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[2020] FWC 4034
General information, not legal advice.
Fair Work Commission
2020-08-05
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Active Kids Pre School Centre of Excellence Pty Ltd
Application for unfair dismissal remedy - resignation - jurisdictional objection - s. 386 (1) (b) - resignation forced because of conduct of employer - dismissal established - no valid reason for dismissal - significant procedural deficiencies - dismissal harsh, unjust and unreasonable - reinstatement Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Penelope Mary Kathleen Phair (the applicant), and the respondent employer is Active Kids Pre School Centre of Excellence Pty Ltd ABN: 28 059 087 857 (the employer).
[2] The application was lodged at Sydney on 14 January 2020. The application indicated that the date that the applicant's alleged dismissal took effect was 30 December 2019. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 8 July 2020.
[4] In a Decision issued on 18 March 2020 [2020] FWC 1343, the Commission granted permission, pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. At the Hearing the applicant was represented by Ms K Nomchong, Senior Counsel, instructed by Ms D Phair solicitor from the firm of Proctor Phair Lawyers. Ms Nomchong called the applicant as the only witness who provided evidence in support of the claim for unfair dismissal remedy. The employer was represented by its Managing Director, Mr K Diskoros. Mr Diskoros adduced evidence from one witness called on behalf of the employer.
[5] The applicant had been employed in two separate periods of employment. The applicant was initially engaged from March 2014 to January 2019, and she was subsequently re-employed from April 2019 until 30 December 2019, when lawyers acting on her behalf provided her written resignation to the employer. The applicant was employed as a University Qualified Early Childhood Teacher (ECT).
[6] The employer operates early childhood education centres at 15 locations throughout Suburban Sydney. The work of the applicant as an ECT was governed by the terms of the Educational Services (Teachers) Award 2010 [MA 000077] (the Award).
[7] In the first period of employment, the applicant was engaged at the employer's early childhood centre located in Vaucluse. The applicant resided close to the Vaucluse childhood centre where she worked. In 2016, the employer advised the applicant that she would be required to transfer to another of the employer's childcare centres located at World Square. The applicant objected to the transfer to the World Square location, and following objections raised by parents of children who attended the Vaucluse centre, the employer decided not to transfer the applicant from that location.
[8] In late 2018, the applicant was advised by the employer's Children's Services Manager, Ms Jodie Giannetto, that as enrolment numbers at the Vaucluse childcare centre had reduced, the employer was unable to continue the employment of the applicant. The applicant responded to this advice by requesting that she be permitted to remain engaged at the Vaucluse centre until she had found some alternative employment. The employer broadly agreed to this proposition but placed a time limit on the arrangement until the end of January 2019. The applicant left employment with the employer in January 2019, when she secured alternative employment with another childcare operator named "Good Start".
[9] In April 2019, whilst employed with "Good Start", the applicant made contact with Ms Giannetto regarding an apparent vacancy that had arisen for an ECT at the employer's Bondi childcare centre. As a result of these discussions, the employer offered, and the applicant accepted, re-employment as an ECT at the employer's Bondi childcare centre. During the course of the discussions which culminated with the re-employment of the applicant, Ms Giannetto inquired as to why the applicant was keen to leave "Good Start" and the applicant indicated that she was not happy with the work at "Good Start" because she had been required to change children's nappies rather than perform preschool teacher work with the older children.
[10] The re-employment of the applicant at the Bondi childcare centre was established to be on a part-time basis of 24 hours per week, with the applicant working eight hours a day on Tuesdays, Wednesdays and Thursdays of each week. The work of the applicant under the terms of the re-employment at the Bondi childcare centre continued from April 2019 without any incident or problem until the events of Thursday, 19 December 2019.
[11] On the morning of 19 December 2019, the applicant was directed to attend a meeting with Ms Giannetto and the employer's Children's Operations Manager, Ms Marisa Galati. At the commencement of the meeting, Ms Giannetto told the applicant that as a person named Emma who had previously occupied the applicant's position as an ECT at the Bondi childcare centre was returning from Ireland, the applicant was being transferred to another of the employers childcare centres located at Narwee. Ms Giannetto told the applicant she was giving her one weeks' notice of the transfer to Narwee.
[12] Further, Ms Giannetto told the applicant that the work that she would be required to perform at Narwee would be confined to the younger children between ages 0 to 3 years and would involve the applicant being required to change nappies. In addition, Ms Giannetto told the applicant that her working hours would be altered and reduced as at Narwee she would be working only two days per week, and each shift would be of 10 hours duration.
[13] The applicant became visibly upset at receiving the advice from Ms Giannetto about the transfer to Narwee. Ms Giannetto said words to the applicant to the effect of "Don't tell me you don't want to do nappies the decision's been made." The applicant responded to this comment with words to the effect of, "I'm not ready to retire."
[14] The applicant made further inquiry with Ms Giannetto about where the Narwee childcare centre was located, and how long it was anticipated that the transfer would be in place. Ms Giannetto indicated that the transfer was essentially permanent in nature. By this time the applicant was very upset, she was crying, and she asked if she could leave the workplace and go home. Ms Giannetto refused this request and instructed the applicant to complete her shift.
[15] Later that day, the employers Payroll Manager sent the applicant an email which formally notified her of the transfer to Narwee and required her to sign an acceptance for the transfer of location and agreement to the terms and conditions involving inter alia, the changed hours of work.
[16] The applicant's next rostered engagement was Tuesday, 24 December 2019. However, on Monday, 23 December 2019, the applicant sent an email to the employer which included a medical certificate indicating that she was unfit to work the following day, Tuesday, 24 December 2019. At 3:10 pm on 24 December 2019, Ms Giannetto sent the applicant an email which requested that she respond to the transfer of location acceptance documentation previously provided by the Payroll Manager. Further, Ms Giannetto indicated that if the applicant did not provide a response on that day, the employer would consider that the applicant had not accepted her "transfer/position within our organisation."
[17] On Monday, 30 December 2019, solicitors acting for the applicant wrote to the employer and inter alia, raised complaint about the directive given to the applicant on 19 December to transfer to Narwee (the transfer directive). The letter from the applicant's solicitor asserted that by giving the applicant the transfer directive it had breached the consultation and part-time employment provisions of the Award, and further the transfer directive was asserted to be in breach of the applicant's employment contract.
[18] The letter from the applicant's solicitor also gave notice of her resignation. The solicitor's letter contained the following text: "Our client hereby gives notice of her resignation but this termination of employment as a result of Active Kid's conduct is deemed to be at the initiative of Active Kids and is a constructive dismissal."
[19] Later that day, 30 December, the employer's Payroll Manager responded to the letter from the applicant's solicitor in an email which relevantly stated as follows:
"1. Penelope was offered an opportunity to transfer to a different location and she has agreed to accept this transfer in the meeting. This is NOT a dismissal.
2. Should Penelope not be willing to proceed with this transfer anymore and decide to resign, we accept the resignation.
3. In accordance with the Award, Penelope is required to give us one weeks' notice.
4. We are able to provide a statement of service and employment reference as requested."
[20] On the next day, 31 December 2019, the applicant sent another email to the employer which included a medical certificate indicating that she was unfit to work from 31 December 2019 to 2 January 2020 inclusive.
[21] On 2 January 2020, the applicant's solicitors sent an email to the employer which referred to the communication from the employer's Payroll Manager on 30 December 2019, and relevantly included the following:
"We are instructed the contents of your correspondence dated 30 December 2019 is denied, which denial is supported by the email from your Jodie dated 24 December 2019 in which she states, "If I don't hear back from you today we will take this as you not accepting your transfer/position within our organisation."
[22] There was no evidence of any further communication between the employer and the solicitors acting for the applicant. On 14 January 2020, the applicant's solicitors filed the unfair dismissal application. The employer has contested the application on the basis that the applicant was not dismissed from her employment.
[23] A written outline of submissions document dated 25 March 2020, was provided by the applicant's solicitors, and during the Hearing on 8 July 2020, Ms Nomchong SC provided further oral submissions.
[24] The submissions made by Ms Nomchong were constructed by way of reference to three sequential determinations that she urged upon the Commission. Ms Nomchong said that the Commission should firstly determine that pursuant to section 386 (1) (b) of the Act, the applicant had been forced to resign because of the employer's conduct, and thus she had been dismissed. Secondly, Ms Nomchong submitted that the dismissal of the applicant should be found to have been harsh, unjust and unreasonable and thirdly, the appropriate remedy for the applicant's unfair dismissal was reinstatement, together with Orders for continuity and lost remuneration.
[25] Ms Nomchong submitted that the Commission should be comfortably satisfied that the factual circumstances presented in this instance amounted to a forced resignation, a circumstance sometimes described as a constructive dismissal. In this regard, Ms Nomchong submitted that the central question to be determined was whether the conduct of the employer was such as to repudiate the contract of employment, giving rise to the right of the applicant to accept the repudiation by resignation.
[26] The submissions made by Ms Nomchong referred to the resignation of the applicant that was given in the letter from the applicant's solicitor dated 30 December 2019, and which described the circumstances where the applicant had accepted that the conduct of the employer represented her constructive dismissal. Ms Nomchong made further submissions which traversed the factual matrix involving the contract of employment of the applicant that was partly written and partly oral and established in respect to the second period of the applicant's employment when she was engaged as an ECT at the Bondi childcare centre. Ms Nomchong said that these contractual terms were clearly and substantially breached when the employer issued the transfer directive to the applicant.
[27] Ms Nomchong submitted that the transfer directive was wholly unreasonable because despite what the employer may assert about ECTs being employed at various locations, the applicant's contract of employment was very specific, and she was to be a leader in the pre-school room at Bondi, working the part-time hours involving 24 hours per week over three days. Ms Nomchong made submissions which criticised the transfer directive particularly because it was implemented without any consultation, involved a movement to a demoted position, and altered the hours of work of the applicant at a location which, in all the circumstances, did not represent a reasonable directive to a different work location.
[28] Ms Nomchong also submitted that the transfer directive was issued as an ultimatum which was conveyed to the applicant as, "Go to Narwee or lose your job." According to the submissions of Ms Nomchong, this proposition emerged because the employer knew that the applicant would turn down the offer of work at Narwee because it knew that the additional travel would greatly inconvenience the applicant, and that it involved changing babies' nappies which the applicant would not accept. Ms Nomchong described the employer to be acting on the basis that it was a case of their way or the highway: "Take the directed transfer, otherwise you have to resign."
[29] It was further submitted by Ms Nomchong that the factual matrix in this instance involved a 70-year-old woman who had been specifically given a job as a leader in the pre-school room at a location near her home, being directed to take a demoted position, lesser hours, a longer span of hours, and a drop in pay. In these circumstances, Ms Nomchong submitted that the employer's conduct forced the resignation of the applicant in satisfaction of subsection 386 (1) (b) of the Act.
[30] Ms Nomchong made further submissions which referred to s. 387 of the Act and the various factors which she said established that the dismissal of the applicant was harsh, unjust and unreasonable. Ms Nomchong submitted that there was no valid reason for the dismissal as the transfer directive arose simply because the employee named Emma was being given the job performed by the applicant. Ms Nomchong posited, why couldn't Emma go to Narwee? Further, Ms Nomchong questioned why the return of Emma should then lead to the applicant being directed to another location in a demoted position with altered hours of work and reduced pay.
[31] In further submissions, Ms Nomchong referred to the consultation and part-time employment provisions of the Award. Ms Nomchong said that the transfer directive, both in substance and the manner in which it was delivered, contravened the relevant provisions of the Award. Further, Ms Nomchong submitted that the applicant was not given any opportunity to respond to the reason for her transfer as no discussion was entered into by Ms Giannetto. Ms Nomchong also submitted that although there was no refusal by the employer to allow a support person, the way that the meeting was conducted on 19 December meant that the applicant just had no opportunity to get any support person.
[32] Ms Nomchong also submitted that the size of the employer's enterprise was one of a fairly large organisation involving the operation of 15 childcare centres. Further, the employer was large enough to have full time Managing Directors of children's and operations services and that Ms Giannetto was the dedicated HR manager for the employer. Ms Nomchong also made submissions that referred to various other factors that she said were relevant to a determination that the dismissal of the applicant was harsh, unjust and unreasonable.
[33] In respect to the third component of the submissions made by Ms Nomchong, the remedy sought for the unfair dismissal of the applicant was that of reinstatement. In support of reinstatement Ms Nomchong submitted that the employer had provided no evidence whatsoever to establish that there would be any inappropriateness for the reinstatement of the applicant. Ms Nomchong submitted that the evidence clearly established that the applicant had a very good personal working relationship with all other staff at the Bondi childcare centre.
[34] In summary, Ms Nomchong submitted that the applicant had been forced to resign because of the conduct of the employer, and such forced resignation represented her constructive dismissal. Ms Nomchong submitted that the Commission should find that the applicant had been dismissed and the dismissal was harsh, unjust and unreasonable.
[35] Further, Ms Nomchong submitted that the appropriate remedy for the unfair dismissal of the applicant was that she be reinstated to her position together with continuity of service and backpay. In the alternative, if the Commission was inclined to provide for a remedy of compensation, Ms Nomchong submitted that the applicant would be entitled to the maximum amount of compensation, 26 weeks' pay plus superannuation, plus any accrued leave entitlements.
[36] The employer was represented by its Managing Director, Mr Diskoros. Mr Diskoros made oral submissions on behalf of the employer. In addition to the oral submissions made by Mr Diskoros, the employer had provided an outline of submissions document that was filed and served on 21 April 2020.
[37] The submissions made on behalf of the employer raised the jurisdictional objection which asserted that the applicant had not been dismissed. The employer submitted that the applicant had not been dismissed nor was there an intention to dismiss or terminate the applicant's employment.
[38] The submissions made by the employer also asserted that the applicant was offered an opportunity to transfer to a different location and the applicant failed to communicate with the employer to discuss this offer of transfer. The employer also submitted that the transfer that was offered to the applicant did not involve a change of duties, and that as a childcare worker the applicant was expected and required to fulfil her duties across a range of age groups, including looking after babies.
[39] Further, the submissions made by the employer asserted that the travel that the applicant would undertake in respect of the new work location was reasonable, and that the employer had a number of employees who travelled further distance to get to work.
[40] Mr Diskoros made further oral submissions which commenced by stating that the applicant had been employed for eight months from April to December 2019. Mr Diskoros submitted that the applicant took two weeks off after the meeting that she had with Ms Giannetto and Ms Galati on 19 December 2019.
[41] Mr Diskoros said that at no point after the meeting that the applicant had with Ms Giannetto and Ms Galati, did she come back to the employer about her dislike of the idea or for any negotiation that could be had, or other alternative that could be had for her.
[42] The submissions made by Mr Diskoros referred to the applicant's contract of employment document which he said allowed the employer to transfer its ECTs and that is what occurred. Further, Mr Diskoros said that the employer believed that this was in no way an unreasonable request made on the applicant and that 20 km was a reasonable distance to be travelled.
[43] Mr Diskoros also made submissions which rejected the suggestion that the transfer directive involved a demotion for the applicant. Mr Diskoros said that all ECTs would from time to time, be required to change nappies as this was part and parcel of the work of an ECT.
[44] Mr Diskoros said that the employer appreciated the applicant's work and at no stage had the employer ever thought about dismissing the applicant nor did it have any concocted idea to force her to resign. Mr Diskoros said that the employer felt that the applicant was part of the family and she had a wealth of experience. He said that there was no way that the employer wanted the applicant to resign. Mr Diskoros said that it was the applicant's choice to resign, she left, and did not communicate with the employer and try to negotiate something else.
[45] In summary, the submissions made by the employer asserted that the Commission should find that there was no ground for the applicant to claim a dismissal.
[46] Section 385 of the Act stipulates that the Commission must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:
A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy."
[47] In this instance there was no suggestion that the respondent employer was a small business or that the termination of the applicant's employment involved a case of genuine redundancy. However, the employer raised a jurisdictional objection in respect to that element contained in subsection 385 (a) of the Act, specifically whether the applicant was a person who had been dismissed.
[48] The determination of the question of whether or not a person has been dismissed from employment involves mixed findings of fact and law. Further, s. 386 of the Act prescribes a meaning of "dismissed". Relevantly, subsection 386 (1) of the Act is in the following terms:
(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."
[49] In this case the applicant clearly resigned. The resignation of the applicant was conveyed in a letter from her solicitor which indicated that the resignation was described to be a constructive dismissal, as it was provided in response to the conduct of the employer. These circumstances are contemplated by the provisions of subsection 386 (1) (b) of the Act which establishes that if an employee is forced to resign because of conduct engaged in by the employer then the resignation is held to be a dismissal.
[50] In order to determine whether the resignation of the applicant was forced because of conduct engaged in by the employer, the factual matrix that provides the context in which the resignation was given must be carefully analysed so as to determine whether the applicant had no other realistic option than to resign. The term constructive dismissal is used to describe inter alia, circumstances where an employee resigns but that resignation was the intended, desired or likely result of the conduct of the employer, and the employee had no other realistic option but to provide the resignation.
[51] The most common circumstance of a forced resignation involves an employer presenting the employee with an ultimatum of "resign or you will be dismissed". However, there are many other situations that involve more subtle actions taken by an employer which can provide an employee with no other realistic option but to resign, and such resignation would be comprehended by subsection 386 (1) (b) of the Act, and described as a constructive dismissal.
"However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer."[2]
"Although the term "constructive dismissal" is quite commonly used it can deflect attention 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?"
"In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change."
[54] The first aspect of the factual matrix that must be considered is the detail of exchanges that took place between Ms Giannetto and the applicant during the meeting of 19 December 2019. Much of the evidence regarding the detail of this meeting was not contested. However, it has been necessary to resolve some contested details of the meeting in order to provide sound basis for conclusive findings to be made about the tenor of the approach adopted by Ms Giannetto, and the subsequent conclusions that have been established as to the intent or motivations that may be attributed to the actions of Ms Giannetto.
[55] Regrettably, the evidence provided by Ms Giannetto was rather disturbing in some respects. During cross-examination, Ms Giannetto was able to provide a number of very definite answers arising from her memory of details of what was and was not said during the meeting with the applicant on 19 December. However, her memory inexplicably failed in respect to some matters which would usually be easily recalled. In order to provide example of these unusual fluctuations in the memory recall of Ms Giannetto the following extract from transcript is relevant:
Because Emma was back, you were going to put her into the position that was currently occupied by Mrs Phair? Correct.
Then you said to Mrs Phair, "We're going to transfer you to Narwee"? Correct.
And Mrs Phair said to you, "Where's Narwee"? Correct.
You said, "It's near Beverly Hills" and you suggested that she might want to go out and have a look at it? That's correct.
She said to you, "I don't want to go to Narwee." Do you agree? I can't confirm.
You said to her, "The decision's made." That's correct, isn't it? Well, yes, but not to those words because it's quite harsh, yes.
And you said, "You'll be working with babies at Narwee"? Zero to threes, yes.
You told her that she would be doing 10-hour shifts out there? That's what the shifts were, that's correct.
And you told her that she'd be working in a room where the leader was Tina? That's not correct because Tina works at our Narwee 1 service.
You told her that Tina would be the leader, though, at Narwee? I did not.
You said words to the effect of, "You won't be able to have a designer working shift like here in Bondi"? Yes, that's correct.
And you said - - -? I didn't use those words "designer", though, I have to - but anyway, it's irrelevant.
"You won't be working the same sort of shifts you're working here at Bondi"? The same shifts, that's correct, yes.
You said to her, "Don't tell me you don't want to do nappies, the decision's been made" or words to that effect? Words to that effect, yes.
And Mrs Phair said, "I'm not ready to retire"? Correct.
You knew that what she meant by that was that she didn't want to stop working because she didn't want to do nappies. You already knew from back in the conversation that you had with her in April that the reason she left Good Start was because of the nappies and here you're saying, "Don't tell me you don't want to do nappies"? Yes.
So when she said to you, "I don't want to retire", you knew that what you were asking her to do was basically, you know, do something she didn't want to do? That's not correct.
Mrs Phair said to you, "How long do I have to go there?" and you said, "Forever." That's correct? I can't confirm that.
You also said, "There's nothing else available to you"? Correct.
Then Mrs Phair asked if she could leave and go home and you told her she had to complete her shift? That's right because we had to maintain our ratios.
At no time during the meeting did Mrs Phair agree to accept the transfer, did she? No.
She was crying. She was crying, wasn't she? I can't confirm."
[56] It is difficult to reconcile or understand how Ms Giannetto could say at PN445, that she could not confirm that the applicant had said words to the effect that she did not want to go to Narwee, yet at PN463 she confirmed that at no time during the meeting did the applicant agree or accept the transfer. Further, at PN451 Ms Giannetto was adamant that she did not tell the applicant that Tina would be the leader at Narwee, yet at PN460 she could not confirm that she had told the applicant that the transfer was forever. Once again, at PN465 Ms Giannetto could not confirm that the applicant was crying despite confirming that the applicant was very upset.
[57] The incongruities and inconsistencies in the evidence provided by Ms Giannetto can be compared with the generally believable evidence of the applicant which was not successfully challenged during cross-examination. Consequently, the version of the details of the meeting of 19 December 2019, that was provided by the applicant has been preferred wherever it differed from the evidence provided by Ms Giannetto.
[58] The position that the applicant found herself in on 19 December 2019, was understandably very upsetting. Unfortunately, after careful consideration, the conduct of the employer which involved Ms Giannetto's approach to informing the applicant of the transfer directive, was, on any objective and reasonable assessment, and having regard for the entire factual matrix, conduct that intended to produce, or was likely to result in, the resignation of the applicant.
[59] The transfer directive was issued without any consultation whatsoever, and it involved the applicant being transferred to work at a different location, with reduced ordinary hours of work, increased span of daily hours, and it also involved performance of duties that the employer knew the applicant disliked. The transfer directive was issued as a non-negotiable fait accompli, and on any reasonable expectation it would be unacceptable to the applicant. Both in its substance and manner of presentation, the transfer directive was intended to, or be likely to result in, the resignation of the applicant.
[60] The second aspect of the factual matrix that must next be examined is the conduct of the applicant and the employer that followed the meeting on 19 December 2019. On 23 December 2019, the applicant provided a medical certificate which advised that she was unable to attend work on the following day, 24 December 2019, which was her next rostered day of work following the events of 19 December. At this time, the applicant had also not provided any response to the Payroll Manager's request to sign the transfer of location acceptance form.
[61] On 24 December 2019, at 3:10 pm, Ms Giannetto sent an email to the applicant that contained the following terms:
Could you please respond to the email that Jun has sent you regarding your transfer.
At this stage we don't have you on the roster at Narwee and would like to confirm next weeks [sic] roster.
If I don't hear back from you today we will take this as you not accepting your transfer/position within our organisation.
[62] The absence of any response from the applicant to the request for her to sign and return the transfer of location acceptance form meant that the employer was unable to finalise its rostering arrangements particularly in respect of the Narwee childcare centre. Therefore, it was understandable that Ms Giannetto would seek to clarify the applicant's position regarding acceptance of the transfer.
[63] However, the final sentence in the email from Ms Giannetto confirms the stringency that she had conveyed to the applicant in the meeting of 19 December, that there was no alternative for the applicant but to accept the transfer. In particular, the introduction of the terminology "transfer/position" which interchangeably used the transfer and the applicant's position generally, clearly conveyed to the applicant that her employment would only continue if she accepted the transfer. In simple terms, this amounted to confirmation of the ultimatum for the applicant to accept the transfer or be dismissed.
[64] On 30 December 2019, the applicant's solicitors then provided the employer with the applicant's resignation which was clearly asserted to have been provided on the basis that it was forced by the conduct of the employer and considered as a constructive dismissal. The employer's Payroll Manager responded to the applicant's solicitors by erroneously asserting that the applicant had agreed to the transfer, and further advising that if she had changed her mind and decided to resign, the employer would accept that resignation.
[65] At this point in time, there may have been some prospect for reconciliation that could have potentially provided for continuation of the applicant's employment. However, the employer continued to act in a manner that was consistent with the approach adopted by Ms Giannetto whereby its conduct was intended to produce, or likely to result in, the resignation of the applicant. The employer was proceeding upon the blatantly false proposition that the applicant had initially agreed to the transfer, and it was now assisting and facilitating the resignation. The employer was comfortable with the applicant's resignation because that was the intended and/or likely result of the transfer directive.
[66] In addition to the factual matrix that surrounded the resignation of the applicant, it is also necessary to consider certain legal aspects of the transfer directive.
[67] A directive to work from another location would be something that would usually be comprehended by the written, verbal or implied terms of the contract of employment. The applicant signed a contract of employment document on 10 April 2019, which inter alia, contained the following:
You will be employed at 125 Francis Street, Bondi or elsewhere as reasonably directed by the employer."
[68] Ordinarily, an employer would be entitled to issue a directive to an employee to require them to work from another location and the employee would be obliged to accept that directive. However, the individual circumstances of each case would need to be examined in order to determine whether the directive to work from another location was reasonable and comprehended by the contract of employment.
[69] In most instances, if the directive involved a work location that was a significant distance from the existing work location, such that the alternative work location could not be reasonably comprehended by the contract of employment, there would then be no obligation on the employee to comply with the directive. A relocation directive that involved additional travel time for an employee would usually be comprehended by the contract of employment unless the additional travel time was, because of the personal circumstances of the employee or other factors, established to be excessive.
[70] As a general proposition, a relocation directive such as that issued to the applicant which involved a move in work location between the Sydney suburbs of Bondi and Narwee, and where the contract of employment document specifically included mention of the potential for work relocation, the distance involved in the transfer directive would not be unreasonable nor contrary to the terms of the contract of employment. However, the transfer directive issued to the applicant involved a number of aspects in addition to the distance factor.
[71] The transfer directive also involved an alteration to the ordinary hours of work of the applicant as were stipulated in the contract of employment document executed by the applicant on 10 April 2019. The contract of employment document also contained the following:
Your ordinary hours of work will be 24 hours each week, between the hours of 7:00am and 6:00pm, plus any reasonable additional hours that are necessary to fulfil your duties or as otherwise required by the employer. (Alteration of hours of employment can be negotiated and a mutual agreement made by employee and employer)."
[72] There was a regrettable absence of any contemplation of negotiation in the approach adopted by the employer. There was clearly no mutual agreement about the alteration to the applicant's ordinary hours of work. Although the distance involved in the transfer directive might ordinarily be held to have been reasonable and comprehended by the contract of employment, various other aspects of the transfer directive including the alteration to the applicant's hours of work, were clearly contrary to the stated terms of the contract of employment and thus without legal foundation.
[73] The evidence has also established that the transfer directive and the manner in which it was conveyed by Ms Giannetto, was conduct that breached both the consultation and part-time employment provisions of the Award. The evidence of the meeting of 19 December 2019, when Ms Giannetto issued the transfer directive to the applicant, involved conduct on the part of Ms Giannetto which on any objective assessment, would have been likely to have breached Award or other regulatory requirements.
[74] Unfortunately, the transfer directive involved conduct on the part of Ms Giannetto that displayed a manifest absence of compassion, respect, caring, dignity, or kindness. The absence of these characteristics was particularly surprising in the context of an operation that involved the provision of childcare services. The communications from the employer to the applicant following the meeting of 19 December, were consistent with, and reflective of, the approach taken in the meeting, and meant that the applicant had no realistic alternative other than to resign.
[75] In this instance, a careful analysis of the factual matrix of the circumstances that gave rise to the resignation of the applicant has established that the conduct of the employer was intended to produce, or likely to result in, the resignation of the applicant. Upon further analysis, there were no aspects of the contract of employment which operated to provide for any legal or other justification for the actions of the employer. Consequently, the applicant was forced to resign from her employment because of the conduct engaged in by the employer. Therefore, the applicant was dismissed in satisfaction of the terms of subsection 386 (1) (b) of the Act.
[76] As the applicant was a person who had been dismissed, consideration must logically proceed to that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
387 (a) - Valid reason for the dismissal related to capacity or conduct
[77] The dismissal of the applicant was directly connected with the transfer directive issued by Ms Giannetto on 19 December 2019. The transfer directive occurred because of the return to employment of another employee identified as Emma. There was no discernible basis for why the return of Emma meant that the applicant had to be transferred from Bondi to Narwee.
[78] There were no performance or conduct issues that arose in respect of the applicant's employment. The applicant was considered to be a highly experienced and valuable employee.It appeared that for some undisclosed reason, the employer, or more specifically Ms Giannetto, had a strong preference to have Emma return to employment at Bondi and to use the return of Emma as the mechanism to end the employment of the applicant by delivering the applicant an ultimatum that she knew she would not accept.
[79] Therefore, the dismissal of the applicant was not for valid reason related to the applicant's capacity or conduct. Consideration of the other elements contained in s. 387 of the Act must also be undertaken.
[80] The applicant provided a written resignation from employment, and in response the employer provided a blatantly false assertion that the applicant had initially agreed to the transfer directive. This false assertion was provided in an attempt to characterise the resignation of the applicant as the considered choice of the applicant rather than a constructive dismissal.
387 (c) - Opportunity to respond to any reason related to capacity or conduct
[81] The applicant was not dismissed for any identifiable conduct or capacity issues. The applicant was not provided with any opportunity to respond to what may have been the underlying reasons for why the return of Emma necessitated the applicant's transfer to Narwee.
387 (d) - Unreasonable refusal to allow a support person to assist
[82] The employer's approach to the meeting with the applicant on 19 December 2019 was very regrettable. The applicant was not given any opportunity to have a support person present during the meeting at which the applicant was to be advised of the transfer directive. The transfer directive was intended to produce, or likely to result in, the resignation of the applicant, and on any estimation, the applicant was likely to be very upset and emotional, yet in these circumstances, the employer heartlessly made no arrangements for the applicant to have a support person present during the meeting on 19 December.
387 (e) - Warning about unsatisfactory performance
[83] This factor has no relevance to the particular circumstances that led to the dismissal of the applicant.
387 (f) - Size of enterprise likely to impact on procedures
[84] The employer is a medium size business and it should have adopted far more acceptable and compassionate procedures for dealing with its employees.
387 (g) - Absence of management specialists or expertise likely to impact on procedures
[85] Ms Giannetto was the employer's manager who had a dedicated employee relations role. Regrettably, the approach adopted by Ms Giannetto might be described as the antithesis of appropriate, professional and acceptable employment relations practice.
[86] The submissions made on behalf of the applicant introduced a number of other matters that were said to be relevant. It was asserted that as the applicant was 70 years of age, the Commission should accept that it would be difficult for the applicant to obtain alternative employment. Further, the Commission was asked to take into account the entire period of employment of the applicant including the first period of engagement from 2014. It was also asserted that the applicant had been underpaid and had not received accrued entitlements that were due upon termination. Further, the Commission's attention was drawn to unchallenged evidence that the applicant had not been provided with a statement of service.
[87] The various other relevant matters that were introduced in the submissions made on behalf of the applicant were issues that would more generally impact upon any remedy that might be provided. However, some of these matters have assisted in respect to the determination as to whether the dismissal of the applicant was harsh, unjust or unreasonable.
[88] In this instance, the employer has asserted that it did not dismiss the applicant from employment. Consequently, the Commission has been required to firstly determine the jurisdictional objection raised by the employer.
[89] The Commission has undertaken a careful analysis of all of the evidence regarding the circumstances which led to the resignation of the applicant which was provided to the employer in a letter dated 30 December 2019, from the applicant's solicitors. This analysis has led to the conclusion that the applicant was forced to resign because of the conduct of the employer which was intended to produce, or was likely to result in, the resignation of the applicant. The actions of the employer established the constructive dismissal of the applicant.
[90] Upon further analysis, there was no identifiable reason for the dismissal of the applicant. Consequently, the applicant was dismissed without valid reason related to her capacity or conduct.
[91] The conduct that the employer adopted when it issued the transfer directive to the applicant on 19 December, and its subsequent confirmation of that directive, was severely flawed. The employer subjected the applicant to a callous, undignified and uncaring approach when it delivered advice of the transfer directive.
[92] The transfer directive was neither reasonable nor lawful because it inter alia; altered the applicant's ordinary hours of work contrary to the stated terms in the contract of employment document; and it was issued without any consultation whatsoever; and it was issued as an ultimatum without any prospect for discussion; and it was issued contrary to the oral terms upon which the employment relationship was established; and it breached the consultation and part-time employment provisions of the Award.
[93] The dismissal of the applicant was harsh, unjust and unreasonable. Consequently, the application for unfair dismissal remedy has met the relevant legislative requirements and it is granted.
[94] The applicant has sought reinstatement as remedy for her unfair dismissal.
[95] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss. 390 - 393) of the Act. Section 390 of the Act is relevant to the consideration in this instance and is in the following terms:
"390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case."
[96] I have carefully considered whether it would be appropriate to make Orders for the reinstatement of the applicant. The dismissal of the applicant, and the subsequent evidence that has been presented in these proceedings, may have created some tension in the relationship between the applicant and Ms Giannetto. However, I do not consider that there has been a genuine loss of trust and confidence such that the employment relationship should not be re-established.
[97] Further, the applicant enjoyed a very harmonious working relationship with other staff at the Bondi childcare centre and her employment conduct and performance was not the subject of any criticism. There was no evidence advanced by the employer to suggest that reinstatement would be inappropriate.
[98] In the particular circumstances of this case, I have arrived at the conclusion that all Parties should be prepared to move on from the very regrettable circumstances that involved the transfer directive. Therefore, I have concluded that reinstatement would be appropriate in all of the circumstances of this case.
[99] Consequently, for the reasons stated above, the Commission has determined that the dismissal of the applicant was unfair, and that Orders for the reinstatement of the applicant shall be made, together with Orders that maintain continuity of service and to restore lost pay.
[100] Orders providing for the reinstatement of the applicant will be issued separately. In the event that the Parties are unable to agree on the amount to be paid to the applicant in accordance with Order 3, regarding an Order to restore lost pay, the application will be listed for further proceedings to enable the Commission to determine that amount. Any request for such further proceedings should be made within 21 days from the date of this Decision.
Ms K Nomchong, Senior Counsel, with Ms D Phair of Proctor Phair Lawyers appeared for the applicant;
Mr K Diskoros, Managing Director appeared for the employer.
Printed by authority of the Commonwealth Government Printer
Penelope Mary Kathleen Phair
Active Kids Pre School Centre of Excellence Pty Ltd [2020] FWC 4034