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Fair Work Act 2009
s.394—Unfair dismissal
Sharlene Ryan
v
ISS Integrated Facility Services Pty Ltd T/A ISS Facility Services
(U2013/17067)
DEPUTY PRESIDENT MCCARTHY PERTH, 29 AUGUST 2014
Application for relief from unfair dismissal.
Background
[1] This matter concerns an application for Unfair Dismissal Remedy (the Application)
lodged by Mrs Sharlene Ryan (the Applicant). The Applicant claims that she was unfairly
dismissed from her employment with ISS Integrated Facility Services Pty Ltd T/A ISS
Facility Services (the Respondent).
[2] The Respondent asserts that the Applicant is not protected from unfair dismissal. They
argue that the Applicant resigned from her employment with the Respondent on 28 November
2013.
[3] The Fair Work Act 2009 (the FW Act) provides in that regard at s.386(1) that:
(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.
[4] Due to the interrelated nature of the disputed facts concerning whether the Applicant
was dismissed and if she was dismissed whether the dismissal was unfair I decided to conduct
a hearing to deal with the facts regarding both the jurisdictional issue and the merit of the
Application concurrently.
[5] The Applicant was employed by the Respondent in April 2008. Another employee,
Ms Natasha Piwowarski was appointed as a casual reliever in August 2009. In
November 2009 the Applicant was appointed to the position of Manager of the Post Office at
Pannawonica. Ms Piwowarski was then, in November 2009, appointed part-time to the role of
Post Office Assistant.
[2014] FWC 5714 [Note: An appeal pursuant to s.604 (C2014/1747) was
lodged against this decision - refer to Full Bench decision dated 27
November 2014 [[2014] FWCFB 8451] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB8451.htm
[2014] FWC 5714
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[6] Throughout the period from November 2009 the Applicant says she was concerned
about Ms Piwowarski’s performance.
[7] Ms Piwowarski’s evidenced that the Applicant had harassed and bullied her
throughout much of her period of employment. Ms Piwowarski’s concerns resulted in her
formally complaining on 20 November 2012.
[8] It seems that the consequences of the Applicant’s concerns about Ms Piwowarski’s
performance and the complaint by Ms Piwowarski and how both issues were dealt with by the
Respondent gave rise to the severing of the employment relationship. What first needs to be
determined is whether that severing was a dismissal or not.
[9] Importantly this Application is not concerned with determining whether
Ms Piwowarski was harassed and bullied. Nor is it concerned with determining whether the
performance of Ms Piwowarski was satisfactory. Whilst both of those matters are inherently
interwoven with the facts relating to the Application, and are therefore unavoidably related to
the events that occurred such that they require some mention and attention, they are not
matters that need to be determined one way or the other here.
The Evidence and the Facts
[10] It does not appear to be in dispute, and in any event it is obvious, that the relationship
between the Applicant and Ms Piwowarski was what the Respondent described as
“problematic”.
[11] As early as February 2010 the Applicant approached managers and raised some
concerns regarding Ms Piwowarski. In 2010 both the Applicant and Ms Piwowarski were
involved in counselling regarding the relationship but apparently it did not resolve their
differences. It seems for the period since that time the relationship did not improve.
[12] On 25 October 2012 the Applicant met with her managers regarding Ms Piwowarski’s
performance and her conduct. The Applicant stated that on the previous day she had “had
words” with Ms Piwowarski after “she had been very rude to [her] in front of a customer and
shouted at [her] when[she] tried to help her solve a problem”.
[13] On 20 November 2012 Ms Piwowarski lodged a formal complaint alleging bullying
and harassment by the Applicant. In Ms Piwowarski’s evidence she states that:
“4. For the three years following October 2009, I experienced regular bullying and
harassment from Ms Ryan. This behaviour included:
(a) a failure to provide proper supervision and training in my duties and then
complaining about my performance to ISS management and customers;
(b) using demeaning language to me and to others about me;
(c) pulling faces behind my back in the view of customers;
(d) providing inconsistent instructions and blaming me for errors or problems
that were not my fault;
(e) unwarranted scrutiny and criticism of my work;
(f) ignoring me at work; and
(g) unpredictable moodiness and verbal intimidation.
[2014] FWC 5714
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5. ... In or about November 2012, Ms Ryan was absent from work for a period due to
what I believe was a workers compensation claim. During this period I complained to
the site manager Clinton White regarding Ms Ryan’s conduct. Mr White advised me
that Nerida Robertson, Regional Human Resources Manager was coming to the site
the following week and referred my complaint to her. I subsequently met with Ms
Robertson and detailed my complaint to her and advised I did not wish for Ms Ryan to
return to the Post Office as I felt I could no longer tolerate her behaviour. I also
advised Ms Robertson that I did not wish to be transferred away from the Post Office
and felt it would be unfair if I was moved given Ms Ryan’s behaviour.
6. I understand from Ms Robertson and Matt Dixon from the Australian Workers
Union, that Ms Ryan was transferred away from the Post Office in order to address
my complaint. I was satisfied with this outcome and continued to perform my role at
the Post Office under the management of Margaret Stevens, Retail Manager.
7. In or about April 2013, Ms Robertson contacted me regarding my complaint,
advising Ms Ryan was disputing it and asking whether I was willing to work with her.
I explained that I would not be comfortable with Ms Ryan returning to the Post Office
as I did not believe her behaviour would improve if she was disputing my complaint.
8. In or about June or July 2013, I had a period of annual leave and Ms Ryan covered
my absence at the Post Office. On my return from annual leave, Dan Holman, Site
Manager and Ms Stevens advised me that Ms Ryan would be returning to the Post
Office and that if I didn’t want to work with her, I could be transferred to the
supermarket or another location. I immediately called Ms Robertson and Mr Dixon to
voice my displeasure at this change to the previously agreed outcome regarding my
complaint and explained I would not be comfortable working with Ms Ryan and had
no desire to move to an alternate role or location. As a result of Ms Robertson and
Mr Dixon’s intervention, no change was made to my working arrangements and Ms
Ryan did not return to the Post Office.”
[14] The Applicant evidenced that on 20 November 2012 just after midday she was called
to a meeting in Mr Clinton White’s office. Mr White was the Site Manager. Ms Nerida
Robertson and Mr Neil Delaney, Senior Contracts Manager, were also at the meeting. The
Applicant was told that due to the complaint of bullying against her by Ms Piwowarski that
she was going to be transferred to work in the Bank agency. The Applicant asserts that she
was stood down from work on that day. At this meeting the Applicant asserts that she was
told:
“... that there was a complaint made by Natasha. I was shocked to hear this and I asked
what the complaint was regarding. Nerida said that I was bullying Natasha and this is
a serious matter. Nerida then went on to say that I would no longer be working in the
post office and that I would be going to work in the ANZ Bank.”
[15] The Applicant also evidenced that at that meeting:
“... She [Ms Robertson] then said no she does not want to hear my story. I asked why
and I said that’s it’s unfair as it’s one sided which Nerida then said that there’s too
much water under the bridge and because I’m classed as the aggressor that I must
[2014] FWC 5714
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move out of my work place. I was crying and upset at this stage was told to go home
and take the next day off and to think about the new job offer.”
[16] A further meeting was held with the Applicant and her husband on 21 November 2012
and Ms Robertson and Mr Delaney where the complaint and transfer to the bank agency were
confirmed. On 22 November 2012, Ms Robertson emailed the Applicant and provided details
of the bank manager role which was to commence Monday 26 November 2012.
[17] The Applicant did not attend for work on 26 November 2012. On 29 November 2012 a
further meeting was held and attended by the Applicant and her husband, together with a
Union representative and Mr Delaney. It is not disputed that the Applicant was told at that
meeting that she would have to move from the Post Office. The Applicant alleges that she
requested details of the bullying complaint at that meeting but those details were refused to be
provided.
[18] The Respondent asserts that it took the decision to move the Applicant because of the
serious emotional state of Ms Piwowarski and a risk to her welfare. No evidence was
provided to support their views about Ms Piwowarski.
[19] The Applicant did not attend for work during December 2012 nor January or February
2013. She recommenced work on 11 March 2013 providing general administrative support
across all of the services at Pannawonica to Mr Daniel Holman, who was responsible for
contracted services and financial management at Pannawonica. The Applicant then spent six
weeks working in the Post Office whilst Ms Piwowarski was on leave. Ms Piwowarski
returned from leave on 8 July 2013.
[20] On 11 July 2013, the Applicant says she was told by Mr Holman and Ms Margaret
Stevens (the Retail Manager) that it was intended that she return to work in the Post Office.
But then on 12 July 2013 she was told by those same persons that she would not be returning
to work there. Mr Holman evidenced that he and Ms Stevens advised the Applicant at that
meeting that they “were unable to proceed with moving the Applicant back to the Post Office”
due to “a previous resolution with the union.”
[21] Mr Holman’s account of that exchange was as follows:
“13. Later on 11 July 2013, sometime after meeting with Ms Piwowarski, I was
contacted by Matt Dixon, union official from the Australian Workers Union and
Ms Robertson, to whom Ms Piwowarski had complained about our intention to appoint
the Applicant as the Post Office manager and offer Ms Piwowarski redeployment. As a
result of those discussions I was advised that our intended changes at the Post Office
could not proceed as they were contrary to the resolution agreed previously and that
Ms Piwowarski would not be required to transfer to an alternate location.”
[22] With respect to the so-called resolution Ms Stevens evidenced that:
“My understanding was that the union had made the decision that [Ms Piwowarski]
was to remain in the post office and therefore we could not put the two -
[Ms Piwowarski] and [the Applicant] together.”
[2014] FWC 5714
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[23] On 17 July 2013, the Applicant says she was then told that she would be working in
the supermarket on the cash register. The Applicant says that she did not like that work and
thus after 22 July 2013 “did not go into work but continued to try and have the complaint
against me [the Applicant] resolved”.
[24] Mr Holman then evidenced that “shortly after this, the Applicant provided a medical
certificate that she was unfit for duty and did not return to work”.
[25] The Applicant wrote her letter of resignation on the 28 November 2013.
Consideration and Findings
[26] The first issue to determine here is whether the Applicant resigned from her
employment, but was forced to do so because of conduct, or a course of conduct, engaged in
by the Respondent. Essentially, did the Applicant have any other course of action other than
to resign?
[27] The Respondent argues, and I accept the argument, that they had a right to transfer the
Applicant in her employment. That however is not the issue here. The issue here is the
reasons for transferring the Applicant and in the manner that she was transferred, was the
Respondent creating a situation where the Applicant had no other course other than to resign.
[28] It is clear that the Applicant was a conscientious worker, competent and was
endeavouring to pursue the best interests of the Respondent by dealing with an employee that
reported to her by trying to improve her conduct and performance. It could easily be
perceived to be a circumstance where the Applicant’s reward for furthering the Respondent’s
interests was to be transferred herself, thus giving every appearance of rewarding an
underperforming employee who complained.
[29] This matter is not concerned with the fairness of the transfer, but rather whether the
dismissal was forced. An apparent unfairness in treatment does not in itself create a forcing of
resignation. Clearly the Applicant could consider herself unfairly treated but that did not, in
my view, create a circumstance where she had no other option but to resign, or was forced to
resign. In short I find that the Applicant was not forced to resign.
[30] I therefore find that the termination of employment of the Applicant was her own
decision and not one forced upon her. Thus, the Applicant is precluded from making an
application of this nature. The Application that was made is dismissed for that reason.
DEPUTY PRESIDENT
Appearances:
P Mullally of Workclaims Australia for the Applicant.
J Moore for the Respondent.
[2014] FWC 5714
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Hearing details:
2014.
Perth:
May 20.
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