Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Zoe Tomkins
v
Sandalford Wines Pty Ltd
(U2022/3580)

Application for an unfair dismissal remedy

[1] This decision concerns an application made by Ms Zoe Tomkins (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The respondent is Sandalford Wines Pty Ltd (Sandalford).

[2] There is no dispute that the applicant resigned from her employment.

[3] Consequently, the respondent objects to the application being heard on the ground that the applicant was not dismissed and is unable to make such an application to the Commission.

[4] At the hearing of this matter, the applicant gave evidence on her own behalf.

[5] For the respondent, evidence was given by Mr Grant Brinklow as the respondent’s Chief Executive Officer, Mr Ron Jones as the respondent’s HR Adviser and Ms Alyson Pollock as the respondent’s Administration Manager.

Evidence and factual findings

[6] The applicant’s evidence in chief was that she was first employed by the respondent on 22 March 2021.

[7] She gave the respondent notice of her resignation on 22 January 2022.

[8] The applicant was employed as the Respondent’s Restaurant and Bar Manager.

[9] The applicant says the respondent had the practice of keeping tips provided by clients of the restaurant when these monies were intended to be distributed to the staff.

[10] Her evidence was that the staff had come to her about this issue and she formally raised it with Mr Ron Jones on 16 December 2021, who communicated this directly to the CEO Mr Grant Brinklow.
[11] The applicant says on the morning of 17 December 2021, she was approached by Mr Brinklow in a confronting manner. Mr Brinklow was ‘having a go’ at the applicant in a disrespectful manner over a direction she had given in the restaurant to move a table to a more appropriate location for VIP guests in the afternoon.

[12] The applicant says Mr Brinklow would not let her get a word in. Mr Brinklow’s tone and words made the applicant feel belittled and embarrassed as if she had no authority to make small decisions in the area she was employed to manage. She teared up in front of another staff member and had to walk away as she was visibly upset.

[13] She says she had never been spoken to like this before. There was no doubt in her mind at the time that Mr Brinklow’s reaction was directly related to the tip query raised and had nothing to do with "moving a table" in the restaurant.

[14] She wanted to raise this incident with Mr Jones but as Christmas was one week away, she did not want to feel as though there was a lingering issue over the festive period. The Senior Management Team were informed that the CEO would be on 3 weeks annual leave from the end of December through to mid-January. Because she also had approved time off, this crossed over with Mr Brinklow’s annual leave. She did not want to be on edge thinking about work matters during this time.

[15] The applicant’s evidence was that there was unusual pressure from Mr Brinklow to complete 360-degree surveys during peak trade at the end of December 2021. No one on the Senior Management Team submitted these as everyone was under the pump with peak December trade. All senior staff submitted the completed surveys in January 2022 after these were all emailed again as a reminder and informed that the staff were required to submit these that day under 24 hours "by close of business”. She sent through two completed 360-degree surveys however did not receive any feedback. She says Mr Brinklow acknowledged that all senior staff were very busy via email, however requested staff to complete these surveys as a priority.

[16] She says she emailed Mr Jones on at least three times after the tip query was formally raised to seek a response and resolution to put the matter to rest.

[17] She says she did not receive an answer to whether their policy of retaining all of the restaurant tips (both cash and credit card) was "legal and ethical".

[18] She says Mr Jones said in email to her on 12 January 2022 that

"The tip issue is complicated because of the tax laws and I am seeking further advice from the Prendiville accounting firm and the AHA. 1 will then discuss with Grant so that we have a consistent approach".

[19] She says Mr Jones told her in person on another occasion that "they were looking at potentially having to put a sign in the restaurant to declare to guests that Sandalford Winery retains all of the tips received by patrons, and also looking at writing this into the staff employment contracts moving forward".
[20] She says this flagged to her that something was not legal in the way the tip monies were being retained by the business. In her 20 plus years' experience working in hospitality, she had not encountered a business that retains the gratuity money left by patrons.

[21] Her evidence was that she did not raise the tip query until 9 months into her employment as it was not a priority for her. She received a decent salary, and that extra gratuity money was not her priority or focus.

[22] She says both her Assistant Manager and Duty Manager did enquire with Mr Brinklow about the restaurant tips early into their employment. She watched how it unfolded and made a conscious decision to put it on the back burner for a later date because of the reactions received regarding the issue. As Christmas approached in 2021, the restaurant staff were still enquiring about the restaurant tip money.

[23] She went on a period of days in lieu and her usual RDO's in January 2022 being Thursday 6 January returning to work on Wednesday 12 January 2022.

[24] On 12 January 2022 at 6.48 pm, she received an email from Mr Jones saying that,

“Zoe - I am writing out of concern for you and hoping we can catch up tomorrow or Friday.

There is a general feeling that you do not seem to be particularly engaged at present. This on top of the reports to me regarding the removal of posters has heightened my concern.

Please let me know a time suitable to you - if appropriate we can meet away from Sandalford.”

[25] She replied by email that evening at 7.38 pm. She told him she was perplexed how she could be construed as "not engaged" when she had not even been at work. She had been out of office during her unpaid time off she still attended to all emails and even assisted with creating events for the restaurant during her leave from work.

[26] She continued,

“There was an incident involving Grant speaking very rudely to me, that was uncalled for just before the Christmas closure that I did want to raise - however have not yet. Alan is also aware of this.”

[27] She continued on explaining what she had been doing and concluded with,

“Please let me know of any extra work required in my time away from Sandalford, as I have been on my emails my entire break, so it is unclear where such comments originate from.”

[28] The next morning on 13 January 2022 at 8.55am, Mr Jones replied to her email saying,

"Zoe in view of the issue raised concerning Grant, this has been referred to the Directors.

Regards,

Ron.”

[29] She thought the response was unusual as the email was not even about her and only focused on Mr Brinklow. She also could not understand why Mr Jones would not request to meet with her first regarding her comment, instead raising it directly with the Directors.

[30] At 10:26am Mr Jones emailed her as follows,

“Zoe - I have spoken to the Directors and they have asked me to follow up with you regarding the comment about Grant.

Can we meet soon to progress this please?

Many thanks”

[31] She says Mr Brinklow would often "ghost" her when he walked past her leading up to her resignation. Mr Brinklow would not even look up at her and would not say anything to her.

[32] The applicant requested a support person to be present at the meeting convened by Mr Jones on Friday 14 January 2022. This was denied by Mr Jones.

[33] The applicant’s evidence in chief was that the meeting initiated by Mr Jones turned out to be a performance meeting.

[34] The applicant says Mr Jones raised things that had been addressed in a boardroom meeting with the directors and Senior Management Team present. These items were addressed in an open forum and already put to rest. The manner in which they were raised by Mr Jones made her feel attacked. Issues were put to her in a manner that made her out to be suddenly uncooperative and after money. At this meeting, she raised in further detail the incident with Mr Brinklow on 17 December 2021 and used the word "harassed" to refer to the way Mr Brinklow had been treating her differently after she raised the tip query.

[35] She requested the meeting notes from Mr Jones after the meeting. Her evidence was that any mention of different treatment from Mr Brinklow, including the word "harassment" was excluded from the document recorded for their file.

[36] Following the conclusion of the meeting with Mr Jones, she requested an email copy of the meeting notes taken by him. On 18 January 2022 at 10.32 pm, she emailed back to him a copy of a correction document of the meeting notes he had taken where she added further context, facts and issues discussed. She was uncomfortable with the vagueness of the meeting notes and the fact that key important issues raised were not documented.

[37] Relevantly the last paragraphs of her email read as follows,

“Lastly, from what I have read to date and the issues I have had to address around my performance - this is setting a theme of harassment and feels like a strategy to make me feel uncomfortable in the workplace to the point I resign. I kindly request this course of action ceases immediately. Items such as tidying up the workplace, moving a table, moving a poster are not grounds to conduct a HR meeting. I encourage you to carefully read my response in red to your document and ask yourself if this sounds like the actions of someone "not engaged".

At present I feel mistreated in the workplace and that these issues have not been appropriately handled/managed. I would like to escalate this to another person other than yourself and Grant in order to seek a resolution. Can you please advise an appropriate party?

I look forward to your response addressing all the issues in full. I would expect given the nature of the issues raised, (particularly harassment in the workplace) I would expect to receive a response by no later than Friday January 21st, close of business. Please advise if this time frame is not suitable.”

[38] The applicant says Mr Jones’ response to her of email on 18 January 2022 was sent three days later on 21 January 2022 at 3.45pm.

[39] Her evidence is that his short vague response was,

"Zoe - my apologies but I am not able to finalise my review of everything by close of business due to other work commitments. There are also some additional comments from you that I need to follow up on. I will be continuing to work on this over the weekend.

Kind regards, Ron.”

[40] Her evidence in chief was that when she received this email,

“I felt rather broken. Over 5 weeks had passed since I initially raised the tip enquiry with Ron Jones and Grant Brinklow. In 5 weeks, not only had I not received any formal response on whether the policy was "legal and ethical", but in doing so I had been dragged through a harsh performance review, had to document countless emails around incidents that occurred with the CEO Grant Brinklow's behaviour, felt like I was also being ignored by the HR Advisor on my concerns regarding Grant Brinklow' s negative behaviour to myself in the workplace. I had directly requested the HR Advisor to address my concerns regarding this harassing behaviour. I directly requested that this behaviour "ceases immediately". Not only did Ron Jones not respond to my request for this behaviour to cease immediately, no third party was brought in as requested to resolve this (Tuesday 18 January 2021 email to Ron Jones)”

[41] The applicant says her employment contract specifies a dispute resolution process section in point 3 which says that:

''If the matter remains unresolved at the workplace level, then it may be referred to either an independent 3rd party or to the Fair Work Commission for resolution.”

[42] The applicant’s evidence in chief relevantly was that,

“On Saturday January 22nd after enduring 5 weeks of very negative behaviour from the CEO Grant Brinklow and Ron Jones and getting no closer to reaching a resolution to the issues directly raised, I felt as though I had no choice but to hand in my resignation to Grant Brinklow and Ron Jones.

I believe Sandalford Wines is illegally retaining the Restaurant Staff tip monies. I sent through via email to Ron Jones, 5 different forms of communication and fact sheets (including from the Australian Tax Office), supporting my query raised on Thursday December 16 2021.

As Grant Brinklow and Ron Jones are both equally responsible for the tip policy at Sandalford Wines, I believe that by formally raising the issue regarding this missing money, this led to the events that unfolded that involved both CEO Grant Brinklow and HR Advisor Ron Jones that in tum lead to the unfortunate ending of my employment at Sandalford Wines.

Had Grant Brinklow and Ron Jones not acted in the manner in which they had prior to my very reluctant resignation as Restaurant Manager on January 22nd 2022, I would still be working in my assigned role at Sandalford Restaurant.

My formal resignation was emailed to both Grant Brinklow and Ron Jones on January 22 2022. ……….

With the current Covid-19 hospitality staffing and supply issues, Grant Brinklow offered my previous Assistant Manager $5000 more to retract his resignation given to the business after less than two months of employment. After almost 12 months of exceptional hard work for the business, multiple awards, exceptional feedback from guests, directors, staff and other managers. I could not understand why Grant Brinklow and Ron Jones did not approach me to resolve the issue raised once and for all and ask me to stay on in my role at Sandalford Restaurant.

Had the CEO Grant Brinklow and Ron Jones addressed my concerns raised and had not treated me negatively and differently to other colleagues in the workplace, I would not have resigned. Had they asked me to stay and resolved the issues, I would still be working at Sandalford Restaurant.” 1

[43] The applicant says that after her resignation, the behaviour and treatment from Mr Brinklow deteriorated even further.

[44] The applicant says he assigned big tasks to her with unrealistic/unreasonable deadlines. She was requested to do a Restaurant Budget Analysis for the following week. Her evidence was that she sent this work document to him on the Friday before the weekend.

[45] She says after her resignation, he began to strip her of her duties as Restaurant Manager without holding a conversation with her.

[46] In February 2022, all staff were notified and required to attend a training session except her.

[47] Her evidence was that Mr Jones and Mr Brinklow released two previous employees from their contracts and paid them in lieu to not have to return to Sandalford Restaurant.

[48] The applicant says that when Mr Brinklow accepted her resignation, he enquired about her exact finish date. She asked whether the respondent wanted her to continue on in employment or if they preferred to pay the notice period in lieu. Due to being very uncomfortable in the workplace, she stated via email that she was happy to finish up early and be paid out.

[49] On 8 February 2022, she received an email from Mr Brinklow with Mr Jones copied in. It stated:

"I have given consideration to the best arrangement for yourself and Sandalford at present. I have accordingly determined that you are not required to attend work during the notice period. Given the changes we are implementing to the management structure to accommodate your resignation, it would be inappropriate for you to contact staff during this period. Should any matters arise for which we require any information, we will contact you''.

[50] She says she does not understand why this was suddenly changed as she worked a further two weeks after her resignation.

[51] The applicant’s evidence states that this was the last contact she received from Mr Brinklow or Mr Jones.

[52] The applicant says she resigned because Mr Brinklow and Mr Jones refused to resolve a concern she raised regarding the restaurant gratuity money which led to a chain of events that include harassment and bullying in the workplace to the point that she felt she had no choice but to resign. 2

[53] In the applicant’s second witness statement filed after the respondent’s witness statements were filed, her evidence was that there was a discussion with Mr Brinklow on 15 December 2021. She says his office is separate to anyone's office. It had its own walls, and door. There was no one in the office except him and her.

[54] Her evidence was their 5-minute conversation was no different than any other conversation they had had previously. She queried the issues mentioned by her team. He responded to her questions.

[55] Her evidence was that Mr Brinklow did not like questions being asked on policies that he had implemented. She says he responded in his usual ‘dead bat’ approach. 3

[56] Under cross-examination, the applicant agreed that she had a discussion with Mr Brinklow in the late afternoon on 15 December 2021 and that covered a number of topics including tips. Her evidence was that the discussion lasted five minutes. 4

[57] The applicant agrees her email to Mr Jones on 16 December 2022 concerned only the issue of tips and included some links from her to websites including the ATO. This was when she formally raised the tip issue with Mr Jones. 5

[58] She agrees her later conversation on 17 December 2021 with Mr Brinklow did not include any reference to tips but rather was about moving a table. 6

[59] The applicant accepts that the first time she raised her complaint about the behaviour of Mr Brinklow on 17 December 2021 was in her email to Mr Jones on 12 January 2021. 7

[60] She says she believes raising the tip policy is what started the alleged harassment and bullying. 8

[61] The applicant accepts that there is no suggestion that bullying or harassment arose from the tips issue being raised by two other staff in March and August 2021. Nor when she raised it in March 2021 with the accounts people including the Chief Financial Officer. 9

[62] She says she first formally raised the tip issue with Mr Brinklow the CEO in the face-to-face discussion with him on 15 December 2021. 10

[63] She confirms her evidence in chief that discussion was one where she conducted herself respectfully. 11

[64] Under cross-examination, the applicant accepts that Mr Brinklow in response to an email from herself on 30 December 2021 where he knew she had been absent due to food poisoning asked:

“Are you feeling better now after being unwell early this week?”

[65] And later that day he emailed her,

“I really do hope you feel 100% soon.” 12

[66] The evidence is also that Mr Jones emailed her at 4:31 PM that day,

“Zoe – take care of yourself – if you are not well – especially in this heat – you should take sick leave. Seasons greetings Ron.”  13

[67] Then on 31 December 2021 Mr Brinklow emails,

“Hi Zoe

Thanks for that update.

Good luck today. Should be good with 200+.

Happy New Year!

Many thanks”

[68] With respect to the conversation with Mr Brinklow on 15 December 2021 she maintained her position that it was a respectful conversation, she didn’t raise her voice and there was no yelling. 14

[69] The applicant confirms that a photograph tendered shows the adjacent office doors of Mr Brinklow and Ms Pollock where the conversation between herself and Mr Brinklow took place. 15

[70] Her evidence was she could not recall whether Ms Pocock’s door was open or closed. She did not see Ms Pocock at all. 16

[71] Her evidence was that she tendered her resignation because she didn’t receive a response to bringing in a third party and there was no response to her formal complaint. There was also no response into what was being done over the bullying and harassment issues going on either. 17

[72] With respect to her complaint that Mr Brinklow directed her to provide financial information regarding the restaurant with an unreasonable deadline under cross-examination, she accepted that there were a series of similar emails to managers of other areas regarding their financial forecasts, but her evidence was she cannot attest that anyone else had their deadline moved. 18

[73] She agrees that she did not take sick leave before she resigned but did so afterwards. 19

[74] Under re-examination, the applicant’s evidence about the conduct towards her of which she complained was the incident with Mr Brinklow on 17 December 2021 and being excluded from emails. She said the performance meeting was a big one and not being allowed a support person, then being criticised for not taking over a whole new pop-up area was an issue previously addressed at the board meeting where it was acknowledged she was underwater in the restaurant but at the performance meeting Mr Jones suggested she was purely after money and was criticised for not taking on that responsibility. The position she was asked to take on was a whole new area of responsibility, but she was expected to just take the criticism and she could not even bring up salary or anything. 20

[75] The evidence in chief of Mr Jones was that he is engaged by Sandalford Wines Pty Ltd as an HR Adviser. He also provides a similar service to other venues within the Prendiville Group.

[76] Throughout the applicant’s employment he felt he enjoyed a professional relationship with the applicant. As with other staff, he would periodically check in with the applicant as to how she was.

[77] In the course of these 'welfare' checks he had discussed aspects relating to her hours of work and the amount of time she was spending commuting between Mandurah and the Swan Valley.

[78] It was in the context of this role that he sent an email to the applicant on 15 December 2021 following a conversation with Mr Brinklow.

[79] He says he had a brief discussion with the applicant on 16 December 2021, following which he was sent an email from her regarding 'tips'.

[80] He considered the email to be expressing concern and seeking to know how the issue should be resolved.

[81] On 17 December 2021, he was informed by Mr Brinklow as to the conversation between himself and the applicant earlier that day.

[82] On 22 December 2021, he was provided with a follow up email from the applicant containing further articles on 'tips'.

[83] On 5 January 2022, he received an email from Alyson Pollock regarding a discussion she had had with the applicant. Ms Pollock explained in her email that a week earlier the applicant took down posters from a wall after being told Mr Brinklow would not be happy about posters being removed and that he likes them displayed.

[84] On 11 January 2021, the applicant emailed him to enquire about 'tips'. There was no reference to the 17 December 2021 conversation in that email.

[85] He responded to her on the morning of 12 January 2022 as follows.

“Zoe - hope you have had a great break.

The tips issue is complicated because of the tax laws and I am seeking further advice from the Prendiville accounting firm and the AHA. I will then discuss with Grant so that we have a consistent approach.

Regards

Ron”

[86] Later that day he was advised by Mr Brinklow that he was concerned as to the applicant's level of engagement with the business given her demeanour at the management meeting and the poster issue.

[87] As a result, Mr Jones that evening sent an email to the applicant expressing concern and suggesting a meeting as follows,

“Zoe - I am writing out of concern for you and hoping we can catch up tomorrow or Friday.

There is a general feeling that you do not seem to be particularly engaged at present. This on top of the reports to me regarding the removal of posters has heightened my concern.

Please let me know a time suitable to you - if appropriate we can meet away from Sandalford.

Regards”

[88] He received a response from the applicant wherein she referred to Mr Brinklow having spoken rudely to her just before the Christmas closure.

[89] He referred that email to Mr Brinklow who in turn referred it to the Directors, Peter and Garry Prendiville.

[90] Mr Jones met with the Directors on 13 January 2022 and then advised the applicant by email that the directors had asked him to follow up with her about her comment about Mr Brinklow speaking rudely to her.

[91] In emails, Mr Jones had offered for her to meet with him somewhere other than Sandalford. The meeting took place on 14 January 2022 at approximately 10.30am.

[92] Mr Jones evidence in chief was that they met at her office, and they proceeded to walk to the board room which was approximately 25 metres away. On the way, the applicant informed him that she had asked the Executive Chef to also attend the meeting.

[93] He responded that the Executive Chef was not required as it was just an opportunity for the two of them to have a discussion. The Executive Chef returned to his office.

[94] Mr Jones’s evidence is that at no stage was it suggested by the applicant that the Executive Chef was to be a support person. On his part, he did not envisage the meeting as being a performance or disciplinary meeting and remains surprised that the applicant has sought to characterise it as such.

[95] The meeting proceeded to discuss a number of issues, the details of which are set out in his notes of the meeting and in the response provided as per emails sent to the applicant on 18 January 2022.

[96] His evidence was that he does not recall the applicant describing the behaviour of the Mr Brinklow as harassment or bullying in their discussion. The applicant was unable to identify the words used which she initially considered to be rude and which were subsequently considered by her to constitute harassment.

[97] The evidence of Mr Jones is that the first occasion on which the word harassment has appeared is in the applicant's response on 14 January 2022.

[98] Mr Jones says he is unable to find any reference to 'bullying' in any correspondence arising from, or in connection with the meeting held on 14 January 2022.

[99] The first occasion on which there is reference to being 'bullied' is in the Form F2 Application for an Unfair Dismissal remedy submitted by the applicant.

[100] He says the issues raised by the applicant in her correspondence of 18 January 2022 were broader than the discussion and required more detailed consideration and investigation on his part.

[101] As the applicant’s email had been sent to him by the applicant at 10.32pm on 18 January 2022, he was left with little time to respond effectively to the issues and informed the applicant by email of that on the afternoon of 21 January 2022.

[102] Mr Jones explains that his emailed response to the applicant on 21 January 2022 indicated he would be working on his response over the weekend to the issues she had raised.

[103] Given the resignation of the applicant the next day on 22 January 2022, he elected to not undertake any further work on the issues she had raised.

[104] Mr Jones says that he believes that at all times, he exercised his responsibilities to the applicant and to Sandalford Wines Pty Ltd in a reasonable and professional manner.

[105] He says his conduct was not intended to cause the applicant to resign.

[106] Mr Jones make the following comments regarding other matters raised by the applicant in her witness statement.

[107] The applicant's timesheets for January 2022 show no reference to sick leave.

[108] A medical certificate for 2 to 4 February 2022 was submitted by the applicant but there is no reference to stress.

[109] Management actions taken by Sandalford Wines Pty Ltd following the resignation of the applicant were appropriate in the circumstances.

[110] Under cross-examination, relevantly Mr Jones’s evidence was that he commenced with Sandalford in 2020.

[111] Mr Jones agrees the applicant had been a good performer.

[112] Mr Jones explained that tips are collected and kept in an account which serves as a liability account for Sandalford. In other words, it is monies that are actually owed to staff and have been used over the years to support a number of staff events. It is not treated as income for Sandalford.

[113] He explained the issue continue to bubble because he believed she disagreed with the policy, and he was okay with the fact that there were issues being raised by the applicant that needed to be checked. He proceeded to do that. His evidence was that the tip policy is a slightly more complicated matter than anyone would have him believe. 21

[114] Under cross-examination, his evidence was that there is a tax liability that falls on those employees who are to be taxed on their income which is part of the problem in dealing with tips and gratuities across hospitality. The ATO position is that whoever claims the money as income must pay tax on it. His evidence was Sandalford was operating in accordance with the law of the land as he understands it. 22

[115] His evidence was that monies were used for the benefit of staff on occasions. The policy had been in place for some considerable number of years. 23

[116] Regarding the meeting with the applicant on 14 January 2022, he maintained that the meeting was not a performance or a disciplinary meeting, that it was to be a general discussion and it was not appropriate for there to be a support person there with the applicant. There was no agenda because it was an informal meeting.  24

[117] The issues canvassed at the meeting he says were not about her conduct or performance. They were issues that were raised by him because there was a concern that she was not engaged, which is a term he used. He was asking whether she was happy with her work and with the environment. He also needed to follow up the complaint she had made about Mr Brinklow being rude to her on 17 December 2021. 25

[118] His evidence was that in the period immediately prior to her having gone on leave, Mr Brinklow and other staff had spoken to him about the applicant. 26

[119] Mr Jones says in the meeting with the applicant, he raised the issue of her having removed posters in areas around her office and in the access way to other offices. He says this was an issue because it seemed unnecessary. He says he accepts this may have been a tidying up exercise for her own office but not for other areas that were not hers. He was mystified as to why this had happened. This was significant because there was a general concern that she didn’t seem particularly happy or engaged with the business. 27

[120] Mr Jones was not shaken on his view that it was not a disciplinary meeting, it was not a formal meeting. The intention was to establish whether or not there was anything that they needed to be concerned about. 28

[121] He agrees that the tip policy was discussed during the meeting, but it was not the main reason of the meeting. 29

[122] With regards to the applicant on January 18, 2022 requesting her issues be escalated to a third party, Mr Jones’ evidence was that none of the issues had been closed off. He had responded to her on the Friday January 21, 2022 saying that he was unable to conclude his responses to all of her issues and he would be working on them over the weekend. 30

[123] Mr Jones’ evidence was that at the time she resigned he thought that she generally was doing a good job and could have stayed in the role. There were obviously some issues she was concerned about, and he had no difficulty with those. He saw them as being professional issues.

[124] Under cross-examination, his evidence was that he does not know what triggered the train of events that led to the applicant resigning. He points out that she had replied in detail to a request from Mr Brinklow for documentation on the Friday night 21 January 2022 and then tendered her resignation the following Saturday morning some 11 hours later. His evidence was he does not know what happened between 8 o’clock on the Friday night and 7 o’clock on the Saturday morning.

[125] Mr Jones’s evidence regarding the issues the applicant was concerned about was that she had pursued these with him by email and she had been told on the Friday afternoon he was still working on them and none of those issues had been closed.

[126] The evidence in chief of Mr Brinklow is that he is the Chief Executive Officer for Sandalford Wines Pty Ltd having been engaged in this role since 7 May 2005.

[127] Sandalford Wines is part of the Prendiville Group.

[128] On 15 December 2021 at 5.15pm, he was in his office when the applicant approached and stood at his open doorway for a period of five or so minutes during which time, she raised successive issues with him in a manner that he describes as confronting and belligerent.

[129] The issues raised by the applicant included the tips policy, after work drinks and wine purchases by staff.

[130] Afterwards he asked Alyson Pollock if she had heard what was said and she expressed her concern regarding the applicant’s behaviour.

[131] He raised his concerns regarding the applicant’s tone by telephone with Mr Jones shortly after this conversation.

[132] He also followed up afterwards with Jenny Hvalgaard, the Corporate Tourism Manager regarding tips in her area of responsibility.

[133] The next morning on 16 December 2021 at 5:56 AM, Mr Brinklow’s email to Ms Hvalgaard was as follows,

“Hi Jenny

As discussed last night can you please send a comprehensive email around the Functions team compliance around the Sandalford tips policy so there is no ambiguity from anybody.

Please copy in Ron and myself, Amy, Ella, Zac, Andre, Blake, Mike, Bhavin, Alan, Brad, Zoe and Lee.

Many thanks”

[134] Ms Hvalgaard sent an email to Mr Brinklow and a number of staff including the applicant as follows at 9:53 am,

“Good Morning Grant,

I appreciate and understand that the long term and continuing policy surrounding the Sandalford Tip protocol applies to all outlets and staff inclusive of the Functions Department. Due to the nature of our service in functions it is very uncommon for our staff to be provided with a gratuity however regardless we are compliant and with full understanding they are consolidated and used towards activities to benefit the entire Sandalford team.

As all of our team are here tomorrow we will reiterate this policy during the briefing as we have had additional new staff over the last month.

Best Regards

Jenny Hvalgaard”

[135] He was particularly concerned with the manner in which the tips issues had been raised as he felt that it was a long-standing policy that had worked well to the satisfaction of staff and had been addressed as recently as August and November 2021.

[136] His evidence was that the policy has operated for more than 10 years. 31

[137] Up until this time, the applicant had generally expressed herself in a professional way, even when they had disagreed on occasion regarding matters relating to the Restaurant.

[138] His view is the applicant had done a good job in re-establishing it in the post COVID period. Sandalford's restaurant was a successful outlet and one that was regarded highly in both the industry and within the general public.

[139] On 17 December 2021 between 10.15am and 10.30am, he was advised by Ms Hvalgaard at the weekly meeting attended by her and the team reporting to her and himself about a dispute with the applicant regarding seating arrangements for Ms Hvalgaard’s VIP guests from Crown Resort who were attending the venue at lunch time that day.

[140] As a consequence of this, at the conclusion of the meeting, he briefly raised with the applicant as he walked past her some matters involving functions seating that needed to be sorted out between her and Ms Hvalgaard and expressed his view to her that she was getting offside with her colleagues.

[141] His evidence in chief was that he distinctly recalls calmly stating to the applicant on three occasions that 'your manner and behaviour is putting your colleagues offside and that these actions were counterproductive.' He also distinctly recalled her response was argumentative even though she stated, 'I don't want to argue'.

[142] He says this conversation lasted for not more than 2-3 minutes.

[143] Following this he immediately advised Mr Jones of this conversation.

[144] Between 17 December and 24 December 2021, there were no further communications from the applicant to him regarding the tips policy nor about the conversation with her on 17 December 2021.

[145] His communications with the applicant between 17 December and 24 December 2021 continued to be professional, courteous and respectful.

[146] Mr Brinklow then took annual leave from 24 December 2021 through to 10 January 2022. Despite being on leave, he continued to monitor his emails to ensure he was able to respond to any issues.

[147] This resulted in him emailing staff, including the applicant, regarding service standards and other venue matters.

[148] On 29 December 2021, he was advised by the applicant by email that she would be absent from work because she was sick.

[149] On 12 January 2022, he conducted a weekly management meeting attended by a number of senior staff from across the business including the applicant.

[150] The applicant's demeanour during this meeting left Mr Brinklow feeling that she was not engaged and he asked Mr Jones to follow up with her.

[151] He says he was provided with Mr Jones' email to the applicant and her response of 13 January 2022.

[152] His evidence in chief was that he was somewhat alarmed by the response which stated that the applicant had felt his behaviour towards her was rude.

[153] In his view, it was appropriate that Sandalford's Directors be informed in order to determine how the issue should be addressed, and he therefore contacted them regarding the matter requesting they provide some priority attention to it.

[154] He understands Mr Jones met with Peter and Garry Prendiville and they asked him to handle the matter.

[155] He further understands that as a consequence of that, Mr Jones met with the Applicant and this resulted in subsequent email exchanges between the two of them.

[156] He was not involved in this process and continued to operate in a 'business as usual' manner throughout.

[157] To this end, he provided extensive half yearly financial data to senior managers and sought from each of them their strategies and planned approach to addressing shortfalls in revenue and profitability compared to budget.

[158] The Directors were anxious and concerned as to the financial situation facing Sandalford after the first 6 months of trading in the 2021/22 financial year and were seeking to understand how the CEO and management team was planning to overcome significant projected budget revenue and profit shortfalls, as well as a general under performance in a few key operating areas including the Kitchen, Functions and Restaurant.

[159] Emails regarding this were sent on 17 January 2022 by him to several key departmental managers, including the applicant.

[160] Each manager was asked to provide a response by 21January 2022.

[161] On 20 January 2022, further financial information was provided to the applicant by Mr Brinklow by email.  32

[162] On 21 January 2022 at 8.14pm, the applicant submitted an email response to Mr Brinklow. This email reads as follows,

“ Hi Grant,

Please find attached the Restaurant Budget Analysis and Recommendations for consideration as requested.

Kind regards,

Zoe Tomkins ”

[163] On Saturday 22 January 2022 at 7.13am, the applicant submitted her resignation by email to Mr Brinklow. The applicant’s resignation email read as follows,

“Hi Grant/Ron,

Please accept this email as notification of my resignation of my position as Restaurant Manager with Sandalford Wines. Effective as of today's date 22/01/2022

This decision has not been made lightly and has been based on events that have unfolded over the past couple of months. Of late, I feel uncomfortable in the workplace and feel my hard work goes unappreciated (despite going above and beyond and putting in extra hours every week). I am still coming to terms over the recent HR meeting which was initiated because the "general thought" was I was "not engaged" (as per the email sent by Ron -, which was sent after my first day back from annual leave}.

My efforts over the past year have directly contributed to Sandalford winning multiple prestigious Gold Plate awards, as well as glowing reviews from patrons which have subsequently resulted in raised scores on Google and Trip advisor to almost unprecedented levels. Furthermore, I have assisted in many operational functions that have benefitted the entire Estate and have helped build and strengthen relationships with all key stakeholders & guests. The spend per head has raised substantially since I started and I have mentored and trained new staff by leading from the front of house and setting an example for all to follow. Marrying the old restaurant with the new and meeting the needs of our many patrons (all whilst juggling expenditure, staff shortages and Covid challenges), I leave Sandalford knowing I gave it 100% and helped shape it into what it is today.

I appreciate the opportunities I have been given at Sandalford and wish the company the best of success in the future.

If I can be of assistance during this transition, please let me know.

Lastly, I am still awaiting a full response to my email (sent to Ron) on Tuesday January 18th 2022. Warm regards,

Zoe Tomkins”

[164] Mr Brinklow’s evidence was that he had planned to meet with the applicant regarding the year-to-date restaurant profit compared to budget and her plans/recommendations for the balance of the financial year on the following Thursday. He cancelled that meeting as she had submitted her resignation and he no longer considered it appropriate to engage on confidential financial matters impacting the business.

[165] There were a number of email requests in the week following her resignation to the applicant to clarify her notice period intentions.

[166] He says after two weeks of the applicant working in the business following her resignation, it became apparent that the issues she had regarding himself and Sandalford were impacting staff, and steps were taken to change various decision-making processes.

[167] As part of this, the applicant was directed to not attend the workplace for the duration of her notice.

[168] The applicant continued to be paid as per her contract terms in the normal pay cycle and accrued entitlements due to her throughout the notice period.

[169] The applicant's employment with Sandalford ceased effective on 19 March 2022.

[170] Mr Brinklow says no conduct on his part was designed to force the applicant to resign her position at Sandalford.

[171] He did not set out to create any circumstance where the applicant would feel that she had no choice other than to resign her position at Sandalford.

[172] Under cross-examination, Mr Brinklow explained that the tips policy involved the aggregation of the monies received at the time of collection which is then held as a liability in the accounts of Sandalford and then put to staff uses. 33

[173] Regarding the discussion with the applicant on 15 December 2021, his evidence was that the tips policy was one of the issues she raised, that she was quite emphatic about all the matters she raised, and his impression wasn’t that the tips issue was more important than the other issues. He did not understand her to have made a complaint about the policy but rather expressed her views about it during their discussion. 34

[174] After this discussion with the applicant, he was concerned by her manner, tone and conduct. She was very confrontational and was very aggressive and belligerent. 35

[175] He informed Mr Jones of the discussion because of the way the discussion had occurred. 36

[176] Mr Brinklow repeated that Ms Pollock had heard the discussion in its entirety. 37

[177] With respect to his conversation with the applicant on 17 December 2021, he repeated his evidence that he was not having a go at the applicant when discussing the seating for VIP guests from Crown for lunch, he did not speak to her in a disrespectful manner, he spoke in a calm tone and told her three times that her actions were putting her colleagues offside.

[178] He said this to her because the applicant had ignored an agreement reached by her 2IC with the senior members of Sandalford’s management team about the hosting arrangements for the VIP group and a day afterwards she changed those arrangements that had been agreed and understood and planned for.

[179] His evidence was he did not admonish her. He repeated his view three times to her he says because she was shaking her head and said, “I don’t want to argue with you.” but she was being argumentative. 38

[180] His evidence was the applicant did not make an effort to engage and listen to him. His tone was one of disappointment. 39

[181] Under cross-examination, Mr Brinklow’s evidence was that he believed the applicant was not engaged during the weekly management meeting on 12 January 2022. He described her body language as quite different to everyone else’s at this meeting and he would categorise it as quite negative.

[182] He describes the applicant’s engagement at this meeting as poor to limited. He recalls her being quite distant from the discussions with the group and her manner was quite different from what they had experienced in those meetings previously. He said after the meeting other senior members of the team commented independently without solicitation about this. His evidence was that he shared this experience with Mr Jones and understood that he was planning to have a discussion with her to check to see if everything was all right. 40

[183] Mr Brinklow agrees he made changes after she resigned. He doesn’t accept the categorisation that she was stripped of her duties. Her primary duty was operations in the restaurant and working on the floor which she continued to do.

[184] The evidence in chief of Ms Alyson Pollock is that she is the Administration Manager for Sandalford Wines Pty Ltd and has been in this and similar roles from 2002.

[185] On 15 December 2021, Ms Pollock was in her office at around 5.15 p.m.

[186] Her evidence was that the door to Mr Brinklow’s office was left open and the applicant was standing at his door for the entire conversation and Ms Pollock overheard all the applicant’s comments.

[187] Her evidence was she felt the applicant’s comments were bizarre and peculiar and the conversation left her somewhat astounded.

[188] She felt the conversation would have definitely left Mr Brinklow dismayed and concerned. The applicant had a strong tone and her demeanour appeared irrational

[189] She says Mr Brinklow was not able to properly respond to any of the points the applicant raised as she did not let him talk. He appeared to be the submissive party in the entire conversation and attempted to respond but was shut down each time as the applicant went onto another topic. The applicant raised a number of things during the conversation and jumped from one point to the next.

[190] Her evidence was that the applicant questioned the drinking after work policy for staff following their shifts and did not agree that it was not good for staff morale by not allowing this to occur. She commented that Functions department receives tips from customers and that the Functions staff keep these tips. The applicant said that Ms Hvalgaard specifically told her verbally that Functions keep their tips and she also said that Mr Jones also told her that Functions get tips.

[191] The applicant made a number of other comments regarding the staff Christmas party and the process for staff purchasing wine. After the conversation on 15 December 2021, Mr Brinklow came into her office and asked Ms Pollock if she overheard, to which she replied yes it was extremely bizarre, and that the applicant clearly appears to be bothered by various things.

[192] She says she mentioned to Mr Brinklow that it seems that she is on a path to cause disruption and that her irrational behaviour is definitely concerning.

[193] Earlier the same afternoon, on behalf of Mr Brinklow and as per his instruction, she had given the applicant an envelope containing a small gift and letter (Christmas card, thank you letter from Grant and a $100 Mastercard voucher). She advised the applicant the card was form Mr Brinklow to thank her for her efforts and to have a wonderful time over Christmas and New Year. The same gesture and gift were presented to all Sandalford Managers. The applicant did not open the card in front of her.

[194] Ms Pollock says later that day she was walking towards the Kitchenette outside the offices. She heard the applicant ask Amy (another staff member), "how much did you get?" outside the Restaurant office upstairs. Amy looked at her and Ms Pollock said "this sounds like something we shouldn't be talking about!" She then walked into the applicant’s office to put a contract for a new employee for the restaurant on the applicant’s desk. The applicant followed her in and said, "I have always received in the range of $3,000 to $5,000 as a Christmas bonus".

[195] Ms Pollock’s evidence was that she was astounded and surprised at her comment, and it left her speechless and all she said was "that's nice" and walked away and out of the applicant’s office, knowing that they shouldn't be talking about this.

[196] The applicant had also mentioned to her several times that she should not have to pay to attend the Gold Plate Awards, she has never had to pay in previous positions held, and that the Company should pay for her attendance. Each time Ms Pollock said this is not a discussion she should be having with her, and that the applicant should take it up with Mr Brinklow and Mr Jones.

[197] On 30 December 2021, she went to the Restaurant office to say hello. She noticed that the office had been tidied up and she commented on this to the applicant.

[198] She also noticed that a number of inspirational posters had been removed, other than one featuring Scarlett Johansson. When she asked what happened to the others, the applicant commented that she had taken them down.

[199] Ms Pollock commented that whilst other people didn't like them, she should not throw them away as it was likely that Ms Pollock would need to put them up again. Ms Pollock said 'I cannot believe you are doing this' to which the applicant replied with words to the effect of 'don't say who removed them'.

[200] On her return to work on 4 January 2022, Ms Pollock noticed that posters had been removed from the accounts door as well and had been placed in a pile in the stationery cupboard.

[201] Ms Pollock sent an email to Mr Jones then the following day explaining what had occurred and mentioned that there will be uneasiness with the applicant if Ms Pollock’s name is mentioned. 41

[202] At the hearing, Ms Pollock identified the photo of her office and Mr Brinklow’s office doors. 42 Her evidence was her door and Mr Brinklow’s office door are about 1.0 to 1.5 metres apart.

[203] Under cross-examination, she explained that the way the conversation between Mr Brinklow and the applicant went it was not going to end there. Ms Pollock thought it was going to be continued because Mr Brinklow was unable to respond to any of the questions in the conversation. Her evidence was it was more of a ranting sort of outburst from the applicant. She states that it was a one-way conversation.

[204] Her evidence was that the applicant’s demeanour on that day was that her tone of voice was quite strong and it was not a relaxed conversation. It was alarming and she thought it quite strange and odd that the conversation could be held while she was able to overhear the whole thing.

[205] What she heard about the tips policy was the applicant believed tips should be passed on to the staff and she had concerns hearing that functions staff are receiving their tips and she was questioning Mr Brinklow about the procedure.

[206] Her evidence was that the way the applicant was approaching Mr Brinklow with her tone and manner was bizarre and peculiar. She was jumping from one subject to the next without giving him the opportunity to properly respond to each enquiry she had. Mr Brinklow could not get a word in, so she thought it was bizarre and peculiar in that it was very one-sided and more of a ranting or an attack by the applicant.

[207] Her evidence was the conversation lasted about 10 minutes albeit it was a one-sided discussion. Afterwards she said to Mr Brinklow it was a very odd conversation and that it was not normal. She agreed it was extremely bizarre in terms of the applicant’s tone. She agreed the applicant appeared bothered by the drinks after work and the tips policy. 43

Submissions

The applicant

[208] The applicant resigned from employment on the 22 January 2022 giving 8 weeks' notice in accordance with her contract.

[209] She was engaged as the Restaurant and Bar Manager for the respondent's winery and was highly regarded and considered a top performer.

[210] The restaurant staff had been complaining for some time that tips made by satisfied customers were not been ultimately paid to the staff for whom they were intended.

[211] The respondent had a practice of keeping tips made by restaurant diners when they paid their bills.

[212] Staff in the restaurant considered this to be wrong as the customers had given the tips with the intention of rewarding the staff. This was first raised generally in March 2021.

[213] On 15 December 2021 the applicant raised the issue with the CEO Mr Brinklow and then formally in an email to the company's HR Consultant Mr Jones.

[214] From that day on, Mr Brinklow treated the applicant as an "outsider". The next day, Mr Brinklow confronted the applicant in a public area of the restaurant as she was directing staff how to set up tables. Mr Brinklow admonished her, belittled her and was generally abusive towards her.

[215] In early January 2022, the applicant took some annual leave.

[216] When she returned on the 12 January 2022, she was directed to attend a meeting with Mr Jones set for the 14 January 2022.

[217] The applicant attended. There was no agenda, but clearly as it unfolded it was a disciplinary meeting. Mr Jones refused to allow the applicant to have a support person. The meeting raised either trivial or untruthful allegations against the applicant. They ranged from her decision to remove some posters from the restaurant, to her allegedly not being engaged any longer and her posture at a previous management meeting.

[218] The question of the tips was also raised by Mr Jones stating that the taxation ramifications were being investigated by the accountants.

[219] The applicant became very uncomfortable with the tone of the meeting.

[220] She later sent corrections to the meeting notes issued by Mr Jones. She also raised with him issues of bullying and harassment in an email dated the 18 January 2022. She requested that she receive a response no later than Friday 21 January 2022.

[221] The applicant did not receive a response to the email by the 21 January 2022.

[222] Therefore, the applicant tendered her resignation on the 22 January 2022 which under her contract of employment expired on the 19 March 2022.

[223] During the working period of her notice, Mr Brinklow stripped her of many of her duties and removed her from email communications.

[224] Following a very successful luncheon managed by the applicant on Sunday 7 February 2022, for which the applicant and staff received glowing references, on the 8 February 2022, Mr Brinklow stood the applicant down for the remainder of her notice period.

[225] In short, the applicant submits that she was harassed and bullied by the respondent because she took up the tips issue on behalf of her staff. She questioned whether the treatment of those monies by the respondent was indeed legal. As she did not receive any response to her email of the 18 January 2022 she was forced to resign. Her resignation was therefore a dismissal for the purposes of the Act.

[226] The applicant submits that was no valid reason for his dismissal and the respondent did not follow the procedures to establish procedural fairness in arriving at her termination. In summary the matters set out in s387 when addressed against the termination of the applicant all favour a finding of the termination being harsh, unjust or unreasonable. It was therefore an unfair dismissal and that the applicant is entitled to a remedy.

The respondent

[227] The respondent denies that it has acted in a manner towards the applicant such that her resignation can be construed as a constructive dismissal.

[228] The respondent denies that its conduct towards the applicant was anything other than reasonable management action undertaken in a reasonable manner.

[229] The respondent says that the resignation was voluntary and that the applicant has failed to establish that she was forced to resign as is required by s.386 (1) (b) of the Act.

[230] The applicant formally raised her concern regarding the respondent's tips policy in the week of 13 December 2021. The issue was highlighted by the applicant on the evening of 15 December 2021 in a confrontational manner with the CEO.

[231] The respondent' says that the applicant wrote to the HR Adviser on 16 December 2021 regarding the tips policy.

[232] The respondent says that the issue of tips had been previously canvassed in August and November 2021 and that the policy in place was long standing.

[233] The respondent says that the applicant was spoken to by the CEO on 17 December 2021 regarding a seating issue in the restaurant.

[234] The respondent denies that it treated the applicant as an 'outsider' and that the applicant was treated as a professional and in a 'business as usual' manner.

[235] The respondent states that other than the comments on 15 December 2021, the applicant did not raise the tips issue with the CEO again.

[236] The respondent states that the CEO was not presented with a claim of harassment or bullying by the applicant at any stage between 17 December 2021 and 22 January 2022.

[237] The respondent states that the CEO was on leave from 24 December 2021 to 10 January 2022.

[238] The respondent states that the communication from the respondent to the applicant remained professional, courteous and respectful throughout the period from 15 December 2021 onwards.

[239] The respondent states that the applicant initially described the CEOs comments on 17 December 2021 as rude.

[240] The respondent states that the applicant only described the behaviour of the CEO as harassing in her response to the 14 January 2022 meeting.

[241] The respondent submits that the applicant's witness statement fails to include important and relevant information such as the initiating conversation on 15 December 2021 that was overheard by Ms Pollock.

[242] The respondent submits that the applicant's claim must fail because:

•  No claim of bullying has ever been made against the CEO;

•  No claim of harassment against the CEO can be substantiated since he was on leave for nearly 3 weeks of the 5 week period claimed by the applicant;

•  No claim for bullying and harassment against the HR Adviser can be substantiated since there is nothing in the HR Adviser's actions that are unreasonable;

•  The use of the words harassed and bullied as used by the applicant are inconsistent with the provisions of the Act;

•  The claim by the applicant that she was bullied by the CEO has not been substantiated through evidence that establishes there was conduct that meets the definition of bullying under the Act;

•  The matters raised by the applicant in her email of 16 December 2021 and the email of 12 January 2022 had not been closed nor responded to in an unreasonable manner at the time of her resignation;

•  The respondent has not refused to respond to the issues raised by the applicant;

•  Given the timetable set by the applicant, the respondent's actions can only be deemed to be reasonable;

[243] The applicant has failed to establish that she was forced to resign due to the conduct of the employer.

[244] The applicant has failed to establish any specific comments or actions that directly lead to a conclusion that the employer was seeking the resignation of the applicant.

[245] The applicant has failed to provide evidence of bullying and harassment.

[246] Throughout the period of claimed harassment and bullying the email exchanges between the applicant and the CEO remained cordial and on the same basis as correspondence throughout the applicant's employment at Sandalford.

[247] The applicant voluntarily resigned and so the application should be dismissed.

The legislation

[248] Section 385, which is set out below, prescribes that one of the prerequisites for the Commission to be satisfied that a person has been unfairly dismissed is that the person has been dismissed.

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[249] Section 386, which is set out below, defines when a person has been dismissed which includes a person who has resigned but only in the circumstances prescribed in s.386(1)(b).

“386 Meaning of dismissed

(1) A person has been dismissed if:

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

Consideration

[250] A person is only eligible to claim unfair dismissal where they are 'dismissed'. Section 386 of the Act defines the term 'dismissed' to mean a situation where:

•  a person's employment has been terminated at the employer’s initiative, or

•  a person was forced to resign because of the conduct or a course of conduct engaged in by the employer.

[251] When determining whether a person was 'forced to resign', the Commission will consider whether the employer engaged in conduct with the intention of bringing the employment to an end or that the end of the employment was the probable result of the employer's conduct because the employee had no effective or real choice but to resign. 44

[252] The applicant bears the onus of proving the respondent's actions meant that objectively the only reasonable alternative was for her to resign, with that resignation being a reasonable reaction to the respondent's actions. 45 This is a high threshold.

[253] In O'Meara v Stanley Works Pty Ltd, it was held that it is not enough to simply establish that the acts of the employer resulted 'directly or consequentially in the termination of the employment'. 46

[254] The acts of the employer must do more than that. They must close off all other possibilities and include some compulsion such that a resignation in the face of the conduct could be considered a reasonable response. In ABB Engineering Construction v Doumit, 47 the Full Bench of the Fair Work Commission found that caution should be exercised when finding constructive dismissal:

'The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.' (underlining added)

[255] The case of Celia O'Keefe v Ramsay Health Care Australia Pty Limited concerned a constructive dismissal application by an employee alleging she was bullied during her employment. 48 Deputy President Asbury held at [5] that she was not required to make a finding on whether or not the applicant in that case had been bullied within the meaning of s789FD of the Act. In dismissing the application in that case, Deputy President Asbury held at [151]:

“Resignation to escape a difficult or unpleasant situation in a workplace will not amount to dismissal where the employee has other options besides resignation. This is so even where the situation in a workplace is objectively difficult or unpleasant or where the options are to resign or be subject to an investigation or disciplinary process, as distinct from resign or be dismissed. Here the Applicant opted to resign to remove herself from a situation which she perceived to be unfair and from conduct she perceived to be bullying. While some of the Applicant’s concerns were valid, on balance the conduct the Applicant complains of was not such that I could be satisfied that the Applicant was forced to resign. The Applicant had will work options other than resignation and it cannot be said that the conduct or a course of conduct she complains about had the intended or probable effect of ending her employment. Finally, I consider that even if all the conduct described by the Applicant occurred, it is not a course of conduct that objectively, was so egregious, that it gave the Applicant no real choice but to resign. While I do not underestimate the difficulties the Applicant would have faced if she remained at work, and the adverse impact upon her of resigning from her employment with the Respondent, I do not accept that she was forced to resign by a course of conduct engaged in by the Respondent.”

[256] In this instance, what was the relevant employer’s conduct prior to the applicant deciding to resign?

[257] With respect to the conversation between the applicant and Mr Brinklow at the door of his office late on 15 December 2022, the applicant’s evidence was that it was a conversation no different from their other conversations and he played a ‘dead bat’ in response to her concerns. There is no evidence that Mr Brinklow during their exchange spoke or behaved inappropriately.

[258] Of the various issues that were covered in that conversation one of those was the respondent’s tip policy.

[259] It is apparent that the applicant believed this was an important issue. However, there is no reason why this issue needed to be urgently resolved to her satisfaction given that policy had been in operation for all of her employment and indeed for many years before she was employed. The applicant’s evidence did not demonstrate the policy was negatively impacting her in any significant way.

[260] When Mr Brinklow spoke to the applicant on 17 December 2021, she says he approached her in a confronting manner, was having a go at her in a disrespectful manner, would not let her get a word in and his tone and words made her feel belittled and embarrassed.

[261] Mr Brinklow’s evidence was that he calmly stated to the applicant on three occasions 'your manner and behaviour is putting your colleagues offside and that these actions were counterproductive.' He says her response was argumentative even though she stated 'I don't want to argue'.

[262] The applicant first complained about this conversation over four weeks later, in her email to Mr Jones on 12 January 2021 wherein she says Mr Brinklow spoke very rudely to her. This email was responding to Mr Jones requesting he meet with her to discuss concerns that she did not seem to be particularly engaged and that she had removed some motivational posters.

[263] In their conversation on 17 December 2021. Mr Brinklow clearly was rebuking the applicant and she clearly rejected his criticism.

[264] At worst on the applicant’s version of events, which is contested by Mr Brinklow, he was strongly critical of her and spoke rudely to her.

[265] This was an isolated event and nothing similar had happened before and this was not repeated.

[266] Mr Jones in his email had expressed concern that she did not seem to be particularly engaged and this was on top of reports of her removing the motivational posters and asked if they can meet on 12 January 2021.

[267] This email was innocuous.

[268] The next day, Mr Jones advises the applicant by email that her complaint about Mr Brinklow has been referred to the Directors and later advises her that the Directors have asked him to enquire into this.

[269] Because the applicant had complained about the Chief Executive Officer, to whom Mr Jones reports, initially referencing her complaint to the Directors was appropriate.

[270] At the meeting with the applicant on Friday, 14 January 2021, Mr Jones advised her that it was not appropriate for her to have a support person sit in on the meeting.

[271] This approach was appropriate. The applicant had no right to have a support person present at the meeting.

[272] There is nothing in Mr Jones arranging nor conducting the 14 January 2021 meeting that was inappropriate. The applicant contests the respondent had any basis for concern or complaint, but the Commission accepts the issues raised where ones the respondent genuinely was concerned about and this concern was not contrived nor was the outcome of the meeting inappropriate. The outcome did not involve any disciplinary action being taken by the respondent nor even foreshadowing future disciplinary action. 49

[273] On 17 January 2022, Mr Brinklow sent emails regarding financial reporting to several departmental managers, including the applicant, asking each manager to respond by 21 January 2022. Additional financial information was provided by him to the applicant on 20 January 2022.

[274] As requested, the applicant emailed to Mr Brinklow her Restaurant Budget Analysis and Recommendations on the evening of 21 January 2022.

[275] There was nothing inappropriate in Mr Brinklow’s conduct in requiring the applicant to provide a budget for the area she managed.

[276] The applicant on 18 January 2021 had emailed Mr Jones at 10.32PM and amongst other things said she feels like there is a strategy to make her feel uncomfortable to the point where she resigns. She says she would like to escalate her issues to another person other than Mr Jones or Mr Brinklow to seek a resolution. She asked him to advise on an appropriate third-party. The applicant says she look forward to a response addressing all the issues in full. Her email ends saying,

“I would expect to receive a response by no later than Friday, January 21, 2021, close of business. Please advise if this timeframe is not suitable.”

[277] On 21 January 2021, prior to the applicant’s close of business deadline, Mr Jones replied:

"Zoe - my apologies but I am not able to finalise my review of everything by close of business due to other work commitments. There are also some additional comments from you that I need to follow up on. I will be continuing to work on this over the weekend.”

[278] The applicant had expressly demanded all her issues be addressed in full by Mr Jones. Also, for the first time she had also asked that her issues be escalated to another person to seek resolution and was asking for his advice on whom an appropriate party might be.

[279] Given the time she had allowed Mr Jones was only three days and that sensibly her own closing words recognised her timeframe may not be suitable, Mr Jones’s response to her was entirely reasonable, timely and polite.

[280] The following morning at 7.12 AM by email, the applicant notified the respondent of her resignation.

[281] The applicant in her evidence and in the submissions made on her behalf also points to a number of actions taken by the respondent in the weeks after she had notified it of her resignation. Because these acts came after she had notified her decision to resign they cannot be conduct that forced her to resign.

[282] In any event, the actions the respondent took after she had given notice of her resignation were unsurprising adjustments an employer would commonly make when one of its managers was leaving in the near future.

[283] In the matter of Neil Ashton v Consumer Action Law Centre [2010] FWA 9356 at [59] Commissioner Bissett explained as follows,

“It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.”

[284] Considering the respondent’s conduct leading up to the applicant advising she had decided to resign with 8 weeks’ notice, there is no evidence that supports a finding that the respondent engaged in conduct intending to bring the applicant's employment to an end.

[285] The Commission must also consider whether the end of the employment was the probable result of the respondent’s conduct because the applicant had no effective or real choice but to resign.

[286] Objectively considering the respondent's conduct, being the conduct of both Mr Brinklow and Mr Jones individually and together, other than perhaps once being spoken to rudely there is nothing untoward in the conduct at all. Certainly, there is nothing so egregious that Ms Tomkins had no choice but to resign.

[287] Indeed, the applicant's evidence in fact was that “... I could not understand why Grant Brinklow and Ron Jones did not approach me to resolve the issue raised once and for all and asked me to stay on in my role…”. 50 This indicates the applicant believed the issues she was concerned about were capable of being resolved. They were not immutable.

[288] This is consistent with her request of Mr Jones that he advise her of an appropriate party to whom her issues could be escalated to, for resolution.

[289] When the applicant decided to resign, she had not received Mr Jones full response to her email of 18 January 2021, but he had replied explaining he was working on it over the weekend. Self-evidently, the applicant could have allowed him some further time to provide his reply the following week. The fact she did not do this is inexplicable when her own email quite sensibly recognised that the timeframe she had set for him, three days earlier, may not be suitable.

[290] The applicant had the option of waiting for a response from Mr Jones.

[291] Had she waited, Mr Jones might have provided responses that satisfied her on some or all of the issues and/or he might have advised her of an appropriate person to whom she could escalate her issues for resolution as she had requested.

[292] Instead of waiting for a response from Mr Jones, Ms Tomkins chose to resign.

[293] After giving her notice of resignation, the applicant remained at work for nearly two weeks before the respondent opted to not require her to work out the balance of her notice period.

[294] Considering the respondent's conduct objectively, being the conduct of both Mr Brinklow and Mr Jones individually and together, there was no compulsion on Ms Tomkins to resign from her employment when she did.

[295] Ms Tomkins simply was not forced to resign because of the conduct, or a course of conduct engaged by the respondent.

[296] In all the circumstances here, the Commission is not satisfied that Ms Tomkins had no effective or real choice but to resign because of the conduct or a course of conduct engaged in by her employer.

[297] Therefore, the Commission finds find that Ms Tomkins was not dismissed within the meaning of section 386 and as a consequence of section 385 by definition, the applicant cannot have been unfairly dismissed.

[298] The Commission will now dismiss this application and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR748475>

 1   Witness statement of applicant para [35] - [42].

 2   Ibid para [70] Note: conflates after resignation events

 3   Witness statement of respondent para [38].

 4   Transcript PN 141 and 142

 5   PN 145 to 153

 6   PN 143 and 144

 7   PN 167 to 174 and Respondent’s Book of Documents vol 2 pg 32.

 8   PN 175.

 9   PN 176 – 182.

 10   PN 185.

 11   PN 187, and Witness statement of applicant pg 15 para [52].

 12   PN 136.

 13   Respondent’s Book of Documents vol 2 pg 12.

 14   PN 188.

 15   PN 197 and Exhibit R2.

 16   PN 199 – 201.

 17   PN 243.

 18   PN 258 – 260.

 19   PN 300.

 20   PN 347 and 348.

 21   PN 378.

 22   PN 379 – 381.

 23   PN 382.

 24   PN 392 – 397.

 25   PN 399.

 26   PN 403 – 407.

 27   PN 423 – 426.

 28   PN 429 – 436.

 29   PN 445.

 30   PN 460.

 31   PN 618.

 32   Respondent’s Book of Documents vol 2 pg 18, 27.

 33   PN 534.

 34   PN 529, 530, 537, 538, 540.

 35   PN 568, 569.

 36   PN 576.

 37   PN 579.

 38   PN 564.

 39   PN 565 – 567.

 40   PN 591 and 592.

 41   Respondent’s Book of Documents vol 2 pg 45.

 42   Ibid Exhibit R2.

 43   PN 660 – 685.

 44   Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli [2017] FWCFB 3941 at [32].

 45   Australian Hearing v L Peary [2009] AIRCFB 680 at [30].

 46   PR973462 [2006] AIRC 496, at [23].

 47   AIRCFB N6999 at [150].

 48   [2021] FWC 4796.

 49   Respondent’s documents – Meeting Notes pg 8 – 11; Respondents documents - applicant’s correction to the meeting notes vol 2, pg 36, 37.

 50   Witness statement of applicant para [41] - [42].