished his shift and drinking at the bar with regular customers. On one occasion she attempted to speak with Mr Carter, Mr Carter was drinking with regular customers and when she approached him he immediately began telling the customers that she was one of his favourite workers and was doing an amazing job.
Regarding the incident in contention, the Applicant gave further evidence.
(a)On Saturday, 3 December 2022, the Applicant began working a shift in the bar.
(b)At 6:30pm, Mr Grainger approached with a tray of cutlery. He asked the Applicant to roll the cutlery with napkins and the Applicant could see that there were two staff in the bistro who did not have anything to do. The Applicant informed Mr Grainger that she was busy filling fridges and asked why the bistro staff could not roll the cutlery. Mr Grainger left with the cutlery tray.
(c)The Applicant was still working on the wine fridge when Mr Skamperle returned with the cutlery tray. Mr Skamperle stood over the Applicant and blocked her way out of the fridge. Mr Skamperle aggressively told the Applicant to stop what she was doing and roll the cutlery. Ms Hadley offered to do it, but Mr Skamperle stated that it had to be the Applicant. The Applicant began rolling cutlery and Ms Hadley assisted to get it done quickly.
(d)Mr Skamperle returned and told the Applicant she was rolling cutlery incorrectly despite rolling it the same way it was always done. Mr Skamperle stated in an aggressive tone that her work ethic was pathetic and useless. The Applicant responded saying, “really?” Mr Skamperle replied saying “yes”.
(e)The Applicant did not feel safe. She felt she was being targeted by Mr Skamperle. She left her shift and Mr Skamperle asked if she was returning or if she was quitting. She replied that she did not know.
(f)The Applicant called Mr Carter and told him about the incident and that she had walked out. Mr Carter replied that that’s no reason to leave and asked the Applicant to return. The Applicant apologised and told him that she could not, stating, “I’m sorry for my language but Kiel [Mr Skamperle] is being a cunt”. Mr Carter told the Applicant to calm down and go home and that they would talk tomorrow.
(g)Prior to the meeting, the Applicant decided that she could not work at the hotel anymore because the duty managers regularly targeted her, used abusive language, and this was not being addressed by Mr Carter. She typed up a resignation letter to provide to Mr Carter.
(h)Mr Carter was unavailable on Sunday, 4 December 2022, so the Applicant met with Mr Carter on Monday, 5 December 2022. The Applicant explained what had happened on 3 December 2022 and Mr Carter replied that this is not what he heard from Mr Skamperle. She was told that he had already cut hers and Ms Hadley’s shifts and could have them easily replaced. When the Applicant tried to speak up, she was cut off by Mr Carter. The Applicant then handed the resignation letter to Mr Carter.
In the Applicant’s cross-examination, the Applicant conceded that she was aware that complaints made under the workplace harassment policy were required to be in writing. She confirmed that all her complaints were verbal and to management working being Mr Carter. She was unable to provide any evidence to support her allegations or complaints. Regarding her resignation letter, she confirms that the resignation was not made in the heat of the moment. She asserts that she did not make the decision to resign until the end of the meeting.
Ms Katelin Singh provided the following testimony.
(a)Ms Singh is sister to the Applicant and has been employed with the Respondent as a bartender since April 2021. She has been on maternity leave since October 2022.
(b)She witnessed the Applicant being treated poorly by duty managers while working at the Hotel. She confirms that the prior event between the Applicant and Mr Skamperle where she ordered a meal did occur as the Applicant had attested. Ms Singh also stated that the Applicant was singled out. Shortly after the incident, she witnessed another manager order a meal on shift. She raised this inconsistency with Mr Skamperle who spoke to the manager, but nothing changed.
(c)Ms Singh overheard Mr Skamperle stating “go do your fucking job … go do your fucking job” in response to the Applicant asking a question about rosters.
(d)The Applicant regularly went to Ms Singh about complaints and Ms Singh would go to Mr Carter on behalf of the Applicant. As Ms Singh is the eldest, she believed she had a better chance of being listened to.
(e)Mr Carter would respond to the complaints made on behalf of the Applicant the same way, stating, “you know you are my favourite girls; it will get sorted”. However, nothing would change.
(f)Ms Singh attended a meeting with the Applicant in relation to the incident with Mr Grainger mentioned above. Ms Singh had concerns regarding Mr Grainger that she raised with Mr Carter, but Ms Singh did not witness any changes arising from the meeting.
In Ms Singh’s cross-examination, she confirmed that she did submit complaints on behalf of the Applicant to Mr Carter. She concedes these complaints were made verbally and that she is unable to provide evidence. However, she states that there were multiple meetings and that Mr Carter asked Ms Singh to bring complaints directly to him, so no emails were ever sent.
Ms Samara Hadley provided the following testimony.
(a)Ms Hadley is sister-in-law to the Applicant and has been employed with the Respondent as a casual food and beverage attendant since 23 April 2021 until 6 December 2022.
(b)Ms Hadley was present for the incident on 3 December 2022. She confirms that the incident occurred as stated by the Applicant.
(c)Ms Hadley also left her shift and was with the Applicant when she made the phone call to Mr Carter. She confirms that the telephone call occurred as stated by the Applicant.
In closing, the Applicant contends that she suffered rude and disrespectful behaviour in the course of her employment. She reported these instances of bullying to Mr Carter but received no assistance. She provided her own statement in addition to two other witnesses who attest to Mr Grainger and Mr Skamperle bullying and singling out the Applicant. As a result, she submits that she had no other option left but to resign.
Respondent’s submissions and evidence
It was submitted that the Applicant was not dismissed within the meaning provided by s.386(1)(b) of the Act. The Applicant voluntarily resigned her employment by written notice on 5 December 2022.
The Respondent relies on Mohazab v Dick Smith Electronics Pty Ltd,[5]
“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 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.”
(emphasis added)
Had the Respondent not taken any action in response to the Applicant’s resignation, the Applicant would not have remained in the employment relationship, as she had already provided written notice of her decision to bring the employment relationship to an end.
The Respondent also views the Applicant’s abandonment of her shift on 3 December and failure to attend or notify the employer of an absence on 4 December, demonstrative of the Applicant’s intention to no longer be bound by the contract of employment.
The Applicant initiated the termination of the employment relationship when she resigned her employment on 5 December 2022 and in doing so, the Applicant voluntarily left the employment relationship.
An employer is generally able to treat a clear and unambiguous resignation as a resignation.[6]
It is the Respondent’s view that the Applicant’s actions were demonstrative of her intent to no longer be bound by the contract of employment and of her intention to bring the employment relationship to an end. Had the Respondent not taken any action after receiving the resignation, the Applicant would not have remained in the employment relationship.
The Respondent provided one witness in response, Mr Carter. He provided the following testimony.
(a)On Saturday, 3 December 2022, the Applicant accepted a shift to work at the Hotel. He was not working on that Saturday night.
(b)He received a phone call from the Applicant part-way through her shift. He recalls that the Applicant advised she had walked out and that Mr Skamperle was being a “cunt”.
(c)It was suggested to the Applicant that she take five minutes to settle down and then go back to work. He would look into things on Monday.
(d)Having not been present at the time, Mr Carter was unsure as to what had happened to prompt the Applicant’s phone call but intended to make further inquiries.
(e)On Sunday, 4 December 2022, Mr Carter spoke to Mr Skamperle about what had occurred the previous night. Mr Carter was advised by Mr Skamperle that the Applicant had been asked by Mr Grainger to help fold cutlery for the staff in the Bistro who were busy. The Applicant did not want to fold the cutlery so Mr Grainger spoke to Mr Skamperle who also instructed the Applicant to fold the cutlery. The Applicant pretended to roll the cutlery and “mucked around”. Mr Skamperle spoke to the Applicant about not following instructions and it appeared that was when the Applicant walked out.
(f)Mr Carter was informed that the Applicant had walked back into work and told Ms Hadley that they would both be leaving. Both employees then walked out prior to the end of their shifts.
(g)The Applicant was rostered to work the following day on Sunday, 4 December 2022. The Applicant did not attend her shift and did not notify management that she would be absent.
(h)On Monday, 5 December 2022, the Applicant arrived at the Hotel to meet with Mr Carter with her written resignation letter. Mr Carter recalls that the Applicant wanted to finish in two weeks.
Mr Carter explained to the Applicant that it was not ok that she walked out on her shift and did not show up the following day,
(j)After further consideration and as the venue would be having a seasonal influx over Christmas, Mr Carter needed to source and train new staff up to get through the festive season, it became apparent that the Hotel had no further hours to offer to the Applicant. The Hotel was not in a position to be able to wait until Boxing Day to start looking for new staff to replace the Applicant. Ideally, they would need the new staff to be trained and capable to work independently by Christmas, noting Hervey Bay is a tourist destination and the Hotel gets very busy over the holidays.
(k)On 6 December 2022, knowing that they were not going to be able to offer any further shifts to the Applicant, Mr Carter wrote to the Applicant and confirmed that the Respondent had accepted her resignation of employment with immediate effect.
(l)As a casual employee, Mr Carter understood that the Applicant was exempt from the notice of termination requirements and had no firm commitment to continue work.
In Mr Carter’s cross-examination, he denied that the Applicant mentioned being cornered in the wine fridge on 3 December 2022. He did concede that the Applicant did tell him that Mr Grainger and Mr Skamperle said that she was “pathetic”. Mr Carter stated that he had a meeting with Mr Grainger and Mr Skamperle on 2 December 2022 where he put the Applicant’s version of events to them. When Mr Carter told the Applicant about their version of events, she stated that it “did not matter” and handed Mr Carter her resignation letter. Finally, he stated that he did not check the cameras that exist at the venue, but this was because he was unaware that the Applicant was cornered in the wine fridge. If he was informed, he would have looked at the CCTV footage.
The Respondent asserts that their witness should be preferred on the following grounds:
(a)In response to the evidence provided by Ms Singh, the Respondent asserts that Ms Singh has been on maternity leave. Therefore, her evidence is not current. Further, Ms Singh has been unable to provide evidence of the complaints made on behalf of the Applicant.
(b)In response to the evidence provided by Ms Hadley, the Respondent asserts that Ms Hadley has also been unable to provide evidence of the complaints made on behalf of the Applicant.
(c)Due to the familial relationship the witnesses have with the Applicant, there is some concern as to their credibility.
In closing, the Respondent asserts that it was not a forced resignation, and the Applicant voluntarily left the employment relationship. There was no action on behalf of the Respondent to influence the Applicant’s decision. The Applicant provided her resignation in writing, and she wrote her resignation letter prior to attending the meeting on Monday, 5 December 2022. Mr Carter was in the process of investigating the incident that occurred on Saturday, 3 December 2022 when the Applicant resigned. The Respondent was disappointed that the Applicant resigned.
Agreed Facts
On 1 May 2021, the Applicant commenced casual employment with the Respondent as a food and beverage attendant. It was not contested that she was a regular and systematic employee.
On 3 December 2022, the Applicant worked a shift in the bar area. During the shift, the Applicant had an interaction with management. The events surrounding this interaction are in dispute and each party provided submissions in relation to this. The Applicant called Mr Darren Carter, General Manager of the Respondent, and expressed her concerns regarding the interaction with management. She refused to finish her shift and left the workplace.
On 4 December 2022, the Applicant failed to attend the shift she had accepted and did not notify the Respondent that she would be absent.
On 5 December 2022, the Applicant met with Mr Carter to discuss her concerns. She arrived at the meeting with a letter of resignation. During the course of the meeting, the Applicant gave this letter to Mr Carter. Mr Carter advised the Applicant that she would not be rostered for any further shifts.
On 6 December 2022, Mr Carter sent correspondence to the Applicant confirming the end of the Applicant’s employment.
Legislation and Case Law
Meaning of dismissed
Section 386 of the Act states:
“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.”
Section 386(1)(a) does not apply as the parties agreed that the Applicant tendered her resignation. The question is whether the Applicant was forced to resign because of conduct, or a course of conduct engaged by the Respondent.
The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 is foundational, considering what is classified as a ‘forced resignation’. There it was stated:[7]
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.(emphasis added)
In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench helpfully expounded on Mohazab:
[31] The approach taken in Mohazab that a termination of employment at the initiative of the employer could be constituted by a “forced” resignation was followed in numerous decisions made in respect of the various iterations of the termination of employment scheme in the Workplace Relations Act 1996. These decisions most notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to Mohazab and said:
“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from 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. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”
[32] In the latter decision a Full Bench of the Australian Industrial Relations Commission said:
“[23] ... It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 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.”
[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill…”
(emphasis added)
The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred.[8] Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”[9]
Construction of ‘forced’
The decision of Senior Deputy President Richards in Megna v No 1 Riverside Quay (SEQ) Pty Ltd provides instruction on how to interpret “forced”:[10]
“[14] It seems that the term “forced” is the past tense of the verb form “to force”, and as such, an understanding of the plain meaning of the term “force” is relevant to applying s.642(4).
[15] Relevantly, the Macquarie Dictionary defines “force” as:
… strength or power exerted upon an object; physical coercions; violence … power to influence, affect or control; power to convince … to compel; constrain or oblige (oneself or someone) to do something … to bring about or effect by force; bring about of necessity or as a necessary result … to put or impose (something) forcibly on or upon a person … to press, urge or exert to violent effort or to the utmost …
[16] The term “force” appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purpose. In either case, there is an important element of compulsion present.
[17] In the contextual circumstances now before the Commission, the issue is whether the Applicant herself is able to demonstrate:
· That she did not voluntarily resign her position or employment;
· But that her employer, because of its actual conduct, forced her to do so, such that there was an element of compulsion present.”
(emphasis added)
No effective or real choice but to resign
In determining whether the Applicant was left with “no effective or real choice but to resign”, there are numerous case law examples from which to draw. In Boulic v Robot Building Supplies, it is held:[11]
“[16] From the many authorities on this subject it appears that there must be a “critical action” or “critical actions” of the employer which was intended to bring the “employment relationship” to an end and perhaps action which would on any reasonable view probably have that effect. In identifying both the critical action of the employer and its intent “it is a matter 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 examination of the employer’s conduct must also take into account that the employer is under an implied obligation that it “will not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”
In Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera, Senior Deputy President O’Callaghan stated that there must be consideration of all alternative options available to the employee:[12]
“[28] Whilst in absolutely no way condoning Fingal Glen’s behaviour, I have concluded that the resignation decision was based on Ms Bruce’s perception and a perfectly understandable and subjective response. That resignation decision was not, as of 10 January 2013, the only option open to Ms Bruce.”
In Ashton v Consumer Action Law Centre, Commissioner Bissett considered whether an employee was forced to resign due to supervisory requirements placed on the employee, which he claimed were so onerous that it made his job impossible to do. However, it was stated in that decision that even where an employee believes supervisory requirements to be harsh, it does not mean they are so. Further, it was determined: [13]
“[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.
[60] That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.
[61] In this matter, viewed objectively, the actions of the employer in investigating Mr Ashton’s grievance and/or in instigating higher level supervisory requirements and/or in providing him with a letter outlining specific areas of concern with his performance were not designed to force Ashton to resign.
[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.”
(emphasis added)
In Ms Alys Lloyd v P D Curran Plumbing Pty Ltd, Commissioner Riordan was satisfied that the Applicant was not forced and willingly resigned from her role.[14] There were other avenues available to the Applicant if she truly believed she was being bullied.[15] The Applicant asserted that the Respondent was not dealing with her complaints of bullying. The Commissioner accepted that the Respondent may not be dealing with them in an expeditious manner. However, the Commissioner was satisfied that the Respondent was adopting reasonable management action to ensure that the employees operated in accordance with the Respondent’s policies.[16]
Consideration
I have had regard to all the material and evidence provided by each party and on balance, I am not satisfied with the evidence provided that there was a history of bullying.
It is uncontentious that the Applicant resigned from her employment with the Respondent. Yet, the Applicant asserts that she was forced to resign. My decision is based upon whether the Applicant was dismissed within the meaning of s.386(1)(b) of the Act.
The decision turns on whether the employer’s conduct intended or had the probable effect or result of bringing the employment of the relevant employee to an end, such that the employee effectively had no choice but to resign.
The Applicant asserts that the lack of management action by Mr Carter to protect her from Mr Grainger’s and Mr Skamperle’s targeted bullying is what led to her resignation on 5 December 2022. She provided her own testimony as well as the testimony of Ms Singh and Ms Hadley to validate her allegations. The allegations of bullying raised by the Applicant by the Respondent were:
After much consideration, I find that the Applicant’s witnesses failed to provide evidence to support the claims of bullying to the extent where she was compelled to resign. The Applicant and her witnesses did attest that Mr Grainger and Mr Skamperle did, on occasion, raise their voices, swear at the Applicant, and disparage her work ethic. These actions are not so significant that it could persuade or otherwise convince the Applicant to resign. The Applicant may have been justifiably irate and disgruntled by the way the Duty Managers interacted with the Applicant. However, these actions were not meant to force her resignation.
Regarding the events of the main incident on Saturday, 3 December 2022, the Applicant asserts that she was being singled out by Mr Grainger and Mr Skamperle as she thought the task of folding cutlery should have been assigned to the bistro staff. Mr Carter rejects this claim, stating that the bistro staff were busy and unable to carry out the task. The Applicant provided that she thought the bistro staff were not busy. On balance, the direction given by Mr Grainger was a lawful and reasonable direction noting that the Applicant is a food and beverage waiter and as part of her role, it is not outside of the scope of her duties that she may be expected to roll cutlery. When she refused to fold the cutlery, Mr Skamperle had to ask the Applicant a second time while she was working in the fridge. As Ms Hadley offered to do the cutlery folding, I consider that the direction made by Mr Skamperle was likely quite abrasive considering that Ms Hadley offered to do the cutlery folding around the time the Applicant was asked. However, the request is not conduct which would substantiate that the Applicant was bullied.
The Applicant may not have had the immediate intention of resigning at the meeting on Monday, 5 December 2022. Depending on how the meeting went, one of the possible outcomes envisaged by the Applicant was resignation. This indicates to me that she was not compelled to resign but one that was considered for a period of time between the incident the meeting on 5 December 2022.
I am satisfied that Mr Carter was still looking into the incident that occurred on Saturday, 3 December 2022. He had heard the Applicant’s story and the Duty Managers’ story. He was attempting to obtain more information at the meeting to determine how to handle the situation. Mr Carter noted that he was disappointed that the Applicant resigned. He did not want to see the Applicant gone as he needed her assistance for the festive season. The Respondent did not have the time or resources to find and train a new staff member in preparation for the busy holiday season.
When Mr Carter relayed the information, he had from discussions with Mr Grainger and Mr Skamperle on Sunday, 4 December 2022, the Applicant made the decision to resign from her employment. I do not accept that resignation was the only option available to the Applicant at the meeting on Monday, 5 December 2022, nor the Respondent’s conduct force the Applicant to resign.
Conclusion
Taking into account all of the circumstances and the totality of the evidence in this matter, I am not satisfied that the Respondent’s actions left the Applicant no option but to resign. Ms Riley was not forced to resign because of conduct, or a course of conduct engaged in by the Respondent.
I find that there was not a dismissal pursuant to s.386(1)(b) of the Act.
The application is therefore dismissed. I Order accordingly.
DEPUTY PRESIDENT
[1] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19(3)].
[3] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].
[4] [2021] FWC 4098 at [347].
[5] (1995) 62 IR 200 at 205.
[6] Ngo v Link Printing (1995) 94 IR 375 at [12] citing Kwik-Fit (GB) v Lineham [1992] ICR 183 at [191].
[7] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200, 205-206 (Mohazab).
[8] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].
[9] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[10] PR 973462, 11 August 2006.
[11] Boulic v Robot Building Supplies [2010] FWA 6905, [16].
[12] Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera [2013] FWC 3941, [28].
[13] Ashton v Consumer Action Law Centre[2010] FWA 9356, [59] – [62].
[14] [2022] FWC 71 at [37].
[15] Ibid [34].
[16] Ibid [38].
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