Stefania Ravaschio v Kooralbyn Resort Pty Ltd

[2023] FWC 1963

[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

1. 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.

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

1. 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]

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.”

1. 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.”

1. 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.

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

1. 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.

1. 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).

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