s.365 - Application to deal with contraventions involving dismissal

The Trustee For Paisley Park ELC (No.14) Unit Trust

Application to deal with contraventions involving dismissal; applicant not dismissed; application dismissed.

• [1] An application has been made by Ms Rosanna Spinelli in the Fair Work Commission pursuant to s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging that she was dismissed from her employment by The Trustee for Paisley Park ELC (No.14) Unit Trust (Paisley Park), in a manner that contravened Part 3-1 of the FW Act. The application was filed in the Commission on 23 January 2025.
• [2] On 4 February 2025, Paisley Park filed in the Commission a Form 8A Response to Ms Spinelli's application. The Response indicated that it objects to Ms Spinelli's application on the basis that it is alleged she was not dismissed. The Response alleges that Ms Spinelli resigned her employment.
• [3] While the Commission has power to attempt to assist the parties to resolve a dispute such as this one, I am not permitted to exercise that power without first resolving the question that has been raised, as to whether Ms Spinelli was dismissed[1].
• [4] Whether a person has been "dismissed" for the purposes of s 365 of the FW Act is to be determined by reference to s 386 of the FW Act[2]. Section 386(1) provides that a person has been dismissed if:
• [5] the person's employment with his or her employer has been terminated on the employer's initiative; or
  1. 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.
• [6] A Full Bench of the Commission considered this section of the Act in Bupa Aged Care Australia Pty Ltd v Tavassoli[3]. After considering in detail the case law associated with expression "terminated on the employer's initiative" including notions of constructive dismissal and forced resignation, the Full Bench said at [47]:

"[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(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 probable 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."

• [7] I conducted a hearing to determine this issue. The hearing was conducted on 5 March 2025 via video. In the lead up to this hearing, I directed both parties to file in the Commission and serve on each other an Outline of Submissions and Witness Statements in relation to the matter. Ms Spinelli filed a document containing both submissions and factual assertions, apparently made by herself. Paisley Park filed a more traditional Outline of Submissions and a Witness Statement made by Ms Leanne Lawrence, who is a Regional Manager for the Paisley Park Group of companies.
• [8] I took Ms Spinelli's Form F8 Application into evidence because it also contains a number of factual assertions. This document, together with her Outline of Submissions, and together with various assertions Ms Spinelli made during the hearing are her evidence in this matter.

The events leading to the end of Ms Spinelli's employment

• [9] The early education and care service which is the subject of this matter has traditionally been known as "Villa Bambini Templestowe" (Villa Bambini) but is now known as "Paisley Park Templestowe". It was acquired by Paisley Park on 2 December 2024. Paisley Park engaged some of the existing employees who worked at Villa Bambini, including Ms Spinelli. Ms Spinelli's date of commencement of employment with Paisley Park was 3 December 2024.
• [10] Prior to her engagement with Paisley Park, Ms Spinelli had worked at Villa Bambini since about March 2024. She was engaged as the "Educational Leader". An Educational Leader is a relatively senior position within an ECEC service, responsible to oversee curriculum development, ensure that programs align with relevant learning frameworks and promote a culture of continuous improvement within a service. An Educational Leader is required to be appointed by a service in accordance with regulation 118 of the Education and Care Services National Regulations (the National Regulations). Clause 15.8 of the relevant Award - the Children's Services Award 2010) (the Award) provides that an Educational Leader must be paid an allowance[4].
• [11] When Ms Spinelli began working at Villa Bambini, she was engaged on a part time basis, working four days per week, Monday to Thursday, 8:00AM to 6:00PM. Not long after, her hours changed because she obtained a role with a different organisation as a sessional trainer. She continued to work at Villa Bambini, but during the "term periods" in respect to her role as a sessional trainer, only worked at Villa Bambini two days per week. Outside of term periods, Ms Spinelli explained that her days of work at Villa Bambini might increase back to three or four days per week. Presumably, this would arise by Ms Spinelli advising the Centre Manager at Villa Bambini of her additional availability. This arrangement, which appeared to be somewhat fluid, was still in existence at the time Paisley Park employed Ms Spinelli when it took over the running of the Templestowe centre.
• [12] Ms Spinelli's Employment Contract with Paisley Park, which was provided in evidence, said her "Position Title" was "Educational Leader". Ms Lawrence, who gave evidence in the proceeding for Paisley Park, confirmed that this was a reference to the role required to be appointed by the National Regulations. It therefore appeared Ms Spinelli was engaged by Paisley Park in the same role Ms Spinelli had with Villa Bambini, before Paisley Park took over on 3 December 2024.
• [13] Other features of the written contract of employment between Ms Spinelli and Paisley Park included:
  1. The Employment type was described as "part time";
  2. The ordinary hours of work were described as "up to 76 hours per fortnight".
  3. There was a reference to the Modern Award - described as the "Children's Services Award 2020".
• [14] The Award provides that at the time of the engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day[5].
• [15] It does not appear Paisley Park complied with this clause of the Award. Her contract of employment, in respect of "ordinary hours" simply said "up to 76 hours per fortnight". Thus, there was some confusion as to what Ms Spinelli's hours of work with Paisley Park were. Ms Spinelli thought that her hours of work with Villa Bambini, as she understood them to be, would continue during her employment with Paisley Park. This is dealt with further below.
• [16] Sometime prior to the commencement of her employment with Paisley Park in December 2024, Ms Spinelli appears to have experienced a deterioration in her relationship with the Centre Director, Ms Anh Pham.
• [17] There may have been several contributing factors to the deterioration in this relationship. Ms Spinelli appears to feel that whereas at some point in the past, she, the Centre Director and the Assistant Director worked well as a leadership team, over time she felt she was excluded from being part of this senior team. Whether this was the case or was Ms Spinelli's perception, it is a matter that has caused her distress and resentment and appeared to me to be at the root of the problems that ensued. By about September 2024, Ms Spinelli also began to take issue with the amount of time she was being scheduled to work as a "breaks reliever" - relieving other educators so they could take their break - instead of being able to focus on her role as Educational Leader. Ms Spinelli said that in November 2024 she took time off work due to the stress these matters were causing her.
• [18] Although it was never made entirely clear to me, there was some evidence which suggested that during periods in which Ms Spinelli was working as a "breaks reliever", she was not paid the Educational Leader allowance provided for in the Award.
• [19] When Paisley Park took over the running of the centre on 3 December 2024, Ms Pham continued as the Centre Director.
• [20] A staff meeting was held on or about 3 December 2024 involving Ms Lawrence, whose role as regional manager was to support the transition occurring as a result of Paisley Park taking over running of the centre. At the end of the staff meeting, Ms Spinelli approached Ms Lawrence and told her she had been experiencing some issues with Mr Pham, particularly in relation to the extent to which she was being used as a breaks reliever. Ms Spinelli took from this conversation the impression that as the transition continued, in the new year, work would be done to assist Ms Pham to manage the role of Educational Leader in a more appropriate way. This to some extent aligned with the evidence given by Ms Lawrence, who said that at or around this time she said to Ms Spinelli words to the effect that as the centre grew, Paisley Park would "want educational leaders to be in ratio in rooms to mentor the educators in their daily practices and routines". Ms Spinelli appears to have taken from this conversation the prospect that early in the New Year 2025, there would be some form of "training" involving Ms Pham on the correct deployment of the Educational Leader.
• [21] During another exchange between Ms Lawrence and Ms Spinelli, which also involved the Pedagogical Leader, "Penny", it appears that Ms Spinelli formed the view her seniority and contribution to the centre and ideas for improvement were not given proper acknowledgement or recognition. During the conversation, which probably occurred sometime during December 2024, Ms Spinelli felt she was not listened to properly by "Penny" or Ms Lawrence. Thus, if Ms Spinelli had, through her initial exchange with Ms Lawrence on or about 3 December 2024, formed hopes that she would have a better experience after Paisley Park took over, the nature of her conversation with Ms Lawrence and "Penny" appeared to damage those hopes, and cause her to assume that, as Ms Spinelli put it, "Leanne and Penny had already had all their meetings with Anh about the team and had made up their minds about who was valuable and who was not".
• [22] It also appears that Ms Spinelli was given cause to believe there would be no improvement in the frequency with which she was required to work as a breaks reliever, instead of in her Educational Leader role, because during December 2024 this continued with similar regularity. It also appeared from the evidence - although again not entirely clear - that the practice in which the Educational Leaders allowance was not paid to Ms Spinelli when she worked as a breaks reliever continued.
• [23] Perhaps as her level of frustration continued to grow, it appears Ms Spinelli also began to develop cynicism about her new employer. She made assertions that she believed Paisley Park demoted staff in an effort to push them to resign, or did not properly observe Government prescribed minimum educator to child ratio requirements. There was no evidence before me supporting either of these two assertions, other than Ms Spinelli's unsubstantiated allegations.
• [24] There was also some confusion over Ms Spinelli's hours of work. During the first week of December 2024, Ms Spinelli worked at least some days in her sessional trainer role. She worked 11 hours during this week at Paisley Park. After this week, it appears Ms Spinelli had an expectation that her hours at Paisley Park would increase back to four days a week, presumably because she would be out of "term time" in the sessional trainer role (although this was not entirely clear from the evidence). It may be that Ms Spinelli was given the impression this would occur from Ms Pham or assumed it would occur because it had (to some extent) in the past.
• [25] However, during December 2024, Ms Spinelli complained she was only rostered by Ms Pham to work "two shifts a week". Evidence was given by Ms Lawrence that during the two weeks between 8 December 2024 and 22 December 2024 Ms Spinelli worked 54 hours.
• [26] Ms Spinelli returned to work after the Christmas break. On 6 January 2025 an incident occurred which caused her further frustration. In short, it appears a conversation occurred between Ms Pham and another staff member, which was ultimately revealed to be about overstaffing, and a decision that a member of staff could go home early. Ms Spinelli said that when she entered the room in which this conversation was occurring, Ms Pham and the other staff member removed themselves from the room. Eventually, Ms Spinelli learned that the conversation was about overstaffing, and a decision to send someone home. Ms Spinelli volunteered to be the person sent home. But it appears she took particular offence to not being included in this conversation, or as a member of the centre leadership team, being included in the decision making process herself.
• [27] Later, on that same day - 6 January 2025 at 7:53PM, Ms Spinelli sent an email to Ms Pham in which she said "please accept this as formal notification of my resignation effective immediately.
• [28] Ms Spinelli did not report for work on 7 January 2025, nor has she done so or sought to do so since.
• [29] On 7 January 2025 at 9:34AM Ms Spinelli sent an email to Ms Lawrence in which she outlined a range of issues (referred to above) relating to her working relationship with Ms Pham. She also outlined concerns, also summarised above, about her experience working at Templestowe since Paisley Park had taken over. She confirmed her decision to resign her employment.
• [30] In her evidence, Ms Spinelli said that she had an expectation on 6 January 2024 that Ms Lawrence would be in contact with her about the "training" she had expected would occur early in 2024, about the role of Educational Leader. She her decision to resign was also influenced by the lack of contact from Ms Lawrence about this issue.

• [31] There appears to be no question that Ms Spinelli resigned her employment with Paisley Park. She sent two emails, one on 6 January 2025 and one on 7 January 2025 advising of her resignation. She has also not reported to work or sought to report to work since.
• [32] Ms Spinelli contends that she was forced to resign due to the conduct of Paisley Park. She did not contend that her dismissal occurred within "the heat of the moment". I am therefore concerned with s 386(b) of the Act and the question as to whether Paisley Park engaged in a course of conduct intended to bring Ms Spinelli's employment to an end or had that probable result, such that she had no real or effective choice but to resign.
• [33] It should be borne in mind at the outset that if Paisley Park embarked on a course of conduct with the intention that Ms Spinelli be forced to resign, this would have contrasted starkly with its decision made only some five weeks prior, to employ her.
• [34] In so far as I am being asked to consider matters which occurred prior the date on which Paisley Park employed Ms Spinelli (3 December 2024) which caused Ms Spinelli upset, such as the deterioration of her relationship with Ms Pham, I consider those matters to be of only peripheral relevance. Even if those matters were of a nature such that Ms Spinelli felt "forced" to resign they cannot be said to be conduct engaged in by her employer, Paisley Park. They occurred before Paisley Park was Ms Spinelli's employer.
• [35] It does appear to be the case that after 3 December 2024 things that were causing Ms Spinelli dissatisfaction did not improve, and perhaps, particularly as a result of the impact of change (which is not always easy to deal with) got a little worse. In particular, Ms Spinelli continued to feel undervalued, now also due to the perceived behaviour of Ms Lawrence. She also continued to be required to spend more time than it appears she wished not performing the duties of Educational Leader and providing breaks relief instead.
• [36] As mentioned above, while not entirely clear from the evidence, it appeared that both Ms Spinelli's former employer and Paisley Park may not have paid her the Educational Leader Allowance for all of her time working. It is not clear to me the basis upon which either Ms Spinelli's former employer, or Paisley Park only paid her the Educational Leaders allowance prescribed by the Award at certain times and not others, depending on the work she was allocated to, despite her being clearly employed by both employers in the role. The Award provides for either an annual allowance[6] or a pro-rata allowance, calculated daily[7]. It is therefore unclear to me how it would have been permissible under the Award for Ms Spinelli to have ever been not paid at least the daily allowance provided for by the Award. To the extent this meant Ms Spinelli earned less money than she would have otherwise expected to, I assume would have caused her even further frustration (albeit it was already occurring with her previous employer).
• [37] Ms Spinelli was also frustrated with a difference between her expectation in relation to her hours of work and those that were offered.
• [38] However, notwithstanding Ms Spinelli's frustrations, I do not consider these matters constitute a "course of conduct" engaged in by Paisley Park, much less a course of conduct designed to force Ms Spinelli's resignation.
• [39] The arrangement in relation to Ms Spinelli's hours of work was already fluid, prior to her being engaged by Paisley Park. It is doubtful that, even if Paisley Park understood the arrangement Ms Spinelli thought existed, such that her days of work outside "term time" should have increased from two to four, that it was obliged to provide those hours, especially if there was no operational need for it. I do note that Paisley Park's apparent failure to comply with the requirements of clause 10.4(c) of the Award, in circumstances where it seems no doubt she was a part time employee within the meaning of clause 10.4 of that Award, contributed to the confusion (and in and of itself is not excusable). But this non-compliance did not leave Ms Spinelli with no choice but to resign.
• [40] Ms Spinelli's complaints about being excluded from leadership decisions appeared to be at least to some extent a matter of her own perception. To the extent such conduct occurred, I consider it unlikely to have been deliberate, or such that it rises to the level of a "course of conduct" intended to force a resignation. In any event, this complaint originated and most of its source appears emanate from the period before Paisley Park was Ms Spinelli's employer.
• [41] The frequency with which Ms Spinelli was asked to undertake breaks relief, preventing her from giving as full attention to her role of Educational Leader as she wished, also appears to be an issue pre-dating the commencement of her employment with Paisley Park, not a course of conduct it embarked upon to force her resignation.
• [42] In summary, it is evident to me that a confluence of circumstance caused Ms Spinelli to feel she had to resign from a role which she was professionally devoted to and had at some stage enjoyed. However, this was not as a result of a course of conduct engaged in by her employer, Paisley Park which had left her no choice. On the evidence before me, Paisley Park did nothing consciously, with the intention that it would result in Ms Spinelli's resignation. Perhaps if it had a better insight into Ms Spinelli's concerns, it may have been more proactive in addressing them - but she did not allow this to occur because after about five weeks of employment Paisley Park, she ended the employment relationship of her own volition.
• [43] On this basis the application is dismissed. An order[8] to this effect will issue separately.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; see also Marie Vic Dawson v Centre for Digestive Diseases Pty Ltd [2025] FWCFB 50

[3] [2017] FWCFB 3941

[4] Children's Services Award 2010, cl 15.8

[5] Children's Services Award 2010, cl 10.4(c)

[6] Children's Services Award 2010 cl 15.8(a)

[7] Children's Services Award 2010 cl 15.8(b)

[8] PR785345

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