s.365 - General protections

Jurisdictional Objection: employee not dismissed within the meaning of the Fair Work Act - jurisdictional objection dismissed - matter to be listed for conference.

[1] Bethan Rutter (the Applicant) made an application to the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (Cth) (FW Act), alleging that she had been dismissed from her employment with AngloGold Ashanti Australia Ltd (the Respondent) in breach of the General Protections provisions of the FW Act.

[2] The Respondent has objected to the application on the grounds that the Applicant resigned her employment and was thus not dismissed within the meaning of the FW Act.

[3] As stated recently by the Full Bench in Lipa Pharmaceuticals v Mariam Jarouche:

"Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission 'dealing' with the dispute under s 368 including by conducting a conciliation conference.[1]"

[4] As such, the matter was set down for hearing on 25 July 2023 to determine the jurisdictional issue.

[5] The Respondent sought leave to be represented at the hearing.

[6] The Applicant made no submissions on the issue of the Respondent being represented. In its submissions, the Respondent drew my attention to case precedent supporting the proposition that in matters involving jurisdictional objections and particularly objections over whether or not there has been a dismissal, there will be issues of such complexity that it would be appropriate to allow representation. I accepted that this was true of the present case and exercised my discretion to allow the Respondent to be represented.

[7] The Applicant gave evidence on her own behalf.

[8] Ms Elena Kojundzich gave evidence on behalf of the Respondent.

[9] The Respondent filed submissions in the FWC on 3 July 2023. The Applicant's submissions were due to be filed on 10 July 2023. On 12 July 2023 the Applicant wrote requesting an extension of time to file due to illness. My chambers requested evidence of illness, which was provided, and an extension was granted until 17 July 2023. The Applicant then filed submissions on 17 July 2023.

[10] The Respondent was given an extension to file its reply submissions and subsequently filed such submissions on 24 July 2023.

[11] The Applicant was engaged by the Respondent as a Process Trainee at the Tropicana gold mine with a commencement date of 6 April 2023.

[12] The Applicant suffers from a number of serious food allergies and made the Respondent aware of these allergies at the time of her employment. As a result, the Respondent advised the Applicant that it would make certain arrangements at the minesite so that the Applicant could eat in the employees' mess but avoid consuming any foods that would cause her to have any health issues.

[13] There is some dispute between the parties as to the extent to which these arrangements were implemented. The Applicant claims that certain elements, such as the labelling of food in the mess, were not observed. The Respondent argued that the Applicant was in fact provided with appropriate levels of assistance and support.

[14] The issue came to a head on 26 April 2023 when the Applicant consumed icing from a cake without first checking the ingredients. This caused her to have a reaction and required medical treatment. On 27 April 2023 the Applicant flew to Perth as part of her normal shift rotation.

[15] On 29 April 2023 the Applicant sent a resignation email to the Respondent. On 3 May 2023 the Applicant sent a further email, seeking to retract her resignation. The Respondent sent the Applicant a letter on 4 May 2023 advising that her resignation had been accepted and that her employment with the Respondent would end on that date.

[16] On 16 May 2023 the Applicant lodged a s365 application with the FWC.

• [17] The Respondent submitted that the Applicant had resigned her employment in terms that were clear and unambiguous and cited Sovereign House Security Services Limited v Savage and Koutalis v Pollett[2] in support of the proposition that where an employee uses clear and unambiguous words of resignation that are understood by the employer to be a clear intent to resign, then the employee has indeed resigned. The Respondent further submitted that as the Applicant's resignation was given three days after the incident that was the most significant catalyst for the resignation, it was not given in the heat of the moment. As such, it was not incumbent on the Respondent to seek to confirm the Applicant's intent. On this point the Respondent drew my attention to the findings of the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[3].

[18] On a related point, the Respondent noted that although the Applicant's resignation did contain a number of complaints about her employment, such complaints should not be considered unusual in that it claimed many employees resign and provide their employer with a candid assessment of the employer's operations as viewed from their perspective. As the resignation was otherwise clear and unambiguous, the Respondent submitted it was entitled to treat it as a bona fide resignation and not required to make further investigation.

[19] The Respondent did not accept the Applicant's attempt to characterise her resignation as "informal" and noted that the Applicant's own legal representatives had sought to formally withdraw the resignation, albeit some days after the employment had ended. The Respondent further submitted that its conduct was not intended to provoke a resignation, nor could any of its behaviour be said to be such that it had the effect of bringing the employment to an end. Instead, the Respondent submitted that it was the Applicant's own actions in ignoring the agreed process of checking the ingredients in the icing consumed on 26 April 2023 that gave rise to the resignation and that the Applicant, having failed to ensure her own health and safety, did not engage meaningfully with the Respondent on the issue but simply resigned.

• [20] Finally, the Respondent submitted that the unsafe actions of the Applicant in eating food without checking its ingredients should be distinguished from a work-related illness. In this it cited the findings of Deputy President Beaumont in David Hill v Pilbara Iron Company Services Pty Ltd[4].

[21] As the Applicant was unrepresented and her evidence and submissions were not made in what might be regarded as a standard format, I have used my discretion to distil her argument and evidence from the materials she filed. In essence, the Applicant felt that her particular individual safety needs, based on her allergies, had not been properly addressed by the Respondent. It was her submission that she had been experiencing a number of difficulties in ensuring that she only consumed food that was safe for her to eat and that the culmination of this had been the incident where she consumed the icing from a cake. She claimed her difficulties had been exacerbated because the Respondent had not ensured that all food was labelled, which she claimed had been an undertaking from the head chef of ESS, who are the site's catering provider.

[22] The Applicant advanced the proposition that the ordering by her supervisor, who had full knowledge of her condition and who was responsible for her wellbeing, of a cake containing products which could - and did - induce an anaphylactic reaction was evidence that her safety was compromised. Indeed, she submitted that in her view the risk to her health and safety was such that it was potentially life-threatening. She further submitted that the process of investigation of the moving of the cake from an office to a communal area was unfair and did not in any way address the safety risked posed to herself. It is clear from her submissions and evidence that this incident with the cake was a significant factor in her decision to resign.

[23] Finally, on the issue of the resignation, the Applicant submitted that as her resignation was undated she regarded it as informal, although it is not completely clear as to the significance of this. Based on her cross-examination of the Respondent's witness, I have formed the view that the Applicant, in noting that the resignation was undated, is suggesting that it ought not to have been regarded as clear intention and perhaps not accepted. It was clear in her submissions that the Applicant regarded the behaviour of the Respondent in simply accepting that resignation rather than seeking to make further accommodations to her condition was discriminatory.

[24] The evidence of Ms Kojundzich for the Respondent was that appropriate steps had been taken to address the Applicant's medical condition. Specifically, she noted that the Applicant had been involved with discussions with the site nurse, her supervisor and the head chef of ESS on her first day on site. As part of her witness statement Ms Kojundzich tendered a number of emails outlining steps the Respondent was taking to assist the Applicant to manage her food allergies and other health issues. This included an email from the site nurse on 30 June 2023 that discussed ongoing improvements to the processes to assist the Applicant. During her cross-examination, the Applicant conceded that most of the steps noted by Ms Kojundzich had indeed been implemented, including the ability to ask cooks from ESS about the contents of food, albeit that the Applicant claimed that this was merely a temporary measure until the food was labelled. The Applicant did not agree that the signage in the mess shown in the photographs appended to Ms Kojundzich's second witness statement, which outlined issues with food allergies, had been present when she had been on site.

[25] The Applicant questioned Ms Kojundzich on the issue of the labelling of food, which she claimed had been agreed to by the ESS head chef but was never provided. Ms Kojundzich explained, and I accept, that notwithstanding what the ESS chef may or may not have said, the issue of labelling of food was a decision not within the scope of that chef's authority and would be an issue requiring significant consultation with stakeholders and ESS.

[26] Under cross-examination, Ms Kojundzich confirmed that she regarded the Applicant's resignation email as a formal resignation as it was clear and unambiguous. She explained in response to questioning by the Applicant that the Respondent did not simply write back to talk her out of it as being a combination of factors such as the resignation being sent on a Saturday and thus there was a delay in processing it and also, committing to allow a resignation to be retracted was not something the HR department could commit to without consultation.

[27] In the first instance, I accept that the resignation, in the form it was given by the Applicant to the Respondent was clear and unambiguous and clearly indicated an intent to resign. The evidence of the Respondent, which I accept, is that this is how it was perceived. I do not attach any significance to the Applicant's assertion that as it was undated, it was somehow not formal. It was sent via email and thus contained a sent date and the Respondent then applied the usual notice period to the date the email was sent and received to determine the date employment would end. This does not to me appear to be an unusual reaction to the resignation, given its clear intent.

[28] I also accept the position of the Respondent that it is not in any way unusual that a departing employee should express a range of grievances in a resignation email. However, it is perhaps significant that the grievances raised by the Applicant were not general complaints about unspecified issues, but rather specific complaints about issues that presented a serious risk to her individual safety and health. I will say more on this later.

[29] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (Bupa) the Full Bench found as follows

"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 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 probably [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.[5]"

[30] With reference to paragraph one of the extract from Bupa, I find that the Applicant's resignation was not given in the heat of the moment. However, I believe it is necessary to consider the second scenario postulated in that paragraph, being one where the employee is in a state of emotional stress or mental confusion.

[31] It was the Applicant's unchallenged evidence that she was, to use her word, traumatised by the reaction she had to eating the icing from the cake. Although this was not a full anaphylactic reaction, it was nonetheless, on her evidence, an unpleasant reaction and one that caused physical and mental distress. Given the Applicant's evidence, which was not contradicted at hearing, about the practical difficulties in getting enough to eat that she had been experiencing for some weeks, I find that the stress from the icing incident added to an already high load of stress the Applicant had been experiencing. I also note her medical evidence, from Dr Sultana and Dr Edis, regarding her state of mental stress. Although the medical certificates from these practitioners are dated 4 May 2023 and 5 May 2023 respectively, I believe it is appropriate to give them some weight, given their unequivocal statements regarding the Applicant's mental state both at the time and earlier.

[32] The issue for the FWC is to assess whether it is reasonable to conclude that this distress was such that her resignation was not conveying a real intention to resign. It was the Applicant's evidence that she did not expect her resignation to be accepted and so there remains the possibility that her resignation was more of a cry for assistance rather than a genuine expression of an intent to resign.

[33] In assessing this possibility, I need to mindful that there were three days between that incident and the resignation. Those three days were spent by the Applicant at her home, away from the workplace and were thus an opportunity to reflect. However, it is not contested that on the Monday following her Saturday resignation email, the Applicant attended the offices of the Respondent in Perth to discuss ways to improve food safety on site. Shortly after this, the Applicant requested that the Respondent allow her to retract her resignation. I think that this is evidence that, at the very least, the Applicant was not absolute in her intention to resign. Further, I find that notwithstanding the time that had elapsed between the icing incident and the resignation, the Applicant had remained in a highly agitated state during that period.

[34] I am also somewhat concerned about the actions of the Respondent in response to the Applicant's request to revoke her resignation. I sought to gain an understanding of the motivations of the Respondent who, after having the discussion with the Applicant about food safety on the Monday following her resignation, and subsequently having received a request two days later to revoke her resignation, responded the following day with confirmation that her resignation had been accepted. The answer I received to my query was, frankly, unhelpful and could be distilled down to "bureaucratic intransigence."

[35] In this matter, I find that the resignation tendered by the Applicant to the Respondent was given when the Applicant a state of high stress. It falls, in my assessment, into the category of resignation contemplated by paragraph one of the extract from the Bupa decision as set out above. I find that the Respondent, being aware of the Applicant's severe allergies and the incident with the icing, and having read the actual content of the resignation email, ought to have made further inquiries into the Applicant's true intentions.

[36] I further find that the actions of the Applicant in attending the Respondent's office post-resignation email to discuss food safety at the site, coupled with her request to revoke her resignation accompanied by medical evidence of her state of mind, should have given the Respondent even more reason to explore the intentions of the Applicant. However, the Respondent chose not to do so, but instead decided to accept her resignation. My consideration of all the issues in this matter leads me to conclude that the termination, consistent with the findings in Bupa, is a termination at the initiative of the employer.

[37] The Respondent's jurisdictional objection is dismissed. An order will issue and the matter will be listed for conference.

[1] Lipa Pharmaceuticals v Mariam Jarouche 2023 FWCFB 101 [23].

[2] Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116; Koutalis v Pollett [2015] FCA 1165; (2015) 235 FCR 370 at [44].

[3] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [47].

[4] David Hill v Pilbara Iron Company Services Pty Ltd [2023] FWC 794 at [80].

[5] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [47].

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