Moore v North Sydney Council

Question before the Commission

1. The jurisdictional prerequisite for the Commission to entertain an application under s 84 of the Act is that an employee has been "dismissed". Unlike the Fair Work Act 2009 (Cth), the actual meaning of the term "dismissed" is not to be found in the Act. Consequently, there is a long line of authority which establishes what a "dismissal" is for the purposes of the Act.
2. A dismissal occurs when an employee is "sent away or removed" from employment by the employer (Smith v Director General of Education (1993) 51 IR 204 at 219). Here, the respondent did not send away or remove the applicant. Rather, the applicant notified her intention to resign and then provided a written resignation by email, which was accepted by the respondent.
3. However, as the Full Bench of the Commission stated in Allison v Bega Valley Council (1995) 63 IR 68 ("Allison") (at 72): "there are cases where the courts, after analysis, have determined that although the employee has resigned, and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment."
4. In these cases the cessation of employment may be regarded as a "dismissal" for the purposes of the Act. It is the applicant's contention that this is such a case.
5. The applicant's primary case relies on the Commission accepting that the applicant was forced to resign after being "presented with an ultimatum by Ms Amanda Dobson [at a meeting on 5 March 2018] that she could not work both [her primary and secondary] roles and that she would need to choose between her two employers".
6. The applicant submits in the alternative, that if the Commission is unwilling to find that an ultimatum to choose between the applicant's primary and secondary employment was given, the respondent is "at fault on the basis that the respondent's conduct caused the applicant to be under the impression that such an ultimatum had been given", causing the applicant to resign.
7. The respondent denies that Ms Dobson issued any ultimatum to choose between employers or that its conduct caused the applicant to be under the impression that such an ultimatum had been given. The respondent's version of events is that the respondent communicated to the applicant that, for operational reasons, upcoming projects, impact on the work team and because of work, health and safety concerns, the respondent could not, and did not agree to the applicant's request for variation of her work hours.
8. The Full Bench also observed in Allison (at 72): Although the term "constructive dismissal" is quite commonly used it can deflect from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?
9. If the respondent's version of events is accepted, then this will effectively resolve the question of whether the applicant was dismissed in the negative, and the Commission does not have jurisdiction to hear the applicant's application under s 84 of the Act.
10. If the applicant's version of events on her primary case is accepted, that is that the respondent gave the applicant an ultimatum which required the applicant to choose between continuing to work for the respondent and continuing her secondary employment, then this will not necessarily resolve the question of the Commission's jurisdiction. It will still be necessary, in accordance with Allison, to determine whether the ultimatum, or other conduct of the respondent, was the effective initiator of the termination of employment.
11. If it is accepted that the respondent did not issue an ultimatum, but the applicant believed that she was faced with a choice between working for the respondent or the secondary employer this will not, of itself, be determinative. The correct test is whether when considered objectively, the respondent's actions were the effective initiator of the termination of employment (Kelleher and Wagga Wagga Base Hospital [2004] NSWIRComm 187 (Kelleher) at [96]).

Hearing

1. The applicant filed and served two statements of her own, and a statement by Rebekka Hawkins. The respondent filed affidavits of its employees: Ms Dobson, Shery Demian, Justin Sheining and Sandra Moore. The parties filed summaries of their cases prior to the hearing which commenced on 17 August 2018. Four witnesses gave oral evidence on this day and Ms Dobson gave her oral evidence on 21 September 2018. With the exception of Ms Demian, all witnesses were cross-examined. The parties were directed to file final submissions by 28 September 2018.

Background and evidence

1. On 11 July 2017, the applicant commenced employment with the respondent as an Events Officer on a contract of employment for a period of 12 months to cover the maternity leave of another employee.

Approval for secondary employment

1. Around the time of commencing employment with the respondent, the applicant verbally sought approval from Mr Justin Sheining, her direct supervisor, for secondary employment. To the extent it was within his power to do so, Mr Sheining verbally approved this request.
2. On 20 September 2017, the applicant completed and signed a written application form for approval for secondary employment and employee declaration ("the Secondary Employment Form").
3. The Secondary Employment Form is a four page document which was annexed to the affidavit of Mr Sheining. Page 2 of the document contains information about the proposed secondary employment; the information in inverted commas below being information which the applicant admits was completed by her: 1. the application is to be: "an employee of another organisation"; 2. the outside organisation: "Body Barre Air"; 3. the outside position: "instructor"; 4. the days and times of the proposed secondary work: "evenings and weekends"; 5. where will the proposed secondary employment normally be undertaken: "Aerial Fit, Castle Hill".
4. Page 3 of the Secondary Employment Form contains declarations under the applicant's signature including the following declarations: "2) I will not engage in secondary employment whilst on sick leave or Workers' Compensation from Council unless I have a medical certificate that states that I am fit for these duties. I will provide this certificate to my manager. … 6) My work with North Sydney Council (where Council is the primary employer) is acknowledged as taking precedence over any approved secondary employment. … 10) My timing and duration of the secondary employment will not affect: • My efficient performance of normal work; • My, or others', health and safety at work. and if it is subsequently starts to do so, I understand that withdrawal of my approval may follow. … 11) I acknowledge that, if my circumstances regarding secondary employment change, I will need to complete another application for secondary employment or notify that my secondary employment has ceased."
5. Page 4 of the Secondary Employment Form is the approval page which includes a comment and signature section to be completed by the relevant employee's manager. Mr Sheining signed and dated the form on 20 September 2017 and noted: "Employment commenced prior to starting role at NSC. No conflict - Thursday work hours are managed and additional hours accrued elsewhere to account for early 3pm departure (for next month)".
6. The Acting Director, Ms Sandra Moore also signed page 4 of the Secondary Employment Form on 20 September 2017.
7. The Acting General Manager of the respondent ticked the "approved" box and signed Page 4 of the Secondary Employment Form on 22 September 2017.
8. Ms Dobson gave evidence that section 11 of the Secondary Employment Form requires that a new secondary employment application be made where circumstances of secondary employment change. If these conditions were not met, the General Manager of the respondent could revoke the approval at any time. Ms Dobson's evidence was that revocation was not within the power of Ms Sandra Moore, Mr Sheining or herself.
9. The applicant contended that she was not provided with a copy of the approved Secondary Employment Form at the time it was approved, and that she did not know of Mr Sheining's comments on the form. The applicant contended that this contributed to a belief by her that she had broad approval for secondary employment beyond that disclosed in the Secondary Employment Form.
10. During cross-examination of Ms Hawkins about the operation of the online booking feature the business Aerial Fit, it became apparent that the secondary work performed by the applicant since her employment commenced with the respondent exceeded that which was disclosed to the respondent in the Secondary Employment Form.
11. During cross-examination of the applicant, she admitted that while she was employed by the respondent she also performed work for Sydney Pole Pty Limited t/as Suzie Q Pole and for her own business, Aerial Silk. This work was not disclosed on the approved Secondary Employment Form, or otherwise disclosed by the applicant to the respondent as secondary employment engaged in by her.

Proposed changes to working hours to accommodate secondary employment

1. On 20 February 2018, the applicant met with Mr Sheining. During the meeting, on the applicant's version of events, the applicant enquired about the flexibility of her working hours and indicated that she wanted greater flexibility to accommodate her secondary employment.
2. On the respondent's version of events of 20 February 2018, the applicant informed Mr Sheining that she expected to be offered more work at Aerial Fit from March 2018 and that she wished to reduce her hours with the respondent in order to work longer hours at Aerial Fit. According to Mr Sheining, as a consequence of the applicant's enquiry, he asked the applicant to prepare a summary of her request with dates and times.
3. There is a subtle difference between the applicant's and respondent's versions of the 20 February 2018 meeting. The applicant contends that she was only considering her options; whereas on the respondent's version, the applicant was seeking times and days to accommodate her passion: her aerial job. Mr Sheining's evidence is that he told the applicant that "requests for secondary employment require GM approval".
4. The applicant relied on the evidence of Ms Hawkins, including the statement signed by Ms Hawkins on 10 July 2018 (Exhibit A1) in an attempt to establish that the applicant had simply enquired about additional hours and that the additional hours had only been tentatively pencilled in pending approval from the respondent.
5. There was some peculiarity with Ms Hawkins's statement being signed firstly at Campsie without a witness present, and then a second copy of the statement being signed at the Commission with a witness present. I make no adverse findings as a consequence of this peculiarity.
6. In cross-examination Ms Hawkins' was asked about words used in her statement: "I can confirm that the Applicant has not locked in her extended availability for work at Aerial Fit".
7. These words were similar to the words used in the statement of the applicant signed on 10 July 2018 (Exhibit A3). When asked whether the statement was drafted for her by the applicant's legal representative, Ms Hawkins denied this. Ms Hawkins admitted that she was given a "verbal brief" by the applicant's legal representative. I find the coincidence that similar language was used in both statements unlikely. Similarly, I consider use of the language "I can confirm" in a statement relied on as evidence in chief to be odd. I accept Ms Hawkins's evidence that the hours were not "locked in" with Aerial Fit. However, I do not consider that the evidence of Ms Hawkins has any substantial weight when determining whether or not the applicant had made up her mind that if the respondent would not agree to the hours sought by her, she would resign and/or whether the respondent was the effective initiator of the termination of employment of the applicant.
8. At 4:23pm on 20 February 2018, after the meeting with Mr Sheining earlier that day, the applicant emailed to Mr Sheining a proposal to change her hours from 35 hours per week to 27 hours per week ("the Proposed Hours").
9. Despite the express undertaking given by the applicant in the Secondary Employment Form, that employment with the respondent would "be taking precedence over any approved secondary employment", in the email to Mr Sheining of 20 February 2018, the applicant stated that her employment with Aerial Fit took precedence over her work with the respondent: "there is limited opportunity for a position here for me so I'm prioritising my options outside NSC."
10. Mr Sheining then informed Ms Sandra Moore of the Proposed Hours.
11. Ms Sandra Moore gave evidence that she spoke informally with the applicant after being informed of the Proposed Hours, prior to the applicant proceeding on sick leave. Ms Sandra Moore's evidence is that during this conversation, the applicant stated words to the effect: "If you don't approve the change in hours, I would need to consider leaving to take up the new aerial teaching role. This is really important to me as it is where I want my career to go in the future."
12. The applicant denies that she told Ms Sandra Moore that she would leave if the Proposed Hours were not approved and says in her statement in reply (Exhibit A3): "I accept that it is likely that in one of our conversations we spoke of my proposed change of hours, however, it would have been an informal comment shared between friends. Furthermore, I have not on any occasion, advised Ms Moore that I would consider resigning from my position with Council if my proposed changes were not approved."
13. The applicant was cross-examined about conversations with Ms Sandra Moore around the relevant time. The applicant denied that she put an ultimatum to the respondent that if she did not get approval for the hours then she would resign. However, Ms Sandra Moore's evidence did not describe the applicant's positon as an ultimatum, rather Ms Sandra Moore's evidence was that the applicant had said she would consider leaving if she did not get the reduction in hours and I accept the evidence of Ms Sandra Moore on this point.
14. On 26 February 2018, Ms Sandra Moore and Mr Sheining met with the applicant about the Proposed Hours. Mr Sheining gave an account of what took place at this meeting which was consistent with the account given by Ms Sandra Moore. Accordingly, I accept that during the meeting, it was explained to the applicant that a change to her secondary employment approval, especially a reduction from full-time hours to 27 hours per week in order for the applicant to do secondary employment would impact the team and would need a new approval.
15. The applicant was asked in cross-examination about a Facebook Messenger exchange between herself and Anne Denzer on 28 February 2018, while the applicant was on sick leave, and the applicant admitted that she was considering resigning at that date.
16. In this Facebook Messenger exchange the applicant stated: "Sandra and Justin took me aside at 5 to 5:00pm … But they don't want me to leave! … I won't have time for a hand-over either … I need to check my termination period…I think I only have to give 2 weeks notice"

The meeting of 5 March 2018 and the resignation

1. On 5 March 2018, when the applicant returned from sick leave, she met with Mr Sheining and Ms Dobson, the Manager of Workforce Planning, to discuss the Proposed Hours ("5 March Meeting"). Mr Sheining, Ms Dobson, and the applicant gave evidence about the 5 March Meeting.
2. The witnesses agreed that during the 5 March Meeting the applicant was informed that the Proposed Hours were rejected.
3. The applicant asserts that at the 5 March Meeting she was also informed that her secondary employment was "unsafe" and would cause her to be fatigued at work. The applicant asserts that Ms Dobson's concern about the Proposed Hours caused Ms Dobson to revoke the existing approval for secondary employment and issue an ultimatum to choose between the respondent and the applicant's secondary employment.
4. The respondent asserts that it did not withdraw the existing approval for secondary employment and, that once the applicant was told the Proposed Hours were rejected, and despite the applicant's assertion that she was flexible about the hours and that she intended to negotiate or to discuss alternatives, the applicant did not seek to negotiate other possible arrangements.
5. The applicant gave oral evidence about the 5 March Meeting as follows: Q. So, starting at the beginning of the meeting. A. Okay. So, then, the conversation that we had, to the best of my recollection, I - Justin said to me that he was not going to approve any change‑‑ COMMISSIONER Q. Can you put it in the words he said it. So, "I am not going to approve", or, "Council is not going to approve", whatever you say - whatever you remember he said. A. Okay. Q. Because this is quite important to your matter. A. Okay. He said, "Council will not approve changes to your working hours, to your contract." And then Amanda said, "There is no longer approval for your secondary employment. These hours are unsafe to be working. You will need to choose which job you would like moving forward." LEMMETY Q. And what was your response to that? A. I asked if there was any opportunity for discretion, and Amanda's response was, "No, the hours are unsafe," she reiterated that point. COMMISSIONER Q. Can you just tell me what she said, as you remember it? Did she say which hours? A. So, she had my proposal in front of her, so she was calculating the number of hours there, and she said to me, her words were, "I would never approve this for - as an overtime schedule for someone working at council, so I can't allow you to continue. Q. And what did you understand her to mean when she said this? A. I understood her to mean that I would need to choose which job I wanted moving forward, that I could not continue both at the same time. Q. Did she say that? A. She said that I would need to pick. She said to me, "You need to pick which" - that was her words - "You need to pick which job you want moving forward." LEMMETY Q. And what was the end of the conversation? What happened sort of from there? A. I said I would need to think about it, and that's how we concluded the conversation. Q. After this meeting, did you have any further conversations with them? A. So, after this meeting, I considered what to do, because I really enjoyed that role, but ultimately, I wanted to continue with the position that gave me financial stability, so I sent my resignation.
6. In cross-examination, the applicant maintained her position that she had not made up her mind to resign if the Proposed Hours were not approved at the 5 March Meeting: Q. You were hoping, I mean you would have been over the moon if he'd said, "Sure, you can work 27 hours"? A. Well, it was an ideal. Q. Yes? A. It was something that I would have liked to have happened. But I made it expressly clear that it was not definitive, ultimatum, "I must have this". It was an open discussion about what was possible. Q. Well, I put it to you it was an ultimatum because you didn't get what you wanted, therefore you decided to resign? A. No. Q. Because you formed that intention in February, you knew what you were doing? A. I had no intention in February to resign. Q. So your Facebook Messenger to your close friend at work is completely false, is it? A. It's not false. It's me looking into a possibility. You have to canvass all of your options when it comes to decision making. Q. Right and all of those options were just simply what suited you best, not what suited council? A. I always asked council for what would be best. Q. Yes and they told you unequivocally it wasn't best for them, didn't they? A. In that meeting on Monday, they said it was not best for them and that I would need to choose which job I wanted going forward. Q. Well, no, I put it to you that what you were told to do was exactly what's in your Facebook Messenger message, that is you were - they did not want you to leave, they wanted you to continue working the hours that you had agreed to work? A. Yes and then they also wanted me to decide which one going forward. They removed approval for my secondary job.
7. Mr Sheining's evidence about the 5 March Meeting differed from the applicant's. Mr Sheining was a candid witness and admitted in cross-examination that he could not remember certain details about the 5 March Meeting. The following exchange took place during cross-examination of Mr Sheining: Q. You said there wasn't any comments from you. Are you suggesting that someone else, so Ms Dobson perhaps, discussed the hours as they currently stood? A. I can't really comment on what Amanda said. I have a very vague memory of what she said in the meeting and I pretty much did the introduction of the meeting and then the rest of it just sort of happened in front of me. Q. I put it to you that what happened in that meeting is that Ms Dobson furthered your comments by advising my client that she could no longer continue her secondary employment at all, it posed a workplace health and safety risk, and that was how the ultimate meeting ended. Do you agree with that? A. She did-- Q. Was there any conversation to that extent? A. She did say it was a work health and safety risk. That was Amanda's perspective. I guess I felt like I was taking it through the process that it needed to go. So, you know, by going to workforce planning and then expressing, you know, their perspective on it, that's what occurred. Q. But what my client was under the impression this meeting was about was purely to discuss her proposal. She wanted to change her hours. And that's agreed between the parties. That's how the meeting started. The issue in contention here is-- … Q. It's agreed by yourself - or is it agreed by yourself that the meeting began with purely a discussion on the changing of hours, whether that could be possible, the proposal she's e-mailed you? A. Yeah, I thought we would, you know, potentially go through, you know, the concerns about the other request and then what, you know, possible, I guess, alternatives could there be. Q. Do you agree that the conversation then went on to discuss the secondary employment as a whole, even at the current hours? A. There might - look, because - I can't remember for sure, honestly I can't. Q. So there's a possibility in your recollection that there could've been discussion in that regard? A. I can't - I honestly can't remember. It was a very short, quick meeting, yeah, and I can't speak for Amanda. Q. Well, again, I put it to you that what happened at the end of that meeting is that Ms Dobson advised my client that her secondary employment was no longer approved and she had to pick ultimately one of her employers over the other; council verse aerial work. Would you agree? A. We never - look, we never wanted Isobel to leave. That was clear. We wanted her to stay. She had the contract to see out. It was always her choice. It's a difficult - you know, when you're considering a request from anyone, you're looking at the individual's wellbeing and also the team's. So from my perspective, that's why I sort of held the line on being concerned about, you know, approval for this particular request. Q. But that doesn't really answer the question I asked. Was she given that statement of, "You have to pick one employer over the other"? A. I don't recall if - I don't recall those words. Q. So there's a possibility that a comment to that effect could've been made-- A. I don't know. ….
8. When asked in cross-examination about her thoughts on the Proposed Hours, Ms Dobson admitted that a decision had been made to decline the Proposed Hours and said: "I was very concerned of the impact on the team, especially the meeting times, that was the key thing, to look out, mid-afternoon, literally every day of the week. There wasn't even one day where she would be working until close of business, when there would only be three in the team and just expect everybody else to pick up the slack. I thought that was unrealistic."
9. However, Ms Dobson also gave evidence in cross-examination about the 5 March Meeting as follows: "I was quite prepared to discuss other things, however Isobel opposed the meeting herself. She just said, "I see you're not going to give the flexibility I want, I'm going to resign", and I said, "Well that's your choice".
10. I prefer Ms Dobson's and Mr Sheining's evidence that they understood that the 5 March Meeting was to discuss with the applicant the Proposed Hours and other possible alternative hours. I accept that the Proposed Hours were declined at the 5 March Meeting because there was a need for the applicant to be available to attend work for her full time hours with the respondent, for various reasons including: her colleagues' leave, and the need to support other members of her team. I do not accept the evidence of the applicant that Ms Dobson issued an ultimatum in the form that the applicant alleges or that the existing approval for secondary employment was revoked by Ms Dobson at the 5 March Meeting. This evidence is inconsistent with the requirement that any changes to the existing approval for secondary employment, such as revocation, would require the General Manager's approval.
11. Shortly after the 5 March Meeting, consistent with the respondent's version of events, and the applicant's Facebook message to Ms Denzer, that the applicant had made up her mind that if the Proposed Hours were not approved then she would resign, the applicant sent an email to Justin Sheining and Sandra Moore notifying her resignation as follows: Hi Justin and Sandra, It is with deepest regret that I write this formal notice of my resignation from Council. As you are aware, without approval for my secondary employment I can no longer continue in this current position. I am very disappointed we couldn't come to a resolution for this as I had hoped to fulfil this contract. As such, today marks my two weeks' notice for resignation, making my final day Friday 16 March. I very much enjoyed this position and am sad it has to end so quickly. If opportunities come up in the future, I hope to work with the team again - especially if you require casual site or function management for any of your events. Please let me know if you have any questions. Kindest regards Isobel
12. The applicant was asked in cross-examination about the content of her resignation email; whether she spoke with someone before writing the email; and why, if she believed that her secondary employment approval had been revoked, she continued to work in both her primary and secondary employment during her two weeks' notice period: Q. So you've had the meeting. Did you go back to your desk straight away or did you take some time to think about it? A. I don't remember if I went back to my desk straight away or didn't. Q. You don't remember. You've attached - have you attached it to your statements? You don't remember? A. I don't know if I went back to my desk straight away or not. Q. But to actually write this-- A. I remember writing it, yes. Q. Yeah. Did you get some - did you speak to somebody about this before you did it? A. Maybe. Q. Yes. I think you did, didn't you? A. Go on. Q. Well, I'm wanting you to just be honest? A. I don't remember the day. Q. Well, this is Monday, 5 March? A. Yes, I remember writing the email. Q. Yes? A. I don't remember the conversations that I had that day, if I had a conversation with someone about this. Q. But it's likely you would have spoken to somebody about saying-- A. Potentially, yes. Q. Yes. So, you've had, potentially had a discussion with someone about your intention. You then sit down at your desk and write this email? A. Mm-hmm. Q. Right? And you gave two weeks' notice? A. Yep. Q. So you actually - this seems to be reflecting your understanding that you had in February that you just needed to give two weeks' notice and your final day was Friday, 16 March? A. I did look up my termination period, yes, between February and March. Q. So, doesn't it mean - it's not as if you are walking out the door in a huff, are you? You just sort of decided you wanted to resign and you'll work out the next two weeks? A. What do you mean by "in a huff"? Q. Well, I mean if this was so upsetting to you, it's possible that you didn't do it? A. Mm. Q. Just walk out and say, "I resign". You didn't do that, did you? A. Well, it does say in the first few words, "It is with deepest regret". Q. Yes? A. I didn't want to leave. Q. But you did? A. Yes, because it then continues that "Without approval for my secondary employment, I can no longer continue in this current position". Q. Mm? A. So it's quite clear what my thoughts were at the time. Q. Your thoughts were? A. That I had no approval for my secondary employment. Q. Right? A. And I needed to choose one job or the other. Q. And so you made that choice. I mean, you could have - I put it to you, you could have chosen council. You only had until July to finish? A. And by that stage my career as an aerialist would be gone. Q. Right, because you value that career over council, don't you? A. Of course I do, it's my passion. Q. Yes. But I'm not criticising you, you're entitled to have those choices in life, but you could have chosen just, you know, to - as I put to you earlier, they didn't want you to leave? A. I know they didn't. Q. Yes, you know they didn't? A. I didn't want to leave either. Q. Yes but you made the deliberate decision because you believed it was in your best interests-- A. I made-- Q. Your best interests as an aerialist? A. I made the decision because I believed I needed to pick one or the other. Q. Yes. Nobody forced you to make that decision, did they? You made that decision yourself? A. No one sat there making me write the email, no, but in my meeting with Amanda and Justin I felt there was no other course. Q. Right, so in the two weeks that you remained in council you didn't talk to anyone, you didn't talk to Justin or Sandra about a possible misunderstanding, did you? A. (No verbal reply) Q. What I'm concerned about is you seem to be suggesting that there's a misunderstanding about you not having approval any more for secondary employment? A. Mm. Q. So if you believed that, you didn't have approval, you didn't stop working in the other jobs, though, did you? A. (No verbal reply) Q. You kept working in the secondary employment, didn't you? A. Why would I stop my secondary employment for two weeks? Q. Yes, good question. You didn't because you knew the secondary employment was still in place, didn't you? A. What do you mean? I'm quite confused. Q. I mean-- A. I find out at a meeting on Monday that my secondary employment is no longer approved. Q. Mm? A. And so I need to pick which job I wanted. Q. Yes? A. Then with deepest regret I feel like I have to resign because I need to be ongoing with the job that provides me with financial stability past three months.
13. Mr Sheining was also asked about the email from the applicant of 5 March 2018 in which she notified her resignation: Q. Does that not show that my client was under the impression that she was forced to choose ultimately one employer over the other? A. I don't think she was ever forced to choose one employer over the other. We'd already approved, you know, I think we'd shown we were very flexible the first time and we would've been. It's just that-- Q. Yes, you'd given her the open-ended-- A. --this particular request was not-- … Q. Sorry? A. This particular request was not to be approved. It was more hours than, say, the Thursday at 3pm, you know. Q. But what she posed to you ultimately, by your own admission, was a request or a proposal, whatever word we want to use to it, she's come to you with an idea. It's been rejected. There's no denial from that. You've sort of admitted that yourself. The issue at hand is what followed that with Amanda Dobson advising her that she could no longer continue the secondary employment and had to pick one option over the other. …. Q. Well, I put it to you that Isobel's resignation letter and that particular comment that you read out only make logical sense if you and/or Ms Dobson, it sounds like Ms Dobson, advised my client during the meeting that she could no longer continue her secondary employment. Would you agree? A. This is Isobel's perspective on - so, I mean, it's her statement. Yes, I read the e-mail, but yeah. Q. Where would she have gotten that impression from otherwise? Do you have any idea for that? A. The impression that I got, because she raised the resignation in the meeting with Amanda, so the impression that I got was that she was making her choice. The meeting was, you know, it was shut down by her in a sense because she said, "Well, I will hand in my resignation," and then that was pretty much end of discussion from her point of view. So yeah, at the time it seemed like nothing more to say, I guess.
14. I accept that, despite her evidence to the contrary, the applicant had made up her mind to resign either at, or before the 5 March Meeting, and returned to her desk following the meeting to draft and send the email notifying her resignation. The applicant's position that she was forced to resign after being presented with an unreasonable ultimatum regarding her secondary employment and revocation of the existing approval for secondary employment is inconsistent with the applicant's actions following the 5 March Meeting. If the applicant genuinely believed the existing approval was revoked then she could have complained, or at least asked, about this revocation. Even on the applicant's own evidence she made no such enquiry or complaint. Further, the applicant continued her secondary employment throughout her notice period which is at odds with a belief that the existing approval had been revoked.

Considerations and conclusions

1. I note a recent decision of the Fair Work Commission ("the FWC"), Bromley-Hoult v Belgravia Health & Leisure Group Pty Ltd T/A Ascot Vale Leisure Centre [2018] FWC 4979, which involved circumstances similar to this case.
2. In dismissing Ms Bromley-Hoult's claim that the dismissal was at the initiative of the employer, the FWC found: [65] The situation which caused Ms Bromley-Hoult to resign began when Ms Bromley-Hoult unilaterally sought to vary the number of contracted hours she worked with the Respondent and the days on which she performed those hours (which were not specified in the contract). Included in the variation, though, was the maintenance of the number of program coordinator hours that Ms Bromley-Hoult undertook per week… [67] It was not a situation whereby the Respondent initiated the changes and decided that Ms Bromley-Hoult was no longer to perform the program coordinator role. Rather, it was the Applicant who was no longer able to perform those particular duties on the days the Active Adults programme required…
3. In Belgravia, the employer was willing to reduce Ms Bromley-Hoult's hours, but with the reduction, the employer decided that Ms Bromley-Hoult could not properly fulfil part of her duties. This led to the termination of Ms Bromley-Hoult's employment, which the FWC determined was initiated by the employee.
4. In this case, the applicant made clear to the respondent that aerial instructing was her passion, and that passion would take priority over her employment with her primary employer, the respondent.
5. The respondent had been supportive of the applicant's passion but the respondent was also entitled to rely on the applicant to carry out the duties required of her for the hours stipulated in her employment agreement.
6. The respondent was not obliged to accept the applicant's request to vary her hours, in a full-time role, in order to allow the applicant to perform secondary employment. I accept that the respondent was not convinced that the applicant could discharge her duties in the reduced working time as claimed by her. The respondent considered that the applicant's duties could not be undertaken in the 27 hours on a flexi-time basis or otherwise. The respondent reasonably required the applicant to continue to work her contracted full time hours of 35 hours per week.
7. The applicant asserts in her final submissions: "The Applicant did not, at any time prior to her termination, wish to end her employment with the Respondent. The Applicant was enjoying her work with the Respondent and had even made enquiries about extending her contract. This was repeatedly confirmed in both of the Applicant's Statements and in the Applicant's oral evidence."
8. The applicant may have wished to remain employed by the respondent provided that the Proposed Hours were accommodated. However, at the time that the applicant resigned, she had determined that her secondary employment took priority over her employment with the respondent, and as the Proposed Hours were declined, she decided to end her employment with the respondent.
9. The applicant submitted that her case was similar to Bril v Rex Australia Ltd [2015] FWC 884 ("Bril") in that by declining the Proposed Hours, the respondent had, like the employer in Bril, offended the principle that the law would not look to impose an unreasonable obligation on workers that would prevent them from making more income during their spare time.
10. In Bril, the FWC "determined that the employee in question had been "dismissed", for the purposes of the Act, on the basis that his resignation had been the direct result of an unjust ultimatum from his employer regarding his secondary employment".
11. In Bril, the FWC considered competing versions of the circumstances that led to the termination of employment following a period of approved annual leave taken by the employee during which the employee performed work for a customer of the employer. The FWC determined that Mr Bril's version of events were to be preferred to the versions of the employer's witnesses and found that Mr Bril had not wanted to resign but the employer had drafted and printed a letter of resignation and effectively directed the employee to "resign or be sacked". Importantly, FWC found that a decision was made by the employer to terminate Mr Bril's employment. This is not what occurred in this case.
12. As I have stated above, I accept that the respondent was not convinced that the applicant could discharge her duties in the reduced working time as claimed by her and therefore declined the Proposed Hours for business reasons, and work, health and safety concerns. These reasons were explained to the applicant. I do not accept that the respondent, by declining the Proposed Hours, revoked the secondary employment approval, and I find that the applicant was not presented with an ultimatum by the employer to choose between her primary and secondary employers.
13. The applicant submits in the alternative, that if the Commission is unwilling to find that an ultimatum to choose between the applicant's primary and secondary employment was given, the respondent is "at fault on the basis that the respondent's conduct caused the applicant to be under the impression that such an ultimatum had been given". As set out above, I find that the applicant's conduct is inconsistent with a belief that her secondary employment was revoked. Further, the applicant's subjective belief is not the test. The correct test, as set out in Allison and Kelleher is whether, when considered objectively, the respondent's actions or inactions were the effective initiator of the termination of employment.
14. The respondent did not want the applicant to resign. While it declined the Proposed Hours, the respondent did not force the applicant to choose between her primary employment with the respondent, and secondary employment.
15. The effective initiator of the termination of the applicant's employment with the respondent was not the action or inaction of the respondent. The effective initiator of the termination of the applicant's employment with the respondent was the applicant's decision to prioritise her passion, aerial instructing, and resign from her employment with the respondent when the Proposed Hours were declined by the respondent. Accordingly, there is no "dismissal" by the respondent and the Commission does not have jurisdiction to hear the applicant's application.

ORDERS

1. The Commission orders that: 1. The unfair dismissal application filed by Isobel Natalie Ruth Moore on 6 April 2018 is dismissed for want of jurisdiction; and 2. On the application of the respondent, I will hear the parties on the issue of costs. N J Constant Commissioner

Amendments 18 October 2018 - Correction of first name of witness, Sandra Moore, in paragraph 15. 23 October 2018 - Paragraph [72] second sentence - inserted text to read "The effective initiator of the termination of the applicant's employment…" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2018