Tam Yang v Camp Australia Pty Ltd T/A Camp Australia

[2018] FWC 1300

[2018] FWC 1300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tam Yang
v
Camp Australia Pty Ltd T/A Camp Australia
(U2017/12110)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 MARCH 2018

Application for an unfair dismissal remedy.

[1] Ms Tam Yang was employed by Camp Australia from 30 September 2015 as a casual assistant. Camp Australia provides before and after school care.

[2] On 14 November 2017, Ms Yang had filed an unfair dismissal application alleging her employment had been terminated on 3 November 2017. Camp Australia objected to Ms Yang’s application on the basis that Ms Yang had not been dismissed on 3 November 2017.

[3] On 13 December 2017, Camp Australia terminated Ms Yang’s employment for misconduct.

[4] I granted permission to Camp Australia to be represented by a lawyer as I accepted its submission that Camp Australia was not able to represent itself effectively and the matter involved some complexity, such that legal representation would enable the matter to be dealt with more effectively. The complexity arises because of the dispute between the parties as to when Ms Yang’s employment ended and the Commission’s jurisdiction to hear the application, if the termination did not occur on 3 November 2017, given Camp Australia’s action on 13 December 2017 to dismiss Ms Yang. Further, Camp Australia submitted the person employed by Camp Australia who would have been able to represent it was unavailable and Camp Australia had notified the Commission of his absence. It submitted that Mr Glen Young, who was an alternative advocate, had no experience as an advocate and was a witness in the proceedings. Ms Yang did not oppose permission being granted and I therefore exercised my discretion to grant permission.

[5] Having conferred with the parties, I decided to conduct the matter by way of a conference.

Issues to be determined

1. Was Ms Yang’s employment terminated at the initiative of the employer on 3 November 2017 or did Ms Yang resign because she was forced to because of conduct or a course of conduct engaged in by Camp Australia?

2. If yes, was that dismissal harsh, unjust or unreasonable?

Evidence of Ms Yang

[6] On 4 August 2017, a meeting was held with Ms Yang arising from a parental complaint. 1 Ms Yang denied that she made any inappropriate comment to a student.2

[7] On 10 October 2017, a fight occurred between two students. 3 On 11 October 2017, Ms Yang had sent an email to her Regional Manager, Ms Stephanie Laskaratos, about this incident.4

[8] On 13 October 2017, a meeting was held with Ms Yang, Ms Laskaratos and Mr Michael Guzman, a HR Representative, where it was alleged that on 10 October 2017 Ms Yang did not provide adequate supervision to children and as a result a child was hurt.

[9] It was alleged that the incident was not escalated to the Co-ordinator nor did Ms Yang complete the incident report. Ms Yang denied not providing supervision and said she did not complete the incident report as she did not have her glasses. A record 5 of that meeting was made and Ms Yang signed the record. As a result, she was required to undergo some additional training. Ms Yang signed the record of communication but said, at the hearing, she did so under duress and protest.6 She said that Ms Laskaratos said to her that “it was Company procedure and it would not affect her in any way.” Ms Laskaratos said to her “this is not China, we do not have all day, you have wasted a lot of my time already. Just sign the document and you can keep your job.”7

[10] On 16 October 2017, Ms Yang was issued with a warning letter. 8 She was advised that if her performance did not improve she may face further disciplinary action. On 18 October 2017, Ms Yang signed the employee performance development plan.9

[11] On 19 October 2017, there was an incident with a child swinging a pillow and Ms Yang was alleged to have walked right past the child. 10 Ms Yang denied this and said at the time she had been at the other end of the hall supervising a basketball game. She said she saw the child who was being supervised by the Co-ordinator and she was on her way to tell him to put the pillow down. She said that she was then stopped by three students who told her about a student eating in the corridor.11

[12] On 23 October 2017, Ms Yang sent an email to Ms Laskaratos expressing concern for her health and safety as a parent had been yelling at Ms Stephanie Pye, her Supervisor and then at herself. 12 On 25 October 2017, Ms Yang said Ms Laskaratos attended the site and raised issues about Ms Yang’s relationship with Ms Pye. Ms Yang said that Ms Laskaratos said to her that if she did not get along with Ms Pye then she should leave the school as Ms Pye had a contract and Ms Yang did not.13 Ms Yang said she emailed Ms Laskaratos on 1 November 2017 to explain the situation between Ms Pye and herself.14

[13] On 3 November 2017, a meeting was held with Ms Yang, Ms Laskaratos and Mr Glen Young, a HR Representative. Ms Yang had a support person in attendance at the meeting. It was alleged that Ms Yang had failed to complete her performance development plan issued on 16 October 2017. Ms Laskaratos expressed concerns she had with Ms Yang’s supervision. It was said that there had been three incidents in the past month, including an incident where it was alleged that Ms Yang had failed to prevent a student swinging a pillow. Ms Yang was advised that she would be moved from her current site and she would be placed on an emergency list. 15

[14] Ms Yang did not receive any shifts the following week and it was her evidence that all her shifts were removed from the system. 16 Ms Yang could not initially recall if she rang anyone about not getting any shifts.17 She subsequently said she rang the staff team member and asked how come she didn’t have any job there and she was told “you’re not rostered on school anymore.”18 Ms Yang said in final submissions that there were no emergency jobs for the whole week19 and then that she couldn’t get in on her phone.20

[15] On 10 November 2017, Ms Yang was issued with a warning letter in relation to her alleged breaches of the supervision policy. Again she was warned that if her performance did not improve further disciplinary action may result. 21 She was also issued with a record of communication and a performance development plan.22 She was advised in that email to sign and return the record of communication and the performance development plan.

[16] In the same email, Ms Yang was offered 20 hours per week at another school. In another email Ms Yang was advised that these shifts re-occur each week until either the requirements of the service change or [she] is no longer available. 23 Ms Yang said the roster kept changing with different schools on some days. Ms Yang said she was required to sign a warning letter admitting to breaches of supervision.24 She said she was told by Ms Laskaratos that she had to sign the documents to get the shifts.25

[17] Ms Yang also said she declined the shifts because they kept changing 26 and because the shifts said “overstaff” it meant it was not a permanent job.27

[18] Ms Yang did not attend any of the shifts and lodged her unfair dismissal claim on 14 November 2017.

Ms Yang’s contract of employment

[19] Ms Yang’s contract provides that it is a casual employment contract.

[20] It provides that:

“As a casual employee, your hours of work are subject to change according to the needs of Camp Australia, as well as the service/s at which you work. Any changes in hours will be communicated to you by our Staffing or Operations teams and in accordance with the National Employment Standards and Children’s Services Award 2010.”

[21] In relation to work location, the contract provides as follows:

“During the course of your employment, Camp Australia reserves the right to require that you work at various CA sites. This may occur for a variety of operational reasons. You may be required to move on a number of occasions to ensure operational demands are met. Camp Australia will make every endeavour to ensure that you work within a reasonable radius of your residential address, or any alternative address provided by you for this purpose.”

[22] Initially Ms Yang worked at a variety of locations but from the end of January 2017 she worked at Donburn Primary School.

Evidence of Camp Australia

[23] Mr Young attended the meeting on 3 November 2017. He said he told Ms Yang at this meeting that this would be her last shift at Donburn and she would be placed on the emergency list and she would be able to access casual shifts. 28 After the meeting it was decided that it would be in the best interest for Ms Yang’s development that she be placed on another roster so that her performance could be further assessed in a new environment. She was therefore rostered at the Serpell Primary School for 20 hours per week.29 He said Ms Yang declined all the shifts offered and filed an unfair dismissal application.30

[24] Mr Young gave evidence that Ms Yang had completed the employee handbook module as part of her induction. 31

[25] Mr Young said that he told Ms Yang at the meeting on 3 November 2017 that she would receive a warning 32 and that he never told Ms Yang that her employment would be terminated. In fact he said there was no reference to dismissal or termination.33

[26] Mr Young explained that if an employee is on the emergency list they can log onto the system and see what shifts are on offer and the employee can select the ones the employee wants to work. 34 This is in contrast to the situation where an employee has rostered shifts on the system and the employee has to advise if they are not able to attend.35

[27] Mr Young accepted that all the shifts allocated to Ms Yang had been removed. He said that she was on the emergency list. 36

[28] Mr Young denied that Ms Laskaratos told Ms Yang at the meeting that she wouldn’t get anymore shifts if she didn’t sign the warning. 37 He said employees are not required to sign warnings. He said they do need to sign the record of communications but only if they are comfortable with the content.38

[29] Mr Young said Ms Yang did not contact him after 3 November 2017 and as far as he knows she didn’t contact anyone in HR or send HR an email. 39

[30] Ms Laskaratos gave evidence that after the meeting of 4 August 2017 she arranged for Ms Yang to participate in the Co-ordinator Bootcamp. 40

[31] She gave evidence that she received emails from Ms Yang and she said, while she did not respond to the emails, she told Ms Yang she would organise meetings to discuss her issues but this did not occur. 41

[32] Ms Laskaratos confirmed that the record of communication of 13 October 2017 was an accurate record of the meeting 42 as was the record of communication of 3 November 2017.43

[33] Ms Laskaratos said she did not say at the meeting on 3 November 2017 that Ms Yang would be dismissed. 44 She also said Mr Young did not tell Ms Yang she would be dismissed.45

[34] Ms Laskaratos said that Ms Yang did not contact her after the meeting. 46

[35] Ms Laskaratos said that Ms Yang was not forced to sign anything in the October 2017 meeting. 47 Ms Laskaratos denied saying to Ms Yang “this is not China. We do not have all day. You have wasted a lot of my time already. Just sign the document and you can keep your job.”48

[36] Ms Laskaratos denied telling Ms Yang at the meeting on 3 November 2017 that if she did not sign the warning she would not get any more shifts. 49 She also said she did not tell her this at any time after 3 November 2017.50

[37] Mr Tay alleged that Ms Laskaratos had falsified the employee performance plans because the documents exhibited by Ms Laskaratos were different to the ones signed by Ms Yang. Ms Laskaratos explained that the one she exhibited included notes she had added about the progress made in relation to the plan. This was added after the plan was signed by Ms Yang. 51 Further, Mr Tay alleged that Ms Laskaratos falsified the exhibit SL2 to Ms Laskaratos’ statement because it recorded the school as St Francis Xavier School and Ms Yang was not at that school on that day. Ms Laskaratos explained the reference to the school is a reference to where the issue arose, not where Ms Yang was located when the issue was discussed.52

Submissions of Ms Yang

[38] Mr Tay submitted that the disciplinary approach of Camp Australia was unfair. He submitted that Ms Yang was disciplined in August 2017 for speaking inappropriately to a child when she did not speak to the child as alleged. 53 As a result, she undertook further training and upgraded her skills.54 Mr Tay submitted that Camp Australia falsely accused Ms Yang of not being able to complete incident reports when their own training modules showed that she could. Mr Tay suggested that the evidence about this had been tampered with.55 Mr Tay submitted that this conduct by Camp Australia was strange and maybe there was a conspiracy or a plan to get Ms Yang to resign by making things tougher and harder for her to stay.56 He submitted that then she got more warnings about poor work performance and breach of supervision. Mr Tay submitted that she was being bullied and harassed into resigning. Mr Tay submitted that Ms Pye attempted to trap Ms Yang into leaving children inadequately supervised and Ms Laskaratos falsified documents and made false accusations.57

[39] Mr Tay submitted that Ms Yang made complaints to Ms Laskaratos but she did not respond, and in doing so, Camp Australia failed in its duty of care. He submitted that the complaint about the child swinging a pillow was silly and in any event the child was being supervised by someone else. 58 Mr Tay further submitted that Ms Yang was accused of failing to supervise children who were not under the care of Camp Australia.59 Mr Tay said that Camp Australia had made Ms Yang’s life miserable.60

[40] Mr Tay accepted that Ms Yang did not resign her employment. 61 He subsequently said that “in a short period of time, from August to October, they have called her up to head office and make life so hard for her she – pushed it upon her to resign.”62 Mr Tay was unable to say when Ms Yang resigned.63 Mr Tay then said they had used the wrong word by which I assume he meant it was a constructive dismissal.64

[41] Mr Tay suggested that Camp Australia had demanded she had to sign documents. When asked where was the evidence that she was told she would not get shifts if she did not sign the documents, Mr Tay accepted that Ms Yang was not specifically told that if she did not sign the record of communications and the performance improvement plan that she would not get shifts. 65

[42] Mr Tay submitted that the offer of work was constantly changing. 66 Ms Yang submitted that after 3 November 2017 not only was she removed from shifts there was nothing offered to her. Ms Yang said there were no emergency jobs for the whole week.67

Submissions of Camp Australia

[43] Mr O’Halloran submitted that Ms Yang did not resign. It submitted that an objective assessment of the facts in this matter could only result in a finding that Ms Yang was given a warning on 3 November 2017 and that was not intended to bring her employment to an end. 68 Mr O’Halloran submitted that the warning letter is not a letter of termination.69 He submitted that Ms Yang could have disputed the warning letter but did not.70 Mr O’Halloran submitted that Ms Yang’s contract of employment provided what she can be placed in other schools. He submitted that Ms Yang could have accepted the warning and returned to work but Ms Yang decided to treat71 the warning as the catalyst for the cessation of her employment.

[44] Mr O’Halloran submitted that Ms Yang could have selected shifts using the online rostering system but chose not to. When it was put to him that she could not for the first week, he said he believed there was a week when it was inaccessible but she had further shifts the following week. He submitted that she did not accept the shifts because she didn’t want to work at a particular school. 72

[45] Mr O’Halloran submitted that Ms Yang’s employment continued after 3 November 2017 and evidence of this is that Ms Yang rejected shifts after this date. 73

[46] Mr O’Halloran denied that Ms Yang was constructively dismissed and relied on a number of authorities to support that proposition. He submitted that, in effect, even if the warnings were without justification, Ms Yang had choices other than resignation. 74

[47] Mr O’Halloran further submitted that just because Ms Yang had a temporary reduction or no shifts for a week after the disciplinary hearing, does not mean she was constructively dismissed. 75

[48] Mr O’Halloran submitted that Ms Yang’s employment did not end until 13 December 2017 when Camp Australia terminated Ms Yang’s employment. 76 It said that the only evidence that Ms Yang did not intend to be bound by her contract of employment occurred when she filed her unfair dismissal claim.77 Even if this were repudiation by the employee, there is no evidence it was accepted by Camp Australia though that may be inferred by the permanent removal of Ms Yang from the roster after 23 November 2017.78

[49] Mr O’Halloran submitted that the Commission can have no regard to what occurred after the application was filed on 14 November 2017.

[50] I asked Mr O’Halloran that, if I found Ms Yang was dismissed on 13 December 2017, whether I could deal with that on the basis that Ms Yang’s application was a premature application. Subsequently Mr O’Halloran filed further submissions on this point and I provided Ms Yang with an opportunity to respond.

[51] Mr O’Halloran submitted that the circumstances here differed from the matter before the Full Bench in Mihajlovic v Lifeline Macarthur. 79He submitted that case involved an applicant who had lodged his unfair dismissal application after he had been given notice but before the dismissal took effect. Mr O’Halloran submitted that at the date of Ms Yang’s application she had not been dismissed by Camp Australia nor had she been given notice of termination. It submitted that she was still employed until 13 December 2017. It submitted that if the Commission found that Ms Yang had been dismissed on 13 December 2017 then this application should be dismissed because it was not made in accordance with the Act.

Reply submissions by Ms Yang dated 23 February 2018

[52] Mr Tay in the reply submissions did not respond to the matters addressed by Mr O’Halloran. Mr Tay repeated much of the submissions that had been made at first instance. Mr Tay submitted that Ms Yang’s employment ended on 3 November 2017. In those submissions it was submitted that Ms Yang had no option but to “dismiss herself because she was backed into a corner”. Ms Yang relied upon s.386(1)(b) of the Act. It was submitted that in the week 4-12 November 2017 Ms Yang was not able to access the roster website which meant she could not let Camp Australia know when was available for work. It submitted that Ms Yang suffered a reduction in hours and was demoted. It submitted she had a contract for 20 hours a week. The offer made was for less than 20 hours and she was demoted from casual staff to overstaff. This meant she went from a regular roster to an irregular roster. It was submitted that Camp Australia’s disciplinary action on 10 October 2017 was disproportionate. It was further submitted that she was bullied and lacked support in relation to the 3 November 2017 incident. It was further submitted that Camp Australia placed her under unreasonable working conditions as she was subjected to verbal abuse by a parent and Camp Australia did nothing about it.

The Legislative Framework

[53] S.386 of the Act provides that 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 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.

[54] The difference between these two provisions was considered by the Full Bench in City of Sydney RSL & Community Club Limited v Roxana Balgowan 80:

[9] The distinction between a dismissal falling under s.386(1)(a) and one falling under s.386(1)(b) is sought to be explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:

“Clause 386 – Meaning of dismissed

1528. This clause sets out the circumstances in which a person is taken to be dismissed.  A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative.  This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200). 

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer.  Conduct includes both an act and a failure to act (see the definition in clause 12). 

1530. Paragraph 386(1)(b)  is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

● where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

● where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.” 

[10] It seems clear from the above that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a). 

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:

“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, 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. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.”

[12] Importantly, in Mohazab the Court did not decide that the termination of employment in that case was at the initiative of the employer because there had been a constructive dismissal. Indeed, the Court expressly observed that it was “. . . unnecessary to consider whether the facts fall within or without the notion of constructive dismissal.” 

Was Ms Yang’s employment terminated at the initiative of Camp Australia on 3 November 2017?

[55] I am satisfied that Ms Yang’s employment was not terminated at the initiative of Camp Australia on 3 November 2017. Ms Yang was a casual employee and did not have permanent placement at the Donburn Primary School.

[56] Ms Yang’s evidence about what happened at the 3 November 2017 meeting varied. In her initial witness statement she said that she was told by Mr Glen Young, a People and Culture Associate, that “the afternoon shift would be [her] last shift at Donburn Primary School.” 81 In her second statement she said that Mr Young told her that “that afternoon would be [her] last day as [she] was being terminated due to [her] bad supervision.” She said her support person asked what they could do if they thought it was an unfair termination and he said there is nothing you can do.82 Ms Yang did not call her support person to give evidence about what happened at the meeting.

[57] Both Mr Young and Ms Laskaratos attended the hearing. Mr Young gave evidence that at the conclusion of the meeting Ms Yang was told she would be removed from the Donburn roster and she would be placed on the emergency list. This would provide Ms Yang with access to casual shifts which she could select using the online system. Ms Yang was told that this would be her last shift at Donburn and she could collect her belongings and say goodbye to the children. 83 Mr Young denied telling Ms Yang her employment was terminated and said he did not have the authority to terminate her employment. Ms Laskaratos also denied that Ms Yang’s employment was terminated on 3 November 2017.

[58] That Ms Yang’s employment was not terminated on 3 November 2017 is evidenced by the decision of Mr Young to send Ms Yang a warning letter dated 6 November 2017. 84 That warning letter advised that Ms Yang was expected to work closely with her Regional Manager and that another professional development plan would be issued. The letter attached the performance development plan and the record of communication and advised her that she would be an assistant at another primary school starting on 13 November 2017. Ms Yang was asked to sign and return the record of communication and the performance development plan.

[59] I prefer Mr Young’s and Ms Laskaratos’ recollection of what occurred at the meeting on 3 November 2017. That evidence is consistent with Ms Yang’s initial evidence and her outline of argument. In that document, Ms Yang acknowledged that Mr Young told her she would be placed on the emergency list.

[60] While it can be at times difficult to determine when a casual employee’s employment is terminated, the general proposition that an employee’s employment is not terminated until the termination is communicated to the employee holds as much for casual employees as it does for permanent employee. There was no communication to Ms Yang on 3 November 2017 that Camp Australia was terminating her employment. Its subsequent conduct reinforces that conclusion.

[61] One of the difficulties with the submissions of Ms Yang is that she says she was dismissed on 3 November 2017 but relies on events post that date to support her claim that she was dismissed on 3 November 2017, particularly her inability to access the website and her allegation that she was told she would not get shifts if she did not sign the documents.

[62] Ms Yang relies on the following incidents to support her claim that she was “constructively dismissed.” She said she was reprimanded for making a comment to a student which she did not make. She was issued with a warning for failing to stop a student holding a pillow, despite the student being supervised by another staff member. She was issued with a warning for having her back to some students when the students were not under the care of Camp Australia. She received a letter of warning because she had to be repeatedly told where to stand to improve her supervision. She was bullied into signing three documents namely the record of communication dated 13 October 2017, the employee development plan dated 16 October 2017 and the warning letter dated 16 October 2017. Ms Yang said she was bullied by Ms Laskaratos. She alleged that she was told she had to sign them or she would lose her job. Ms Laskaratos denied these allegations.

[63] In relation to the record of communication dated 13 October 2017, Ms Yang signed the document. It is a summary of what was discussed at the meeting. Ms Yang’s version of events is set out in the document. It is not clear what in this record of communication Ms Yang disagreed with. The employee performance plan was also signed by Ms Yang. While Ms Yang disagreed that she was at fault the plan set out performance expectations. There was no suggestion that these expectations were unreasonable. Ms Yang said she was forced to sign the warning letter however there was no evidence that Ms Yang was required to sign the warning letter. That warning letter advised her that is she wished to respond to the warning letter she could send an email to HR. There is no evidence that Ms Yang did respond to the warning letter.

[64] Ms Yang did not sign the record of communication dated 3 November 2017 or the employee performance plan dated 10 November 2017.

[65] Ms Yang was not reprimanded for the allegation that she spoke inappropriately to a student. There is a record of communication about this event and Ms Yang’s denials are included in that record. There was no evidence that Camp Australia made any findings about what occurred. What it did decide to do was ensure that Ms Yang was familiar with the relevant policies and provided her with some additional training.

[66] While the 10 October 2017 incident did result in Ms Yang being issued with a warning, it cannot be said that Camp Australia failed to take Ms Yang’s version of events into account. It appears that it did not accept Ms Yang’s explanation for not completing the incident report, namely that she could not find her glasses as sufficient. Again Ms Yang was invited to respond to the warning but she did not do so.

[67] Ms Yang said at the hearing that she was told that, if she did not sign the record of communication and the employee performance plan sent to her on 10 November 2017, she would not be offered further shifts. While Ms Yang was asked to sign the record of communication and the performance development plan, I am not satisfied that Ms Yang was ever told that the offer of shifts was conditional on her signing these documents. There is no evidence that Ms Yang spoke to anyone at Camp Australia after she received these documents and there is no reference to this in the documentation sent to Ms Yang.

[68] Ms Yang was clearly aggrieved at receiving the letters of warning. She clearly felt that she was being treated unfairly. However, Ms Yang did not raise a grievance about this. If Ms Yang was dissatisfied with the outcomes of the various meetings she could have raised a grievance with HR.

[69] I am not satisfied that because Ms Yang could not access the roster website in the week following the 3 November 2017 meant that she had been dismissed. Ms Yang contacted a staff team member to find out why she was not rostered on that week. She was told that she was not rostered on school anymore. 85 That of course was consistent with the information provided to Ms Yang at the conclusion of the meeting on 3 November 2017 namely she was on the emergency roster and not placed at a school. While Ms Yang was not able to access the website that week she was able to access it after that date because she used it to cancel shifts offered to her.

[70] There is no evidence that she raised with Camp Australia that she was not able to access the website. She did not contact Mr Young or Ms Laskaratos about this issue. While not receiving any work for a week was inconsistent with Ms Yang’s pattern of work, it did not constitute a dismissal. In any event before Ms Yang lodged her unfair dismissal claim she was offered further shifts. That those shifts were classified as “overstaff” was consistent with Ms Yang’s contract of employment. The evidence does not support a finding that Ms Yang had a contract of employment for 20 hours a week. I am not satisfied that this was a demotion.

[71] I am further not satisfied that the conduct of Camp Australia in the lead up to 3 November 2017 was conduct that was intended to bring the employment to an end or had the probable result of bringing the employment to an end. An objective analysis of the employer’s conduct is required.

[72] This is not to say that Camp Australia’s conduct was beyond reproach. Camp Australia made findings about Ms Yang without explaining to her why it reached the conclusions it did. Further, Ms Laskaratos should have responded to the concerns raised in Ms Yang’s emails. Further, once the decision was made to place Ms Yang at a school rather than have her on the emergency list, that should have been communicated directly to Ms Yang and the reasons for the change explained.

[73] However, that does not lead to a conclusion that Camp Australia’s conduct in disciplining Ms Yang even if done unfairly was intended to bring the employment to an end or had the probable result of bringing it to an end. The disciplinary action taken by Camp Australia was directed at improving Ms Yang’s performance not in bringing her employment to an end. If Ms Yang thought this was unfair she had choices other than to treat her employment as being at an end.

Did Ms Yang resign her employment because of a course of conduct engaged in by her employer?

[74] There is no evidence that Ms Yang resigned her employment on 3 November 2017. Nor did she submit that she had resigned her employment. It is true that after this date Ms Yang did not accept any further shifts offered by Camp Australia however this was not communicated to Camp Australia until 14 November 2017 when she lodged this application. However, given Ms Yang did not submit that she resigned her employment, it is not necessary for me to consider this issue further. Ms Yang’s claim for unfair dismissal must be based on the submissions and evidence before the Commission. I agree with Camp Australia that the circumstances in the matter differ from those in Mihajlovic.

Conclusion

[75] I am satisfied that Ms Yang’s employment was not terminated at Camp Australia’s initiative on 3 November 2017. It neither told her employment was terminated nor am I satisfied that Ms Yang had no choice but to conclude her employment had come to an end on that date. Further, Ms Yang did not resign her employment on that date.

[76] As a consequence, Ms Yang was not dismissed on 3 November 2017 and hence she was not protected from unfair dismissal and her application must be dismissed. An order to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

R. Tay for the Applicant.

P. O’Halloran for the Respondent.

Hearing details:

2018.

Melbourne:

14 February.

<PR600848>

 1   Exhibit A1

 2   Ibid

 3   Applicant’s document 1

 4   Exhibit R4 at SL4

 5   Applicant’s document 2

 6   Exhibit A1

 7   Exhibit A2

 8   Applicant’s document 2c

 9   Ibid

 10   Exhibit R1 at GL3

 11   Exhibit A1

 12   Exhibit R4 at SL4

 13   Exhibit A2

 14   Exhibit R4 at SL4

 15   Exhibit R1 at GL13

 16   Transcript PN 271

 17   Ibid PN 174-176

 18   Ibid PN 271 and 273

 19   Ibid PN 1178

 20   Ibid PN 1192

 21   Exhibit R1 at GL14

 22   Ibid

 23   Applicant’s bundle of documents

 24   Transcript PN 183

 25   Exhibit A1 and Transcript PN 209 and PN 241, 243

 26   Transcript PN 235

 27   Ibid PN 236-237

 28   Exhibit R1 at [10]

 29   Ibid at [11]

 30   Ibid

 31   Ibid at GL3

 32   Transcript PN 549

 33   Ibid PN 550-551

 34   Ibid PN 555

 35   Ibid PN 558

 36   Ibid PN 563

 37   Ibid PN 614

 38   Ibid

 39   Ibid PN 622

 40   Exhibit R4 at [9]

 41   Ibid at [11]-[12]

 42   Transcript PN 844

 43   Ibid PN 845

 44   Ibid PN 848

 45   Ibid PN 849

 46   Ibid PN 851

 47   Ibid PN 853

 48   Ibid PN 854

 49   Ibid PN 856

 50   Ibid PN 858

 51   Ibid PN 892, 894

 52   Ibid PN 955

 53   Ibid PN 1120

 54   Ibid PN 1122

 55   Ibid PN 1122

 56   Ibid PN 1126

 57   Ibid PN 1127

 58   Ibid PN 1128

 59   Ibid PN 1129

 60   Ibid PN 1141

 61   Ibid PN 1146

 62   Ibid PN 1150

 63   Ibid PN 1151-1152

 64   Ibid PN 1154

 65   Ibid PN 1160

 66   Ibid PN 1166-1168

 67   Ibid PN 1176-1178

 68   Ibid PN 1235

 69   Ibid PN 1236

 70   Ibid PN 1240

 71   Ibid PN 1241

 72   Ibid PN 1244

 73   Ibid PN 1249

 74   Ibid PN 1205

 75   Ibid PN 1255

 76   Ibid PN 1267

 77   Ibid PN 1270

 78   Ibid PN 1272

 79   [2014] FWCFB 1070

 80   [2018] FWCFB 5

 81   Exhibit A1

 82   Exhibit A2

 83   Exhibit R1 at [10]

 84   Ibid at GL14

 85   Transcript PN 271

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