1
Fair Work Act
2009
s.394—Unfair dismissal
Marcus Wilson
v
Town of Victoria Park T/A Town of Victoria Park
(U2017/660)
COMMISSIONER WILLIAMS PERTH, 16 JUNE 2017
Termination of employment.
[1] This decision concerns an application made by Mr Marcus Wilson (Mr Wilson or the
Applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act (the Act).
The Respondent is the Town of Victoria Park (the Respondent).
Background
[2] Mr Wilson had been employed by the Respondent since 2009 as a casual gym
instructor. Since September 2016 he had been working one shift each weekend of 5.5 hours.
[3] A new roster drawn up for January 2017 provided him a Saturday shift every weekend
of 3 hours.
[4] By email sent to the Respondent on Wednesday, 4 January 2017 Mr Wilson objected
to this reduction in his rostered hours. The Respondent replied on Thursday, 5 January 2017
by email advising that once they had all of the information they would provide a response.
[5] On Tuesday, 10 January 2007 the Respondent by email, amongst other things,
proposed a meeting to discuss the matter.
[6] Mr Wilson’s response was to send an email the next day, Wednesday, 11 January
2017, to his employer advising of his ‘involuntary resignation’ in short because of what he
characterised as the Respondents, “refusal to abide by the agreed 5.5 hours per weekend shift
agreed in September.”
[7] In this application Mr Wilson claims he was forced to resign because of the conduct of
his employer and so was dismissed within the meaning of section 386(1)(b) of the Act and he
claims that this dismissal was unfair.
[8] The Respondent objects to the application on the grounds that Mr Wilson was not
dismissed.
[2017] FWC 3211 [Note: An appeal pursuant to s.604 (C2017/3726) was
lodged against this decision - refer to Full Bench decision dated 6
September 2017 [[2017] FWCFB 3906] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB3906.htm
[2017] FWC 3211
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[9] The Respondent accepts Mr Wilson’s casual employment does count towards the
minimum period of employment. 1
Factual findings
[10] Considering the evidence of the respective witnesses I make the following factual
findings.
[11] Mr Wilson commenced employment in June 2009.
[12] A letter of offer dated 18 June 2009 refers to the offer being for the position of ‘Gym
Instructor/Personal Trainer (Casual)’. The letter states “You are employed on a casual
employment contract…”.
[13] The letter of offer included the following paragraph:
“Hours of Work:
You are employed to work casual hours as rostered in accordance with operational
needs of the Town. These hours and days may vary from week to week and there is no
guarantee of regular work.”
[14] At the time Mr Wilson’s employment ended, the Town of Victoria Park Enterprise
Agreement 2016 (the Agreement) applied to his employment.
[15] Subclause 7.3 of the Agreement reads as follows:
“7.3 Casual
A casual employee is an employee who was informed of the casual nature of their
employment prior to engagement and who has no entitlement to paid leave.
…”
[16] There was no subsequent mutual variation of the terms and conditions of Mr Wilson’s
employment. 2
[17] The Agreement includes clause 33 Dispute Resolution Procedure, which provides for
disputes to in the first instance be resolved at the workplace level by discussions between the
employee and relevant supervisors and/or management. The procedure provides the option for
a party to escalate the dispute to the Fair Work Commission (Commission) if discussions at
the workplace level do not resolve the matter.
[18] The Respondent also has a Grievance Handling Operational Policy3 which provides a
scheme for dealing with grievances informally or formally.
[19] Mr Wilson had worked at both of the Respondents leisure facilities, being Aqualife
and Leisurelife.
[2017] FWC 3211
3
[20] Throughout his period of employment Mr Wilson worked only on weekends, which
met Mr Wilson’s personal availability. The hours he worked each week involved some
fluctuation. He would work on shifts filling in for absent colleagues and for some short
periods he worked 30 to 40 hours per week. He most commonly worked for 3.5 or 4 hours on
a Saturday.
[21] With some exceptions the Respondent would provide a roster which included shifts for
Mr Wilson one or two months ahead.
[22] From April/May 2016 until September 2016, Mr Wilson’s rostered hours were a
Saturday morning shift of 3.5 hours at Leisurelife. 4
[23] On 10 August 2016 Ms Catherine Giles (Ms Giles), the Health and Fitness
Coordinator to whom Mr Wilson reported, emailed all gym staff including Mr Wilson
advising of a change to rosters due to an employee returning from parental leave. The email
also mentioned that extended opening hours would apply to Leisurelife and these were
incorporated into the new roster. The email invited employees to review the roster and let her
know of any concerns.5
[24] On 30 August 2016 a further email from Ms Giles went out to all gym staff including
Mr Wilson advising them that as of 5 September 2016, there would be a trial of the extended
hours at Leisurelife. 6
[25] Around 13 September 2016 Mr Wilson had a phone discussion with Ms Giles where
he expressed concerns about the rosters. He followed this discussion up with an email to her
of the same date, which was also copied to three other staff members of the Respondent.
[26] Mr Wilson’s email complained about a number of changes to the rosters that he felt
had prejudiced him.
[27] His stated he felt that recent developments were “…indicative of negligible respect
towards me and impugn the dedicated service I have given to the Town of Victoria Park in my
employment.”
[28] He said he believed that discussions around transferring him from one centre to the
other involved the Respondent “… attempting to engineer my constructive dismissal.”
[29] Ms Giles evidence was that she found the tone of Mr Wilson’s email and the
allegations he made distressing.
[30] The next day she emailed Mr Wilson confirming receipt of his email and requesting
that he provide a date and time for a meeting.
[31] A meeting was arranged for Tuesday, 20 September 2016 at Mr Wilson’s
convenience. In advance Mr Wilson was advised by Ms Giles that the meeting was to discuss
the roster arrangements and his shifts at the Aqualife Centre and to discuss the concerns he
had raised in his previous email. He was advised he was free to bring a support person if he
wished. He was also advised on Thursday, 15 September 2016 by Ms Ackerman the Director
Community Life CLP Administration, who had been copied in by Mr Wilson to his earlier
communication to Ms Giles, that the meeting would be approached as the handling of a
[2017] FWC 3211
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grievance under the towns Grievance Handling Procedure. The email to Mr Wilson attached
the Grievance Handling Procedure and Ms Ackerman closed her email by recommending that
he read it.
[32] The meeting on Tuesday, 20 September 2016 was attended by Mr Wilson and Ms
Giles, plus Mr Olsen the Executive Manager Human Resources and Organisational
Development and Ms Winterbourn, the Manager of Aqualife.
[33] Mr Wilson’s evidence in chief was that the meeting lasted 10 minutes. He says he was
told that operationally it would be fair if he was rostered across both centres. Mr Olsen made
the observation that the matter could have been dealt with informally. Mr Olsen mentioned
that he needed to fill in the secondary employment form. A proposal to restore his shifts was
put forward by Ms Winterbourn but nothing was said by any of the attendees to the effect that
this proposal was to be temporary or subject to change. 7
[34] Under cross-examination Mr Wilson said that at the meeting it was agreed that he
would work 5.5 hours and he assumed that would be ongoing. 8
[35] Ms Giles evidence was that during the meeting Mr Wilson did not say a lot. She says
Mr Wilson did reiterate that he had built rapport with clients at Leisurelife. She said Mr Olsen
raised the grievance procedure and the Respondent’s secondary employment policy and code
of conduct. Mr Olsen reminded Mr Wilson to be aware of how his emails are perceived. Mr
Olsen advised Mr Wilson he was required to fill in an application for secondary employment.
[36] Ms Giles says both she and Ms Winterbourn reminded Mr Wilson that the Respondent
is able to roster him at both centres. She says Ms Winterbourn told Mr Wilson that while he is
a casual the Respondent can’t guarantee him set hours and if he wanted set hours he would
need to become permanent, which would have different entitlements to that of a casual
employee. 9
[37] Ms Giles says she told Mr Wilson that the shift length for the trial of extended hours at
Leisurelife would be 5.5 hours. She did not make any agreement or guarantee that a shift of
this length per week would be a permanent arrangement. Nor did Ms Winterbourn or Mr
Olsen give any commitment this was a permanent arrangement. She told Mr Wilson that the
rosters would continue to be reviewed in future and the hours could change. 10
[38] Under cross-examination Ms Giles said that it was explained to Mr Wilson that
casuals are rostered per the operational requirements of the business taking into account
budgetary restrictions. She explained casuals are not given regular shifts and that’s how they
are rostering, especially with the new rosters and that the 5.5 hours could not be guaranteed
because the Leisurelife extended hours could be reduced. 11 This was a qualification to the
proposal for Mr Wilson to work 5.5 hours on each weekend. 12 It was explained at the meeting
that this may be temporary or it may not last, or it could change. 13
[39] It was agreed at the end of the meeting that Mr Wilson would get back to the
Respondent in a day or two with his response.
[40] The evidence in chief of Ms Winterbourn was that at the 20 September 2016 meeting
the outcome was that Mr Wilson agreed to work across both leisure centres. Her evidence was
that Mr Wilson appeared to understand the rostering process, the operational needs of the
town and that it was not just his roster that had changed.
[2017] FWC 3211
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[41] Under cross-examination Ms Winterbourn did not recall that a specific number of
hours were discussed in the meeting. She does not recall there being any proposal of 5.5
hours. 14 He evidence was there was no discussion as to whether the rostering would be
temporary or how long it would go on for. 15
[42] Mr Olsen’s evidence in chief was that at the meeting Mr Wilson agreed to work across
both leisure centres. His evidence was that Ms Giles explained that the hours would not be
guaranteed as rosters would be reviewed in the future.
[43] Under cross-examination Mr Olsen’s evidence was that the meeting was really about
Mr Wilson’s prior refusal to work at both leisure centres. Agreement was reached that he
would split his rostered hours across both centres. His evidence was that they didn’t discuss or
agree on a set number of hours. The hours were whatever he was rostered but the arrangement
was that it would be split across both leisure centres. 16
[44] He agrees that Mr Wilson said he would need a day or two to think about it.
[45] Mr Olsen says he saw the email that Mr Wilson subsequently sent stating that he
would agree to work 5.5 hours at each centre, but his evidence was that wasn’t some
agreement that would continue, this just happened to reflect the rostered hours at the time of
the meeting. 17 The centrepiece of what was agreed was that the hours of Mr Wilson would be
split between the two leisure centres. There was never any agreement of consistent hours from
that point on.18
[46] Mr Olsen explained that at the meeting they weren’t there to renegotiate Mr Wilson’s
terms and conditions of employment. He had an existing contract which required him to work
at both centres and they were clarifying, because of his prior refusal which Mr Olsen
considered a breach of the code of conduct, that Mr Wilson needed to accept the reasonable
direction from his supervisor. 19
[47] Mr Olsen’s evidence was that there was no deal struck at the meeting. It was explained
and agreed that Mr Wilson’s hours would be split between the two centres but there was no
guarantee of future hours on the roster, these hours could vary. His evidence was that Mr
Wilson was advised that there was a review of the rosters at the time and no hours could be
guaranteed and that was in accordance with his letter of offer. 20
[48] Following the meeting on Thursday, 22 September 2016 Mr Wilson by email
addressed to Ms Giles and copied to Ms Ackerman, Mr Olsen and Ms Winterbourn advised as
follows:
“Thank you for the meeting on Tuesday.
I confirm that I’m happy with the suggested outcome which has me working alternate
weekends at Aqualife and Leisurelife with the same extended hours at both (5.5
hours).”
[49] By return email the same day Ms Giles said she appreciated his email “… confirming
your agreement to work the following roster…” and followed with a roster for the 4 weeks
ending 29 of October 2016 showing 5.5 hours being worked at the Leisurelife and Aqualife
on alternative weekends.
[2017] FWC 3211
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[50] The following day 23 September 2016 Ms Ackerman replied by email,
“Dear Marcus
Thank you for your message. I’m pleased to see that an agreeable outcome was
negotiated at the meeting.”
[51] Considering the evidence of all those involved in the 20 September 2016 meeting, I
think it is most likely that Ms Giles and Mr Wilson’s recollection that a specific number of
hours of 5.5 per weekend was proposed is correct.
[52] I also find that nothing was said during the 20 September 2016 meeting to Mr Wilson
that would have reasonably allowed him to understand that 5.5 hours per weekend was a
guaranteed number of hours for the future. To the contrary, I accept the evidence that in a
number of different ways it was explained to Mr Wilson that rostering was a function of the
operational needs of the business and that the rosters for casual employees including himself
in future will in all likelihood change, and so his hours may change. There was no
commitment to Mr Wilson that in future he would always be rostered to work 5.5 hours on
weekends.
[53] I don’t accept that Ms Ackerman’s email, noting she was not at the meeting on 20
September 2016, is consistent with Mr Wilson’s assertion that a permanent arrangement for
his hours had been agreed by the Respondent.
[54] The next three months through to the last week in December 2016, Mr Wilson worked
without incident. 21
[55] On 22 December 2016 Ms Giles sent out new rosters by email to all gym staff,
including Mr Wilson, for the 2 January 2017 onwards. The email explained that now they had
new staff on the team it was time to review the hours and rosters for both centres. The email
noted there was a change to casual hours due to new staff, availabilities of all staff and the
rostering of permanent staff as a priority during the dates Aqualife was having its floor
replaced. The email invited staff to discuss with her their allocated shifts and reminded them
that the rostering of shifts is based on the operational requirements and budgetary restrictions
for both centres. 22
[56] On 4 January 2017 Mr Wilson sent an email to Ms Giles at 9.20 p.m. protesting his
rostered hours for the month of January. His email said he had been only rostered for 3 hours
each shift which was a 45% reduction from his usual hours.
[57] His email continued:
“Following on from my arbitrary, non-performance related removal from a roster in
September last year, there was a formal meeting where the issue of my duties and
hours was sensibly resolved as you know the outcome was that I would work at the
alternate centres for 5.5 hours in duration for each shift.
Please see the attached email I sent at that time confirming the mutually agreed
outcome.
[2017] FWC 3211
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I’m amazed and disappointed that without any consultation with me, you have
allocated me a paltry 3 hours for each shift of this month representing a major
reduction in time and pay.
This is plainly contrary to what was agreed.
I have been an exemplary part-time employee for over 7 years but this apparently
doesn’t mean much.
Please confirm by an urgent email response that the agreed arrangement will be
reinstated immediately.” 23
[58] The next morning Thursday, 5 January 2017 at 8.54 a.m. Ms Giles replied as follows,
“Thank you, I have received your email this morning and am in discussion with Human
Resources regarding this.
Once I have all of the information I will provide a response, at the early possible
convenience.”
[59] The following afternoon, Friday, 6 January 2017 by email Mr Wilson advised Ms
Giles he would not be working his rostered shift for Saturday, 7 January 2017, but he had
arranged for another employee to work his nominated shift that day.
[60] The next Monday, 9 January 2017 at 6.33 p.m. Mr Wilson replied to Ms Giles email of
Thursday as follows,
“I refer to your email sent to me on January 5 at 8.53 a.m.
I note that you haven’t gotten back to me on the question of my reduced hours.
With respect it’s a pretty simple situation and I can’t see there would be that much
information to obtain.
Please let me have a response on this matter before close of business tomorrow. If I
don’t hear from you by then on this matter, the only inference I can draw is that my
request for reinstatement of hours has been refused.”
[61] The next day Tuesday, 10 January 2017 at 10.54 a.m. Ms Narelle Holt sent an email to
Mr Wilson as follows:
“In my capacity as Acting Aqualife Manager I have prepared the below response with
guidance from Human Resources and Catherine in reference to your email, dated
January 4 (2017).
As you are aware we recently advertise for a part-time role and 2 casuals to cover
week and weekend shifts. Therefore as we now have new staff on the roster Catherine
has decided to adjust everyone’s hours, not only yours in order to ensure we have
permanent staff rostered on the weekends (not just the casuals).
[2017] FWC 3211
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As previously advised, rostering of shifts is based on the operational requirements and
budgetary restrictions for both centres. Would you have any availability during the
week at all to perhaps increase your availability for shifts.
I would like to sit down with you this week to discuss your emails and concerns. Would
you be able to let me know a time/day that suits you to do this?
I look forward to your reply.”
[62] The following day Wednesday, 11 January 2017 at 1.19 p.m. Mr Wilson emailed Ms
Holt with a copy to Ms Giles as follows,
“Hi Narelle/Catherine,
I acknowledge receipt of Yesterday’s email and comment as follows.
In reference to the 2nd paragraph of your letter, it is trite to say that the hiring of new
staff should not be undertaken and its very necessity questioned, if it is to such an
extent that its at the expense and detriment of highly satisfactorily long-standing
existing employees.
The considerations mentioned in the 3rd paragraph of your email plainly are not new
and where of the same import and relevance as when a mutually agreed formal
outcome was reached only last September to place me at the alternate centres and
importantly with the retention of my 5.5 hours.
This was precipitated by Catherine’s unilateral removal of me from a roster without
any consultation or reason.
You and Catherine are both aware that I work full-time during the week and that I do
not have availability to perhaps increase your availability’ for shifts during the week.
This is a faux offer, made in the knowledge I cannot accept it, designed purely to put
an ostensible conciliatory spin on the blatant reneging of the Agreement formally
mediated only last September.
In all the circumstances there is in effect and in practical terms, clearly a refusal to
abide by the agreed 5.5 hours per weekend shift agreed in September.
In all the circumstances I am compelled to give you my involuntary resignation from
employment with the Town of Victoria Park effective immediately.
Your machinations in relation to this matter verge on the deplorable on account of
1. My lengthy years of diligent service including making myself available at
negligible notice to replace no-shows
2. The absence of any performance issues on my part
3. The blatant reneging on the settlement terms of an area of previous
contention
Yours Faithfully,
[2017] FWC 3211
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Marcus”
[63] Five days later on January 16, 2017 the Respondent wrote to Mr Wilson accepting his
resignation from the position of casual gym instructor.
[64] Ms Holt gave evidence that she has little interaction with Mr Wilson at Aqualife. She
did not have any involvement in the change in rosters for the gym employees.
[65] Her evidence was that if Mr Wilson had not resigned there were other options
available for him, and she was sure that a resolution could have been reached.
[66] Under cross-examination her evidence was that she didn’t know anything about what
had occurred in September 2016 and the ‘deal’, as it was put to her, regarding Mr Wilson
working 5.5 hours in each centre. 24
[67] Ms Holt’s evidence was that Ms Giles did not tell her nor was she otherwise aware
that Mr Wilson had another full-time job during the week. 25
[68] Mr Wilson received the 25% casual loading throughout his employment.
Respondent’s submissions on jurisdiction
[69] Mr Wilson was initially employed under the terms of the Town of Victoria Park
Collective Agreement 2007, then the Town of Victoria Park Enterprise Agreement 2011 and
the Town of Victoria Park Enterprise Agreement 2016.
[70] The Applicant was employed on a casual basis for the entire period of his
employment, from June 2009 until January 2017.
[71] The Respondent submits that the rosters of Leisurelife and Aqualife, where the
Applicant was employed changed on a regular basis, with rosters being provided
usually a month to two weeks in advance.
[72] The Respondent submits Applicant’s rostered hours varied throughout his employment
depending on what shifts he would be rostered on.
[73] The Respondent submits that shift lengths available at Leisurelife and Aqualife varied
in length from 3 hours to 7.5 hours and that over the 12 months preceding his resignation
from the Respondent’s employment, the Applicant’s shift lengths varied from three and a half
hours to five and a half hours per week.
[74] The Respondent submits that it rostered the Applicant to work approximately three
and a half hours per week from December 2015 up until September 2016, in accordance with
the Applicant’s preference and availability and the Respondents operational requirements.
[75] The Respondent submits that in or around August 2016, the Respondent
commenced a process to review rosters across its leisure facilities (Leisurelife and Aqualife)
which included two emails to all gym employees.
[2017] FWC 3211
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[76] The Respondent submits that in early September 2016, the Applicant had a verbal
discussion with Ms Catherine Giles, Health and Fitness Coordinator, regarding the roster. Ms
Giles informed the Applicant that the rosters for gym employees at Aqualife and Leisurelife
were being reviewed due to the opening hours being extended, because a permanent employee
was returning to work after a period of parental leave and also because there were no senior
employees on site on the weekend.
[77] The Respondent submits that on Tuesday, 13 September 2016 the Applicant emailed
Ms Giles refusing to work at Aqualife and other comments regarding his perception of recent
changes to the leisure facility’s rosters. Ms Giles responded to the Applicant’s email and
several other emails were exchanged between the Respondent and the Applicant with regards
to a meeting date and time and the Respondent’s grievance procedure.
[78] The Respondent submits that on Tuesday, 20 September 2016 at 2:30pm a meeting
was held with the Applicant, Ms Giles, Ms Kellie Winterbourn, Manager Aqualife, and Mr
Graham Olson, Executive Manager Human Resources and Organisational Development for
the Respondent.
[79] The Respondent submits that Ms Giles and Ms Winterbourn reminded the Applicant
that they could roster him to work at both Aqualife and Leisurelife, as provided for in the
letter of offer and position description and that Ms Giles was unable to roster the Applicant
with any guaranteed hours as he was a casual employee.
[80] The Respondent submits that it proposed a roster where the Applicant would work at
Aqualife one weekend and Leisurelife the next, on a rotating basis with shifts of 5.5 hours.
[81] The Respondent submits that an outcome was reached that the Applicant work
rostered shifts at both Aqualife and Leisurelife. The Respondent submits that the Applicant
was offered and agreed to work shifts of 5.5 hours in length for the remainder of September
and for October 2016 which was an increase from the 3.5 hours that the Applicant had been
rostered to work each week between April 2016 and September 2016.
[82] The Respondent submits that prior to the meeting, the Applicant was advised by Ms
Giles that the shift lengths would change in the future and that the extended opening hours of
Leisurelife were on a trial for three months.
[83] The Respondent submits that there was no agreement that the 5.5 hour shifts would be
a permanent arrangement.
[84] The Respondent submits that the outcome of the meeting on 20 September 2016 was
not intended to change any of the terms or conditions of the Applicant’s employment but
rather to clarify the Applicant’s employment conditions.
[85] The Respondent submits that on 22 December 2016 Ms Giles sent the new rosters via
email to all gym employees including the Applicant. Ms Giles explained that there were
changes to the roster due to operational requirements including the new staff, availabilities of
all staff, the budget and a closure of Aqualife in January to replace the flooring.
[86] The Respondent submits that the Applicant emailed Ms Giles on 4 January 2017
protesting the hours he had been rostered to work.
[2017] FWC 3211
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[87] The Respondent submits that on 10 January 2017, Ms Narelle Holt emailed the
Applicant requesting a meeting to discuss the email of 4 January 2017.
[88] The Respondent submits that on 11 January 2017, the Applicant tendered his
resignation via email to Ms Holt.
[89] The Respondent submits that it did not process the Applicant’s resignation
immediately with the intention of providing a cooling off period should the Applicant have
changed his mind.
[90] The Respondent submits that the above circumstances do not amount to a constructive
dismissal and further, are consistent with an employers’ right to roster casual employees in
accordance with operational requirements.
[91] The Respondent submits that there were several options available to the Applicant,
other than resignation.
[92] The Respondent submits that the Applicant could have raised the matter in a meeting
that was proposed by Ms Holt, but failed to do so and did not respond to the request.
[93] The Respondent submits that the Applicant could have raised the matter informally,
but failed to do so.
[94] The Respondent submits that the Applicant could have raised a dispute in accordance
with clause 33 of the Respondent’s enterprise agreement, in relation to the roster changes, but
failed to do so.
[95] The Respondent submits that the Applicant could have raised a formal grievance in
line with the Respondent’s Grievance Procedure, but failed to do so. The Respondent submits
that set hours are provided to full time and part time employees and should the Applicant have
wanted set hours, he could have applied for a part time position when it was advertised in or
around November 2016, but failed to do so.
[96] The Respondent submits that the application for Unfair Dismissal should be dismissed
by the FWC on the basis that the Applicant has not been dismissed as is required under
section 386 (1)(a) or 386 (1)(b) of the FW Act .
The Applicant’s Submissions
[97] In all the circumstances the Applicant was dismissed pursuant to Section 386 (b) of the
Fair Work Act 2009 in that although he resigned from his employment he was forced to do so
because of conduct, or a course of conduct, engaged in by the Town. In short, he was the
subject of a constructive dismissal. He was unfairly dismissed as per Section 385 of the Fair
Work Act 2009.
[98] The Applicants work roster for the next ensuing month was posted by a supervising
employee of the Town well in advance of the next prospective month. On occasions rosters
were posted traversing shifts for the next two prospective months.
[2017] FWC 3211
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[99] Excluding holidays the Applicant worked every Saturday at both or either of the
Respondents leisure facilities known as Aqualife and Leisurelife. The voluntary assessment
made by Mr Olson Human Resources Manager of the Respondent was that the Applicant “has
had regular shifts for 7 years”.
[100] That in itself indicates the Respondent is in large measure engaged in a cynical
exercise in defending this claim. Despite this unwitting concession the Respondent has
engaged in tortuous denials to contrary effect.
[101] The Applicant was the subject of a constructive dismissal. There was a contumelious
reneging upon the September Resolution. The Applicant and the Respondent regarded that as
a permanent indefinite outcome to the contention that had arisen over the Applicants work
and rosters.
[102] When the Respondent resiled from the September Resolution the Applicant quite
naturally requested its reinstatement. This request was fobbed off by the Respondent and a
cynical gesture (lacking in good faith) was made with a vague suggestion of further resolving
the breach of the September Resolution.
[103] The mooted change in the Applicants roster to only 3 hours per week represented a
45% reduction in his hours and corresponding pay and further stipulated that he work at the
Aqualife centre only.
[104] The Respondent attempted to compel the Applicant to revert to a casual status by a
major reduction in hours and pay.
[105] Outcome of September 2016 Mediation
The Respondent has made spurious attempts to characterise the outcome of this as being of
short-term transitory operation only.
[106] Upon dissemination of the September Resolution between the Applicant and several
supervising employees of the Respondent, there was no mention of any time constraints on
the operation of the Resolution. Had these been a term of the resolution mention of them
would have been made.
[107] It is only since the institution of these proceedings that claims have been advanced that
the September Resolution was to be of temporary operation. The September Resolution was
in effect an accepted offer of permanent part-time employment.
The legislation
[108] The meaning of ‘dismissed’ is set out in section 386 below.
“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
[2017] FWC 3211
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(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
Forced to resign because of the employer’s conduct?
[109] The onus in this matter is on Mr Wilson to prove he did not resign voluntarily but
rather was forced to resign by the Respondent.
[110] In O’Meara v Stanley Works Pty Ltd26 a Full Bench of the Commission considered the
principle to be applied to cases of alleged forced resignation or constructive dismissals as
follows:
“[23] 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.”19
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.”
[111] The question for the Commission is was the Respondent’s conduct or course of
conduct such that resignation of Mr Wilson was the intended or probable result, or such that
Mr Wilson had no effective or real choice but to resign.
[112] There is no evidence before the Commission that the Respondent’s conduct in this
case was intended to bring Mr Wilson’s employment to an end.
[2017] FWC 3211
14
[113] Nor in my view was the Respondent’s conduct or course of conduct, whether
considered in totality from mid September 2016 onwards, or only from the time of proposing
a new roster in December 2016, such that the resignation of Mr Wilson was the probable
result.
[114] At the time Mr Wilson resigned the new roster which had reduced his hours had been
operating for nine days. This period only covered one of his rostered shifts which Mr Wilson
in any event did not work, having arranged for someone else to work his shift that day.
[115] Mr Wilson had a number of other options rather than resigning at the time he did.
Immediately prior to resigning he had been invited to meet with Ms Holt to discuss his emails
and his concerns. There was no reason why Mr Wilson could not have done this. There was
no reason to believe that such a meeting could not have been helpful given three months
earlier when Mr Wilson had concerns about his rosters in September 2016 these were
resolved after meeting with the Respondents staff.
[116] If he didn’t wish to deal with the matter in this way there were other options open to
Mr Wilson rather than resigning when he did. He had the options of pursuing a grievance
under the dispute settling procedure in the Agreement or alternatively under the Respondent’s
own disputes handling policy, either informally or formally.
[117] Even if Mr Wilson’s understanding that he had been guaranteed 5.5 hours each
weekend into the future was correct, he could have pursued the reinstatement of this
arrangement through meetings with the Respondents manager or by pursuing it as a
grievance. In any event as I have found above there was no reasonable basis for Mr Wilson to
have this understanding.
[118] Mr Wilson had a range of options available to him other than resigning as he did. Mr
Wilson’s resignation was voluntary. Mr Wilson was not forced to resign because of the
conduct or the course of conduct engaged in by his employer.
[119] Mr Wilson has not been dismissed within the meaning of section 386 and so cannot
within the meaning of section 385 have been unfairly dismissed.
[120] Accordingly there is no jurisdiction for the Commission to deal with this application
and it will be dismissed and an order to that effect will now be issued.
COMMISSIONER
Appearances:
M. Wilson for the Applicant.
K. Post of Western Australian Local Government Association for the Respondent.
[2017] FWC 3211
15
Hearing details:
2017.
Perth:
May 30.
Printed by authority of the Commonwealth Government Printer
Price code C, PR593693
1 Transcript at PN229 to PN232.
2 Ibid, at PN637 to PN638.
3 Document 5 in the Respondents bundle of documents.
4 Exhibit A3 at paragraph 22 and 23& Exhibit R1 at paragraph 32.
5 Document 12 in the Respondents bundle of documents.
6 Document 13 in the Respondents bundle of documents.
7 Exhibit A3 at Paragraph 34 and PN631.
8 Transcript at PN598.
9 Exhibit R1 at paragraph 70.
10 Ibid., at paragraph 74.
11 Transcript at PN179.
12 Ibid., at PN181 to 183.
13 Ibid., at PN186 to 209.
14 Ibid., at PN388.
15 Ibid., at PN391.
16 Ibid,. at PN442.
17 Ibid., at PN445.
18 Ibid., at PN447.
19 Ibid., at P 451.
20 Ibid., at PN473.
21 Exhibit A3 at paragraph 38.
22 Document 29 in the Respondents bundle of documents.
23 Exhibit A3 attachment H.
24 Transcript at PN 345
25 Ibid., at PN 349
26 (2006) 58 AILR 100.
