Taneisha Larkin v Ashley Freeman
[2022] FWC 2526
•20 SEPTEMBER 2022
| [2022] FWC 2526 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Taneisha Larkin
v
Ashley Freeman
(C2022/3723)
| DEPUTY PRESIDENT LAKE | BRISBANE, 20 SEPTEMBER 2022 |
Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether Applicant was dismissed – Applicant was dismissed.
Ms Taneisha Larkin (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute in relation to the termination of her employment by Ms Ashley Freeman (the Respondent).
Directions were set for the filing of material and the matter was dealt with by way of hearing on 12 September 2022, which took place via telephone.
The Applicant appeared and gave evidence on her own behalf with Ms Samantha Larkin, her mother, acting as her support person. The Respondent had her father-in-law, Mr John Freeman acting as her representative.
Chronology
On 18 December 2021, the Applicant participated in a trial at the Respondent’s salon.
On 22 December 2021, the Applicant accepted a full-time apprenticeship position.
On 23 May 2022, the Applicant gave notice to the Respondent that her last day of work would be 7 July 2022.
On 3 June 2022, the Applicant called the Respondent alleging that Ms Vanessa Marshall – a senior stylist with the Respondent and the Applicant’s direct supervisor – was bullying and harassing the Applicant. That evening, the Respondent called a meeting between herself, the Applicant, and Ms Marshall for the next morning.
On 4 June 2022, the meeting was held. Following the meeting, the Applicant sent a text message to the Respondent stating, “Hey I can’t come to work today, I’m sorry but I need air” and proceeded to not attend work.
From 4 June 2022 to 24 June 2022, the Applicant and Respondent corresponded via text message.
The Applicant asserts she was dismissed via the text conversation. The Respondent asserts that the Applicant was not dismissed, and that the Applicant decided to resign from her position via the text conversation.
Was the Applicant dismissed?
Section 386(1) of the Act relevantly 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 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.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s employment to be terminated at the initiative of the employer.[1] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[2] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[3] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[4] Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?[5]
It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.[6] All the circumstances – including the conduct of both the employer and employee – must be examined.[7] In other words, it must be shown 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.”[8]
The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred.[9] 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.”[10]
In Megna v No 1 Riverside Quay (SEQ) Pty Ltd, Senior Deputy President Richards considered the meaning of “forced” in the following terms:
“[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.” [11]
While in that case Richards SDP was considering an unfair dismissal, his observations remain relevant.
Applicant’s material
It was asserted that the Applicant, during her employment with the Respondent, made complaints about how she was poorly treated by Ms Marshall. The Applicant provided a screenshot of her notes she took on her phone outlining the way Ms Marshall treated her. No further evidence was provided of the complaints.
The Applicant alleged that she was dismissed during the conversation via text message between 4 June 2022 and 24 June 2022. The Applicant relies on screenshots of the text messages received after informing the Respondent she would not be returning to work. At or around 8.54 am on 4 June 2022, the Respondent messaged,
Freeman: “Just know I’m fuck [sic] furious
You have appointments I’m in [sic] totally thrown out my whole day is completely fucked”.
At or around 3.30 pm on the same day, the Respondent sent the following message,
Freeman: “I’m sorry for my last 2 messages, but I was angry and hurt. I feel like I have [sic] you a chance to say exactly how you felt, I know all you wanted me to do was yell at Vanessa, but I have spoken to her so I didn’t feel like I needed to. I feel like I have [sic] you a really [sic] chance to say how you feel but u [sic] didn’t and you left me with a day full of clients and let us down. I will pack your belongings up and drop it at your house. I’m sorry you left in [sic] such a bad note but it’s best we part ways now. Good luck in your future” (Emphasis added).
The Applicant asserts that the Respondent’s words that she would pack up her belongings and that it was “best we part ways now” indicated she was being dismissed.
Further, the Applicant supplied the following text message received on 6 June 2022,
Freeman: “… Perhaps I should have been much tougher but I will definitely learn from this experience.
If you could please provide myself with an official letter of resignation dated today we can expedite the termination of your apprenticeship.
I want to thank you for your efforts for the past six months and wish you all the best in your future,”
The Applicant during the meeting on 4 June 2022 was deeply affected by the statements made by the Respondent and Ms Marshall. The Applicant felt like she was being bullied, belittled, and degraded.
In light of all the evidence and submissions outlined above, the Applicant submits that she could not continue to go into a workplace where she was treated poorly. The Respondent dismissed her on 4 June 2022 for leaving the workplace without permission but backtracked and pressured the Applicant into providing a resignation letter on 6 June 2022. Therefore, I should be satisfied that she was dismissed by the Respondent within the meaning of the Act.
Respondent’s material
On an objective analysis, the Respondent submits that its conduct, or course of conduct, did not bring about the resignation and the Applicant was not dismissed nor forced to resign. Accordingly, the Respondent submits there was no dismissal for the purposes of s.386 of the Act and on that basis, the Applicant’s application should be dismissed.
The Respondent submits that the Applicant was not dismissed within the meaning of s.386(1) of the Act. The Respondent called the meeting on 4 June 2022 to speak about the Applicant’s performance. Ms Marshall had raised concerns with the Respondent that the Applicant was not performing her duties. During the meeting on 4 June, the Applicant was given the opportunity to speak and chose not to for the entirety of the meeting. The Applicant texted the Respondent and walked out.
The Respondent asserts that the meeting that took place was purely on the Applicant’s performance. The Respondent was not aware of the issues between the Applicant and Ms Marshall until 3 June 2022 when Ms Marshall left a note on her desk.
It was asserted that the Respondent made it as clear as possible that the Applicant was not terminated and was expected back at work on 7 June 2022. The Respondent provided a pdf document with undated messages typed out between the Applicant and Respondent. The Respondent claims that the Applicant resigned from her role.
Larkin: “Can you please explain to me the reason why you are actually firing me? It is just unclear to me.”
Freeman: “I’m not, you walked out on me !!!”
Larkin: “I chose to walk out this morning as I felt extremely overwhelmed and emotional, and did not feel like I could work at all today. I specifically said I’m sorry and that I couldn’t work “today”. But you had said you were going to pack my things and drop them to my house and it’s best we part ways now. To me that is you firing me. Am I wrong? So could you please explain as to why…”
Freeman: “You have to understand that in the adult world we can’t just give up first thing in the morning we have a responsibility to our clients to be there when they arrive. I felt that not only did you let us down today but you also let the clients down.
My issue is where do we go from here ? you’re leaving in less than a month and today you showed they you can’t be depended not only did you just leave without even getting permission to do so you just left your client with no one to do her hair.
So what to [sic] I do cut my losses now and make sur I don’t upset anymore client and damage my business or try and trust you again after you let us down today and hope you won’t do it again ?
I’m going to make this as clear as I can I don’t want to fire you but you have to understand you’re backing me into a corner at the moment.
I feel overwhelmed and emotional all the time but it is my responsibility to my clients, my family and even yourself and Vanessa that I’m at work every day.
So if you can commit to me that you’re going to give your all for the next four weeks meaning no sick days, no bad attitude and are ready to work then I’m happy to forgive and forget today.”
…
Freeman: “So we’re [sic] so [sic] we go from here, Vanessa has said she will not have attitude with you anymore. Vanessa wasn’t bullying you she was hurt, I brought up personal stuff because you have no problem talking about it to us and our customers. So what are you doing are you seeing out your time [with] me or are you leaving.
I need to know if your [sic] working tomorrow so I can make arrangements for my day”.
…
Larkin: “I’ve been through this once before at my other job and I won’t be putting up with it again. I have enough going on and don’t need to be coming to work coping [sic] it from someone I work with. So I won’t be returning and don’t feel comfortable to.
But thank you for your time and giving me the opportunity to work with you. All the best Ash and take care!”
The notes taken by the Applicant regarding Ms Marshall’s alleged bullying are undated and should not be relied upon as they cannot be verified nor is there any evidence of any complaints.
Further, the Respondent provided two statements from clients of the business attesting to the Applicant’s character and work ethic.
Consideration
I have had regard to the submissions and evidence made by both parties. The question before me is whether the Applicant was dismissed by the Respondent, and therefore, was dismissed within the meaning of s.386(1)(a).
Following the meeting, the Applicant indicated via text that she was unable to return to the workplace. Later that day, the Respondent responded also via text saying amongst other things “best we part ways now. Good luck in your future”. This is a clear indication that the Respondent had determined to dismiss the Applicant. On balance, I find the Respondent did dismiss the Applicant via text message on 4 June 2022.
The Respondent later sought to walk back from the dismissal with a conditional offer to continue working. However, the Applicant rebuffed this offer. The Respondent then requested a resignation letter to expedite the termination of the Applicant’s apprenticeship.
Therefore, based on the evidence and reasons set out above, I am satisfied that the Applicant was dismissed within the meaning of the Act. The resignation was sought by the Respondent and was not offered by the Applicant. Accordingly, I find that the Respondent’s jurisdictional objection is dismissed.
The Applicant’s Application will be progressed by way of a conference at a time and date to be advised. I Order accordingly.
DEPUTY PRESIDENT
[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[2] Ibid.
[3] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496; Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[4] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].
[5] O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 at [23].
[6] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[7] Whirisky v DivaT Home Care [2021] FWC 650 at [77].
[8] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [28].
[9] Australian Hearing v Peary [2009] AIRCFB 680 at [30]; Cottaghe v South Pacific Restaurant Unit Trust T/A House of Brews[2019] FWC 1539 at [109].
[10] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[11] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.
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