Yara Sanches Cleaver v Madison Group Enterprises Pty Ltd

[2021] FWC 3906

[2021] FWC 3906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yara Sanches Cleaver
v
Madison Group Enterprises Pty Ltd
(U2020/15359)

COMMISSIONER WILLIAMS PERTH, 7 JULY 2021

Application for an unfair dismissal remedy - resignation.

[1] This decision concerns an application made by Ms Yara Sanches Cleaver (Ms Sanches Cleaver or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Madison Group Enterprises Pty Ltd (the Respondent or Madison).

[2] The Respondent objects to the application on the grounds that the Applicant was not dismissed.

[3] At the hearing of this matter evidence was given by Ms Sanches Cleaver and for the Respondent by Ms Katie Arnold (Ms Arnold) Manager, People and Change.

Factual findings

[4] The Applicant was born in Brazil and English is her second language.

[5] The Applicant commenced working for the Respondent in July 2019.

[6] Her evidence was that on commencement she was inducted into the role and provided with details regarding occupational health & safety, company policies and procedures, reporting of workplace injuries, bullying and harassment, and the code of conduct. 1

[7] She was employed as a senior sales representative to manage and grow a sales base and brand awareness for Madison technology products, within a designated region.

[8] The Applicant says she was required to identify new market opportunities and determine the most effective way to convert these opportunities into sales by making the products become a brand of choice. She was in charge of the northern Perth metropolitan region while another sales representative was in charge of the southern Perth metropolitan region.

[9] The Applicant’s evidence was that she was happily employed until July 2020.
[10] The Applicant tendered her resignation in November 2020.

[11] Her evidence was that from July 2020 onwards she was subject to bullying and harassment from a manager whose conduct she believed to be unreasonable, inappropriate and unacceptable.

[12] She says the manager likes to micromanage people and appeared to have problems with trust.

[13] The Applicant’s evidence includes a number of detailed examples of interactions she views as bullying and harassment.

[14] Her evidence was that these interactions were causing her to experience shortness of breath, palpitations, nerve pain, sleep deprivation, vivid nightmares, screaming and speaking in her sleep, stomach and bellyaches and diarrhoea.

[15] On 11 September 2020 she saw a doctor and was issued with a medical certificate certifying her as unfit to work for two weeks from Monday, 14 September 2020.

[16] The same day she verbally raised her issues with Ms Arnold. She advised her that the other sales representative and another employee were also experiencing the same issues with the manager, and that they were scared they would lose their jobs under his management.

[17] The Applicant says Ms Arnold asked her to document everything, including specific examples of when the manager made her feel uncomfortable and email it to her. On 15 September 2020 she forwarded a detailed email to Ms Arnold. 2

[18] The email to Ms Arnold is four pages long. In it, amongst other things, the Applicant gives examples of her complaints, some of which are summarised below.

•  She was wondering if the manager had a problem with her but has realised that the other team members are also struggling and unhappy.

•  She explains that the day before the manager started working for the Respondent, he arranged a barbecue with the staff. He never asked any questions about their lives but asked questions such as how their targets are, and how much have they already done for the month. The Applicant felt that she was being interrogated.

•  During a discussion about a quote approval she asked him to look at, he queried whether she had a good relationship with the customer. She started to explain and reply to his question but he “shushed” her and said it was a yes or no question.

•  During a meeting with the manager and the other sales representative, the manager posed a hypothetical question about if the Applicant were having a relationship with a contractor, that was not in her area, and if they were to place a $1billion order, would she share the huge commission with the other sales representative. When the Applicant said she would do that, he accused her of lying saying that she would not be happy to do that. The Applicant felt confused and tried to explain that it would be his decision whether that would be fair or not. However, those conversations with the manager were very exhausting frustrating and pointless.

•  At another meeting the Applicant was showing the manager her work emails on her laptop. He pulled her laptop towards himself and used her mouse to go through the emails one by one. She says she had never seen such behaviour before and thought it was unnecessary and inappropriate. She then mentioned to him that she had been feeling uncomfortable ever since he had started. She mentioned that if he had issues trusting what they had been doing, he should speak to the company to get a better understanding of their days and ask for reports on how many quotes they were sending and so on. She says he again said he didn’t trust her and when she asked why, he replied that she lied to him when she said she would be happy to share the hypothetical commission if she had to. She says she was so stressed she broke into tears. She says he then spent another 20 minutes speaking about himself and all the training he had in all his amazing previous jobs. The Applicant asked him why he left his previous jobs and he replied saying he gets bored after some time.

•  Her email says that she felt like the manager was being disrespectful when he “shushed” her on a number of occasions. She didn’t think it was fair and constantly felt like she was being interrogated and belittled. The Applicant states that she feels the manager is unpredictable, unapproachable, accuses her of lying, interrogates her and is very difficult to deal with.

[19] The Applicant said in her email to Ms Arnold that she had a medical certificate from her doctor. She also said that she doesn’t think it is fair for her to be out-of-pocket, as she doesn’t have enough sick leave to cover the two weeks the doctor certified her unfit to work.

[20] Ms Arnold responded to the Applicant two hours later, explaining that she had checked their system and the Applicant had enough sick leave to cover the two weeks off so will not be out-of-pocket. Ms Arnold told her to leave the matter with her and to spend the next two weeks resting and doing what she needed to do to recover, and that she would give the Applicant a call on 23 September 2020 to check to see how she was going. She reminded the Applicant that she could access the Respondent’s employee assistance program for free confidential counselling. 3

[21] The Applicant says she subsequently contacted Ms Arnold and stated that she would like the expenses and time off work to be claimed on workers compensation. 4

[22] The Applicant says on 25 September 2020 she consulted her doctor and was issued another medical certificate certifying her as unfit to work until 2 October 2020. She says that the doctor also advised on the workers compensation progress form and that reducing her hours would be essential for her recovery.

[23] Meanwhile, Ms Arnold had investigated the complaints the Applicant made in her email of 15 September 2020. This involved interviewing six witnesses including the Applicant, the manager, and two witnesses nominated by the Applicant.

[24] On 1 October 2020, Ms Arnold emailed the Applicant confirming the process for her to lodge a workers compensation claim. The email provided the Applicant with the appropriate forms to return to her.

[25] On 5 October 2020, the Applicant returned to work.

[26] On 6 October 2020, Ms Arnold received the Applicant’s completed WorkCover claim and lodged it with the insurer, GIO.

[27] The Applicant says that the manager apologised for “shushing” her, of accusing her of lying and saying that he didn’t trust her.

[28] The Applicant says that on 12 October 2020, one week later, the manager queried her expenses in a humiliating way.

[29] The Applicant complains about a number of interactions with the manager on 12 October 2020. As a result of these she spoke to Ms Arnold on the phone on 13 October 2020.

[30] Ms Arnold recorded these complaints and responded to each of them in a detailed email on 14 October 2020. 5

[31] That email concludes as follows

“Yara, working with any new manager can be challenging if they have a different style to what we have previously worked with. It can also be uncomfortable when there are concerns in your performance and someone is working with you to help close these gaps. I recommend you use the opportunity working with (the manager) to grow as a senior sales rep and reflect on the Madison values, in particular Embrace Change and Take Ownership.

Please let me know if you have any further concerns or if I have misunderstood any points you raised above.”

[32] Ms Arnold also attached a letter addressed to the Applicant entitled Outcome of the Grievance Investigation dated 12 October 2020. This letter records 13 complaints made by the Applicant in her email of 15 September 2020 and the conclusions from the investigation regarding these. 6

[33] The letter ends as follows,

“Conclusion and finding

It is noted witnesses interviewed stated in their opinion (the manager) has never demonstrated any behaviours which would constitute bullying or harassment.

Several witnesses confirmed they have observed you being verbally aggressive towards management, including towards Eddie prior to him leaving Madison.

It was also noted by three witnesses that there have been several occasions when you have provided false or deliberately misleading information.

In taking into consideration the above, I am confident that while you may feel uncomfortable working with (the manager), this is as a result of reasonable management taken in a reasonable way. Based on the evidence provided to me, (the manager) has not acted in a way which makes the work environment unsafe for you.

No further formal action will be taken from this investigation.

I take this opportunity to remind you of the support available through Madison’s Employee Assistance Program…”

[34] The Applicant’s evidence was that the Respondent’s written response to her grievances considered the matter closed, was hostile and accusatory towards her, raised allegations against her, and provided no opportunity or right to respond and defend herself.

[35] The next day on 15 October 2020, the Applicant says the manager wanted to see her and the other sales representative at 8:30a.m. so that they could each give a 10-minute explanation of what their plan was for the day and what was done and the outcome of the previous day. She says the manager interrupted her and asked her to start again explaining in detail as if he wasn’t there.

[36] The Applicant found this inappropriate, belittling and intimidating.

[37] The Applicant says the manager asked her to stay in the office as he wanted to advise on how she should do her work and try his new structure/method of work.

[38] The Applicant says her job performance and results were better than the other representative so she could not understand the reason why he wanted to only try this new structure on herself first.

[39] The Applicant says later that day the manager accused her of interrupting him, which she says she did not do. She says he asked her to perform an unrealistic workload for the day and when she was unsuccessful, she asked to return to performing her work as before and as the other sales representative was doing. In response the manager challenged her as to why she was questioning him about the other sales representative. He told her that what he did with the other sales representative is not what he does with her, and what he did with the other sales representative is none of her business.

[40] The Applicant says that later, while she was away from the office for two hours in a meeting, she noticed missed calls on her phone. There was then an unreasonable discussion with the manager about how many calls she had missed. He then accused her of being dishonest with him.

[41] The Applicant’s evidence was that it was another exhausting and unreasonable argument that made her feel sick and burst into tears. She said that her day was hard and exhausting every time she had to communicate with the manager.

[42] That was the last day the Applicant attended work.

[43] On 16 October 2020 the Applicant saw her doctor again. Once again, the doctor certified her as being unfit for work.

[44] Ms Arnold says that on 20 October 2020, GIO advised her that an independent investigator would be appointed to review the Applicant’s WorkCover claim. The claim was classified as pending and GIO advised Ms Arnold to direct the Applicant straight to GIO for any queries she had in relation to her WorkCover claim.

[45] Given English was her second language the Applicant says she considered that perhaps the Respondent had not understood her complaints correctly and she wanted to discuss her objections to the conclusions of Ms Arnold’s investigation. Consequently, the Applicant organised for a support person, Mr Robinson, to assist her in going over the issues during a conference call with Ms Arnold on 21 October 2020.

[46] The Applicant provided a copy of the script, prepared by her with Mr Robinson’s assistance, which he then read out during the conference call with Ms Arnold to the Commission as part of her evidence. 7

[47] Added to the original script is the following notation in the header which was made by the Applicant after the phone call. 8

“Below are some of the points Justin Robinson, which was speaking on my behalf, made on the phone call conversation with Kate Arnold – she just listened. There was no response, solutions, help, recommendation, or a reply from that” (sic)

[48] The script opens as follows,

“This is an informal chat.

Yara has asked that I speak on her behalf.

This is to make sure Yara’s points are conveyed given English isn’t her first language.

She is concerned from the company’s response that the situation has not been properly understood.

Yara is here next to me and will just be listening.

No one expects an answer at the end of this call.”

[49] The script then responds to Ms Arnold’s investigation in detail.

[50] The third last paragraph of the script reads as follows,

“As mentioned at the start, Yara doesn’t expect an answer on this call.”

[51] In her evidence in chief the Applicant repeats her complaint that,

“Kate Arnold remained silent whilst the issues were being raised and refused to comment whatsoever.” 9

[52] Under cross-examination on this evidence the Applicant conceded that during the phone call Ms Arnold would say things such as, “I understand” , or “Yes” but she did not address any of the issues, she did not make any comment, or provide any options. 10

[53] Ms Arnold’s evidence was that at the beginning of the call she told the Applicant that if the call was in relation to the WorkCover claim, that is being managed by GIO and they are in the process of investigating. Further, she understood GIO had asked the Applicant to attend an independent medical examination. She told the Applicant that the claim is pending, and the Respondent can’t do much until GIO provides them with an outcome.

[54] Under cross-examination the Applicant agreed she now remembers some of those terms were said by Ms Arnold. 11

[55] Ms Arnold says she listened to what Mr Robinson read out and verbally acknowledged that she had heard and understood the comments were appropriate.

[56] Ms Arnold says that having considered the Applicant’s views, Ms Arnold’s view in relation to the matters set out in her email to the Applicant of 14 October 2020 had not changed. 12

[57] This phone call on 21 October 2020 was the first communication between the Applicant and Ms Arnold since Ms Arnold’s email to her on 14 October 2020.

[58] On 22 October 2020 the Applicant’s doctor advised the Applicant that they would no longer see her because her payments were outstanding. Consequently, the Applicant contacted GIO, the insurer responsible for her workers compensation claim, explaining the situation however, she was told her case was pending.

[59] The next day 23 October 2020 she attended her treating doctor again and paid for the consultation personally. The Applicant says her doctor stated that this was the last consultation she would allow with the Applicant, even if she wants to pay for the consultation herself, because the doctor would not see her until the entire outstanding balance was rectified.

[60] On 26 October 2020, the Applicant emailed Ms Arnold about her doctor’s bills and that they have not been paid through workers compensation.

[61] The same day she emailed GIO with her workers compensation progress form. She also said that she had been trying to book an appointment to see a psychologist. The Applicant stated that she had contacted many clinics, but they are all booked out until the end of the year.

[62] The next day 27 October 2020, Ms Arnold replied to the Applicant stating that if she wants to discuss anything related to her WorkCover claim, as previously advised to her, she needs to discuss this directly with the GIO representative as the claim is still pending.

[63] The Applicant replied that she wanted to have a conversation to discuss employment matters.

[64] In response on the same day, Ms Arnold explained that as the Applicant is currently on leave and has a pending WorkCover claim, in relation to her employment, any discussions would need to go through GIO until her claim has been resolved.

[65] Later that day, still 27 October 2020, the Applicant emailed the representative at GIO to arrange a time to speak with her.

[66] The GIO representative replied the next day, 28 October 2020, at 10:45a.m. explaining to the Applicant that unfortunately she had been home unwell the day before and therefore had not been available. The GIO representative said that she can book some time for that day if the Applicant was available.

[67] At 3:25p.m. on 28 October 2020, the Applicant replied to the GIO representative that she had tried to call her, but she was busy. She said she was out of range and had a bad mobile signal. She said she would be available for the next 30 minutes or before 10:00a.m. the next day.

[68] On 29 October 2020, the Applicant says she attempted to contact the GIO representative but again received no reply.

[69] On 9 November 2020, the Applicant says she received an email from the GIO representative offering to speak with her.

[70] The Applicant’s evidence was that neither the Respondent nor GIO, had responded in an effective conclusive or timely manner to her requests to discuss her employment, her safe return to work, or her financial hardship as a result of the process. She says she was suffering significant psychological effects requiring mental medical intervention. She says she can no longer visit her doctor due to the failure of the process and the outstanding payment amounts.

[71] Her evidence was that her physical and mental health had greatly declined, and the situation is worsening.

[72] The Applicant says that she was placed in a precarious position because this employment was her sole income, and she was supporting her family back in Brazil.

[73] She says that through no fault of her own her employment environment was unsafe, destructive to her health, and she had limited alternatives other than to resign.

[74] Consequently, on 10 November 2020, she forwarded an email to Ms Arnold advising her that she was resigning.

[75] The Applicant’s letter of resignation outlines the reasons she says she was provided with no other option than to resign.

[76] The letter details all of the complaints she has previously raised about the workplace and details her interactions with Ms Arnold and GIO.

[77] The letter concludes that she has been placed into a situation where she is forced to resign from her employment, as she cannot reasonably see any other choice to avoid further bullying and harassment and she seeks financial relief for her situation.

[78] The Applicant’s letter advised that she intended to contact the Fair Work Commission and follow through their processes as she has lost faith in the company’s procedures.

[79] Ms Arnold’s evidence is that over the next two months through to 24 December 2020, she had multiple phone conversations with GIO regarding the process, and on each call they advised her that there was a delay due to the Applicant not returning GIO’s calls or emails or not agreeing to attend an independent medical examination.

The Legislation

[80] Section 386 of the Act defines when a person has been dismissed

“Section 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.”

Applicable principles

[81] Numerous decisions of the Fair Work Commission have considered how section 386 (1)(b) of the Act is to be applied.

[82] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli 13, the Full Bench consider the section as follows:

“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because [2021] FWC 763 5 it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

[83] As was observed by Commissioner Bissettin Ashton v Consumer Action Law Centre 14,

“[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.”

Consideration

[84] The onus in a case such as this, where an applicant has clearly resigned from their employment, is to prove that their resignation was not voluntary but rather was forced because of the conduct or a course of conduct engaged in by their employer.

[85] In part the Applicant submits that because of what she says was bullying and harassment in the workplace, and a failure by the Respondent to prevent a recurrence of this, she had no option but to resign.

[86] As to this alleged bullying and harassment I note that neither party called the Applicant’s manager to give evidence as to what may or may not have occurred in the workplace.

[87] Considering the evidence, I accept the Applicant’s subjective view was that some of what had occurred in the workplace amounted to bullying and harassment.

[88] Considering the evidence, I also accept Ms Arnold’s view was having conducted her investigation, that what had occurred in the workplace was not bullying and harassment.

[89] It is for the Commission, considering all the evidence, to decide objectively whether what had occurred in the workplace was such that the Applicant was forced to resign.

[90] Considering the Applicant’s evidence about her manager’s behaviour I accept there were some instances that objectively involved behaviour that was ill-considered or at worst abrasive, however these instances were limited and should not fairly be characterised as bullying or harassment. The balance of the manager’s behaviours complained of by the Applicant were instances of a management style that the Applicant found challenging and disapproved of.

[91] I also note that a number of the behaviours which the Applicant complained about occurred when her manager was critiquing some deficiency he perceived in her performance.

[92] The Applicant also was entirely dissatisfied by the Respondent’s investigation into her complaints about her manager, and Ms Arnold’s decision that no further formal action would be taken. 15

[93] There is nothing in the evidence that demonstrates that the Respondent’s investigation into the Applicant’s complaints was in any way improper, nor that the conclusions reached were not reasonably open to it.

[94] Whilst the Applicant apparently found her new manager’s style, and at times criticisms of her performance, upsetting I do not accept she was subjected to bullying and harassment nor that her employer failed her when she complained about this.

[95] It is also relevant that when the Applicant resigned, she had been absent from work for more than three weeks. Consequently, she was not being exposed to the alleged bullying and harassment and had not been for the period of this absence. Neither, at this time, was the Respondent pressuring her to resume work.

[96] The Applicant was of course entitled to challenge the Respondent’s conclusions about her allegations of bullying and harassment. In the same way she chose to apply to this Commission after she resigned seeking a remedy for alleged unfair dismissal she alternatively, before resigning, could have made an application under section 789FC of the Act for an order to stop bullying.

[97] The Applicant was already aware of the Commission’s existence because her resignation letter mentions “Fair Work” in the penultimate paragraph. This was another option the Applicant had to deal with her concerns about her manager’s behaviour rather than resigning as she did.

[98] The Applicant also submits that her financial circumstances also in part forced her to resign. This submission relies on the fact that for some period prior to her resignation, the Applicant had been absent from work and as such was not being paid, because the status of her workers compensation claim was pending. This claim was being investigated by the Respondent’s insurer, GIO. The Applicant was aware of this. As a result, the Applicant was still required to pay her own medical bills.

[99] The Applicant complains that her dealings with GIO were delayed and unhelpful which caused her financial difficulty.

[100] The Applicant’s difficult financial circumstances were however not a consequence of any conduct of the Respondent.

Conclusion

[101] There is nothing in the evidence about how the Respondent responded to her allegations about her manager or otherwise dealt with the Applicant that demonstrates that it conducted itself with the intention of bringing her employment to an end or that objectively this was the probable result of the Respondent’s conduct.

[102] Whilst the Applicant was very upset by her situation and what she viewed as a serious and intolerable deterioration in her employment environment, it is not correct that she had no other option than to resign when she did. The Applicant’s resignation was voluntary.

[103] In conclusion I do not accept that the Applicant was forced to resign from her employment because of the conduct or a course of conduct engaged in by the Respondent.

[104] The Applicant was not dismissed by the Respondent.

[105] Consequently, this application will be dismissed and an order [PR731367] to that effect will now be issued.

Appearances:

Ms Y Sanches Cleaver on her own behalf.

Mr S. Zevari of Workdynamic Australia for the Respondent.

Hearing details:

2020.

Perth:

March 22.

Printed by authority of the Commonwealth Government Printer

<PR731365>

 1   Exhibit A1 at paragraph 13.

 2   Ibid., Attachment 1.

 3   Exhibit R1, Attachment KA5.

 4   Exhibit A1 at paragraph 93.

 5   Exhibit R1, Attachment KA3.

 6   Exhibit A1, Attachment 3.

 7   Ibid., Attachment 5.

 8   Transcript at PN93 to PN101.

 9   Exhibit A1 at paragraph 156.

 10   Transcript at PN111 and PN112.

 11   Ibid., at PN147 and PN148.

 12   Exhibit R1 at paragraph 44.

 13   [2017] FWCFB 3941.

 14   [2010] FWA 9356.

 15   Exhibit A1, Attachment 3.