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[96]
[2021] FWC 2991
General information, not legal advice.
Fair Work Commission
2021-06-16
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - jurisdiction - applicant resigned - whether resignation forced so as to be a dismissal - all of the circumstances objectively considered based upon the evidence before the Commission - on balance, not satisfied that dismissal within the meaning of the FW Act occurred - application dismissed.
[1] Ms Louise Woodward has made an application under s.394 of the Fair Work Act 2009 (FW Act) seeking a remedy for an alleged unfair dismissal. Ms Woodward was employed, initially as an Administration Clerk, by Neutrog Australia Pty Ltd T/A Neutrog (Neutrog or the Respondent) at its Kanmantoo operations under terms and conditions of the Clerks - Private Sector Award 2010 (the Clerks award). Ms Woodward commenced employment on 14 February 2011. Under the written contract of employment, Ms Woodward was expected to work an average of 40 hours per week with extra hours that maybe required depending on workload and business requirements.[1]
[2] Ms Woodward provided a written resignation from her position as a Sales Order Clerk to the employer on 27 January 2021 stating that she "felt forced to tender my resignation as a direct result of the conduct by Neutrog." The resignation was accepted by Neutrog "with regret". In this matter, Ms Woodward contends that the resignation was a dismissal within the meaning of the FW Act on the basis that she was forced to resign by an accumulation of factors associated with what were described as breaches of the Clerks Award, unreasonable workload and an unsafe workplace, and the absence of reasonable alternatives. Ms Woodward further contends that the dismissal was unfair. Compensation is being sought.
[3] Neutrog contends that there was no dismissal within the meaning of the FW Act and that as a result, this application should be dismissed. It accepts that there may have been some issues in the workplace but there were reasonable alternatives open to the Applicant to advance any concerns. Further, it contends that Ms Woodward only resigned after she had secured new employment and the resignation was not forced. In the alternative, it did not advance a proposition against the notion that any dismissal may be unfair but contended that any compensation should be limited.
[4] Given the obvious factual disputes here, I conducted a hearing to enable both parties to lead and challenge the competing evidence and to make submissions. Permission was granted[2] to the Respondent to be represented by a Paid Agent pursuant to s.596 of the FW Act. The Applicant was represented by her husband who has extensive professional Financial and Human Resources experience. However, Mr Woodward did not have extensive experience in advocacy, and as a result, I assisted with the conduct of the hearing, gave considerable latitude as to the form of evidence and submissions, and enabled the presentation of the cases in a strictly non-partisan manner consistent with the statutory charter of the Commission.[3]
[5] For reasons that are set out below, I have found that Ms Woodward was not dismissed within the meaning of the FW Act. The basis for that conclusion and the consequent findings and Order are all set out in this Decision.
[6] As stated, Ms Woodwood contends that she was forced to resign because of an accumulation of conduct by the Respondent. The course of conduct included the following alleged[4] aspects:
Having been employed and paid on a salaried basis, on the understanding that salary comprehended the stated hours of work per week, in 2019 Neutrog confirmed for the first time the basis of the calculation of the salary then being paid. This, Ms Woodward contends, revealed that there was no allowance for "overtime" worked in excess of 40 hours per week. Having worked significant overtime, particularly in peak periods (Autumn and Spring each year), this led Ms Woodward to the view that she had been taken advantage of over many years. Further, the annualised salary arrangements were not consistent with the terms of the Clerks Award in a number of respects including the absence of information and an annual reconciliation. I will describe these matters as the annualised salary issues.
The office had become very "toxic" with many staff leaving and even more being dismissed, and the Applicant was unsure how to address this issue. It became common place to see administration staff members in tears. Neutrog had seemingly taken a very negative approach to staff. During the last 2 years of the Applicant's employment there had been an extraordinary increase in the number of staff leaving the business, that on a head count basis equated to almost 100% turnover in administrative staff each year. Neutrog seemed to take no responsibility for the staff turnover and the disruptions that it caused. It simply engaged in repetitive task restructures, where they allocated the work for staff who had left onto the remaining staff that were already over ladened. I will refer to these matters as the general office environment.
Ms Woodward was aware of two employees of the Respondent who had been dismissed and what she had been informed about those circumstances by the individuals involved increased her concerns about the potential consequences for her. I will refer to these matters as the dismissal of other employees issue.
Ms Woodward continued to work hard during the remainder of the spring 2020 peak season but with the loss of more staff, the workload and stress increased. There was also a lack of clear direction and emails seeking clarification went unanswered. The Applicant began to feel that the Chief Financial Officer (CFO) was not interested in solving these workflow issues and became more stressed about the implications for her and the treatment of other employees.
The Applicant had not needed to take so many sick days in a year before. Over the previous 9 years she had generally only taken about 3 days a year on average, but in her last year with Neutrog she had needed 20 days off work. This was the result of continuing and increasing work stress and concerns about her employment security.
The Respondent changed the tasks allocated to Ms Woodward and disputed the Applicant's claim that there was a restructure involved that should have been subject of consultation under the terms of the Clerks Award. During discussion relating to this change, Ms Woodward was informed by her Supervisor words to the effect of - "If you can't keep up with the workload and the changes then that would lead to a different more difficult conversation." The Supervisor also recounted a story of how she had been made redundant from a past role for not have the skills required when changes were made in that business. The Supervisor also said words to the effect of - "you just need to find a way to get the work done." After this meeting, a list of revised duties was provided, and Neutrog refused to provide minutes or any confirmation of the statements made in the 1 December 2020 meeting
Despite subsequent meetings with the Company's external HR consultant (Mr Slape) and a later meeting also involving the CFO, it became apparent that the Respondent did not want to reconcile the workload issue, refused to provide the analysis undertaken to restructure the work, and insisted on the revised duties. Ms Woodward formed that the view that Neutrog was waiting for her to fail as a result of the volume of work, and this meant that she could not work with her Supervisor and feared being dismissed at any time.
[7] In essence, Ms Woodward contends that by mid-January 2021 she believed that the course of conduct engaged in by the employer, where they had actively sought to make the Applicant's working environment more difficult and more stressful, had driven her to the point where she felt that she needed to decide between her job and her wellbeing. This included various "breaches" of the Clerks Award. The Applicant's health had been deteriorating due to stress from August 2020 and the employer's decision not to attempt to reconcile any of the workload issues that were creating the stressful environment guaranteed that the Applicant would continue to become more unwell. Ms Woodward posits that Neutrog had left her no other reasonable course of action and this forced her to resign.
[8] Ms Woodward also relied upon the apparent absence of any formal grievance handling policy within the business.
[9] Ms Woodward urged the Commission to apply the approach to the notion of forced resignation adopted in Phair v Active Kids Pre School Centre of Excellence Pty Ltd.[5]
[10] Ms Woodward provided a witness statement,[6] and gave sworn evidence.
[11] As previously stated, Neutrog contends that Ms Woodward was not forced to resign, was not dismissed within the meaning of the Act, and that this application should, as a result, itself be dismissed.
[12] The basis for that position[7] may be summarised as follows:
The Applicant's written resignation confirms that she resigned from her employment and this was provided to its CFO on 27 January 2021.
The CFO and the Respondent's HR adviser did not act or say any words consistent with an intention to dismiss the Applicant. The Applicant was advised in December 2020 that she was a valued employee and that the Respondent had no intention to end her employment.
The termination of the Applicant's employment was not at the Respondent's initiative. Ms Woodward's evidence demonstrates that the Applicant formed a desire to resign during January 2021. She made an application for employment with an alternative employer on 17 January 2021 and was successful. The Applicant accepted that employment offer and then decided to resign from the Respondent's business on 27 January 2021.
The evidence of the Applicant discloses no basis upon which the Commission could find that the Applicant's resignation was in any way "forced" because of conduct engaged in by the Respondent. Rather, the evidence of the Respondent confirms that:
any concern held by Ms Woodward regarding unpaid overtime was not raised with the Respondent until after the Applicant resigned her employment. Accordingly, the Applicant's alleged concerns with respect to her rate of pay for alleged overtime worked cannot be said to be a contributing factor leading to any alleged 'forced' dismissal; and
the concern apparently held by Ms Woodward that there was a "restructure" was properly addressed during a meeting with the Applicant on 14 December 2020.
[13] Neutrog contends that Ms Woodward failed to utilise a number of options to deal with the issues claimed by her to have forced her resignation. These included that the issues were not escalated within the Company beyond the CFO, Ms Woodward did not use the dispute resolution provisions of the Clerks Award, and the Fair Work Ombudsman (FWO) was not approached for assistance.
[14] As to the proper approach to be taken to the notion of a forced resignation, Neutrog contends that:
The 'principal contributing factor' leading to the termination of employment that is relevant. The Respondent has not engaged in any conduct that could be described in that way.
A hasty or ill-conceived resignation given under stressful circumstances will fall short of a 'forced resignation' absent other significant factors. The evidence before the Commission demonstrates that the Applicant formed a genuine wish to resign. Ms Woodward applied for another job and then decided to resign from the Respondent.
The onus is on the employee to prove that they did not resign voluntarily and that it was forced. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.
Taking time to consider a decision can suggest that the decision is not a spontaneous reaction from an employee who believed that they have been backed into a corner with only one option left. In this instance, the decision was not spontaneous. The evidence of the Applicant demonstrates that her resignation was planned and given only once the Applicant obtained alternative employment.
[15] Neutrog led evidence from the following:
• Tony Aloisi[8], Chief Financial Officer of Neutrog; and
• Nick Slape[9], Consultant, AltoPEOPLE.
[16] Both witnesses provided a statement and gave sworn evidence.
[17] There are some factual disputes in this matter, including those associated with the detail and outcome of a number of meetings involving those giving evidence. I found that each of the witnesses attempted to assist the Commission and that their evidence was reliable. However, some of that evidence was strongly influenced by the subjective views of the witnesses and this tended to impact upon what they recollected and what implications they each sought to take from the exchanges that did occur. I have taken this into account in making my findings.
[18] Some elements of the evidence before the Commission were more akin to subjective opinions about the operation of the Clerks Award and the (legal) reasonableness of various actions, and I have treated that material as submissions.
[19] The witness statements as originally provided on behalf of Ms Woodward, including her own statement, made reference to what she understood to be the circumstances in which some former employees of Neutrog had left their employment. In one case, a witness statement was provided by one such former employee, however that employee did not attend to give evidence and Ms Woodward did not to seek to rely upon that material. In relation to one other ex-employee named in the evidence and submissions, it became apparent that this employee had been involved in litigation with Neutrog which had been resolved on a basis that included mutual confidentiality. Considering its evident hearsay nature, and the inability for either party to lead or test evidence as to the validity of that material, Ms Woodward also did not ultimately seek to rely upon that evidence.[10] Ms Woodward also provided some supportive unsworn statements about matters is dispute from persons that were not called to give evidence and could not be cross-examined. I have not given any weight to those statements.
[20] Neutrog did not lead evidence from some of its then current employees that were involved in an important discussion relied upon by Ms Woodward in the lead up to her resignation. Although it may have been possible to draw a negative inference from that "failure" this is not necessary as the Applicant's evidence about the key conversation was, in effect, not challenged.
[21] Subject to the above, I have resolved the factual conflicts based upon my assessment of the evidence as a whole, including where the objective evidence assisted in that regard.
[22] Ms Woodward commenced employment with Neutrog in February 2011. She was informed that her employment would be covered by the Clerks Award and would be paid an "All in Salary" of $37,000 per annum. This was confirmed in the employment contract which also indicated that the arrangement was based upon a 40 hour working week with the condition that "extra hours may be required depending on workload and business requirements".[11] Ms Woodward was also verbally informed that the extra hours should not be more than about two hours per week on average and that her classification was as a Clerk Level 1.
[23] Shortly after commencing employment, Ms Woodward was requested to collect the company mail, the directors' mail and milk for the office on her way into work each morning. Ms Woodward was also informed that the company expected staff to work an extra 15 mins per day as the company was growing and there was always plenty of work to do.
[24] Neutrog's business involves the production and distribution of pelletised micro-biotic fertiliser for home and commercial use. It is based in Kanmantoo, which is 50 kilometres south east of Adelaide. At the time of the cessation of Ms Woodward's employment, it employed in the order of 50 employees.[12]
[25] Ms Woodward was ultimately employed by Neutrog in the customer service area as a Customer Services Officer. Neutrog's customer service area has primary responsibilities that include processing orders, processing invoices and ensuring that shipping occurs in a timely fashion. This includes telephone, reception and truck radio communication and general office administration tasks. Ms Woodward's primary responsibilities were to process invoices/orders and shipping documentation for orders and she also performed some reception duties.
[26] The business is partially seasonal and there are additional orders and workload for the sales related functions in Autumn and Spring (peak seasons) each year. It is also the case that Neutrog has grown its business in recent years and that 2019 and 2020 were particularly busy, at least in terms of the overall sales results with a growth in the order of 40 per cent.
[27] Ms Woodward received a pay review in July 2013 and was informed that she was now on Level 2 Year 2 of the Clerks Award.
[28] Ms Woodward's main role was to process and ship orders for the company. Neutrog have a range of different order types and systems. One of the major hardware chains is its major client. In more recent times, their ordering system has been integrated into the Neutrog system. Neutrog also have to process other more manual orders. There is a separate employee who manages commercial orders.
[29] At times, Neutrog split the work between employees within the customer service area on a State by State basis, but all employees were expected to support each other to perform their primary tasks of processing, shipping and invoicing. The Customer Service team also monitors and actions emails.
[30] In the context of her concerns about the increase in workload and the adequacy of the salary, Ms Woodward regularly during 2018 and 2019 asked her managers about the office staffing levels, the "overtime" being worked, the absence of detail on the payslips and the need for a pay review.
[31] Notwithstanding these concerns, Ms Woodward considered her employment to this point to be good and worthwhile.
[32] In August 2019, Neutrog agreed to provide regular classification details under the Clerks Award to Ms Woodward (and presumably others) and to conduct a pay review. In September 2019, Ms Woodward was advised that her classification was to be Clerks Level 3 and the gross weekly wage and annual gross wage (incorporating the annual leave loading) confirmed in writing.[13] There is a dispute as to whether Mr Aloisi met with Ms Woodward at this time and explained that the salary comprehended 38 hours each week plus 2 hours of overtime, to represent 40 hours of work each week. I observe that in any event, this would have been generally consistent with the employment contract, with the exception of the notion that some additional work may be required from time to time.
[33] Ms Woodward, based upon advice from Mr Woodward, took the view that the salary did not properly comprehend the extent of hours that she had actually been working and that details of the composition of, and reconciliation for, the annual wage was not being undertaken as required by the Clerks Award.
[34] In January 2020, Neutrog was reviewing the sales administration area of its business and sought Ms Woodward's input into the range of roles and duties performed.
[35] As set out above, the volume of sales continued to increase during this period and a number of new systems were introduced. These new systems included an integrated system for orders from their major hardware client and new accounting and business systems. The workload impact of these developments is in dispute. On balance, I accept that some of these systems improved the productivity of the customer service area and that Ms Woodward informed Mr Aloisi that this was the case. However, I also find on balance that the increase in the overall level of sales and sales orders added to the workload of the team, including that of Ms Woodward. It is clear that the level of staff turnover was relatively high, and I also accept that this would have had some impact on the workload and perspective of the remaining more experienced employees.
[36] Ms Woodward sent an email to the CFO on 21 September 2020 seeking clarification of priorities as she was feeling overwhelmed after taking on extra tasks from two employees who had recently left the company. The Applicant also sent an email again to the CFO on 1 September 2020 alerting him that she was falling behind due to covering other ex-employees' tasks.
[37] During 2020, Ms Woodward discussed her concerns about the pressure and whether her hours were being properly compensated with other employees and understood that these were shared. Ms Woodward also understood that some of these employees were subsequently dismissed by the Respondent. For reasons that I have outlined earlier, the evidence before the Commission does not permit me to make any findings about the circumstances of those employees or the objective validity of Ms Woodward's concerns about her employment security as a result. I do however accept that she did hold such concerns.
[38] In October 2020, Ms Woodward took a period of personal leave. This was against the background of very low levels of such leave to that point. There is no medical evidence before the Commission to provide an objective basis for the leave. Ms Woodward subjectively considered that her illness was the result of the circumstances at her workplace. Ms Woodward advised Neutrog that she had a virus and the employer was not informed of any alleged connection with the workplace.
[39] On 1st December 2020, Ms Woodward attended an informal "payroll catchup" with the Office Manager and an Executive Assistant. This involved a discussion about the growth in the business, the fact that there were no longer any quiet periods, the need for some additional administration staff, and the likely engagement of a HR Consultant within the business. In addition, Ms Woodward was advised, in effect, that she would be allocated some additional tasks. The Office Manager then said words to the effect of "If you can't keep up with the workload and changes, then we will need to have a different more difficult conversation; that she (the Office Manager) had been made redundant from one of her previous jobs because she didn't have the skills required when changes were made within the business" and that "you just need to find a way to get the work done." Ms Woodward reasonably understood that this meant, at least from the Office Manager's perspective, that Neutrog could make her redundant or consider dismissal if the Applicant could not cope with the extra workload. I add that the Respondent rightly now accepts that this conversation was not appropriate.
[40] Ms Woodward subsequently sought a copy of the minutes of the 1 December 2020 meeting and the Office Manager advised that this was not a "minuted" meeting. On 4 December 2020 the Applicant sent an email to management asking again that the discussion be documented, noting her concerns about the inappropriate comments and advising them that she felt that the employers actions were inconsistent with the consultation provisions under her Award, on the basis that a restructuring of her work was involved.[14] Also, on 4 December 2020, the following events occurred:
The Office Manager sent an email to the Applicant advising of a reallocation of duties between Ms Woodward and another employee and described that as being "Restructured Duties".
45 minutes after the previous email, the Office Manager sent an email to the Applicant stating it is not a restructure.
The Office Manager passed on a message, stated to be from the CFO, to the Applicant saying words to the effect of - I don't want (the other employee) helping Ms Woodward with her work even if she (the other employee) is not busy. This is disputed by Mr Aloisi who denied giving any such instructions.
[41] The Office Manager emailed the Applicant noting the change in duties and indicating that "we will revisit how this is working in 3-4 weeks." There is no evidence that this follow-up occurred, at least as it involved the Office Manager and the Applicant, and in any event subsequent events overtook any such review.
[42] On 7 December 2020, Ms Woodward met with Nick Slape in his new roles as a HR consultant engaged by the employer. Ms Woodward frankly explained her concerns about her job security, her workload and the fact that she was working long hours with what she described as being unpaid overtime and the high turnover of staff. Ms Woodward considered that her concerns were heard and was optimistic that Neutrog would address some of these HR issues.
[43] Later on 7 December 2020, Ms Woodward was approached by the Office Manager who said words to the effect of - you are no longer to do any overtime. I observe that this would have partially mitigated the future salary and hours concerns of Ms Woodward but would not have assisted with any workload matters.
[44] On 14 December 2020, Ms Woodward again emailed the Office Manager, the Executive Assistant and Mr Aloisi to request meeting notes from 1st December 2020.
[45] Later on 14 December 2020, Ms Woodward was required to attend a meeting with Mr Aloisi and Mr Slape. This was initiated to respond to the matters being raised by the Applicant at that time. It is evident to me that those attending have emphasised different aspects in their recollections. This is not an indication that they have attempted to mislead, but rather a product of their respective subjective mindset going into the meeting and a tendency to remember elements that confirm their assumptions. On the balance of probabilities, I find that the fact that the meeting appeared to Ms Woodward to be relatively formal and involved the CFO and the HR Consultant heightened her concerns that her employment was in jeopardy. Further, I find that Mr Aloisi expressly advised Ms Woodward that this was not a reprimand or a disciplinary meeting and that there was no restructure of the workplace. Ms Woodward contested the notion that the change in duties were not a restructure and raised concerns about the workload. In dismissing the workload concerns, it is probable that Mr Aloisi implied that Ms Woodward was not as efficient as she might be and the Applicant pushed back on what she perceived to the unjustified implied criticism. I also find that Mr Aloisi did emphasise that Ms Woodward's relationships with major clients was "gold" and that there should be no problem with the workload. In that regard, Mr Aloisi stated that the Office Manager had already prepared a detailed analysis of the workload to determine that it was reasonable.
[46] As the meeting progressed, Ms Woodward again discussed the increases in workload and directed Mr Aloisi and Mr Slape to the consultation requirements of clause 38 of the Clerks Award. Mr Slape commented that the company had every right to add or change duties within the existing administration role. There was then a discussion about the identity of the relevant award, the comments allegedly passed onto Ms Woodward by another employee regarding the Applicant, which were disputed, and the comments made by the management representatives in the 1 December 2020 meeting. I find that Mr Slape accepted that the Office Manager may have used the incorrect language but did not at that time accept that her approach was inappropriate.
[47] I also find on balance that in closing the meeting, Mr Aloisi told Ms Woodward that the role would never be made redundant, and that the only way that she could lose her job would be performance based. This also included the notion that if Ms Woodward did not perform, Neutrog might rethink the position. Mr Slape formally closed the meeting again saying that this discussion was not a reprimand.
[48] On 17 December 2020 Mr Aloisi sent an email to Ms Woodward summarising the meeting in the following terms:
Thanks for meeting with Nick and I on Monday - I think it was very useful to clear the air and as I mentioned, I'd like to confirm some of the details of our conversation, as follows:
And finally, should you have any questions or concerns about any aspect of your role and/or employment terms at Neutrog, I am available to discuss, as needed.
[49] The business had a Christmas/New Year shutdown that concluded on 11 January 2021 and some staff and management took leave during this period.
[50] On 11 January 2021, Ms Woodward replied to Mr Aloisi's email of 17 December 2020 as follows:
I thought I would be appropriate to offer a brief response now that we are back to "normal" work conditions after the Christmas break.
As you know, I have been with the company for very nearly 10 years and have witnessed many re-structures and changes of staff. During this time, I have always welcomed positive changes to our systems & processes and happily worked additional hours as required, to keep up with my changing workload. I have been recognised for not only my strong relationships with our customers, but also for my diligence and ability to consistently get through our high volume of transactions.
Until the meeting on 1st December, I do not recall any questions about my ability to perform my role to a "satisfactory level" in the past.
However, we have had discussions and email correspondence that some of the more recent re-structures have left me concerned that some time critical elements of the allocated task might not be able to be completed in a normal 8 hour day.
I have attached the email I sent to you 21.8.20, that you did not seem to recall receiving, in our meeting with Nick. This is an example of this same discussion thread and seems to have gone unanswered.
At this point and as I have mentioned previously, I am always happy and willing to come to the office, to work hard for 8 hours and to not waste time "(in precisely the same way we expect that of others working within the business)".
You comment in point 3 of your email that "this is in no way constitutes a restructure" but as you will see the email attached from (Office Manager) 4.12.20, she clearly notes the changes as a "restructure of duties". You have also mistakenly referred to clause 8 of the Clerks Award where I had informed you that I believed that clause 38 should apply.
In point 4 of your email, you correctly note there is a disconnect between what the company deems a reasonable workload and my understanding of what can reasonably be completed in an average 8 hour day.
But fortunately, in this case, you informed me in our meeting, that (Office Manager) has in fact analysed the changes to determine that the workload is reasonable.
Could you please provide this in writing as it will be extremely helpful to understand how (Office Manager) has;
It would be very helpful to have these key assumptions provided straight away to provide a level of certainty as there have been re-structures in the past that have seemingly put staff under unreasonable workloads, created a stressful working environment and even left staff in tears.
While I still believe a number of the changes are creating a higher level of disruption, that will likely create inefficiencies, I am happy to work with the company's new direction and to track tasks times to compare against (Office Manager's) analysis.
In conclusion, I would also like to note that a significant efficiency improvement was being worked on by (employee), relating to the automatic sending of invoices to customers, has stopped with her departure. Can you confirm who will completing this task and when this is now expected.
[51] There was no response provided by Neutrog and no further communication to management by the Applicant directly concerning her concerns after this time and before the resignation. Mr Aloisi stated that this was due, at least in part to the time of the year and an awareness that Ms Woodward had waited some 4 weeks after the meeting to raise the issues.
[52] On Sunday 17 January 2021, the Applicant happened to be online and found a job opportunity that appealed to her given her dissatisfaction with her work at Neutrog and the absence of any assistance or progress.[17] This job was an administrative role that she thought she could do and was located relatively close to her home. Ms Woodward immediately sent off a rough CV. Following an interview on the following Monday, Ms Woodward received the job offer and accepted it by Thursday of that week. The new position was for a lesser role in terms of classification and rate of pay. It was also part-time and Ms Woodard has indicated in evidence that the fact that this work is both local to her and part-time is desirable, and she does not intend to pursue other options at this stage.
[53] On 27 January 2021, Ms Woodard provided her written resignation to Neutrog in the following terms:
I regret that I feel forced to tender my resignation from my position as Customer Service Officer at Neutrog Australia Pty Ltd. I am giving four weeks notice as required under my award and my last working day will be Tuesday, 23rd February 2021.
As a result of the recent and ongoing task restructures, significant staff turnover and the lack of consultation, I no longer feel that Neutrog is a healthy working environment. It has become common place to see staff in tears and to hear that previously happy efficient employees are regularly struggling to keep on top of the new tasks that have been assigned to them.
After having worked for the company for very nearly ten years, I felt obliged to bring these concerns to your attention and have even taken the extraordinary step of suggesting that the company may be in breech (sic) of my award conditions.
Many of these genuine "in good faith" inquiries have gone unanswered and even where you have assured me that the company had in fact completed the analysis required to support the proposed task restructures, the company has since failed to provide any detailed explanations of the changes or the expected impacts on employees.
This pattern of behaviour seems to be somewhat systemic in Neutrog and has had a negative impact on many staff members. This increased level of uncertainty and stress in the workplace has also had an adverse effect on my general health. I have discussed this issue with my Doctor and she has advised me to seek further professional advice and to strongly consider a change of employer.
On a final matter, during my employment I have been regularly reminded that while I am covered by the provisions of the Clerks Award, I am a Salaried employee. As part of the termination process, I would like request that Neutrog comply with the provisions of Clause 18 Annualised Salary Arrangements under my award. (with particular reference to 18.2)
[54] I note for completeness that later on 27 January 2021 Ms Woodward met with Mr Aloisi and the Executive Assistant. Amongst other matters discussed, Ms Woodward was advised that she did not need to work out her notice period that the Applicant would otherwise have completed.
[55] Although it may not be directly relevant to whether there was a forced resignation, as it occurred after the resignation had been provided, I also observe for completeness that Mr Aloisi responded to the resignation in writing in the following terms:
It is with regret that I am writing to accept your resignation, as per your letter of 27 January.
As you know and has been advised, the company acknowledges the warm and professional manner in which you deliver customer service and the reputation you've built for customer engagement and interaction. Though there have recently been concerns expressed over some aspects of your duties, my hope had been that with your continuing efforts and the support of your supervisor, we would enjoy your contribution for years to come.
We have previously discussed your view as to the company being in breach of the Award in regard to consultation (as per Clause 38) and I repeat my view that while certain responsibilities and duties have changed, there has been no "major workplace change" for which formal consultation as per the Award is required.
I can confirm that the terms and conditions of your employment have been covered by the Clerks - Private Sector Award 2020, and that the company relies on Clause 18 to provide for annualised wages. We regularly compare hourly entitlements vs annualised wages for staff for whom this provision applies, and it is our view that there has been no disadvantage to you (or to anyone else at Neutrog) by relying on this arrangement.
I am aware that there have been several challenges for our team in recent times, that have included a very busy season and various staff changes. I had hoped that we would be able to work through these collectively and to re establish systems and processes that meant we had a stable and rewarding workplace for all. The company has taken several steps towards this and it is disappointing to learn of your view that uncertainty and unreasonable levels of stress remain.
If you would like to discuss any aspect of this letter, or anything related to your time at
Neutrog, I remain happy to have such a conversation and I hope you will accept my wishes for your future.
18.1 Annualised wage instead of award provisions
(b) Where an annualised wage is paid, the employer must advise the employee in writing, and keep a record of:
(ii) which of the provisions of this award will be satisfied by payment of the annualised wage;
(iii) the method by which the annualised wage has been calculated, including specification of each separate component of the annualised wage and any overtime or penalty assumptions used in the calculation; and
(iv) the outer limit number of ordinary hours which would attract the payment of a penalty rate under the award and the outer limit number of overtime hours which the employee may be required to work in a pay period or roster cycle without being entitled to an amount in excess of the annualised wage in accordance with clause 18.1(c).
(c) If in a pay period or roster cycle an employee works any hours in excess of either of the outer limit amounts specified pursuant to clause 18.1(b)(iv), such hours will not be covered by the annualised wage and must separately be paid for in accordance with the applicable provisions of this award.
18.2 Annualised wage not to disadvantage employees
(a) The annualised wage must be no less than the amount the employee would have received under this award for the work performed over the year for which the wage is paid (or, if the employment ceases earlier, over such lesser period as has been worked).
(b) The employer must each 12 months from the commencement of the annualised wage arrangement or upon the termination of employment of the employee calculate the amount of remuneration that would have been payable to the employee under the provisions of this award over the relevant period and compare it to the amount of the annualised wage actually paid to the employee. Where the latter amount is less than the former amount, the employer shall pay the employee the amount of the shortfall within 14 days.
(c) The employer must keep a record of the starting and finishing times of work, and any unpaid breaks taken, of each employee subject to an annualised wage arrangement for the purpose of undertaking the comparison required by clause 18.2(b). This record must be signed by the employee, or acknowledged as correct in writing (including by electronic means) by the employee, each pay period or roster cycle.
18.3 Base rate of pay for employees on annualised wage arrangements
For the purposes of the NES, the base rate of pay of an employee receiving an annualised wage under clause 18 comprises the portion of the annualised wage equivalent to the relevant rate of pay in clause 16 - Minimum rates and excludes any incentive-based payments, bonuses, loadings, monetary allowances, overtime and penalties.
[57] The earlier version of this clause, which operated from 2009, included the following:
(a) An employer may pay an employee an annual salary in satisfaction of any or all of the following provisions of the award:
(iii) clauses 27 and 29 - Overtime and penalty rates; and
(b) Where an annual salary is paid the employer must advise the employee in writing of the annual salary that is payable and which of the provisions of this award will be satisfied by payment of the annual salary.
17.2 Annual salary not to disadvantage employees
(a) The annual salary must be no less than the amount the employee would have received under this award for the work performed over the year for which the salary is paid (or if the employment ceases earlier over such lesser period as has been worked).
(b) The annual salary of the employee must be reviewed by the employer at least annually to ensure that the compensation is appropriate having regard to the award provisions which are satisfied by the payment of the annual salary.
[58] It can be seen from the above that some annual information and reconciliation requirements have existed under the Clerks Award relevant to Ms Woodward's employment and there was certainly some substance to her earlier concerns about whether this was being undertaken by Neutrog.
[59] Section 386 of the FW Act provides as follows:
(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) the 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."[22]
[60] Ms Woodward relies upon s.386(1)(b) of the Act.
[61] Although applied under the previous Act,[23] the following approach of the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd[24] in my view remains generally apposite to the consideration of s.386(1) of the FW Act:
"[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
"[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous."
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."
[23] 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 to 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." (footnotes omitted)
[62] A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[25] in the following terms:
"[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a "forced" resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the "termination at the initiative of the employer" formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
"1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that "The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd" (footnotes omitted). The body of pre-FW Act decisions concerning "forced" resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust." (footnotes omitted)
[63] Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:
the question as to whether the resignation was forced within the meaning of the FW Act is a jurisdictional fact that must be established by the Applicant;
a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it "forced" the resignation;
the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
conduct includes an omission;
considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer's conduct is required.
[64] In light of the terms of the FW Act and the authorities, it is necessary to consider whether Ms Woodward was forced to resign. In making that assessment, it is appropriate to make an objective analysis of the employer's conduct to determine whether 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. The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. The line, however, must be "closely drawn and rigorously observed".
[65] There is no doubt that Ms Woodward had legitimate concerns about some elements of her workplace in the lead up to her resignation. This included the absence of clarity around her annualised wage arrangements and the hours of work that were being comprehended in that salary, and the impact of staff turnover particularly in the context of the increase in sales being experienced in 2019 and 2020.
[66] I also accept that Ms Woodward held concerns about the changes that were being made in the allocation of tasks within the sales administration role and whether this was some form of restructuring that required consultation under the terms of clause 38 of the Clerks Award. For present purposes, I do not need to determine whether there was, or would have been, a breach of the award requirements in this regard. I do observe that the Office Manager used the term "restructured" in relation to the task list and that Ms Woodward considered that the changes fell within the scope of "significant change" so as to trigger the consultation obligation. It is unlikely that a simple reallocation of like tasks and responsibilities within the group would meet that benchmark, and in reality, much of Ms Woodward's concerns about this was based upon her jaundice view of her treatment more generally and the opinion that she had formed that her continued employment was directly under threat and this reallocation was related.
[67] In terms of Ms Woodward's view that her continued employment was under threat, it is necessary in the present context to objectively consider the course of conduct of the employer. In so doing, I accept that Ms Woodward held a belief that she was being set up for dismissal. However, that belief as advanced in this case is largely based upon what other employees had told her and implications of the cessation of the employment of others. This is all disputed by Neutrog. For reasons set out earlier, there is no direct evidence about these matters and the hearsay nature of the "evidence" about these aspects makes such very problematic as the basis for an objective assessment. In that light, it is necessary and appropriate to place weight upon what was directly communicated between the Applicant and the relevant management staff.
[68] The informal meeting conducted between the Office Manager, Executive Assistant and Ms Woodward on 1 December 2020 sets some of the context for the present assessment. Based upon my earlier findings, Ms Woodward would reasonably have understood that her managers did not accept that there was a workload problem and that she would need to find a way to cope. Further, she would reasonably have understood that her capacity to do so may become a future disciplinary issue.
[69] The meeting on 14 December 2020 conducted between Mr Aloisi, Mr Slape and Ms Woodward is also important. Based upon my earlier findings, Ms Woodward would reasonably have understood that she was a valued staff member, no disciplinary action was being taken or contemplated; but that she may not have been as efficient with her work as Neutrog required, and that she would need to deal with the workload. There was also a difference of view as to whether the reallocation of duties was major change under the terms of the Clerks Award.
[70] The position of Neutrog as subsequently communicated in writing to Ms Woodward was consistent with the above but also included the notion that the difference of view about workload could not easily be reconciled. Neutrog also expected Ms Woodward to continue to fulfill her role to a satisfactory level, reinforced that she was a valued employee, and that the best outcome would be for her to remain a happy and positive contributor.
[71] The written response provided by Ms Woodward upon the resumption of her work on Monday 11 January 2021 highlighted the following matters:
The Applicant was a long serving employee that had welcomed positive change, recognised for her strong relationships with customers, and until the 1 December 2020 meeting had not had her abilities questioned;
The recent "restructure" had left her concerned that some time critical elements of the allocated tasks could not be completed in the normal 8 hour day;
Ms Woodward disputed the implications of clause 38 of the Clerks Award and sought details of the analysis that she had been informed had been conducted by the Office Manager; and
Whilst holding concerns with the higher level of disruption, was happy to work with the company's new direction to track tasks to compare with the Office Manager's analysis.
[72] As outlined earlier, Neutrog had not provided a response to this request prior to Ms Woodward seeking her new employment on Sunday 17 January 2021, or the point of tendering her resignation on 27 January 2021. I add that although there is a dispute as to whether the Office Manager had undertaken a formal analysis of the work allocations, there is no evidence that this was the subject to any written report or written communication to Mr Aloisi and that if undertaken, it was probably informal in nature.
[73] In evidence, Ms Woodward indicated that what would have needed to change for her to stay with Neutrog was as follows:[26]
"[PN593] Thank you. Two other questions for you: I understand your proposition that you were forced to resign. Obviously, it's the focal point. I don't want to engage you about that for the moment. Obviously, I need to decide whether you were forced to resign. But what I would like to ask you is two things: firstly, what would have needed to change for you not to resign? I would like to have been heard. I would like to have known how without working overtime I was supposed to get the additional work that I had been given or even the basic duties - how without putting in an extra effort to get those done as well and I would have liked to have - I think they should have had an independent HR person so that you could go to speak to them regarding your concerns. I just felt there wasn't anybody that was - would have listened without there being negative consequences for me.
[PN600] If anything - what could have changed the scenario for you? --- I would have liked to have been - had a bit of positivity about what actually I was expected to do and how I was going to get it done during that with not putting in any extra overtime.
[PN604] What would you have done if there wasn't one that night?[27] --- I don't know. It had got to a point with my health that I probably would have had to resign, which was a discussion I'd had with my doctor and she had said, "You've got to start thinking what is best for your health."
[74] Further, as to the options that may have been considered to advance at least some of Ms Woodward's concerns, despite an awareness of its role, the Applicant could not explain why she did not approach the Fair Work Ombudsman to seek advice or take action regarding her annualised wage arrangements and the alleged unpaid overtime involved. Further, Ms Woodward accepted that she did not advise the employer, or anyone at her workplace, that she was considering the resignation before gaining the new employment and then resigning. This is not an essential element of a forced resignation, but in this case is indicative of the fact that there were other options at the time and that the gaining of the new employment was a significant motivating factor in deciding to resign.
[75] In assessing whether Ms Woodward was forced to resign, I accept that that it is the combination of factors and all of the relevant circumstances that must be taken into account. Fear of discipline or dismissal is not by itself generally considered to be grounds for claiming a forced resignation.[28] In this case, there were mixed messages about whether this was being contemplated and clearly no disciplinary action had been taken against Ms Woodward. The circumstances and alleged dismissal of other employees, about which there is little or no direct evidence for reasons outlined earlier, does not support an objective reliance on this element. I do accept that the combination of Ms Woodward's circumstances impacted upon her sense of wellbeing and she found the workload and changes stressful. This included that Ms Woodward found the general office environment at Neutrog in the 12 months leading up to her resignation to be difficult and unsatisfactory. However, the absence of any medical evidence about the impact of this upon her health also limits the capacity to demonstrate that the resignation at that point in time was forced, given the basis of the Applicant's case.
[76] Having regard to all of the circumstances of this matter, I am, on balance, not persuaded that employer's conduct was of such a nature that Ms Woodward's resignation was the probable result or that she had no effective or real choice but to resign at the point that this occurred. Rather, it appears that Ms Woodward made the rationale decision to pursue other employment in her own best interests, but other reasonable options existed. This finding is also consistent with the reasonable inference that Ms Woodward would have remained employed until she had obtained new employment.
[77] I have accepted the legitimacy of many of Ms Woodward's concerns, including those associated with the general office environment, and that the absence of a reply to her 11 January 2021 letter was unhelpful and would not have reduced those concerns as they related to the workload. However, noting the timing, tone and implications of the 11 January 2021 letter by the Applicant, including the continuing willingness to work through the issues with the employer, and the objective evidence more generally as to the prevailing circumstances, I am not persuaded that the situation was sufficient to meet the requirements for a finding that the resignation was forced within the meaning of s.386(1) of the FW Act.
[78] I observe for completeness, that I have considered the issues of compliance with the Clerks Award to the limited extent that this was relevant to the immediate matter before the Commission. I have not determined whether there was, in fact, any legal non-compliance and this would be a matter for a Court of competent jurisdiction should an appropriate application be made.
[79] I have not been persuaded that Ms Woodward was forced to resign within the meaning of s.386(1) of the FW Act. Given that this is the only basis upon which it was contended that Ms Woodward had been dismissed, there is no dismissal within the meaning of the FW Act more generally.
[80] As a result, there is no basis for the Commission to further consider this application. It is beyond the jurisdiction of the Commission under Part 3-2 of the FW Act.
[81] The unfair dismissal application must be dismissed and an Order[29] to end is being issued in conjunction with this decision.
N Woodward, on behalf of Ms Woodward, the Applicant.
N Slape of AltoPEOPLE, with permission, on behalf of Neutrog Australia Pty Ltd, the Respondent.
[2] For reasons provided to the parties during the course of a Directions Conference conducted on 19 May 2021.
[3] See also the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.
[4] Drawn principally for the written outline of submissions as clarified during the hearing.
[7] Taken from the Respondent's written submissions as supplemented during the hearing.
[11] Exhibit A2 at pg 213-215 of the Court Book.
[13] Exhibit A2 at pg 199 of the Court Book.
[14] Clause 38 of the Clerks Award requires consultation on major change (as defined). It is not clear that the realignment of similar duties between existing employees would constitute the nature of major change contemplated in the award. That is, a major change in production, program, organisation, structure or technology that is likely to have significant effects on employees. See the existing law summarised in WorkPac Mining Pty Ltd v Peni Botiki, Nathan Calder, Craig Kedwell, Wayne Powell and Francisco Valdivia [2021] FWCFB 3325 at [26] to [32], which observes that regard might be had to the scale of change and not just to the potential consequences. This does not however mean that as a matter of good practice the employer should not discuss proposed changes and its consequences with the employees involved.
[16] Exhibit A2 at pg 150 of the Court Book.
[18] Exhibit A2 at pg 149 of the Court Book.
[19] Exhibit A2 at pg 148 of the Court Book.
[22] Subsections (2) and (3) are not relevant to this matter and are included only for context.
[23] Workplace Relations Act 1996 (Cth).
[26] In response to questions from the Commission.
[27] This was a reference to finding the new position during the online search.
[28] See Love v Alcoa of Australia Limited [2012] FWAFB 6754; Davidson v Commonwealth [2011] FWA 3610 and on appeal - [2011] FWAFB 6265 (2011) 213 IR 120.
Printed by authority of the Commonwealth Government Printer
Louise Woodward
Neutrog Australia Pty Ltd T/A Neutrog [2021] FWC 2991
(1995) 62 IR 200
(2011) 213 IR 120