Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - whether applicant's resignation amounted to constructive dismissal - temporary reduction in hours - constructive dismissal not established - no dismissal at the initiative of employer - application dismissed.

[1] Ms Karin Hogan has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which her employment ended with TB Hotels Pty Ltd T/A The Jubilee Hotel (TB Hotels) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] Ms Hogan commenced employment with TB Hotels on December 2010 as a casual employee working in TB Hotel's Bardon Cellars bottle shop. Within months she had become the manager of the Bardon Cellars store, albeit casually employed.

[3] In November 2016, Ms Hogan was moved to TB Hotel's Stafford Cellars bottle shop. Her employment ended on 22 May 2017, and it is the subject of contention as to how the employment came to end.

[4] TB Hotels raised a jurisdictional objection that Ms Hogan had not been dismissed, and it is contended she voluntarily resigned her employment on 22 May 2017.

[5] The matter was listed for jurisdiction hearing in Brisbane on 29 August 2017. At the hearing both parties were granted permission to be represented pursuant to s.596 of the Act. Ms Hogan was represented by Ms Rosanne Huskie of Fair Work Claims. TB Hotels was represented by Mr Stephen Mackie of Counsel, instructed by Mullins Lawyers.

[6] The following people gave evidence and were present at the hearing:

• Ms Hogan;

• Mr Andrew MacArthur, Ms Hogan's domestic partner and also an employee of TB Hotels;

• Mr Michael Samios, Bottle Store Manager; and

• Mr Peter McFarland, General Manager.

[7] There is no contention that Ms Hogan was a casual employee for at least six months, on a regular and systematic basis, with a reasonable expectation of continuing employment on a regular and systematic basis.[1]

[8] From November 2016, Ms Hogan was placed by Mr Peter McFarland, General Manager of TB Hotels at the Stafford Cellars store working under Mr Michael Samios, Retail Manager. It is Ms Hogan's evidence she was tasked to work as a bottle shop attendant, although she was still performing managerial duties including ordering stock. She was not, however, responsible for the rostering of employees.[2]

[9] Ms Hogan attended a doctor's appointment on 4 May 2017 after feeling unwell for two weeks. She obtained a medical certificate declaring her unfit for work from 4 May 2017 to 11 May 2017 due to a gastrointestinal illness. Ms Hogan took unpaid personal leave for that period and provided a medical certificate to Mr Samios.

[10] A number of tests were undertaken at the medical examination on 4 May 2017 to ensure that Ms Hogan was not seriously ill. It is noted that Ms Hogan is 63 years old. A bowel test, swab and blood test was undertaken.

[11] On 10 May 2017, a telephone conversation took place between Ms Hogan and Mr Samios. It is Ms Hogan's evidence that she called Mr Samios to advise him she was ready to come back to work. It is her evidence she knew that Mr Samios would be preparing the roster the following afternoon for work for the period 15 to 21 May 2017.

[12] Ms Hogan's evidence is that when she told Mr Samios she was healthy and ready to return to work, Mr Samios said words to the effect, "Oh no, you need to get a medical certificate."[3] Ms Hogan replied she was going to the doctor the following morning at 10 o'clock.

[13] In cross-examination, Ms Hogan agreed that she had earlier made an appointment to see her doctor on the morning of 11 May 2017 as she was experiencing a sinus infection and considered she would need antibiotics.[4] She did not consider this would render her unwell to perform work.

[14] At 9:20am on 11 May 2017, Ms Hogan received a text message from Mr Samios containing the roster for the week of 15 to 21 May 2017, for which Ms Hogan had not been rostered for any hours. Ms Hogan's evidence is that Mr Samios had issued the roster before she had been able to obtain a medical clearance from her doctor that morning, and that when she attended her appointment her doctor advised she did not need a medical clearance.[5]

[15] During the hearing Ms Hogan could not immediately recall a conversation that was said to have occurred between her and Mr Samios on 15 May 2017. In cross-examination she recalled Mr Samios telephoned her on 15 May 2017 to enquire if she would be well enough to work the following week. Ms Hogan agreed that Mr Samios reminded her to obtain a medical clearance. Ms Hogan said to Mr Samios, "I will be all right to work and I will get a medical clearance from the doctor."[6]

[16] On 17 May 2017, Ms Hogan attended a doctor's appointment and obtained a medical clearance clearing her to return to work from 22 May 2017. It is Ms Hogan's evidence she sent the medical clearance to Mr Samios the same day.

[17] On 18 May 2017, Ms Hogan had been shopping and visited the Bardon Cellars bottleshop to make a purchase. It is Ms Hogan's evidence that Mr Samios approached her, put his arms around her and kissed her (on the cheek).[7] In the application before the Commission it was put that this incident was an 'uninvited advance' and constituted sexual harassment.

[18] On 19 May 2017, Ms Hogan received a message from Mr Samios containing the roster for the following week, where she had been rostered for 13.5 hours. It is Ms Hogan's evidence that in the week ending 7 May 2017, just prior to her period of sick leave, she had been rostered 26 hours of work.[8]

[19] It is Ms Hogan's evidence that she was deeply affected after receiving the roster on 19 May 2017, and could not sleep or eat and experienced symptoms of stress. Ms Hogan attempted to contact Mr McFarland to discuss the rostered hours but was unsuccessful.

[20] On 21 May 2017, Ms Hogan met with her brother to discuss the events of May 2017. It is Ms Hogan's evidence that her brother said to her, "This is rubbish", and "This is very wrong the way you're being treated."[9]

[21] Ms Hogan's evidence is that she perceived Mr Samios did not want her to continue her employment, due to Mr Samios reducing her hours. Ms Hogan submitted that her stress levels continued to rise when she could not get in contact with Mr McFarland, and considered that she had no option but to resign her employment.

[22] Ms Hogan called Mr Samios on 22 May 2017 and said words to the effect, "Michael, it's Karin here. I'm resigning." Ms Hogan's evidence is that Mr Samios then asked her why she was resigning, to which she replied, "Are you kidding? Thirteen hours?!" Ms Hogan's evidence is Mr Samios then said words to the effect, "Oh, okay" and the conversation ended.[10]

[23] On 31 May 2017, Mr McFarland received written correspondence from Ms Hogan's representative, Fair Work Claims. On receipt of the correspondence, Mr McFarland contacted Ms Hogan by telephone.

[24] Ms Hogan's evidence is that during the conversation, Mr McFarland told her he had only just learned of her resignation, and asked her why she had resigned. Ms Hogan then explained to Mr McFarland what had occurred over the past few weeks, including the alleged sexual harassment on 18 May 2017, and that Mr Samios had cut her hours. It is Ms Hogan's evidence that Mr McFarland offered her a return to work at 35 hours per week. Ms Hogan responded, "I''ll think about it."[11]

[25] On 2 June 2017, Ms Hogan and Mr Miles Heffernan of Fair Work Claims met with Mr McFarland and Mr Tony Burnett, Director to resolve the issues. No resolution was reached.

[26] Mr MacArthur stated that he was not present on 18 May 2017 when Ms Hogan entered the Bardon Cellars store and was kissed by Mr Samios on the cheek. He had been in the car outside, and walked in the store immediately after it had occurred.

[27] On 22 May 2017, Mr MacArthur and Ms Hogan were at home. They had been discussing the fact that she had only been rostered to work 13 hours on the next roster. Ms Hogan asked Mr MacArthur with respect to Mr Samios, "What's he trying to do?"

[28] Mr MacArthur's evidence is that he said to Ms Hogan words to the effect, "Well, if you're not happy, you know, it doesn't look good. ...he didn't put you on the roster the week before....and demanding medical certificates when they're not necessary. I don't know what he's trying to do. But if you're not happy, and you feel no other option, then do what you want to do."

[29] Ms Hogan informed Mr MacArthur she intended to resign her employment over the phone to Mr Samios. Mr MacArthur informed Ms Hogan that she had his support.

[30] Ms Hogan submitted that in resigning her employment, the cessation of her employment constituted a dismissal at the initiative of TB Hotels, or in the alternative, that she was forced to resign.

[31] Ms Hogan relied on the decision in Mohazab v Dick Smith Electronics Pty Ltd (No.2) [1995] 62 IR 200:

'It is unnecessary and undesirable to endeavour to formulate an exhaustive definition of what is termination on the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment relationship is not voluntarily left.' That is, had the employer not taken the action that he did, the employee would have remained in the employment relationship.'

[32] Ms Hogan also relied on the decision in Urand v Beaconsfield Children's Hub [2014] FWA 2024:

'[8] What is clear, is that even on the employer's own version of events, the employer had reduced the shifts of Ms Urand from four to two shifts for next week and that, as conceded by the employer, there was a possibility only, no guarantee, that there would be more shifts than two a week. This is a substantial reduction in shifts and a substantial reduction in pay... Even on the employer's own version of events, Ms Urand makes it quite clear "that she cannot survive on two shifts and that she would have to give notice". That is a statement by Ms Urand at the meeting that she is being forced to resign...

[11] On both versions of events it cannot be said that Ms Urand left her employment of her own volition. Rather, she was forced to resign because of a very substantial reduction of hours and she made that plain at the time. The extent of the reduction of the hours and the circumstances of the reduction led her to tender her resignation... In my view, there was a constructive dismissal within s.386 of the Act and Ms Urand's employment was terminated.'

[33] Ms Hogan submitted that the facts of her case were analogous to Urand in that she suffered a significant reduction to her hours of work and pay, and that she had objected to the reduced hours when giving notice of her resignation. Ms Hogan submitted that the Commission should find that TB Hotels constructively dismissed her within the meaning of s.386(1)(a) of the Act by significantly reducing her hours of work and pay. [12]

[34] Ms Hogan submitted in the alternative that she was forced to resign within the meaning of s.386(1)(b) of the Act.

[35] Ms Hogan submitted that she had formed a view that Mr Samios did not want her to remain employed with TB Hotels and she had no choice but to resign. Ms Hogan further submitted that Mr Samios deliberately acted to communicate the roster on 11 May 2017, earlier in the week than usual, in order to frustrate Ms Hogan's attempts to return to work.[13]

[36] Ms Hogan submitted that by virtue of Mr Samios' control over the roster, Mr Samios could force or compel Ms Hogan's resignation by significantly reducing her hours. Ms Hogan further submitted that her words to Mr Samios when she resigned, of "Are you kidding? Thirteen hours?" was a statement from Ms Hogan that she was being forced to resign her employment.

[37] Ms Hogan conceded in her submissions that she made allegations of sexual harassment against Mr Samios in the original application, and submitted that while she experienced hurt and humiliation from the alleged harassment, it was not causative of her constructive dismissal, or in the alternative, her forced resignation.[14]

[38] Mr Samios provided a witness statement in these proceedings of his recollections of the conversations with Ms Hogan prior to the employment ending.

[39] It is Mr Samios' recollection that during the phone call of 4 May 2017, Ms Hogan indicated that she would not be able to work "for the next couple of weeks". She informed Mr Samios that some medical tests had been undertaken to ensure there was nothing seriously wrong with her.[15] Mr Samios then rearranged the rosters for that week to accommodate Ms Hogan's unavailability.

[40] Mr Samios disputed Ms Hogan's evidence that during the telephone conversation on 10 May 2017, Ms Hogan had told him she was ready to come back to work. It is Mr Samios' evidence that Ms Hogan had told him she was still not feeling well and would need another week off work, and that she would be well enough the following week to attend for work. Mr Samios told Ms Hogan that she would require a medical clearance, and noted that Ms Hogan seemed upset by the request.[16]

[41] On 12 May 2017, Mr Samios and Mr MacArthur were together at the Jubilee Hotel where Mr Samios was delivering cash. Mr MacArthur approached Mr Samios and said in an angry tone, "We've never had to provide a medical certificate before". Mr Samios explained to Mr MacArthur, relevant to Ms Hogan, it was common practice to require a medical clearance when an employee returns from personal leave. Mr Samios stated words to the effect, "Health is important and staff need to be fit to work in the hospitality industry, especially where there is lifting involved." Mr MacArthur said, "She's worked here for seven years and never needed an MCC".

[42] Mr Samios called Ms Hogan on 15 May 2017 as he was aware she may be ready to return to work. Mr Samios stated that Ms Hogan had told him she would be ready to come back to work the following week, and he reminded her about the need to provide a medical clearance certificate. Ms Hogan responded saying, "I'll be alright to work and I'll get an MCC from the doctor."[17]

[43] Mr Samios gave evidence that Ms Hogan had entered the Bardon Cellars bottle shop with her partner Mr Andrew MacArthur, and that he had greeted Ms Hogan with a hug and a kiss on the cheek, and said "It's great to see you, you're looking well." Mr Samios then asked Ms Hogan how she was feeling, and Ms Hogan responded that she felt a lot better, and had been experiencing stomach ulcers. Mr Samios then said, relevant to Ms Hogan's statement that she was feeling better, "That's good to hear", and asked whether she would be okay coming back to work. Mr Samios' evidence is that Ms Hogan responded saying, "I'm fine and looking forward to coming back."[18]

[44] In cross-examination, Mr Samios conceded that Ms Hogan had not said she had been experiencing stomach ulcers. He then suggested it had been Mr MacArthur who had said this. The following exchange occurred with questions from Ms Huskie:[19]

'But Mr Samios, you've put it in your evidence at 19 that Karin has advised you that she had stomach ulcers. In fact, that's not correct, is it?---Well stomach bug or stomach ulcer, much the same.

I would say there's a big difference in that, Mr Samios?---I don't know; I'm not a medical expert.

But it would be incorrect to say that Karin has told you that she had stomach ulcers, and in fact, Karin didn't discuss with you, or wouldn't normally discuss with you, what her diagnosis would be, that would be correct, wouldn't it?---Yes - no, that's why Andrew said it.

But your evidence is incorrect in your statement saying that Karin has told you that she's - - -?---She said she had a stomach bug or something, and then Andrew started elaborating more on it.'

[45] It is Mr Samios' evidence that he had rostered Ms Hogan for thirteen hours on the roster provided to Ms Hogan on 19 May 2017, because it was his intention to slowly ease Ms Hogan back into her work. It is his evidence he was doing this having regard to the length of Ms Hogan's illness, the fact that tests had been undertaken, and Ms Hogan's age. Mr Samios' evidence is that he had planned to roster Ms Hogan for her usual five shifts of between 30 - 35 hours per week for the following roster period.

[46] It is Mr Samios' evidence that Ms Hogan called him on 22 May 2017, while he was serving a customer at the Bardon Cellars store. Mr Samios' evidence disputes Ms Hogan's evidence of the conversation. Mr Samios' evidence is that Ms Hogan called and said "I'm ringing to let you know that I'm resigning. I've found another job, and I can't live off the hours you're giving me." Mr Samios then responded quickly as he was serving a customer, and said "Okay, thanks for letting me know. Best of luck."

[47] Mr Samios stated he accepted her resignation and considered it was clear and unambiguous.

[48] Mr McFarland provided a witness statement regarding the events following Ms Hogan's conversation with Mr Samios on 22 May 2017.[20] Mr McFarland's evidence was that Mr Samios had called him at 5pm on 22 May 2017 and advised him Ms Hogan had resigned because she had found other employment. Mr McFarland denied that he informed Ms Hogan that he had only just learned of her resignation.

[49] It is Mr McFarland's evidence that he received a missed call from Ms Hogan either on 21 or 22 May 2017 while he was on personal leave attending to a serious medical condition within his family, with a voicemail asking to return the call. Mr McFarland stated the voice message did not provide a purpose to Ms Hogan's attempted call. Mr McFarland's evidence was that by the time he heard the message he was aware that Ms Hogan had resigned, and assumed the purpose of the missed call was for Ms Hogan to advise him of her resignation.

[50] At the hearing, Mr McFarland acknowledged he had called Ms Hogan on 31 May 2017, to discuss a letter he had received from Ms Hogan's representative that day and to ask her why she had resigned.[21]

[51] Mr McFarland stated that he was shocked and surprised when he received the letter from Ms Hogan's representatives, as he was not aware of any complaint by Ms Hogan relevant to the alleged sexual harassment on 18 May 2017, nor was he aware of any concern she had about her hours of work during her employment.

[52] Mr McFarland considered that he and Ms Hogan had a good working relationship, and he had regard for her as a long-serving employee who performed her role dutifully. His evidence was that if Ms Hogan had raised with him her concerns about her reduced hours of work, he held no doubt he would have taken steps to alleviate her concerns or rectify the situation to their mutual satisfaction.[22]

[53] In cross-examination, Mr McFarland agreed that during the phone call of 31 May 2017, he informed Ms Hogan he wished to meet with her on 2 June 2017 to discuss how she could return to work. He read to her the letter that had been sent on her behalf, and invited Ms Hogan and her representative to a meeting.

[54] Mr McFarland's evidence was that a meeting occurred between himself, Mr Bennett, and Ms Hogan and her representative, where Mr Bennett had discussed attempting to get Ms Hogan back to work.[23] It is noted that at the hearing Ms Hogan disputed that this was put to her.[24]

[55] The events of 2 June 2017 were unable to be properly discussed before the Commission as the conversations were held without prejudice. TB Hotels indicated it was prepared to waive any confidentiality regarding the discussions. Without Mr Heffernan's attendance, on behalf of Fair Work Claims, I advised the parties that I was not prepared to admit evidence as to the conversation, other than to note the parties did not reach agreement.

[56] TB Hotels submitted it would not be open to the Commission to find Ms Hogan's employment ended pursuant to s.386(1)(a) of the Act, that is, on the employer's initiative.

[57] TB Hotels submitted that Ms Hogan's resignation was clear and unambiguous, and therefore it would only be open to the Commission to find that it was a constructive dismissal if it was determined that she had been forced to do so because of conduct, or a course of conduct engaged in by TB Hotels.

[58] Reference was made to a Full Bench decision of Bruce v Fingal Glen Pty Ltd (in liquidation)[25] at [18], citing a Full Bench of the AIRC in O'Meara v Stanley Works Pty Ltd[26] at [23]:

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

[59] It was submitted that there were no objective facts to suggest that TB Hotels sought to or did indeed permanently or semi-permanently reduce Ms Hogan's hours per week, or to otherwise end or significantly change the relationship. TB Hotels' further submitted that Ms Hogan had many options available to her on 22 may 2017 other than to immediately resign, including to ask for her hours to be restored.[27]

[60] It was submitted that Mr Samios' conduct in greeting Ms Hogan with a hug and a kiss on the cheek after a two week absence falls remarkably short of conduct that is unwelcome or unwarranted. Ms Hogan did not complain about this conduct until she commenced these proceedings, and if she had been concerned with the conduct, it was open to her to have raised a complaint in accordance with the staff manual she had earlier signed acknowledgement of.

[61] TB Hotels submitted the employment ended at the initiative of Ms Hogan on the basis that:

• (a) Ms Hogan clearly and unequivocally resigned from her employment on 22 May 2017;

• (b) Ms Hogan indicated that the reason for her resignation was because she had found other employment;

• (c) TB Hotels did not intend to bring Ms Hogan's employment to an end; and

• (d) TB Hotels did not engage in any conduct that resulted in Ms Hogan having little choice but to resign from her employment.

[62] Section 386 of the Act states:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.'

[63] If Ms Hogan is correct and the employment ended on the employer's initiative, or if it is determined she resigned her employment but was forced to do so because of conduct, or a course of conduct engaged in by her employer, the Commission will have jurisdiction to determine whether her dismissal was harsh, unjust or unreasonable.

[64] If the Commission does not so find, the application will be dismissed for want of jurisdiction.

[65] On the evidence before the Commission, Ms Hogan was a long-serving and diligent employee. She was reliable and competent. Even on my observation with a slim-to-medium physique, and aged 63, it was Ms Hogan's evidence that she was physically capable of moving cartons of beer and other beverages within the store.

[66] Ms Hogan had been unwell for a period of two weeks with diarrhoea, and this was affecting her ability to perform her role. She visited her doctor on 4 May 2017 and obtained a medical certificate declaring her unfit for work for one week.

[67] It is unclear from the evidence as to what Ms Hogan informed Mr Samios as to the expected length of her absence following a conversation on 4 May 2017. Mr Samios' evidence is that Ms Hogan declared she would be unfit for work for a couple of weeks. Further he was informed tests had been undertaken to ensure she was not suffering from a serious illness.

[68] If Mr Samios understood on 4 May 2017 that Ms Hogan might be off work for the next couple of weeks, it is not surprising that when they next spoke on 10 May 2017, Mr Samios informed Ms Hogan she would need to provide a medical clearance certifying her fit for work.

[69] I am tasked with reconciling which version of the 10 May 2017 phone call I think occurred. The one where Ms Hogan informed Mr Samios she was well enough to attend for work and was visiting her doctor the next day; or the one where Ms Hogan informed Mr Samios she was still unwell and would require a further week off work.

[70] I prefer Ms Hogan's evidence over Mr Samios' evidence on this point, because I consider that Ms Hogan was keen to return to work. She had been unwell and on unpaid personal leave for one week, and knowing that she was visiting her doctor the next day, she was hopeful of returning to work on the next roster.

[71] I consider Mr Samios' recollection of the phone call was less reliable than Ms Hogan's. That being said, however, Mr Samios' direction to Ms Hogan to obtain a medical clearance certifying her fit for work was unremarkable. I do not consider it was an unreasonable direction in all of the circumstances.

[72] Surprisingly, Ms Hogan was taken aback by the request, and it is her evidence that when she visited her doctor on 11 May 2017, the doctor advised her that she did not require one to return to work. Mr Samios had been clear in his direction to Ms Hogan, for what I consider to be lawful reasons. I appreciate Ms Hogan might have felt she was the 'meat in the sandwich' when her doctor informed her she would not need one to return to work. That is, being muddled over different views from people in authority as to whether a medical clearance was required.

[73] Ms Hogan asks the Commission to find that Mr Samios' action of sending out the next week's roster before Ms Hogan could attend her doctor on 11 May 2017 was an act of ensuring Ms Hogan was kept unnecessarily out of work for a further week. I do not find that Mr Samios acted adversely to Ms Hogan. There is evidence before the Commission of Mr Samios having sent weekly rosters out as early in the week as he did on this occasion.

[74] I understand Ms Hogan was dissatisfied with having no work for the period 15 May to 21 May 2017. I understand that in her mind, whether she was well enough or not to attend for work, she had resigned herself to the fact that she was not going to receive work for that period.

[75] It was not immediately apparent from Ms Hogan's evidence, but Mr Samios contacted Ms Hogan on 15 May 2017 to enquire if she thought she would be well enough to return to work the following week. It did not require Ms Hogan phoning Mr Samios to remind him to put her on the roster. Ms Hogan's evidence is that she said, "I will be all right to work and I will get a medical clearance from the doctor."

[76] Ms Hogan's evidence matches Mr Samios' on this point. The temporal context must be taken into consideration; Ms Hogan stated, "I will be all right", meaning that she will be fit for work for the roster week commencing 22 May 2017. She did not say that she had been fit all week; she said she will be all right.

[77] Ms Hogan then visited her doctor on 17 May 2017, and rather surprisingly, her medical clearance certified her fit from 22 May 2017, not 17 May 2017. Arguably, the effect of that is her doctor considered she was not fit for work at the examination on 17 May 2017. Alternatively, if Ms Hogan had informed her doctor that she would not be rostered any earlier than 22 May 2017, it explains why the certificate is dated so.

[78] On 18 May 2017, Ms Hogan visited the bottle shop and interacted with Mr Samios. It is apparent that over the course of this application being filed and heard, there has been a weakening by Ms Hogan that the action of Mr Samios hugging her and greeting her with a kiss constituted sexual harassment. It is not necessary to determine whether this act constituted sexual harassment because Ms Hogan no longer relies on this as a causative reason as to why it is she 'had' to resign her employment. If I were tasked to form a view on this, while I recognise Ms Hogan has stated that it was unwelcome, in all of the circumstances in this matter, I would not find Ms Samios' actions constituted sexual harassment. It was a very common greeting for genuine reasons, and I do not, in these circumstances, consider there to be any sexual element in the conduct or an 'advance'.

[79] When Ms Hogan received the next week's roster on 19 May 2017, she did not make any attempt to contact Mr Samios to discuss her concerns. She made a very large assumption that Mr Samios did not want her to continue working, and the reduction from 30+ hours of work she was expecting, to just 13.5 hours was a cue to her that Mr Samios was going to reduce her hours of work to an unsustainable level for Ms Hogan.

[80] Having viewed Mr Samios at the hearing, I am certain that if Ms Hogan had contacted Mr Samios and stated she was upset with having received 13.5 hours, Mr Samios would have adequately explained his reason why she was rostered with reduced hours that week. If Ms Hogan was unsuccessful in convincing Mr Samios she should return to her average number of shifts per week, I do not consider Mr Samios would have been slighted by Ms Hogan approaching Mr McFarland to further discuss.

[81] Ms Hogan was unable to reach Mr McFarland on the telephone, and after consulting with her brother and her partner, she concluded she had no other option but to resign her employment. Her reasoning behind this is that she considered that Mr McFarland would support any act of Mr Samios in reducing her hours of work.

[82] I accept that Mr Samios was busy serving a customer, and I do not accept that Ms Hogan informed him that she was resigning because she had found another job. It may well have been what he inferred, because it would be unusual for Ms Hogan, who was considered to be a very good employee, to suddenly resign.

[83] Ms Hogan informed Mr Samios she was resigning her employment, and then said it was because she had only been offered 13.5 hours. I am comfortable in distinguishing this case from Urand, as the meeting Ms Urand had with her employer was in person, and Ms Urand announced that she would be forced to resign after she stated her dissatisfaction with the reduced hours she had been given.

[84] In this case, the telephone call between Ms Hogan and Mr Samios was very brief, and Mr Samios was distracted as he was serving a customer. He heard Ms Hogan announce she was resigning, and on Ms Hogan's evidence, which I accept, was because she was only offered 13.5 hours the following week. There was no opportunity for further discussion as to why Ms Hogan would draw the conclusion that she would only ever be offered 13.5 hours in future weeks of work. I am satisfied Mr Samios concluded Ms Hogan's decision was clear and unequivocal.

[85] It appears to me that Ms Hogan's act of contacting Mr Samios by phone on 22 May 2017, and resigning her employment was irrational. There were many other ways she could have alerted her employer to her distress that she considered she was being offered reduced shifts in an effort to starve her of work, with the result that she would have to resign her employment.

[86] As is evident from Mr McFarland's conversation with Ms Hogan on 31 May 2017, he was happy with Ms Hogan returning to work and being rostered for 35 hours per week. Ms Hogan's evidence is that she said, "I'll think about it."

[87] It was open to Ms Hogan to accept this offer on 31 May 2017, where, by this point she would only have suffered a loss of approximately 10 days, for which she was only rostered for work on a few of those days. For reasons unbeknown to the Commission, at the meeting of 2 June 2017, where Ms Hogan was represented, this scenario was not agreed.

[88] Relevant to the test in O'Meara, and having regard to the Full Bench authority in Fingal Glen[28] at [21], I do not accept that Ms Hogan had no effective or real choice but to resign because of conduct or a course of conduct engaged in by Mr Samios on behalf of TB Hotels.

[89] Ms Hogan had available to her avenues to make inquiries of her employer as to why she had been given reduced shifts for the week returning from an illness she had been experiencing for at least three weeks. She did not take up the opportunity to discuss the reduced shifts with Mr Samios, or await Mr McFarland's return call. She attempted to call Mr McFarland only once, and did not leave a voice message detailing any of her concerns.

[90] I do not consider that Mr Samios engaged in conduct, or a course of conduct that would contribute to Ms Hogan reasonably considering she was forced to resign her employment. I am satisfied that Mr Samios was genuinely trying to ease Ms Hogan back into the workplace after a reasonable period of time away from work. Of course, a telephone call to Ms Hogan informing her of the transition for one week only would have assisted, but I do not consider the failure by Mr Samios to inform Ms Hogan could be said to constitute a dismissal at the employer's initiative, or give rise to a constructive dismissal.

[91] I find that Ms Hogan's employment did not come to an end pursuant to s.386(1)(a) or (b) of the Act. As a consequence, there has been no dismissal for the purposes of s.385 of the Act.

[92] Accordingly, I must dismiss the application and I do so.

[1] S.384(2) of the Fair Work Act 2009.

[2] Witness Statement of Karin Hogan at [6].

[5] Witness Statement of Karin Hogan at [21].

[7] Witness Statement of Karin Hogan at [23].

[13] Applicant's Outline of Argument: Merits and Objections dated 28 July 2017 at [41].

[15] Witness Statement of Michael Samios filed 9 August 2017 at [10].

[20] Witness Statement of Peter McFarland at [7].

[22] Witness Statement of Peter McFarland at [11].

[25] [2013] FWCFB 5279.

[26] PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23; (2006) 58 AILR 100.

[27] Respondent's Outline of Final Submissions dated 29 August 2017 at [12].

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

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