1
[2013] FWC 3711
DECISION
Fair Work Act 2009
s.365—General protections
Delwyn Hewitt
v
Topero Nominees Pty Ltd T/A Michaels Camera Video Digital
(C2013/2654)
COMMISSIONER BISSETT MELBOURNE, 19 JUNE 2013
Section 365 - Application to deal with contravention involving dismissal.
[1] Ms Delwyn Hewitt (the Applicant) has made an application pursuant to s.365 of the
Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a
contravention of the general protections provisions of the Act involving dismissal. Ms Hewitt
was employed by Topero Nominees Pty Ltd T/A Michaels Camera Video Digital (the
Respondent).
[2] The Respondent says that the Applicant was not dismissed but rather she resigned her
employment. The Applicant says that she was forced to resign by the conduct or course of
conduct of the employer.
[3] The Applicant was represented with permission by Mr Addison.
[4] The Respondent was represented with permission by Ms Jardine of counsel.
The Legislation
[5] Section 365 of the Act states:
365 Application for the FWC to deal with a dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the
industrial interests of the person, alleges that the person was dismissed in
contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal
with the dispute.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 3711
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368 Conferences
(1) If an application is made under section 365, the FWC must conduct a conference to
deal with the dispute.
Note 1: For conferences, see section 592.
Note 2: The FWC may deal with a dispute by mediation or conciliation, or by making
a recommendation or expressing an opinion (see subsection 595(2)). One of the
recommendations that the FWC might make is that an application be made under
Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Despite subsection 592(3), the FWC must conduct the conference in private.
369 Certificate if dispute not resolved
If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or
are likely to be, unsuccessful, the FWC must issue a certificate to that effect.
Preliminary matter
[6] Mr Addison made a preliminary submission that there is no jurisdictional issue for the
Commission to determine. I do not agree with this characterisation of the Act. This is a matter
on which varied views have been expressed by members of the Commission. To date there is
no Full Bench authority which provides more definitive guidance on the question.
[7] Section 365 of the Act states that if the person has been dismissed (s.365(a)) and
alleges the dismissal was a contravention of Part 3-1 of the Act (s.365(b)) then a person may
apply to the Commission to deal with the dispute. In my opinion paragraphs (a) and (b) stand
separately and must each be considered as part of the conditions necessary to found an
application under s.365. If it was only necessary for a dispute that there be an allegation of a
dismissal in contravention of the general protections provisions of the Act paragraph (a)
would be redundant. Paragraph (a) (that is the dismissal) however stands on its own and exists
in addition to the allegation of the dismissal breaching the general protections of the Act. To
ignore paragraph (a) is to ignore part of the conditions necessary for the existence of the
dispute.
[8] The dispute in s.365 is therefore conditioned by the existence of the dismissal and the
allegation that the dismissal is a contravention of Part 3-1 (General Protections) of the Act.
[9] That dispute is then subject to a conference (s.368) and a certificate must be issued if
the Commission reaches the requisite satisfaction that further attempts are unlikely to resolve
the dispute (s.369).
[10] It is my opinion that if there is no dismissal then there can be no dispute to deal with in
a conference under s.368. If there is no dismissal then there can be no dispute on which the
Commission can reach the requisite satisfaction and issue a certificate under s.369 of the Act.
[2013] FWC 3711
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[11] A dismissal is a matter of fact that must, in my opinion, be determined prior to a
conference and prior to the issuing of a certificate.1
[12] Mr Addison submits that whether there is a dismissal or not is a matter for the Court
and not the Commission to determine. In support of his submission Mr Addison referred me
to a decision of Williams C in Leza Howie v Norlisk Nickel Australia Pty Ltd; Dimitry
Lafitskiy & Ors2 (Norlisk Nickel) and a decision of the Full Bench in Ms P Hetherington-
Gregory v Harrington Village Motel3 (Harrington Village Motel).
[13] Mr Addison submits that each of these decisions stands for the proposition that the
Commission is not required to determine if the Applicant was dismissed prior to the issuing of
a certificate under s.369 of the Act.
[14] I do not consider that this conclusion can be reached on the basis of the decision in
Harrington Village Motel. The Full Bench in that matter did not consider whether or not the
Commission is required to make a finding that an applicant’s employment has been
terminated by the employer prior to issuing a certificate under s.777 of the Act.4 That matter
was primarily concerned with an application to produce documents in relation to a conference
held in accordance with s.776 of the Act. On this question the Full Bench said that a ‘Fair
Work Australia Member, in conducting a s.776 conference, is not empowered to determine
the application or otherwise impose an outcome on the parties’ (underlining added).
[15] I take this statement by the Full Bench as a reference to the process of the conference
itself. In my opinion it says nothing of the need or otherwise of the Commission to determine
if the jurisdictional prerequisites have been met to allow the conference to be conducted or the
certificate to be issued in accordance with the Act.
[16] The decision in Norlisk Nickel dealt with a jurisdiction objection being taken by the
Respondent against the Commission dealing with the application because, it said, the
application was made outside the time limit for making an application under s.365 of the Act
even though the application was made under s.372 of the Act (a general protections claim not
involving a dismissal). What Williams C considered in that decision was whether he would
grant the ‘strike out’ application of the Respondent or list the matter for conference. He took
the latter course. The decision indicates that, whilst the Applicant said she had no choice but
to resign her position, she was not pursuing a claim that included that she had been dismissed.
She argued in the ‘strike out’ application that, given the application she had made was not
under s.365 of the Act, the Commission had no power to ‘strikeout’ the application on the
basis that it was made outside the statutory period for an application made pursuant to s.365
of the Act.
[17] The decision of Williams C goes to the question of the operation of s.372 of the Act.
The Commissioner was not required to, and did not, determine if a dismissal was a pre-
requisite to the issuing of a certificate under s.369 of the Act. To the extent that the
Commissioner endorsed the findings of Cribb C in Hansen v Apex Cleaning & Polishing
Suppliers Pty Ltd T/A Apex5 (Apex Cleaning), I do not consider that persuasive of the matter I
am required to consider.
[18] As to the decision of Cribb C in Apex Cleaning (to which Mr Addison only referred in
the context of the decision in Norlisk Nickel) I respectfully disagree with the conclusion
[2013] FWC 3711
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reached by the Commissioner in that matter. In her reasons the Commissioner did not
consider the conditions necessary for the existence of the dispute which is to be subject to the
conference (s.368 - FWC must conduct a conference to deal with the dispute) and for which a
certificate may be issued (s.369 - attempts to resolve the dispute have been, or are likely to be,
unsuccessful). Whilst I appreciate the basis on which the Commissioner reached her
conclusion I cannot agree with her conclusion that in the absence of a positive requirement to
determine if a jurisdictional prerequisite is met the jurisdiction of the Commission to deal
with an application should not otherwise be considered by the Commission.
[19] It is my opinion that the jurisdiction of the Commission is not attracted unless the
conditions precedent have been met to allow the Commission to deal with the dispute. Further
I note a number of decisions of the Commission where the existence of a dismissal has been
determined as a prerequisite to issuing a certificate in accordance with s.369 of the Act.
[20] For this reason I conclude that, prior to issuing a certificate under s.369 of the Act, I
must be satisfied that the dispute to which the certificate relates does, in fact, exist. To reach
such a conclusion I must be satisfied that there has been a dismissal. For clarity I am not
required under s.365(b) to be satisfied that the dismissal relates to a contravention of the Act.
This is because the wording of paragraph (b) is clear — it only need be that it is alleged that
that the dismissal is a contravention of Part 3-2 of the Act.
Was Ms Hewitt dismissed?
[21] Ms Hewitt says that she was forced to resign because of the conduct of the
Respondent.
[22] Mr Addison for the Applicant submits that the Applicant was employed by the
Respondent to undertake a specific role. She complained to her employer about her wages.
This matter was ultimately referred to the Fair Work Ombudsman (FWO). As a result of this
complaint the Applicant says she was subject to bullying such that she had no choice but to
resign. This is evidenced by her letter of resignation.6
[23] In her letter of resignation the Applicant states that she feels like she has been forced
to give up her job. She says:
...I am really distressed and upset with recent discussions, meetings, negotiations and
emails regarding my employment conditions and the way I have been treated. I have
been directed to do work of substantially changed duties from the job I accepted, and
have been threatened with termination of my employment...On top of this I have been
subject to bullying and threatening behaviour by my manager which all started after I
asked about my pay being reviewed...I have been asked to record a log of every
activity I perform on an hourly basis for every day I work...During the course of recent
meetings, I have been mislead regarding the pay rates of other employees which
perform the same job as me...[Y]ou had previously confirmed in writing that we could
alter days of work by mutual agreement. On Saturday I e-mailed you saying I wanted
to change from 3 to 2 days a week which you have rejected...I think it is really unfair
on me.
...The amount of force and pressure being placed on me to change the nature of my job
is insistent, and causing me a great deal of anxiety...I have raised on a number of
[2013] FWC 3711
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occasions the way in which my manager has been behaved extremely unprofessionally
towards me and has been verbally antagonistic and aggressive towards me. The
situation has increasingly escalated and has become really unbearable for me...I have
discussed with you on numerous occasions over many months about my manager’s
appalling, unprofessional & amateurish behaviour...I have been in tears on numerous
occasions both at work and at home as a consequence of this. (sic)
[24] In essence it appears that the Applicant says she was forced to resign because of:
a. The behaviour of her manager;
b. A requirement that she record a log of her work activities;
c. A direction to undertake changed duties; and
d. Being denied a request to reduce the number of days on which she worked.
The evidence
The behaviour of the manager
[25] Ms Hewitt’s evidence is that on 4, 13 and 17 April 2012 Mr Hansen, her manager, was
aggressive in discussions she had with him over her pay (she had queried if she was being
paid the right amount and/or under the correct award). She says he yelled and was verbally
aggressive and she felt frightened, threatened and intimidated.7 Whilst she raised this with Mr
Michael she says that nothing came of it and Mr Hansen did not apologise to her. She says
that on 13 April she was ridiculed in front of a class8 and on 2 May 2012 Mr Hansen said to
her, “‘Haven’t you got anything better to do than to come in?”9 She says that on 26 May 2012
Mr Hansen berated her in front of a class because of what she was wearing,10 on 29 May she
was blamed for the cancellation of a class by Mr Hansen and Mr Michael,11 on 13 June she
was told by Mr Hansen she was ‘not needed’ when she commenced work at 1.00pm to deliver
a night photography class which commenced at 5.00pm even though it was a day she
regularly worked a full day,12 and on 7 September Mr Hansen blamed her in front on entire
class for a student not having the required camera lens for the class.13 Ms Hewitt also says
that Mr Hansen sabotaged her work training preparation statistics.14
[26] Whilst there are other matters she mentions in her witness statement to do with Mr
Hansen it is not clear that these are put forward as evidence of Mr Hansen’s bullying
behaviour.
[27] It is not clear from the Applicant’s evidence exactly when she first raised the
behaviour of Mr Hansen with Mr Michael. It appears it was sometime in April 2012. She says
she also complained of his behaviour in meetings with Mr Michael on 24 July and 18 October
2012.15
[28] Mr Michael’s evidence is that the Applicant first raised the issue of her pay with Mr
Hansen in December 2011. He became aware in April 2012 that Mr Hansen had behaved
inappropriately to the Applicant. He says he spoke to Mr Hansen who admitted the conduct
had occurred. Mr Michael’s evidence is that Mr Hansen apologised to the Applicant.16
[2013] FWC 3711
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[29] In Mr Michael’s written evidence he includes a file note dated 18 October 2012 in
which he had noted the ‘She then started - well - her manager insulted her and is bullying.’17
Requirement to log activities
[30] In a meeting with Mr Michael on 16 May 2012 the Applicant says that she was
instructed by Mr Michael to log all of her activities. She says this was done for ten successive
weeks and no other employee was subject to this requirement.18 She also says she was
instructed to do this again by Mr Michael on 24 October 2012.19
[31] Mr Michael’s evidence is that, as a result of the Applicant making a compliant to
FWO with respect to her rate of pay and the award she was being paid under, and, in
accordance with a request from the FWO, he requested the Applicant to keep a record of the
work she performed. This was provided to the FWO.20
Direction to undertake changed duties
[32] Ms Hewitt’s evidence is that on 25 September 2012 Mr Michael told her that as well
as doing her media school work she would be doing sales in the (camera) bags and
accessories area of the retail store. She considered this to be a breach of her contract.21 On 25
September, she was given a ‘Role Outline’ which included instructing classes and associated
administrative work and sales in bags and accessories.22 Her evidence is that she did not want
to do the sales work on the basis that it was a breach of her contract and that ‘while we were
in dispute with Fair Work Australia (FWA), I didn’t believe that it was appropriate he try to
not only change my duties but fundamentally change the nature of the job that I was
employed to do.’23 This view was reiterated in an email to Mr Michael on 17 October.24 Ms
Hewitt says that, because he failed to respond to a question she asked with respect to her pay,
she concluded that his intention was to reduce her pay.25
[33] Mr Michael’s evidence is that when he reviewed the record of work performed by the
Applicant he noted that there was a substantial period of time when she was not being
utilised.26 On 25 September 2012 he advised the Applicant that, once she had completed the
necessary training she would be required to undertake sales duties when she was not required
to attend to her role in the media school.27 On 17 October 2012 the Applicant advised Mr
Michael that she would not commence performing any other duties until the matter before
FWA with respect to her claim for underpayment of wages was resolved. In an email of 17
October 2012 Mr Michael confirms that the Applicant is required to teach classes, undertake
administrative work associated with classes and conduct sales, and states that ‘Fair Work
Australia (sic) made an award determination for you. I do not anticipate that this will
change.’28
[34] On 22 October 2012 Mr Michael sent an email to the Applicant with a subject line
‘Proposed Termination of Your Employment.’ In that email Mr Michael said that he was
concerned about the failure of the Applicant to follow instructions to fulfil her assigned
duties, including undertaking sales. He indicated that he was proposing to terminate her
employment but that, prior to doing so he wished to give her an opportunity to respond to
those concerns. The Applicant was directed to attend a meeting for this purpose the next day.
She was invited to bring a support person to the meeting.29
Request to reduce hours
[2013] FWC 3711
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[35] On 27 October 2012 the Applicant requested that she be able to reduce her days of
work from three days to two days per week.
[36] On 28 October 2012 Mr Michael responded in writing that, given she had lodged an
application on 19 October 2012 with FWA to deal with a dispute he would ‘halt all
discussions/processes related to any aspect of conditions related to your employment until
subsequent to the FWA determination.’30
Dispute re wages
[37] The evidence of Mr Michael is that in late April 2012 when he met with the Applicant
about the behaviour of Mr Hansen she raised with him the question of her rate of pay and
award coverage. They did not agree as to which award covered her. He said to her that if she
had a query about her award coverage she should raise that with the FWO.31 On 9 August
2012 the FWO advised Mr Michael that the correct award with respect to the Applicant was
the Education Services (Post Secondary Education) Award 2012. The letter from the FWO
stated that the Applicant should be classified as a Level 2 Tutor/Instructor and attached the
relevant rates of pay. The letter also required that Mr Michael review the Applicant’s
employment records and consider whether she had received her minimum entitlements under
that Award. The rate of pay for the period ending 1 July 2012 was advised by FWO as $19.83
per hour.32
[38] Mr Michael’s evidence is that on 11 October 2012 the Applicant emailed him and
advised that the FWO had advised her she was entitled to be paid $24.79 per hour for course
work delivery and that she sought an increase in her hourly rate to $27.32 per hour for all
hours worked. Mr Michael asked for a copy of the correspondence the Applicant had received
from the FWO. The Applicant sent to him part of correspondence from the FWO but refused
to send the entire letter as it was ‘private.’33 That part of the correspondence of the FWO the
Applicant forwarded to Mr Michael said:
Time spent delivering course - $24.79 per hour.
I understand that you are currently paid for each hour worked, regardless of the
duties being undertaken at the time, at a salaried rate of $22.77 per hour.
The Fair Work Ombudsman has notified your employer of the details of the award
and classification identified under the award and advised them to review your
employment history to ensure they are meeting their obligations under the modern
award in relation to your employment.
The Fair Work Ombudsman will be taking no further action in relation to your
complaint and this matter has now been finalised.
Contact details
Should you wish to discuss this matter, please contact me on...
Yours Sincerely
[2013] FWC 3711
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[Signed]34
[2013] FWC 3711
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Application to Fair Work Australia to deal with a dispute
[39] On 19 October 2012 the Applicant made an application to Fair Work Australia (now
the Commission) to deal with a dispute in accordance with the dispute settling procedures of
an Award. In that application the Applicant sought to have the matter of her correct rate of
pay resolved.
[40] On 30 October 2012 the Applicant withdrew that application.
Consideration
[41] In Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) the Full Court of the
Industrial Relations Court held that:
[A] termination of employment at the initiative of the employer may be treated as a
termination in which the action of the employer is the principal contributing factor
which leads to the termination of the employment relationship.35
[42] Further, they found it
unnecessary and undesirable to endeavour to formulate an exhaustive description of
what is termination at the initiative of the employer but plainly an important feature is
that the act of the employer results directly or consequentially in the termination of the
employment and the employment relationship is not voluntarily left by the employee.
That is, had the employer not taken the action it did, the employee would have
remained in the employment relationship. This issue was addressed by Wilcox CJ in
APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of
Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an
employee who resigned because “he felt he had no other option”. His Honour
described those circumstances as
“... a termination of employment at the instance [of] the employer rather than
of the employee.”
And at p 5:
“I agree with the proposition that termination may involve more than one
action. But I think it is necessary to ask oneself what was the critical action, or
what were the critical actions, that constituted a termination of the
employment.”
...
When an employee has no effective or real choice but to resign it can hardly be said
that the termination of her or his employment is truly at the employee’s initiative.36
[43] In Rheinberger v Huxley Marketing Pty Limited Moore J said:
However it is plain from these passages that it is not sufficient to demonstrate that the
employee did not voluntarily leave his or her employment to establish that there had
[2013] FWC 3711
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been a termination of the employment at the initiative of the employer. Such a
termination must result from some action on the part of the employer intended to bring
the employment to an end and perhaps action which would, on any reasonable view,
probably have that effect. I leave open the question of whether a termination of
employment at the initiative of the employer requires the employer to intend by its
action that the employment will conclude. I am prepared to assume, for present
purposes, that there can be a termination at the initiative of the employer if the
cessation of the employment relationship is the probable result of the employer’s
conduct. 37
[44] In ABB Engineering Construction Pty Limited v Dounit a Full Bench of the AIRC
found:
Often it will only be a narrow line that distinguishes conduct that leaves an employee
no real choice but to resign employment, from conduct that cannot be held to cause a
resultant resignation to be a termination at the initiative of the employer. But narrow
though it be, it is important that that line be closely drawn and rigorously observed.
Otherwise, the remedy against unfair termination of employment at the initiative of the
employer may be too readily invoked in circumstances where it is the discretion of a
resigning employee, rather than that of the employer, that gives rise to the termination.
The remedies provided in the Act are directed to the provision of remedies against
unlawful termination of employment. Where it is the immediate action of the
employee that causes the employment relationship to cease, it is necessary to ensure
that the employer’s conduct, said to have been the principal contributing factor in the
resultant termination of employment, is weighed objectively. 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.38
[45] In O’Meara v Stanley Works Pty Ltd a Full Bench of the AIRC said:
In our view the full statement of reasons in Mohazab which we have set out together
with the further explanation by Moore J in Rheinberger and the decisions of Full
Benches of this Commission in Pawel and ABB Engineering require that there to be
some action on the part of the employer which is either intended to bring the
employment to an end or has the probable result of bringing the employment
relationship to an end. It is not simply a question of whether “the act of the employer
[resulted] directly or consequentially in the termination of the employment.”
Decisions which adopt the shorter formulation of the reasons for decision should be
treated with some caution as they may not give full weight to the decision in Mohazab.
In determining whether a termination was at the initiative of the employer an objective
analysis of the employer’s conduct is required to determine whether it was of such a
nature that resignation was the probable result or that the appellant had no effective or
real choice but to resign.39
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[46] I have considered the evidence before me and considered whether the employers’
conduct was of such a nature that the resignation of the Applicant was a probable result. In the
circumstances of this case it is not a single act of the employer that the Applicant says caused
her to resign but rather a course of conduct and multiple types of conduct over a period of
time.
[47] The evidence of Ms Hewitt is clear - she did not consider it reasonable to have her
duties altered so that she should undertake sales work whilst issues associated with her
employment were subject to a dispute before the Commission. Mr Michael agreed with this
and reiterated this in a meeting with the Applicant and again in an email to her after she
requested a reduction in days of work from three to two days.
[48] The Applicant was employed by Topero Nominees T/A Michaels Camera Video
Digital. Whilst she was specifically engaged to work in the media school there is nothing to
indicate that she was engaged to work exclusively in the media school. It was Mr Michael’s
view that her workload in the media school provided capacity for her to undertake sales work.
He indicated no intention to have the sales work reduce her rate of pay. In any event however
it would appear that, if she did have some concern with respect to what she would be paid, the
Applicant had an application before FWA to deal with just that matter.
[49] Mr Michael, as the Managing Director of the company, has a right to deploy his staff
within the context of their skills and experience, taking into account the basis of their
employment. It would be a quite different picture if Mr Michael sought to have the Applicant
only undertake sales work and not the media school work for which she appears to have
principally employed.
[50] The Applicant’s claim that the request to undertake some sales work was a breach of
her contract is not supported by any evidence of the contract entered into by her and the
Respondent. The request that the Applicant undertake some sales work by Mr Michael does
not seem unreasonable and in any event, was to be dealt with in the application to FWA.
[51] There was no obligation on Mr Michael to agree to the reduction in the number of
days of work sought by the Applicant. As Ms Hewitt said in her request she could reduce her
days ‘by mutual agreement’. There was no ‘mutual agreement’. Mr Michael had not agreed
pending the resolution of her FWA application.
[52] Mr Michael’s decision to not proceed with any changes to the Applicant’s
employment arrangements pending the finalisation of matters before FWA was a reasonable
and fair approach to the issues between the Applicant and Respondent. The Applicant had
instigated the application. It was reasonable to expect that the range of employment matters at
issue at that time be dealt with in that forum. The Applicant was unreasonable in seeking to
have some proposed changes to her conditions that she wanted occur immediately but have
others not to her liking not occur until the FWA hearing.
[53] There is no evidence that the Applicant was required detail her work on an hourly
basis ‘for every day’ she worked. In any event, I consider it a reasonable and lawful direction
for an employer to make of an employee as long as it was not for a protracted period or was,
in itself, an onerous task. It is reasonable because an employer has a right to know how its
employees are utilising their work time and ensure the most efficient deployment of its
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resources. Asking staff to detail how they fulfil their work day is not unreasonable. There is
no evidence the task was onerous. There is no suggestion that the request was unlawful.
[54] The dispute over the rate of pay to which the Applicant was entitled seems to be an
integral part of all of those things that she says caused her to resign. This was a matter that she
sought to have resolved at FWA though her dispute notification. There was a process in place
that the Applicant had chosen to pursue. The Applicant resigned on 29 October 2012 giving
two weeks’ notice so that the final day of her employment would be 10 November 2012. Her
application to FWA was listed for conference on 1 November 2012, three working days after
she handed in her letter of resignation but whilst she was still working. Despite this the
Applicant withdrew her notice to FWA on 30 October 2012.
[55] It is apparent there was ongoing disagreement between the Applicant and Mr Michael
as to her rate of pay. When Mr Michael sought to clarify her statement as to her rate of pay,
the Applicant did not provide the totality of the advice she had received from the FWO.
Instead the Applicant provided Mr Michael with a third of a page of a letter signed by the
FWO. Had the Applicant provided the totality of the letter from the FWO to her, or at least all
of the letter with respect to rates of pay and loadings this matter may well have been resolved
but, for some reason only known to the Applicant, she decided the letter was ‘private’ and
should not be disclosed. Why the Applicant thought the Respondent should be required to
accept only what she was prepared to tell him of the FWO advice is unclear to me.
[56] The request of Mr Michael that she provides the advice on which she based her claim
that she had ‘received correspondence from the Fair Work Ombudsman that says that I am
entitled to pay rate of $24.79 per hour for course delivery’ was a reasonable request,
particularly in circumstances where there appeared to be some divergence between the rates
put in the letter to the Respondent and those in the letter to the Applicant. In any event the
statement by the Applicant says nothing of what she was entitled to be paid for ‘course
preparation’ or ‘administration’ duties.
[57] Whilst it is unfortunate that the matter of resolution of the Applicant’s correct rate of
pay dragged on for some time, appropriate steps had been taken to seek advice from the FWO
and, given the ongoing disagreement, to seek assistance from FWA.
[58] This leaves one outstanding issue and that is the behaviour of Ms Hewitt’s manager.
[59] The evidence of the Applicant is that, on a number of occasions, her manager said
things to her which made her feel bullied or threatened. She says she raised these issues with
Mr Michael in April 2012 and again on two other occasions. The evidence of Mr Michael
confirms that the Applicant did raise this issue in April and that she attempted to raise the
matter in the meeting between them on 18 October 2012. The Applicant also says that at she
raised the issue with Mr Michael in July 2012 and at one stage she may have informally
raised an issue with ‘Deb’, the internal grievance officer for the Respondent, although she
apparently did nothing to formalise this.
Conclusion
[60] The evidence indicates that the Applicant did raise issues associated with the
behaviour of her manager with Mr Michael at least two times. I am satisfied that Mr Michael,
on the first occasion did address the issue with the manager. Unfortunately there is no
[2013] FWC 3711
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evidence of how the Applicant raised the issues (although it is clear it was not in writing) or
how Mr Michael responded on the second and third occasions. The Applicant gave no
evidence of this and Mr Michael was not asked about it.
[61] The incidents in relation to her manager of which the Applicant complains occurred
over a five-six month period with the last incident in early September.40 I accept that these
incidents occurred on a number of occasions and that they may have had a cumulative effect
on the Applicant. I have, however, been given little evidence of this cumulative effect and the
extent to which it was the behaviour of her manager that contributed to the Applicant’s belief
that she had no choice but to resign.
[62] Whilst I accept that the Applicant may have been frustrated by the lack of progress on
her wages matter she appears to have had this in hand with her application to FWA to deal
with a dispute. Her complaint with respect to the work she was asked to do and the rejection
of her request to reduce her number of days could have been dealt with at this time.
[63] The Applicant resigned her employment the day after her application to reduce her
number of days was put to the side by Mr Michael pending the resolution of her claims in
FWA, scheduled to occur in three days time and some five to six weeks after she was advised
she would be required to do some sales work.
[64] It appears to me that it was the decision of Mr Michael to reject the Applicant’s
proposal to reduce her number of days at work that was the critical incident that led the
Applicant to provide her resignation. Again, however, this was a matter in hand. As I have
found above the Applicant had no absolute right to reduce her working days — her
employment arrangement allowed changes if mutually agreed. There was no mutual
agreement and Mr Michael proposed that all matters associated with the Applicant’s
employment be considered in the context of the outcomes of the FWA matter. This seems a
logical course for the Respondent to take. There were many matters of disagreement about
aspects of the Applicant’s employment. Her days of work was one of them.
[65] In this case it appears to me that it is truly a narrow line that distinguishes conduct of
the Respondent that leaves the Applicant with no real choice but to resign employment, from
conduct that cannot be held to cause a resignation to be a termination at the initiative of the
employer. This is a finely balanced matter with competing contentions.
[66] Viewed objectively, whilst some aspects of the Respondent’s behaviour, in particular
in not following up at least one further complaint of Mr Hansen’s behaviour, could
legitimately leave Mr Michael open to criticism, the lapse in time between the Applicant’s last
complaint and her resignations suggests that her resignation was not the probable result of the
behaviour of her manager.
[67] As to other complaints of the Applicant, including the number of days she was to work
and her rate of pay, these were in hand with a conference scheduled to be occur at FWA some
two days after the day that Applicant gave notice of her resignation.
[68] In all of the circumstances I find that, whilst the Applicant did resign from her
employment, the conduct of her employer was not such that her resignation was the probable
result.
[2013] FWC 3711
14
[69] I therefore find that the Applicant was not dismissed from her employment. A dispute
of requisite kind for an application under s.365 of the Act therefore does not exist. The
Commission therefore has no power to issue a certificate as required under s.369 of the Act.
[70] In making this finding I should stress that I make no finding as to the alleged breach of
the general protection provisions of the Act as set out in the Applicant’s application.
COMMISSIONER
Appearances:
M. Addison for the Applicant.
G. Jardine of Counsel for the Respondent.
Hearing details:
2013.
Melbourne;
30 April.
1 I note that there are circumstances where parties, in good faith, agree to participate in a conference even where some
jurisdictional objection is raised and prior to this objection being resolved.
2 [2012] FWA 2853.
3 [2012] FWAFB 2104.
4 Note that while that matter was an application in relation to an alleged unlawful termination, the language of section is
relevantly the same.
5 [2011] FWA 1566.
6 Exhibit DH1, attachment DH1.
7 Exhibit DH1, paragraph 5.
8 Exhibit DH1, paragraph 23.
9 Exhibit DH1, paragraph 24.
10 Exhibit DH1, paragraph 26.
11 Exhibit DH1, paragraph 28.
12 Exhibit DH1, paragraph 29.
13 Exhibit DH1, paragraph 36.
14 Exhibit DH1, paragraph 44.
15 Exhibit DH1, paragraph 32. See also exhibit TN1, attachment PM8.
16 Exhibit TN1, paragraph 5-6.
17 Exhibit TN1, attachment PM8.
18 Exhibit DH1, paragraph 25.
19 Exhibit DH1, paragraph 47.
20 Exhibit TN1, paragraph 10.
21 Transcript PN273.
NORK OMMISSION OF FAIR WORK F THE SEAL
[2013] FWC 3711
15
22 Transcript PN315.
23 Transcript PN317. There does appear around this time to be some confusion as to whether either Mr Michael or the
Applicant are referring to the application made by the Applicant to FWA to resolve a dispute or to correspondence
between the FWO and each of them. At this point in time there was no determination of wages by FWA although there
was by FWO. It was not until 19 October 2012 that the Applicant made her application to FWA to deal with a dispute.
24 Transcript PN365.
25 Transcript PN366.
26 Exhibit TN1, paragraph 13.
27 Exhibit TN1, paragraphs 13 and 15.
28 Exhibit TN1, attachment PM7.
29 Exhibit TN1, attachment PM10.
30 Exhibit TN1, attachment PM11.
31 Exhibit TN1, paragraph 7.
32 Exhibit TN1, paragraph 9 and attachment PM2.
33 Exhibit TN1, attachment PM6.
34 Exhibit TN1, attachment PM6.
35 (1995) 62 IR 200, 205.
36 (1995) 62 IR 200, 205-6.
37 (1996) 67 IR 154, 160-1.
38 AIRC, Print N6999, (9 December 1996).
39 AIRC, PR973462, [23] (11 August 2006).
40 Whilst the Applicant witness statement suggests that her manager corresponded with her in respect of timetabling matters
after early September it is not evident that these constituted bullying as the Applicant gave not additional evidence on
these matters.
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