Stefania Ravaschio v Kooralbyn Resort Pty Ltd

[2023] FWC 1963

FAIR WORK COMMISSION

EX-TEMPORE DECISION

Fair Work Act 2009

s.365—General protections

Stefania Ravaschio
v

Kooralbyn Resort Pty Ltd

(C2023/3179)

DEPUTY PRESIDENT LAKE

BRISBANE, 7 AUGUST 2023

Application to deal with contraventions involving dismissal

Ms Stefania Ravaschio lodged a Form F8 – General Protections involving dismissal application on 1 June 2023. Kooralbyn Resort Pty Ltd had filed a Form F8A – Employer response raising a jurisdictional objection on the basis that the Applicant was not dismissed as she resigned. A hearing was listed before me on 3 August 2023 after the parties had provided their submissions.

I consider the following in determining whether the Applicant was dismissed under s386 of the Act.

The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) 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.”[1]

In Pawel v Australian Industrial Relations Commission,[2] the Full Bench noted:

“Mere "causation" or "motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”

Furthermore, Senior Deputy President Richards in Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at 48 said:

“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.”

I find that Ms Ravaschio’s resignation was a personal decision following a set of emotionally distressing experiences. However, the Respondent did not engage in a course of conduct designed to force such a resignation or to make such a result inevitable by making her job impossible to perform. The Respondent had tried to address Ms Ravaschio’s concerns by providing written notice to the person who was potentially engaging in misconduct. After that person was notified, further instances of the alleged behaviour did not occur.

The Respondent questioned the Applicant about her performance, but it did not indicate an intention for her to resign.

Although the Applicant was not dismissed, it does not make her ineligible to lodge the Application under s372 of the Act. A conciliation may be held pending on the consent of the Respondent if there is a General Protections breach and is not entitled to apply under s365 of the Act. The Applicant had initially lodged a Form F8C with the Commission at first instance.

If the Respondent wishes to engage in this process, they must indicate they consent to conference barring any further jurisdictional objections. If there are no objections by the Respondent, a Member Assisted Conciliation will be facilitated.

DEPUTY PRESIDENT

[1] (1996) PRN6999

[2] (1999) FCA 1660 at 58 (Pawel J).

Printed by authority of the Commonwealth Government Printer

Ms Stefania Ravaschio filed an application against Kooralbyn Resort Pty Ltd, claiming that she was constructively dismissed under the Fair Work Act 2009. Kooralbyn Resort contested the claim, arguing that Ravaschio had voluntarily resigned and, as such, was not dismissed. The case was heard by Deputy President Lake in the Fair Work Commission. The central legal issue before the court was whether Ravaschio’s resignation was a result of employer conduct that could be deemed a dismissal under the Act or whether it was a voluntary decision by Ravaschio. The court had to weigh the evidence and determine if the employer’s actions were oppressive or repugnant, leading to a resignation that could be considered a dismissal.

The court considered the legal precedent that established the distinction between a resignation prompted by the employer’s conduct and a voluntary resignation. It examined whether the employer’s conduct was such that it left Ravaschio with no reasonable alternative but to resign. The court referenced previous cases such as ABB Engineering Construction Pty Limited v Doumit, Pawel v Australian Industrial Relations Commission, and Hastie v Impress Australia Pty Ltd, which provided guidelines on the nature of employer conduct necessary to constitute a dismissal. The court found that while Ravaschio experienced emotionally distressing events, there was no evidence that the employer engaged in a course of conduct intended to force her resignation. The employer’s attempts to address the concerns by notifying the person allegedly engaging in misconduct, and the absence of further misconduct, indicated that the resignation was not a result of oppressive or repugnant employer conduct.

In conclusion, the Fair Work Commission determined that Ravaschio’s resignation was a personal decision and not a dismissal by the employer. The court found that the employer did not engage in conduct that could be considered oppressive or repugnant, nor did they make Ravaschio’s job impossible to perform. Consequently, the application was dismissed on the basis that there was no evidence of a dismissal under the Act. If Ravaschio and Kooralbyn Resort consent, a Member Assisted Conciliation may proceed to address any potential general protections breach.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established