Skye Lillian Baker v The Trustee for the Hotel Property Trust No. 2
[2023] FWC 2377
•14 SEPTEMBER 2023
| [2023] FWC 2377 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Skye Lillian Baker
v
The Trustee For The Hotel Property Trust No. 2.
(C2023/1056)
| COMMISSIONER SCHNEIDER | PERTH, 14 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal
Skye Lillian Baker (the Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving her alleged dismissal by The Trustee for the Hotel Property Trust No 2 T/A Pier 21 Apartment Hotel (the Respondent).
The Respondent has raised a jurisdictional objection to the application stating that the Applicant was not dismissed.
The Applicant does not dispute that she resigned but claims that she was forced to resign from her employment due to the conduct of the Respondent.
The Commission must determine whether the Applicant was dismissed before the matter may proceed.
The jurisdictional objection was the subject of a Hearing on 25 May 2023.
At the Hearing, the Applicant gave evidence on her own behalf and Mr Garry Beadel (Mr Beadel), General Manager of the Respondent, gave evidence on behalf of the Respondent.
Background
The Applicant commenced employment with the Respondent on 23 September 2022 in the position of Guest Service Agent.
The Applicant reported to Vhic Dunn (Ms Dunn or the manager), Front Office Manager at the Respondent.
The Applicant resigned from her employment with the Respondent on 3 February 2023 and her final day of employment was 6 February 2023.
Legislation
Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The meaning of “dismissed” is provided at section 386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
This decision deals only with the jurisdictional objection to be determined.
Submissions
Respondent
The Respondent submits that the Applicant resigned from her employment voluntarily and was not forced to resign from her employment due to any conduct of the Respondent.
The Respondent confirmed that the Applicant had raised concerns over her manager’s conduct on or around 10 November 2022.
The Applicant’s concerns related to comments made by Ms Dunn in relation to her piercings and ordering a uniform for the Applicant which was too large.
The Respondent submits that the manager in question attempted to apologise to the Applicant and the Applicant did not accept the apology.
Mr Beadel provided evidence as summarised below:
·On or around 10 November 2022, the Applicant complained to him about the comments made by Ms Dunn about her piercings and a uniform order.
·Ms Dunn was in the area at the time of the complaint being made to Mr Beadel. Following the overhearing of the complaint, Ms Dunn spoke to the Applicant in private in a nearby office.
·Mr Beadel states he heard the Applicant raise her voice and entered the office.
·Mr Beadel states the Applicant refused the apology being offered by Ms Dunn.
·Mr Beadel stated that he believed Ms Dunn was genuine in trying to apologise for the comments.
·Mr Beadel states that he explained to the Applicant that Ms Dunn was impressed by her performance and encouraged the Applicant to accept the apology.
·Mr Beadel stated that he encouraged all parties to treat each other with kindness and respect and to “move on” from the incident.
·Following the incident, Mr Beadel stated that, despite his encouragement, he witnessed the Applicant refuse to acknowledge her manager.
·Mr Beadel confirmed that, in December 2022, the Applicant complained to him about Ms Dunn misspelling her name in an email and sought to raise the issues which had been discussed between the parties in November 2022.
·Mr Beadel confirmed that, on or around 25 January 2023, the Applicant requested that he be a referee for her, as she was looking for another job that paid more money. He stated that the Applicant noted she was in the process of building a house.
·Mr Beadel confirmed that he provided the Applicant with a reference, on 3 February 2023, and the Applicant resigned having received a job offer.
The Respondent submits that the Applicant expressed several concerns and complained about comments made by her manager.
The Respondent submits that the manager in question attempted to apologise to the Applicant about the comments at issue.
The Respondent submits that the Applicant decided to resign of her own free will to pursue another job which paid a higher wage.
The Respondent submits that the Applicant has failed to provide sufficient evidence to demonstrate that the conduct of the employer left the Applicant with no alternative but to resign from her employment.
The Respondent submits there is no evidence which supports any allegation or theory that it undertook a course of conduct that was deliberate, sustained, or targeted towards the Applicant as to leave her with no alternative but to resign.
The Respondent also submits that the Applicant did not resign in the heat of the moment. The Respondent notes that the Applicant forewarned Mr Beadel she was seeking higher paying alternate employment. The Respondent submits that the Applicant gave notice of her intent to leave once she had found alternative employment on 25 January 2023. Therefore, when she did resign, on 3 February 2023, it was not in the heat of the moment.
Applicant
The Applicant submits that her resignation was forced by the Respondent and as such she was dismissed consistent with section 386(1) of the Act.
The Applicant submits that the Respondent failed to address her concerns over the behaviour of her manager, Ms Dunn.
The Applicant claimed that the behaviour of her manager left her with no alternative but to resign from her employment once she had secured a job offer.
The Applicant submits that her manager made unwarranted comments about her weight (in reference to ordering a uniform) and her facial piercings.
The Applicant states that, in early November, she raised the issues with Mr Beadel and explained she did not feel comfortable raising her concerns directly with Ms Dunn.
The Applicant outlined that her manager’s comments had left her feeling uncomfortable in the workplace.
The Applicant disagrees with the evidence provided by the Respondent regarding Ms Dunn’s efforts to apologise. The Applicant gave evidence that Ms Dunn’s attitude was defensive and dismissive prior to issuing her apology.
The Applicant submits that, despite accepting an apology in early November 2022, she did not believe that her manager was genuinely sorry for her comments and that the Applicant was still not happy with how the Respondent had managed her complaint.
The Applicant submits that her relationship with her manager continued to be strained following the meeting in November 2022.
Specifically, the Applicant submitted that her manager engaged in the below behaviour:
·Failed to accommodate roster requests from the Applicant.
·Would contact the Applicant on her day off by text message with non-urgent questions.
·Would not respond to text messages from the Applicant.
·Failed to provide the Applicant with further training and development.
The Applicant states that she had a further meeting with Mr Beadel, on 9 January 2023. The Applicant advised Mr Beadel she was not happy with the behaviour of her manager and was thinking about leaving the Respondent’s employment.
The Applicant, after securing an offer, then resigned from her employment with the Respondent, on 3 February 2023.
Consideration
Central to the consideration in this case is the operation of section 386(1) of the Act. The word ‘dismissed’ is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act. Section 386(1) of the Act reads:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
This definition contains two elements.
The first concerns termination on the employer’s initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct. The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1]
In this matter, the Applicant does not claim that she resigned in the heat of the moment nor does there appear to be special circumstances giving rise to any additional obligation of the Respondent to ensure the resignation was legitimate in that regard.
From the evidence provided, the Applicant was seeking alternative employment, from 10 January 2023, until the time of her resignation.
In my assessment of the circumstances, the relevant test is that under section 386(1)(b) of the Act.
Having determined that section 386(1)(b) of the Act is the relevant test for this matter, I now turn to consider the conduct of the Respondent and the decision of the Applicant.
The line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning on their own initiative is a narrow one.[2]
On the evidence provided, it appears that the Applicant was in a position whereby she was not happy with her manager and what the Applicant perceived to be a lack of support from the Respondent as a whole.
The Applicant complained to the Respondent about comments that her manager made, in November 2022. I accept that the Applicant may not have been satisfied with the outcome of the discussions held between herself and management of the Respondent on or around 10 November 2022. However, from the submissions provided, the Applicant accepted the apology from her manager and made no efforts to facilitate a better interpersonal or working relationship moving forward.
From the submissions and evidence, it is clear that, from November 2022 until her resignation, the Applicant had a strained relationship with her manager. However, I do not accept that the evidence supports the position that the Respondent engaged in conduct which left the Applicant with no alternative but to resign, nor is there any evidence that the Respondent forced the Applicant to resign.
I am not satisfied that several of the issues noted by the Applicant constitute offensive or targeted behaviour. Rather, it appears that there are some deficiencies in the attention to detail and organisational skills of her manager. However, I am not satisfied that these deficiencies rise to the level of conduct, or contribution to a course of conduct, that would force resignation.
Despite the above, I accept the Applicant’s submission that the comments regarding her physical appearing were offensive, it is clear that her manager would have benefitted from further training and development in relation to her management style.
The comments made by Ms Dunn are, understandably, hurtful. Personal opinions on an employee’s physical appearance are irrelevant to their performance and, unless perhaps due to dress code compliance issues, should not be voiced in the workplace.
In my assessment of the materials, although hurtful in their effect, the comments of Ms Dunn appear to arise from ignorance and a lack of sensitivity, as opposed to being particularly cruel and harsh. In summary, I am not satisfied that Ms Dunn’s comments rise to the level of conduct that would leave the Applicant with no alternative but to resign.
Additionally, on the evidence provided, it is clear that Ms Dunn made an attempt to apologise for her comments to resolve the issue. I note that the parties disagree over the genuineness of this apology and wish to highlight that the Commission did not have the benefit of hearing Ms Dunn’s evidence.
On assessment of the evidence before me, I am satisfied that Ms Dunn, alongside the Respondent’s upper management, made attempts to better the relationship between herself and the Applicant.
The materials show that the Respondent did not have any concerns about the Applicant’s performance and thought highly of her as an employee.
Further, I note that it appears the comments made by Ms Dunn were not endorsed by the management of the Respondent. On the evidence provided, it is clear that the Respondent made a genuine attempt to assist the resolution of the Applicant’s complaint and encouraged the two employees to make up.
On assessment of the evidence provided, I cannot find the Respondent acted in a manner which left the Applicant with no alternative but to resign from her employment with the Respondent, nor would its conduct lead to that probable result.
The Applicant experienced some interpersonal issues in the workplace and made the choice to voluntarily resign. This is an understandable conclusion for the Applicant to have made but it was not forced by the conduct of the Respondent.
Conclusion
Not being satisfied that the Applicant has been dismissed for the purposes of section 386 of the Act, I have no alternative but to dismiss the application for want of jurisdiction.
The application is dismissed, an Order reflecting this is issued. [3]
COMMISSIONER
Appearances:
S Baker, Applicant.
R Jones for the Respondent.
Hearing details:
2023.
Perth (by video):
May 25.
<PR766260>
[1] [2017] FWCFB 3941.
[2] (1995) 62 IR 200, 206.
[3] [PR766261].
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