The attached document replaces the document previously issued with the above code on 30 December 2022.

A referencing error in endnote [2] has been corrected.

[2022] FWC 2853

Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the Applicant had been constructively dismissed - no constructive dismissal - application dismissed.

• [1] On 2 September 2022, Ms Kellie Nankervis (the Applicant) lodged a general protections application against Five Star Outdoors Pty Ltd (Five Star Outdoors or the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 29 June 2022, she was constructively dismissed in contravention of the general protections provisions of the Act.

• [2] On 9 August 2022, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Ms Nankervis had not been dismissed. The Respondent contended that Ms Nankervis resigned voluntarily by email dated 30 June 2022.

• [3] On 7 September 2022, the parties participated in a conciliation conference conducted by one of the Commission's staff conciliators. The matter did not resolve at conciliation.

• [4] As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.

• [5] On 29 September 2022, a directions conference was conducted by telephone. Directions were issued for the filing of material in respect of the jurisdictional objection, and a hearing was scheduled for 20 October 2022.

• [6] The Respondent sought and, despite the opposition by Ms Nankervis, was granted permission to be represented by a lawyer under s.596(2)(a) of the Act on the basis of complexity and efficiency (as to matters of fact and law). In order to mitigate the impact of granting permission for representation, the hearing was conducted as a determinative conference.

• [7] On 16 October 2022, Ms Nankervis filed a form F52 application for an order for production of documents. Ms Nankervis sought production of a variety of documents, including all emails between herself and the directors of the Respondent in the past 12 months. A case management conference was conducted on 17 October 2022 to deal with the form F52 application.

• [8] After hearing submissions from both parties, I made an order that the Respondent produce all email correspondence between Ms Nankervis and Mr Will Valenza or Mr Laurie Mallia between 10 January 2022 and 30 June 2022. Given the Respondent had expressed some concerns in relation to the privacy of commercially sensitive information potentially contained in the documents, I determined to require the material to be provided to my Chambers only, whereupon it was reviewed.

• [9] The documents that I considered to be relevant to the jurisdictional issue were compiled into a discovery digital court book and provided to the parties by email at 7.43 am on 20 October 2022, with a revised version provided at 9.45 am.

• [10] The hearing was conducted, by videoconference, on 20 October 2022, commencing at 10.13am. Ms Nankervis represented herself, whilst the Respondent was represented by Ms Kirsty Stewart (of counsel).

• [11] A digital court book, containing all materials filed by the parties, including the relevant documents subject to the order of production, was compiled and distributed to the parties prior to the hearing. I received the entirety of the digital court book into evidence, subject to appropriate weight being given to the evidence that was tainted by opinion, irrelevance or hearsay.

• [12] At the commencement of the hearing, the order of witnesses was discussed. Ms Nankervis sought that the Respondent's witnesses go first (which would be the normal course). From reviewing the materials provided, I was aware that the Respondent contended that an email sent by Ms Nankervis on 30 June 2022 was in effect a resignation or repudiation of the employment contract. Unfortunately, it was not clear to me from Ms Nankervis' material what her position was. As I result, I determined that Ms Nankervis would give her evidence first, and if necessary, she could give further evidence after the Respondent's witnesses had given their evidence.

• [13] Ms Nankervis sought to submit a recording of a telephone conversation between herself, Mr Mallia and Mr Valenza which occurred on 21 June 2022. The Respondent objected on the basis that neither Mr Mallia nor Mr Valenza were advised that the conversation was being recorded and that the recording was made, which they contended breached the Surveillance Devices Act 2016 (SA).

• [14] Ms Nankervis contended that the recording was made to protect her lawful interests which the Surveillance Devices Act 2016 (SA) accommodates through section 4(s)(a)(ii).

• [15] I have listened to the recording. I note that not all of the persons party to the conversation were witnesses in this matter, as Ms Nankervis appears to be 'coached' at the end of the conversation by a female person who is not a witness.

• [16] I was referred by the Respondent to a number of decisions on the admissibility of the recording, including one of my own in Richard Zhang v Royal Automobile Association of South Australia Incorporated T/A RAA.[2]

• [17] The overarching principle is whether the probative value of the recording outweighs the prejudicial value. Ordinarily, I would have rejected the request to receive the recording, but in this case, the tenor of the discussion and the relative bargaining positions of the parties are important to determining whether Ms Nankervis resigned or was dismissed. I determined to receive the recording into evidence for this purpose alone.

• [18] During the hearing, I took the opportunity to observe the demeanour of the witnesses whilst giving their evidence and the interaction between Ms Nankervis and Mr Mallia and Mr Valenza.

• [19] Ms Nankervis contends that her employment ceased on 2 June 2022, or in the alternative on 30 June 2022.[3]

• [20] Ms Nankervis provided two witness statements[4] in respect of the matter and gave evidence at the hearing. The Respondent filed witness statements from Mr Mallia[5] and Mr Valenza.[6] The relevant facts, the competing positions of the parties, and my assessment of the evidence, are summarised below:

• Ms Nankervis appears to have commenced employment with The Trustee for Mallia Family Trust T/A Five Star Spas in late 2017. Mr Mallia was the sole owner of Five Star Spas.

• Five Star Outdoors Pty Ltd (the Respondent) began operating in 2019. Mr Mallia and Mr Valenza were joint owners of Five Star Outdoors. Ms Nankervis originally worked for both Five Star Spas and Five Star Outdoors. It appears that by the time of her alleged dismissal, Ms Nankervis was employed solely by Five Star Outdoors. Ms Nankervis had a long working relationship with Mr Mallia and Mr Valenza prior to 2022.

• On 10 January 2022, the Ms Nankervis' neighbour tested positive for COVID-19, and accordingly, Ms Nankervis and her family were deemed closed contacts and required to isolate for a period. Ms Nankervis eventually tested negative to COVID-19 and returned to work.

• On 28 February 2022, a meeting took place between Mr Mallia, Mr Valenza and Ms Nankervis to discuss work performance issues and set new expectations for work. During this meeting, the Respondent raised issues with the inconsistency of Ms Nankervis' working hours. The Respondent sought to make Ms Nankervis' hours of work more consistent, and proposed that she work full-time hours, from 9.00am to 5.00pm five days a week. Ms Nankervis could not agree to these hours due to family commitments. The parties eventually agreed that Ms Nankervis would work 9.00am to 2.00pm five days a week. Ms Nankervis contended that her 'agreement' to these reduced hours was forced, as the Respondent already knew that she was unable to work until 5.00pm on two days a week. Based on the evidence of the parties, I am unable to conclude that the changed hours of work were forced upon Ms Nankervis. It appears that the new hours were a compromised position agreed between the parties.

• On 27 March 2022, Ms Nankervis' son tested positive to COVID-19. On April 3 2022, Ms Nankervis tested positive to COVID-19 and was required to continue to isolate and did not work between 4 and 8 April 2022.

• Ms Nankervis contended that on her return to work, Mr Mallia did not communicate with her, and would ignore her throughout the day. Ms Nankervis contends that this treatment from Mr Mallia was a result of her COVID-19 related absences in January and March-April 2022.

• • Mr Mallia's evidence was that whilst he had previously been friends with Ms Nankervis outside of work, he stopped speaking to Ms Nankervis about social and personal matters around April 2022, on account of his belief that she had not been honest or forthright with him regarding having had COVID-19. Mr Mallia's evidence was that he was hurt by Ms Nankervis' actions and did not want to get into a confrontation or argument or say things that he would regret, so he went into his shell.[7]

• • Mr Mallia also claimed that he saw Ms Nankervis driving on Brighton Road during the period she was meant to be observing her mandatory isolation period. Ms Nankervis did not dispute this observation but advised that she could not recall whether this had occurred.[8] This appears to have had a significant impact on the trust and confidence held in Ms Nankervis by Mr Mallia.

• • Mr Mallia accepted that he asked Ms Nankervis to "ice the reports" (i.e. stop performing one of Ms Nankervis' administrative roles) but stated that this was to allow Ms Nankervis to focus on the more important aspects of her role.[9]

• • During her evidence, Ms Nankervis said she had reviewed information on the Commission's website regarding unfair dismissal, general protections and workplace bullying and had consulted a number of legal and industrial advisors. Ms Nankervis was aware that an application could be made to the Commission in relation to alleged bullying and harassment in the workplace.[10]

• On 5 May 2022, a 'Directives Meeting' took place between Mr Valenza, Ms Nankervis and another administrative employee in order to set office expectations and address ongoing performance issues. An email was sent by Mr Valenza at the conclusion of the meeting which summarised the new directives which came out of the meeting.

• On 24 May 2022, Ms Nankervis woke up feeling unwell. Given the recent tension between her and the Respondent relating to COVID-19 related absences, Ms Nankervis chose to attend work despite her sickness. Once being informed that her administrative assistant may have been a COVID-19 close contact, Ms Nankervis took a rapid antigen test (RAT), which was positive. Ms Nankervis communicated her positive test result to Mr Valenza, who requested that she do another RAT in front of him. Upon Ms Nankervis receiving a second positive test result, Mr Valenza instructed Ms Nankervis to go home.

• As Ms Nankervis was on her way home from the office, she received a call from Mr Valenza, who told her that he had contacted SA Health, who had informed him that as she had only recently had a positive test result, she did not have to isolate. Ms Nankervis did not go back to work after the call, as she continued to feel too unwell to attend work.

• • On or about 3 June 2022, Ms Nankervis attended a doctor. Ms Nankervis advised the doctor words to the effect that she had decided to leave her current employment and would send an email providing details and giving notice. She also advised the doctor that she found the atmosphere toxic and felt that she was being targeted for separation.[11] Ms Nankervis was prescribed medication.

• Ms Nankervis did not return to work for the remainder of her employment. Ms Nankervis provided the Respondent with medical certificates which covered the following periods:

• • On or about 6 June 2022, Ms Nankervis' access to the Respondent's IT systems (including emails and social media) was removed. The withdrawal of access to the IT systems is the basis of Ms Nankervis' suggestion that she was dismissed on or about 2 June 2022. I note that Ms Nankervis was unable to perform work for the period 25 May to 10 June 2022 and then from 18 June to 8 July 2022. I accept the evidence of Mr Mallia that the withdrawal of IT access was a temporary arrangement to cover Ms Nankervis' prolonged absence.[12]

• On 19 June 2022, Ms Nankervis sent Mr Valenza a text message noting that she was suffering from ongoing anxiety and did not know when she would be able to return to work. Ms Nankervis suggested a meeting to discuss the best options moving forward.

• On 21 June 2022, Ms Nankervis, Mr Valenza and Mr Mallia had a meeting by telephone. As detailed earlier, Ms Nankervis filed a recording of this telephone conversation as part of her evidence. Ms Nankervis was accompanied by an unspecified person, who appears to give her advice throughout the meeting. During the conversation, the parties discussed how the employment relationship may come to an end. Whilst the Respondent raised the possibility that the contract of employment may be frustrated, this was never acted upon. My impression of the conversation was that both parties were prepared to conclude the employment relationship but neither wanted to be the first to put forward a proposal. The recorded conversation conveyed to me the impression that Ms Nankervis was quite capable of standing her ground with Mr Mallia and Mr Valenza and was not intimidated by them. Her demeanour and the conduct of her cross-examination during the hearing supported that view.

• On 22 June 2022, Ms Nankervis proposed a settlement offer by email, which sought to bring the employment relationship to a close.

• On 27 June 2022, the Respondent sent a letter in response to Ms Nankervis, noting that the offer would not be accepted.

• On 30 June 2022, Ms Nankervis sent an email to Mr Valenza and Mr Mallia, which stated, inter alia:

"Please be advised that I will not be returning to work. I consider my position untenable and feel like I have no other option than to constructively terminate my employment."

• Ms Nankervis sought a settlement sum from the Respondent, in return for her providing a "waiver of right to lodge a claim relating to the grounds of termination or the treatment leading up to it."

• On 5 July 2022, the Respondent sent a letter in response to Ms Nankervis, in which it contended that it had not terminated her employment. The Respondent also indicated that it would treat Ms Nankervis' email of 30 June 2022 as a resignation. The Respondent proposed a mutual release in relation to the employment relationship, and a smaller settlement sum than that proposed by Ms Nankervis.

• On 12 July 2022, Ms Nankervis sent a text to Mr Valenza, which reiterated her original settlement offer of 22 June 2022.

• On 13 July 2022, the Respondent reiterated its settlement offer of 5 July 2022.

• On 15 July 2022, Ms Nankervis emailed the Respondent, stating:

"I do not accept your offer of 13 July. Withdraw any previous offers and reserve my right to seek what is fair and just. I request that my personal effects be available for collection today."

• Ms Nankervis lodged her general protections application on 19 July 2022.

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial associated 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."

• [22] Section 386 of the Act provides the meaning of dismissed:

(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."

• [23] Ms Nankervis relies on s.386(1)(b) of the Act, in that she contends that she was forced to resign from his employment because of conduct, or a course of conduct, engaged in by the Respondent.

• [24] The foundational case for 'forced resignation' matters was that of Mohazab v Dick Smith Electronic (No 2)[13]. In discussing the concept of 'forced resignation' in that case it was stated:

"In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is 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."

• [25] In O'Meara v Stanley Works Pty Ltd,[14] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:

"[23]...It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment."...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." (emphasis added)

• [26] The time period over which the events unfolded was a period of great change in respect of the opening of the South Australian borders during the COVID-19 pandemic. The border opening resulted in community concern about transmission of COVID-19 and various protocols were put in place by the South Australian Government to reduce transmission where a person had contracted COVID-19 or was a close contact of someone who had contracted COVID-19. There was a general increase in the number of people working from home, either in-part of in-full (where their work would allow).

• [27] A wealth of information was provided by the parties which goes to the merits of the Ms Nankervis' general protections claim. This decision only concerns the question of whether Ms Nankervis was dismissed by the Respondent (including whether, by its conduct, the Respondent forced Ms Nankervis to resign).

• [28] I acknowledge that Ms Nankervis is not well versed in the law and has little experience in how to present her case. I have made allowances in that regard.

• [29] It is clear that Ms Nankervis' initial contention that she was dismissed on or about 2 June 2022 is not supported by the evidence. The fact that the parties were discussing how the employment relationship might end on or about 21-27 June 2022, means that the employment relationship cannot have ended on (or about) 2 June 2022.

• [30] Ms Nankervis email dated 30 June 2022 clearly ended the employment relationship. This email was sent at Ms Nankervis' initiative. The key issue for determination is whether this email was brought about by conduct, or a pattern of conduct, by the Respondent which resulted in there being no effective or real choice open to Ms Nankervis but to resign.

• [31] Ms Nankervis asserts that the Respondent's actions which should be regarded as such behaviour are as follows:

• Training of the other administrative assistant to do her job.

• Reduction of her working hours from 34.5 hours per week to 25 hours per week in March 2022.

• Mr Mallia and Mr Valenza accusing her of lying about her COVID-19 status.

• Mr Mallia giving her the 'cold shoulder' by not engaging in full dialogue with her.

• • The Respondent failing to give her work to perform whilst she was on personal leave.[15]

Were there other options available to Ms Nankervis?

• [32] Ms Nankervis had the benefit of professional industrial relations advice prior to sending the email date 30 June 2022. The detail of the advice given is not before the Commission, and no criticism of this is made.

• [33] To the extent that the issues outlined above were regarded by Ms Nankervis as bullying, Ms Nankervis accepted she could have lodged an anti-bullying application.

• [34] In respect of the change to her hours, Ms Nankervis had the option of lodging a dispute resolution application with the Commission under s.739 of the Act.

• [35] It may also have been possible for Ms Nankervis to make a general protections claim not involving dismissal under s.372 of the Act.

• [36] All of these options would have preserved the employment relationship whilst giving Ms Nankervis the opportunity to address the underlying concerns.

• [37] The sending of the email of 30 June 2022 was a drastic step by Ms Nankervis. It brought the employment to an end and deprived the Respondent of further addressing the issue. There was no threat to dismiss. Ms Nankervis was not under time pressure. Her personal leave did not cease until 8 July 2022 and the Respondent had advised that it was prepared to discuss the issues upon her return to work.

• [38] It appears that Ms Nankervis determined to end the employment relationship sometime in early June, and this is consistent with her attempts to negotiate an exit package that would be financially beneficial to her. The 30 June 2022 resignation came without notice, when it became clear that the Respondent would not agree to her terms.

• [39] On an objective analysis, it appears to me to be more probable that the resignation was a rash decision made by Ms Nankervis rather than the product of the conduct attributed to the Respondent, most of which was adequately explained my Mr Mallia. The fact that the Respondent did not agree to Ms Nankervis' settlement demands is not a proper basis to suggest the resignation was forced.

• [40] It is clear to me there were other options available to Ms Nankervis. I am unable to conclude that Ms Nankervis had no effective or real choice but to resign.

• [41] Accordingly, I find that Ms Nankervis was not dismissed by the Respondent and for that reason, the Commission lacks the jurisdiction to allow her s.365 claim to proceed. The Application must be dismissed.

[1] [2020] FCAFC 152.

[2] [2019] FWC 8090.

[4] Digital Court Book pp.12-17 and pp.72-75.

[5] Digital Court Book pp.98-103 and pp.148-149.

[6] Digital Court Book pp.144-145 and pp.150-151.

[11] Digital Court Book Page 10, Transcript PN556-563

[13] [1995] IRCA 625; (1995) 62 IR 200.

[14] PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006).

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