s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time - no dismissal.

• [1] On 22 March 2024, Ms Adamson made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a contravention involving dismissal. The Respondent raised two jurisdictional objections, the application was lodged out of time and that there was no dismissal.

• [2] Ms Adamson commenced employment with the Respondent on 28 July 2023 as a part-time Food Services Assistant, her employment ended on 22 February 2024. Ms Adamson filed her application on 22 March 2024 which was 8 days out of time.

• [3] At the conclusion of a hearing on 3 July 2024, I granted a further period of time for Ms Adamson to lodge her application and provided reasons for my decision. I then turned to the second jurisdictional objection dismissing Ms Adamson's application, finding that her employment was terminated at her own initiative. I advised the parties that further written reasons pertaining to the second jurisdictional objection would follow.

• [4] The circumstances relating to the termination of Ms Adamson's employment are contested. Ms Adamson says that she was forced to resign from her role on 22 February 2024, with the dismissal taking effect on that day. The Respondent says Ms Adamson resigned from her position and that there was no dismissal.

• [5] In support of her application Ms Adamson says she was subjected to bullying and harassment by other employees after being elevated to a relief supervisory position. Those events relied on occurred in early 2023. On 13 June 2023, Ms Adamson sent an email to the Human Resources Manager raising a complaint about alleged bullying and disclosing she was suffering from a mental health issue because of the alleged bullying.

• [6] In October 2023, Ms Adamson suffered a wrist injury. Ms Adamson submits she felt that Spotless was using her medical condition to remove her from her employment. Ms Adamson says she felt like she had no option other than to resign as she could not continue in the employment relationship whilst the alleged bullying and harassment remained unchecked.

• [7] The Respondent submits that in October 2023, Ms Adamson presented at work with a wrist injury and was observed not performing several of her designated tasks. Ms Adamson reported that she had issues with feeling in her hand and was experiencing shoulder pain and disclosed several other medical conditions that were affecting her at the time. Ms Adamson was directed not to attend work until she was able to provide a medical report so that the appropriate adjustments could be made to enable her to safely perform her role. Ms Adamson was sent home on full pay.

• [8] On 25 October 2023, Ms Adamson was directed to provide a medical report from her treating practitioner by 8 November 2023. Ms Adamson was unable to meet the specified time within which she was required to provide the information requested and was subsequently afforded several extensions.

• [9] On 5 December 2023, Ms Adamson provided two medical certificates one stating she was unfit for work from the 4-5 December 2023 (inclusive), and the other stating she had been examined on 5 December 2023 and was fit for all duties except dishwashing, which was a major portion of her role. The Respondent sought further particulars and subsequently became aware that the injury may have been sustained in the workplace and encouraged Ms Adamson to lodge a WorkCover claim until she could safely return to work. Ms Adamson declined to do so.

• [10] The relevant question is whether the alleged purported conduct of the Respondent, or course of conduct forced Ms Adamson to resign. The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli, Shahin [2017] FWCFB 3941[1] summarised the meaning of dismissal as follows:

[47] "(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

• [11] I note the comments of the Full Bench in ABB Engineering Construction Pty Ltd v Doumit[2]:

"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."

• [12] Along with her submissions and evidence pertaining to the not dismissed jurisdiction objection Ms Adamson submitted a report from her psychiatrist which contained a diagnosis and a list of prescribed medications. Whilst I have considered the report in the context of the evidence it is not necessary to include the specifics of the report in this decision. I have also considered the other materials and evidence before me. It is evident that Ms Adamson had strained relationships with other coworkers (some of which was outside of the influence of the Respondent), she was frustrated with the overall handling of her workplace bullying complaint and the circumstances surrounding the relief supervisor's role. Ms Adamson also felt some general dissatisfaction in the workplace and with the relationships she had with other employees. I am however apprehensive to conclude that there was a dismissal at the initiative of the employer because I am not satisfied that Ms Adamson has particularised any relevant conduct or course of conduct engaged in by the Respondent that forced her to resign.

• [13] Ms Adamson also submits that the Respondent was using her medical condition to remove her from her employment and therefore she had no other option but to resign. However, the evidence before me tends towards a finding to the contrary. Ms Adamson was afforded a significant period of time off work on full pay whilst she obtained a medical certificate so she could safely return to work without the risk of further injury. Ms Adamson's requests for a further period in which to provide the information sought were on each occasion granted. When it became apparent that Ms Adamson's work injury was possibly work related, she was encouraged to make a Workers' Compensation claim. A representative of the Respondent attempted to assist Ms Adamson by explaining the process however she declined to pursue any such course of action at her own discretion. I am not persuaded that the Respondent's conduct resulted in Ms Adamson having no other option than to resign or that it would have that probable effect.

• [14] Ms Adamson's resignation was not a dismissal at the initiative of the Respondent. There was a significant period of time that had passed between the events relied on by Ms Adamson and the date her resignation occurred. It is my conclusion that the termination was not done in haste but with careful consideration. Ms Adamson made the considered decision to resign from her employment. I am not satisfied that Ms Adamson had no other option but to resign as a result of the Respondent's conduct. It is however understandable given her other unrelated mental health issues and the complex issues which had arisen during the employment relationship, Ms Adamson no longer had a desire to remain in her employment.

• [15] I find that Ms Adamson was not dismissed for the purposes of s. 368 of the Act. As Ms Adamson was not dismissed she cannot bring an application under s. 365 of the Act.

[1] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli, Shahin [2017] FWCFB 3941 at [47].

[2] ABB Engineering Construction Pty Limited v Doumit (1996) PRN6999.

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