s.365 - General protections

On Call Staffing Solutions Pty Ltd as trustee for the PM Unit Trust

General protections dismissal dispute - jurisdictional objection alleging no dismissal - forced resignation - objection dismissed.

• [1] This is a constructive dismissal decision. Carolyn Cryer alleges she was "dismissed" by On Call Staffing Solutions Pty Ltd as trustee for the PM Unit Trust (On Call) because she was forced to resign from her employment due to conduct, or a course of conduct, engaged in by On Call. On Call is part of a group of companies that also includes Lumia Care Services Pty Ltd (Lumia). Lumia says Ms Cryer's employment had moved to Lumia before Ms Cryer resigned and says Lumia should be identified as the respondent employer. Lumia denies that Ms Cryer was forced to resign and says Ms Cryer is not eligible to make this application because she was not "dismissed" within the meaning of ss.12 and 386 of the Fair Work Act 2009 (FW Act).

• [2] A hearing was held in Sydney on 11 April 2025 in relation to whether Ms Cryer was constructively dismissed, and which entity she resigned from. Ms Cryer represented herself with assistance from her son, Elliott Cryer. Rabi Medina (Chief People Officer) represented Lumia and On Call.

• [3] The parties filed various documents in support of their cases. The Digital Hearing Book was 725 pages. However, I consider the case can be resolved by reference to a small number of emails.

• [4] On 23 October 2024, Mr Medina sent an email to the "Lumia Care Team" which had a Field Staff Communication and FAQ Sheet attached. The Field Staff Communication relevantly stated:

"Lumia Care is moving closer to implementing a unified rostering system across all home care and community-based businesses under Lumia Care. This system is called 'The Lookout.'

With this upcoming change, we are a step closer to issuing new employment contracts for all field staff under one employer being 'Lumia Care Services Pty Ltd - ABN 71 640 625 850.'

With the issuing of the new revised contracts of employment, you will see some of the following key details and changes:

1. Recognition of Service: Your original employment date will be recognised, which means even though you are receiving a new contract, your first day of work with the organisation will be recognised.

5) New Contracts Issue Date: The revised employment contacts are anticipated to be issued to you on Monday 18 November 2024. You will receive the contracts into the same email where you currently receive your pay slips.

There will be a post consultation period which will run for three (3) weeks from the date of the contracts being issued..."

"Why are we transitioning to new employment contracts?

We are transitioning to new employment contracts to unify our organisation under one ABN and a single entity name, which will streamline our operations, improve efficiency, and provide consistent employment terms and conditions across Lumia Care Services.

Will my job role, responsibilities or salary change with the new contract?

No, this process is separate to the annual performance review and salary appraisals. This change will not result in any alterations to your employment benefits or conditions. There are changes to terms set out in the employment contract, however these are largely the same across all current businesses.

Will my tenure with the organisation be affected by the new contract?

No, your tenure with the company will remain unaffected. Your length of service will be recognised and documented within the new contract, and any entitlements such as annual leave, sick leave and long service leave will be carried over to the new contract.

How long do I have to review and sign the new contract?

You will be given up to two (2) weeks to review and sign the new contract. This period allows you to seek clarification and provide feedback if necessary. However, we encourage you to try and review the contract and return a signed copy as soon as possible upon receiving.

What happens if I do not agree with the new contract terms?

We encourage you to discuss any concerns with the People and Culture Team or your manager. Our goal is to address any issues and ensure that the new contract is fair and acceptable to all employees..."

• [6] On 20 November 2024, Mr Medina sent a follow-up email to "Lumia Care Field Staff." The email had an internal communication letter attached. The letter stated that the issuing of the new contracts had been delayed due to "additional processing requirements." The letter stated the new contracts would be issued on 25 November 2024. The letter also put employees on notice that the new contracts may identify different role titles and may refer to a different SCHADS Award classification.

• [7] On 22 November 2024, Mr Medina sent an email to "Meditech Staff Field Team." The email provided information about a new scheduling/rostering platform named The Lookout Way (TLW). Mr Medina stated training modules for the new platform would be issued through AUSMED the following week, as well as instructions on how to download and access the new TLW app. The email states the existing rostering app, Procura, and TLW would be used concurrently from 2 to 8 December 2024 to ensure a smooth transition for staff.

• [8] On 2 December 2024, Ms Cryer sent an email to Jason Cartwright (CEO), Eshna Khadka and Mr Medina. Ms Cryer expressed enthusiasm about continuing her role under Lumia Care under its new leadership. Ms Cryer then referred to six unresolved employment matters that she wished to have addressed before signing the new contract. These were: pay classification and back pay, unpaid training hours, pay slip discrepancies, disciplinary records, pay parity across clients, and acknowledgement and remuneration for new clients brought to the company. Ms Cryer also raised concerns with her new contract. Ms Cryer said the new contract did not address her unresolved concerns and could nullify her ability to resolve them. Ms Cryer requested a response by close of business on 4 December 2024.

• [9] Mr Medina sought confirmation about whether three clients were introduced to the business by Ms Cryer in internal emails sent on 4 December 2024.

• [10] On 5 December 2024, Mr Medina sent a reminder email to the "Lumia Care Field Team" concerning the need to complete AUSMED training to use the new TLW app. This was said to be a "final reminder." Ms Cryer responded to this email on 7 December 2024 and indicated that AUSMED stated she had until January 2025 to comply. Ms Cryer asked Mr Medina to confirm if that is right.

• [11] On 11 December 2024, Mr Medina sent an email to Ms Cryer. The email stated Ms Cryer had until 5pm the next day to start using the TLW app. Mr Medina indicated Ms Cryer would cease being provided with work if she did not start using the TLW app by 5pm the next day. Mr Medina's email states the HR enquiries Ms Cryer had been raising were separate to the TLW direction and that the direction needs to be complied with. Mr Medina stated he had not yet responded to Ms Cryer's concerns because he provided a reasonable direction for Ms Cryer "not to bombard the Group CEO's email with the myriad of queries that you have." Mr Medina asked Ms Cryer to send a single email to him with her queries so that he could respond.

• [12] On 7:36am on 12 December 2024, Ms Cryer responded to Mr Medina's email. Ms Cryer expressed disappointment that Mr Medina had failed to resolve her queries over the past two years. Ms Cryer raised five of the six issues she had identified in her earlier email on 2 December 2024, but did not include pay parity across clients. Ms Cryer stated she complied with the direction regarding TLW, requested that a response be provided without delay, and stated if her concerns were not resolved that she would have to pursue other options.

• [13] At 6:56pm on 12 December 2024, Ms Cryer received an automated email which stated Lumia Care Services had processed her pay, and a new pay slip was available.

• [14] At 7:37am on 13 December 2024, Ms Cryer sent an email to Mr Medina, Mr Cartwright, and Mr Khadka which communicated a formal resignation from her position with Meditech Staffing, effective immediately. Ms Cryer identified the failure to address the six issues raised in her earlier email dated 2 December 2024 as the reason for her resignation.

• [15] Section 365(1) of the FW Act states:

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

• [16] The dictionary in s.12 of the FW Act defines "dismissal" by calling up the definition in s.386 of the FW Act. The definition in s.386 states:

(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

(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

(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.

• [17] In Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279 (Fingal Glen), the Full Bench endorsed, with one point of clarification, an earlier summary of the principles applicable to assessing whether an employee was constructively dismissed. The Full Bench stated:

"The four authorities cited above were summarised by a Full Bench of the AIRC in O'Meara v Stanley Works Pty Ltd (O'Meara) as follows:

'In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.'

Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act...

First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an "important feature" of constructive dismissal, it is not sufficient 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". There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The "limb" of the O'Meara test relating to resignation as a probable result of an employer's conduct should be read in this light."[1]

• [18] The Full Bench in Fingal Glen also confirmed that the existence of underpayment issues should not be immediately taken to mean the employee was forced to resign. The Full Bench referred to the employee in that case having "other options available" to "pursue their complaints."[2]

• [19] I consider Ms Cryer resigned from her employment with On Call and not Lumia on 13 December 2024. Prior to Ms Cryer's resignation email on 13 December 2024, no action had been taken to end Ms Cryer's employment with On Call. Ms Cryer had not resigned and had not been dismissed by On Call. Ms Cryer remained employed by On Call and continued performing her regular duties. Ms Cryer never agreed to commence employment with Lumia. Ms Cryer never agreed to an employment contract with Lumia. It was not possible for On Call and Lumia to unilaterally decide that Ms Cryer's employment had transferred from On Call to Lumia on around 12 December 2024. I find On Call is the correct respondent to Ms Cryer's application. It is conceivable that Lumia was "involved in"[3] any alleged contravention of the general protections provisions.

• [20] I also consider that Ms Cryer's resignation was forced and constitutes a constructive dismissal. Although I consider On Call and Lumia provided detailed and helpful information to employees about its decision to move all employees to Lumia, there was an important element that was not addressed. That was the answer to Ms Cryer's question about what would happen if she did not agree to the new contract with Lumia. The answer to Ms Cryer's question should have been that her employment with On Call would cease on the ground of redundancy. Ms Cryer's employment with On Call was no longer required because the group decided that all employees would be engaged by Lumia. The group essentially decided to implement a transfer of business from On Call to Lumia. However, as is clear from the definition of a "transfer of business" in s.311 of the FW Act, the employment with the old employer must still legally end and employment with the new employer must legally commence. That had not happened when Ms Cryer received an email on 12 December 2024 which stated she was now being paid by Lumia. It appears Lumia took over the administration of Ms Cryer's employment, even though she had not formally become its employee.

• [21] In the unusual circumstances of this case, I consider On Call can be found to have intended to force Ms Cryer to resign. This was the legal effect of Ms Cryer being required to sign a new employment contract with Lumia if she wanted to continue work. Continuing to work for On Call was not presented as an option for Ms Cryer.

• [22] I also consider that Ms Cryer's resignation was a probable result of On Call's actions. The group's decision to move all employees to Lumia meant that Ms Cryer did not have the option to continue working for On Call. Ms Cryer's choices were agreeing to commence employment with Lumia or having no work. Ms Cryer chose the latter option and decided to resign from her employment with On Call. Ms Cryer's resignation was caused by the conduct of On Call, which left Ms Cryer with no other realistic alternative to resigning.

• [23] Given my findings above, I do not need to consider Ms Cryer's other arguments which concern alleged underpayment issues, the conduct of Mr Medina, and concerns about a disciplinary process. However, it is unlikely I would have found these other issues forced Ms Cryer to resign from her employment with On Call. It is clear Ms Cryer had been able to agitate numerous issues about her employment with Mr Medina and to remain employed while doing so. This included making a complaint to the Fair Work Ombudsman, which led to an additional payment being made to Ms Cryer. I consider the evidence shows Mr Medina was genuinely trying to resolve Ms Cryer's issues and was not being dismissive. Although it is also clear that Mr Medina was not able to resolve Ms Cryer's concerns to her satisfaction. I consider Ms Cryer had other alternatives to deal with these issues and they did not force her to resign.

• [24] I find that Ms Cryer was forced to resign from her employment with On Call on 13 December 2024 and that she was "dismissed" in accordance with the definition in s.386(1)(b) of the FW Act.

• [25] I dismiss the jurisdictional objection raised by On Call and Lumia.

• [26] The dispute will proceed to be listed for a conference.

Ms Cryer representing herself with Mr Elliot Cryer.

[2] Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, [24].

[3] This is a reference to the accessorial liability provision in s.550 of the FW Act.

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