1
Fair Work Act 2009
s.394—Unfair dismissal
Donnalyn Sharkey
v
Life Without Barriers
(U2018/11109)
DEPUTY PRESIDENT BEAUMONT PERTH, 13 FEBRUARY 2019
Application for an unfair dismissal remedy.
[1] Ms Donnalyn Sharkey (Ms Sharkey), the former Care Coordinator at Miami Lane, of
Life Without Barriers (LWB), made an application to the Fair Work Commission (the
Commission) on 25 October 2018 for a remedy in respect of her dismissal (the Application).
LWB said that it did not dismiss Ms Sharkey and therefore, the Commission had no
jurisdiction to deal with her Application. Ms Sharkey held a contrary view, notwithstanding
that she had resigned.
[2] I informed the parties at hearing that I would initially determine the matter of whether
the Application was beyond the jurisdiction of the Commission. If it was not, I would then
turn my attention to whether the dismissal was unfair. Having considered whether
Ms Sharkey was dismissed, as that term is understood under s 386(1) of the Fair Work Act
2009 (Cth) (the Act), I have found that she was not. It follows the Application is beyond the
jurisdiction of the Commission and is therefore dismissed. An order will be issued
concurrently with this discussion.1 My reasons follow.
BACKGROUND
[3] LWB is a provider of social services in Australia, supporting people who live in their
own homes, or in residential care homes including children, young people and families,
people with a disability, elderly people, and people with mental illness.
[4] In support of those people living with a disability, LWB operate a number of respite
homes which provide 24-hour care to adults with a disability. LWB’s respite services are
designed to meet the needs of the individual clients, whilst providing their carers or families
with planned short-term breaks in order to support and maintain their personal relationships.
One such respite home is Miami Lane located in Clarkson, Western Australia. Miami Lane is
equipped with six bedrooms, a lounge and games room, a patio, and enclosed outdoor area.
Miami Lane provides clients with on demand TV streaming services, a pool table, BBQ
facilities, and all meals are prepared fresh on site.
1 PR704853.
[2019] FWC 569
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 569
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[5] Ms Sharkey started work as the full-time Care Coordinator at Miami Lane on
19 August 2013 and resigned from her position on 9 October 2018.
[6] There was no dispute between the parties that Ms Sharkey was covered by the Social,
Community, Home Care and Disability Services Award 2010 (SHADS Award).
[7] Ms Sharkey said that she tendered her resignation as she could no longer face the
behaviour that was going on through LWB’s management.2 Ms Sharkey’s representative,
Mr Mullally (Mr Mullally), said that such conduct could be classified into two categories.
[8] The first category was the decision by LWB to remove Ms Sharkey from the on call
roster for her particular work location at Miami Lane without consultation. As a consequence
of such action, it was advanced that LWB had removed 20% or $12,000 of Ms Sharkey’s take
home pay. Initially, Mr Mullally characterised this conduct as possibly a repudiation of
Ms Sharkey’s employment contract.
[9] The second category consisted of a range of managerial conduct passing between
Ms Sharkey and her managers. The conduct included removal of some of the ‘restrictive
practices’ at Miami Lane, which LWB said had been implemented and maintained, absent
endorsement. An explanation of ‘restrictive practices’ is provided shortly. Further conduct
included Ms Sian Hill’s, Program Manager for Disabilities (Ms Hill), reliance on text
communication and email, rather than face to face, or telephone communication. Ms Hill was
said to have been unresponsive to some of the issues Ms Sharkey raised. Ms Sharkey in
addition, considered that Ms Hill demonstrated a lack of support toward her when a violent
incident occurred on 30 August 2018, and had made no enquiry when Ms Sharkey had been
taken to hospital from Miami Lane on 14 August 2018 with suspected cardiac problems.
On call allowance
[10] By way of background LWB has an on call system in place to provide support to LWB
staff in emergency situations.3 The on call system also provides an avenue for LWB staff to
escalate an incident, and for staff to call in sick when necessary.4 The on call system is
supported by various policy and procedure documents, and a scenario document.5 It is
evident from the policy and procedure that whether an employee is required to be on call is at
the discretion of the LWB manager.
[11] Prior to the introduction of the policy and procedure regarding on call work, the
arrangement at Miami Lane was such that Ms Sharkey was solely responsible for all the on
call support.6 This in effect meant that Ms Sharkey was required to be ready, willing and able
to return to work 24 hours per day, seven days per week.7 The parties agreed that Ms Sharkey
was not required to be on call during periods of annual leave or when on personal leave.
2 Witness Statement of Donnalyn Sharkey (Exhibit A1) (Sharkey Statement) [11].
3 Witness Statement of Sian Hill (Exhibit R1) (Hill Statement) [13].
4 Ibid.
5 Ibid [13]-[14] (On Call Policy Annexure PC-2; Disability On Call Procedure Annexure PC-3 and Disability Services After
Hours On Call Scenarios document Annexure PC-4).
6 Hill Statement [16].
7 Ibid.
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[12] Admitted into evidence was a sample of Ms Sharkey’s payslips. These showed an on
call allowance of approximately $300 each pay period.8 Ms Sharkey’s employment contract
was silent when it came to an on call allowance although her salary and car allowance was
specified within the contract. Concerning compliance with policies, procedures, and the code
of conduct, there was an expectation within the contract that employees were to maintain
current knowledge and comply with all policies and procedures, as amended from time to
time.
[13] Other programs within LWB had different on call arrangements to that of Miami Lane.
At other centres the on call arrangement was rotated amongst care coordinators who oversaw
the on call function for whole programs, which could include up to 50 clients.9
[14] It was Ms Hill’s evidence that across LWB, the Disability Program had been
progressively moving to a centralised on call arrangement.10 This was to ensure care
coordinators were having adequate breaks between on call shifts to reduce fatigue, and fell in
line with the programmatic structure across Western Australia.11 The centralised on call
arrangement meant that no single care coordinator would have to bear the full on call load.12
If introduced at Miami Lane, this meant that Ms Sharkey would be responsible for the on call
function for the Supported Accommodation Program, therefore overseeing a larger group.13
[15] On 4 September 2018, Ms Hill sent an email to Ms Sharkey in which she stated:
Hi Donnalyn
…
Moving forward I would also like to see Miami Lane falling into the on call system
with the rest of disability by the end of this month…
Please let me know if you need any support with the above. (4 September Email).14
[16] In the 4 September Email, Ms Hill similarly requested that Ms Sharkey provide the on
call profiles for clients to be moved to a centralised location. The profiles contained key
information on clients, which may be required in an emergency.
[17] Ms Hill did not receive a response to the 4 September Email. It was Ms Hill’s
evidence that the change to the on call arrangements at Miami Lane was not considered to be
a major change, as the on call arrangements were centralised throughout the rest of the
Disability Program at LWB.15
[18] Subsequent to receiving the 4 September Email, Ms Sharkey sent an email to
Ms Jennie Burns, State Director WA of LWB (Ms Burns), later in the day on 4 September
2018. In the email to Ms Burns, Ms Sharkey stated the following:
8 Exhibit A2.
9 Hill Statement [17].
10 Ibid [18].
11 Ibid.
12 Ibid [19].
13 Ibid.
14 Ibid [18]; Annexure PC-5.
15 Hill Statement [23].
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Hi Jennie
I am very upset writing this email Jennie, over the past two months I feel decisions are
being made regarding Miami Lane that I am not being informed about the plans only
receiving emails from Sian being told what is happening and the deadlines. There is
no face to face contact to inform me. I feel I am no longer important and not part of
the plan here. I feel that I am being pushed out. I have been a Coordinator the last
five years at Miami Lane and have worked hard for the standards and training of staff
and the care it gives the clients. I have just received an email from Sian this morning
advising me that the on call is now being taken from me. I have done this the last five
years and it is worth a monetary value of 12 thousand a year which is a fair amount to
lose. Topics about the gate that leads to the kitchen being removed for example, I was
just told, there has been no discussion why it was installed, had it gone through panel
etc?? Nothing I have done seems good enough, I am left feeling absolutely worthless
Jennie and I have never felt this way in 26 yrs of Nursing.
Regards
Donnalyn Sharkey
Care Coordinator
Respite (the Sharkey Email).16
[19] It is apparent that Ms Burns responded to the Sharkey Email by email and copying to
that email Ms Clare Meyers, who at the time was the Acting State Director (Ms Meyers).
Ms Burns replied:
Hi Donnalyn
Thank you so much for your email and for taking the time to share your frustrations.
I have included Elise at the RM Metro and Clare as the Acting State Director in my
response to you as I shall be heading off on leave shortly and I wanted to make sure
they were kept in the loop.
I am sorry to hear that you are feeling disempowered, I am sure that is not Sian’s
intent. We are working hard to make sure we have a consistent level of practice
across all of our Disability services including the respite centres. Face to face
meetings are always best and can I suggest that perhaps you reach out to Sian and
request a meeting, Clare would be happy to facilitate.
It’s always important to feel like our opinion is being heard even it if doesn’t change
the outcome. Unfortunately I am unable to make specific comment in relation to on
call or the security gate but perhaps these can be discussed at the meeting?
Please keep the lines of communication open Donnalyn, its important.
Kind regards
Jennie
Jennie Burns
16 Witness Statement of Clare Meyers (Exhibit R3) (Meyers Statement) [13]; Annexure CM-1.
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State Director WA
[20] Ms Meyers sent an email to Ms Sharkey on 5 September 2018 noting that she would
be happy to arrange a meeting to discuss Ms Sharkey’s concerns with both her and Ms Hill.
No response was received from Ms Sharkey.
Restrictive work practices
[21] It should be said from the outset that a restrictive work practice is a practice that
safeguards the client and staff where no other plausible ways to safeguard the client exist.
The restraints may be physical such as a barrier or a lock. Or they may be chemical, such as
medication.
[22] It was Dr Kathryn Riordan’s responsibility within LWB, as the State Clinical Services
Manager (Dr Riordan), to monitor and review restrictive practice interventions across three
programmatic areas of service delivery for LWB.17 These areas included child, youth and
family, disability and aged care and mental health, and youth justice and homelessness.18
[23] Having commenced in the position in late July 2018, Dr Riordan undertook an audit of
the use of restrictive practices across the three programmatic areas. She was tasked with
ensuring that LWB had contemporaneous information on record, and that LWB was
compliant with both internal processes and external standards for the approval and monitoring
of restrictive practices.19
[24] Dr Riordan gave evidence that the Disability Service Commission (DSC) had
contracted with LWB to provide services and a requirement of the contractual arrangement
was compliance with the standards prescribed by the Disability Services Act 1993 (WA) (the
DSA).20 The DSA outlined the principles applicable to people with a disability and
Schedule 1 to the DSA provided the quality standards relevant to the service provider.21 It
was said by Dr Riordan that the effect of the DSA and its Schedule 1, was to provide a human
rights context within which service provision was to be delivered.22 The contractual
arrangement between the LWB with the DSC outlined a quality framework including annual
self-assessment and external quality evaluation by DSC every three years.23 To that end, Dr
Riordan stated that LWB is very conscientious regarding its compliance requirements.24
[25] In addition to the above compliance obligations, LWB had decided to comply with the
Voluntary Code of Practice for the Elimination of Restrictive Practices (the Code).25 LWB’s
compliance with the Code is said to have arisen from its drive to ensure best practice care is
provided to clients with a disability in a manner that respects the clients’ human rights.26
17 Witness Statemetn of Kathryn Riordan (Exhibit R2) (Riordan Statement) [4].
18 Ibid [4].
19 Ibid [8].
20 Ibid.
21 Ibid [9].
22 Ibid [10].
23 Ibid.
24 Ibid.
25 Ibid [11].
26 Ibid [11].
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[26] Dr Riordan assessed Miami Lane on 4 September 2018 with regard to restrictive
practices in operation.27 Ms Sharkey had been invited to attend but was absent from the
workplace that morning due to personal reasons.28 Dr Riordan identified that a number of
restrictive practices were in place that included a swimming pool gate blocking access to the
kitchen, locks on the pantry, the fridge was locked inside the pantry, key pad on the front door
and sharp knives and scissors were locked inside a box.29 Dr Riordan’s view, which appeared
to be important given she had authority to authorise/endorse restrictions of remove them, was
that the restrictions were applied globally to clients entering the facility irrespective of the
assessed need for the practices.30 The aforementioned restrictive practices had not been
endorsed by LWB.
[27] Subsequent to her visit, Dr Riordan was informed that the restrictive practices at
Miami Lane extended to practises that included financial control of clients’ money, and
restricted access to medication. Again, these practices had not been authorised by LWB.
[28] After she had reviewed the contract with DSC, relevant legislation, the Code and
following consultation with the Regional Manager and Programs Manager, both of who had
expressed concerned about the indiscriminate use of restrictive practices at Miami Lane,
Dr Riordan determined that the practices were unauthorised and contrary to LWB
obligations.31 Having determined that the practices should cease immediately, Dr Riordan
informed Ms Hill and Ms Sharkey by email on 5 September 2018.
[29] To the best of Dr Riordan’s knowledge, she understands that following her direction in
the email of 5 September 2018, the gates to the kitchen were removed and training was
conducted with Miami Lane staff in relation to positive behaviour support and restrictive
practices.
Violent incident of 30 August 2018
[30] Ms Sharkey gave evidence that on 30 August 2018 a client within the Miami Lane
facility lunged at her violently and the police were called.32 Ms Sharkey said that she rang
Ms Hill but Ms Hill did not answer.33 Ms Sharkey left a voicemail for Ms Hill but observed
that she did not receive a call back, and there was no follow up concerning her condition.34
Ms Sharkey’s evidence was that she received a text message regarding the clients and staff an
hour after leaving the voicemail.35
[31] Ms Hill gave evidence that incident reporting at LWB is governed by the LWB WA
Checklist for Incident Reporting.36 To the best of her knowledge, Ms Hill recalled receiving a
27 Ibid.
28 Hill Statement [31].
29 Riordan Statement [16].
30 Ibid.
31 Ibid [18].
32 Sharkey Statement [25].
33 Ibid.
34 Ibid.
35 Ibid.
36 Hill Statement [41].
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voicemail from Ms Sharkey on 30 August 218 that an incident had occurred at Miami Lane
were a client’s behaviour had escalated.37 Ms Hill’s evidence was that there was no mention
of staff or client injury in the voicemail message.38 According to Ms Hill, incidents occurring
out of hours are usually only escalated to the Manager if the incident is critical and
Ms Sharkey’s voicemail did not reflect a critical incident.39 Ms Hill engaged in the following
text message exchange with Ms Sharkey:
-- Hi Donnalyn just got your voice message are all staff and all clients okay?
-- They are now but they were very shook up
-- Play [sic] please remind them they can access EAP or injury assist at any time
-- No one was injured Sian and I will remind Carmel tomorrow after I have done some
briefing with her on how she is feeling.40
[32] Ms Hill stated that the appropriate procedure for dealing with an incident such as that
which had occurred was outlined in the LWB WA Checklist for Incident Reporting.41 If a
violent incident occurred, the on call ‘upline’ Manager was to be contacted, EAP and Injury
Assist organised and an ‘i-Sight’ report completed within 24 hours along with a Serious
Incident Report for the DSC.42
[33] While it was the case that an ‘i-Sight’ report was completed in relation to the incident,
the report did not reflect a health, safety and environment incident.43 No Serious Incident
Report was completed.44
Hospitalisation on 14 August 2018
[34] On 14 August 2018, Ms Sharkey said she was taken to hospital by ambulance from
Miami Lane with suspected cardiac problems.45 Her evidence was that there was no follow
up from Ms Hill regarding her hospitalisation, and she felt isolated and forgotten with regard
to hospitalisation and the violent incident.46
[35] According to Ms Hill, she was aware that Ms Sharkey had been unwell, and on
14 August 2018 she received from Ms Sharkey a text message that she had been discharged
from hospital and signed off for work the next day.47 It was not until 25 September 2018 that
Ms Hill states she was informed by a support worker that Ms Sharkey had been taken to
hospital with a suspected heart attack. Ms Hill raised this with Ms Sharkey via a text message
on 25 September 2018, but received no reply.48 Ms Hill’s evidence was that an incident
report was not completed (i-Sight report) following the incident which was a requirement of
37 Ibid [42].
38 Ibid.
39 Ibid [43].
40 Hill Statement; Annexure PC-9.
41 Hill Statement [46].
42 Ibid.
43 Ibid [47].
44 Ibid.
45 Sharkey Statement [26].
46 Ibid.
47 Hill Statement [51].
48 Ibid [52].
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the LWB WA Checklist for Incident Reporting and therefore she was not aware of the extent
of Ms Sharkey’s health concerns.
Removal of vehicle
[36] A Holden Captiva had previously been made available at Miami Lane for use by
support workers.49 The Captiva was not specifically allocated to Ms Sharkey; Ms Sharkey
received a car allowance as part of her remuneration package, and a Toyota Hiace 10 seater
van remained available for client activities being based at Miami Lane.50 Given that a vehicle
had broken down at another LWB location and the Captiva was not being suitably utilised at
Miami Lane, Ms Hill made the decision to relocate it on or around 31 August 2018, after a
discussion with her Line Manager.51
[37] In her letter of resignation of 8 October 2018 (Resignation Letter), Ms Sharkey stated
that the removal of the Captiva from Miami Lane was one of her reasons for her resigning.52
Communications between Ms Sharkey and LWB after the Sharkey Email
[38] After sending the Sharkey Email, Ms Sharkey took personal leave from on or around
5 – 6 September 2018. She did not return to work and instead resigned from her employment
on and effective 9 October 2018. During the period of 5 September 2018 until her resignation
there was no communication between Ms Sharkey and any representative of LWB. When
asked in cross examination why this was the case, Ms Sharkey’s evidence was that she was
advised by her solicitor not to do so.
[39] Ms Sharkey’s Resignation Letter to Ms Hill referred to several reasons for her
tendering her resignation. In short, those reasons were the:
(a) decision to vary Ms Sharkey’s contract to remove her from being permanently on
call;
(b) lack of involvement or consultation regarding policies and practices at Miami
Lane, with only one face to face meeting with Ms Hill in the period of July 2018
until her resignation;
(c) removal of the Captiva without discussion or agreement;
(d) complete lack of support regarding the incident on 30 August 2018;
(e) lack of follow up following hospitalisation on 14 August 2018;
(f) unilateral decision made by the Clinical Services Manager and communicated by
email dated 5 September 2018 regarding removal of restricted practices at Miami
Lane absent consultation; and
(g) inability of LWB to deal with Ms Sharkey’s written complaint regarding the
general absence of proper communication with me from management.
[40] Ms Sharkey cited in her Resignation Letter feelings of being bullied in the
employment such that she could not continue to work in such an environment without the risk
of damage to her health.
49 Ibid.
50 Ibid [55].
51 Ibid [56]-[58].
52 Sharkey Statement [20]; Exhibit A2, 19.
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AGREED MATTERS
[41] Before considering the merits of a matter the Act obliges consideration of initial
matters.53 It is not in contest and I am satisfied on the evidence that:
(a) Ms Sharkey was covered by the SHADS Award;
(b) Ms Sharkey’s earnings were less than the high income threshold;54
(c) LWB was not a ‘small business employer’ as defined in s 23 of the Act, so the
Small Business Fair Dismissal Code was inapplicable;55 and
(d) there was no alleged dismissal by way of a genuine redundancy.56
[42] The parties advanced that there was no dispute that Ms Sharkey had completed the
minimum employment period. However, a person is protected from unfair dismissal if, at the
time of her or his dismissal, she or he had completed a period of employment with the
employer of at least the minimum employment period. To determine if Ms Sharkey had
completed the minimum employment period consideration must be had to whether she had
been dismissed. The word ‘dismissed’ is defined in the Act and various decisions of this
Commission and in some instances the Industrial Relations Court has illuminated its meaning.
[43] It is of course the case that to constitute an unfair dismissal a person must have been
dismissed.57
MS SHARKEY’S SUBMISSIONS
[44] In written submissions Ms Sharkey placed reliance s 386(1)(b). In oral submissions, it
was confirmed that Ms Sharkey did not press 386(1)(a).
[45] Mr Mullally advanced that from July 2018, Ms Sharkey never experienced any direct
contact from Ms Hill except by text. Ms Sharkey was ignored with respect to two health and
welfare issues during the month of August 2018, and significant policy decisions impacting
her role were made without any input or consultation with her. The most significant impact
on Ms Sharkey was the unilateral decision to remove Ms Sharkey from the on call system for
Miami Lane. This meant a reduction of about $12,000 per annum in Ms Sharkey’s take home
pay.
[46] The change in the on call arrangement was sufficient, in the view of Ms Sharkey, to
warrant her resignation on the grounds that LWB had repudiated her employment contract,
and she was entitled to accept the repudiation. However, at hearing this position changed and
repudiation of the employment contract was no longer pursued.
LWB’s SUBMISSION
53 Fair Work Act 2009 (Cth) s 396.
54 Ibid s 396(b).
55 Ibid s 396(c).
56 Ibid s 396 (d).
57 Ibid s 385(a).
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[47] In short, LWB submitted that no conduct on its part was intended to terminate the
employment of Ms Sharkey, or would have the probable result of bringing her employment to
an end. Ms Sharkey’s decision to resign was made in writing on a voluntary basis. LWB
submitted Ms Sharkey had unreasonably agitated this matter in response to reasonable and
lawful management action to which she had retrospectively and unjustifiably taken umbrage.
According to LWB, alternative pathways were available to Ms Sharkey to voice her opinion
about what she perceived to be the unreasonable management action, consistent with LWB’s
comprehensive policies and procedures.
[48] LWB submitted that the Commission did not possess the requisite jurisdiction to
determine the matter as Ms Sharkey was not dismissed within the meaning of s 386 and as
such sought the dismissal of the Application.
MATTERS IN DISPUTE
[49] Ms Sharkey was convinced that the conduct of LWB referred to in paragraph 39 of
this decision caused her to access the LWB Employer Assistance Program and it constituted
unreasonable behaviour. Her position was that she had been bullied. Whether the conduct of
LWB constituted workplace bullying and therefore forced Ms Sharkey to take the step that
she did in resigning is clearly in dispute. LWB advanced that Ms Sharkey’s action was taken
in response to reasonable and lawful management action and there were alternative pathways
available to Ms Sharkey to voice her opinion.
THE LEGISLATION AND AUTHORITIES
[50] The Act states that 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.58
[51] Under s 386(2) there are exceptions regarding when a person has been dismissed.
However, those exceptions are not relevant to this case.
[52] The definition of dismissal has two elements. The first traverses ‘termination on the
employer’s initiative’ and the second, which is germane to the Application, is resignation in
circumstances where the person was forced to do so because of conduct or a course of
conduct by the employer.
[53] In the decision of Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v
Shahin Tavassoli59 (Bupa) the Full Bench dealt with the meaning of the word ‘dismissed’ and
clarified the operation of the two elements. Concerning the second element, s 386(1)(b) it
was said that while a ‘forced’ resignation could constitute a termination of employment at the
initiative of the employer, the legislature when drafting s 386(1) chose to define dismissal in a
way that retained the ‘termination at the initiative of the employer’ formulation but separately
58 Ibid s 386(1).
59 [2017] FWCFB 3941.
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provided for ‘forced’ resignation.60 The Full Bench concluded that s 386(1)(b) reflected the
statutory form of the test developed in Mohazab v Dick Smith Electronics Pty Ltd
(Mohazab),61 and thereafter summarized in O’Meara v Stanley Works Pty Ltd (O’Meara).62
[54] The relevant principles in Mohazab are stated in the following paragraph:
In these proceedings it is 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 (“David Graphics”), Industrial Relations Court of
Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 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 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.’63
[55] In O’Meara the Full Bench of the Australian Industrial Relations Commission said:
[23]… 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 of that the
appellant had no effective or real choice but to resign.64
[56] The question is not merely whether the act of the employer, which must be a principal
contributing factor,65 resulted directly or consequentially in the termination of employment,
but whether, on an objective analysis of the employer’s conduct, the employee’s effective or
real choice was so negated that resignation was inevitably the only recourse.
[57] Often it will be a narrow line that distinguishes conduct that leaves an employee no
real choice but to resign from employment, from conduct that cannot be held to cause a
resultant resignation to be a termination at the initiative of the employer.66 The Full Bench of
60 [2017] FWCFB 3941 [33].
61 (1995) 62 IR 200.
62 [2006] AIC 496 [34].
63 [2017] FWCFB 3941 [31].
64 [2006] AIC 496 [23].
65 A.S Doumit v ABB Engineering Construction Pty Ltd Print N6999.
66 Ibid.
[2019] FWC 569
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the Australian Industrial Relations Commission cautioned ‘but narrow though it be, it is
important that the line be closely drawn and rigorously observed’, the Bench continued:
[O]therwise, 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 termination67…
[58] The Full Bench in Bupa concluded that s 386(1)(b) referred to:
(1) … resignation that is “forced” by conduct or a course of conduct on the part of the
employer will be a dismissal within the second limb of the definition in s.386(1)(b). The
test to be applied here is whether the employer engaged in the conduct with the intention
of bringing the employment to an end or whether termination of the employment was the
probably [sic] result of the employer’s conduct such that the employee had no effective or
real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the
essential element.
[59] In cases of an alleged forced resignation, LWB submitted that the onus was on the
applicant to prove that the employer forced the resignation. This accords with the decision in
Robert Tiller v Relationships Australia Western Australia Inc.68
CONSIDERATION
On call allowance
[60] There was no express contractual entitlement to an on call allowance under
Ms Sharkey’s employment contract. However, from the commencement of her employment
she had received the on call allowance for being on call with the exception of those times
where she was on leave. Further, it was evident, and Mr Mullally conceded, that to receive
the on call allowance, LWB must have required Ms Sharkey to perform such work.
[61] Having reviewed the on call situation at Miami Lane, LWB decided that the
centralised on call system that operated in its other facilities should be adopted at Miami
Lane. It considered it unfeasible to continue to have the care coordinator position at Miami
Lane providing 24 hours per day, seven days per week, on call coverage. The arrangement as
it stood meant that Ms Sharkey was solely responsible for the on call support and therefore
having to be ready, willing and able to return to work 24 hours per day. The rationale for the
operational change appeared both sound and overdue.
[62] Under Ms Sharkey’s employment contract she was expected to comply with all
policies and procedures as amended from time to time. The On Call Policy applied to
employees who were required to modify their ‘out of hours’ activities and arrangements to be
able to support or manage issues by phone or attend in person to a work related issue.69 An
on call roster was established where care coordinator positions were assigned to the on call
roster which covered after hours, weekends and public holidays.70
67 Ibid, cited with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008.
68 [2018] FWC 5519 [168].
69 Hill Statement; Annexure PC-3.
70 Ibid.
[2019] FWC 569
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[63] Ms Sharkey advanced that she had been unilaterally removed from the on call system
for Miami Lane and it followed her salary had reduced by $12,000. Further, it was a
significant decision to change her on call arrangement and the conduct of LWB in and of
itself was sufficient to warrant her resignation. Although, it is noted that Ms Sharkey did not
press the line of argument regarding repudiation.
[64] It was Ms Hill who informed Ms Sharkey by the 4 September Email that she ‘would
also like to see Miami Lane falling into the on call system with the rest of disability by the
end of this month’.71 It was Ms Hill’s evidence that Ms Sharkey would have been included in
the on call roster and would have participated in the weekly on call handover.72
[65] Upset by the 4 September Email, Ms Sharkey sent an email to Ms Burns expressing
her umbrage, the result of which was Ms Burns suggested a meeting with Ms Hill to discuss,
which Ms Meyers would facilitate. Ms Meyers followed up with Ms Sharkey to set up a
meeting to no avail. Quite clearly, Ms Sharkey ceased all communications; and did so,
according to her evidence, on the advice of her solicitor.
[66] The test in Bupa is clear. It requires an objective analysis of the employer’s conduct
to determine if the employee’s effective or real choice was negated such that resignation was
inevitably the only recourse. First, the change in the on call arrangement would have had a
financial impact on Ms Sharkey, this was clear, and while Ms Hill was careful to couch her
instructions in the phrase ‘I would like’ the inference was that the change to the on call
arrangements was to occur – and understandably so.
[67] Prudent management practices would have seen Ms Hill have a discussion with
Ms Sharkey to step her through the change in person; discussing the rationale for the change,
the authority to make the change, the implications arising from the change and possible steps
to perhaps mitigate the impact, before sending the 4 September Email. Regrettably, sending
an email in these circumstances demonstrated a lack of empathy and astuteness. However, it
cannot be concluded that Ms Sharkey’s choice was so negated that resignation was inevitably
the only recourse, or that LWB’s intention was to bring Ms Sharkey’s employment to an end.
[68] Mr Mullally advanced that the decision to remove Ms Sharkey’s on call allowance
was made without consultation. The assertion that appears to follow was that this constituted
a breach of the SHADS Award. However, the assertion was unaccompanied by cogent
reasoning whether there was an obligation under the SHADS Award to consult regarding the
change to the on call arrangement, and whether the action taken by LWB by sending the 4
September Email prior to engaging in consultation constituted a breach or not of the SHADS
award.
[69] The SHADS Award sets out an obligation of consultation if an employer makes a
definite decision to make major changes in production, program, organisation, structure or
technology that are likely to have significant effects on employees. From Ms Hill’s evidence
it can be reasoned that LWB had made a decision to bring Miami Lane’s operations in line
with the centralised on call arrangements. However, even if an obligation to consult arose
under the SHADS Award, LWB was not positioned to do so because of the actions of
Ms Sharkey.
71 Hill Statement; Annexure PC-5.
72 Hill Statement [21].
[2019] FWC 569
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[70] Senior management of LWB took prompt steps to address the situation that had arisen
on receipt of the Sharkey Email, offering Ms Sharkey the opportunity to discuss her
dissatisfaction with the change to the on call arrangements and other issues that had arisen.
Ms Sharkey did not do so. Instead she took personal leave from 6 September 2018 until
8 October 2018 and then resigned. She made no attempt to discuss or resolve the issues that
had arisen, and perhaps more importantly, was unavailable for consultation to occur.
[71] Ms Sharkey’s course of action, according to her, followed the advice of her solicitor.
What passed between Ms Sharkey and her solicitor is unable to be confirmed on the evidence.
However, if such advice was given then one can only conclude that the advice was misguided
and the action taken by Ms Sharkey was unwise if she had not intended to bring her
employment to an end but rather assert she had been dismissed.
Restrictive work practices
[72] Within LWB, the State Clinical Services Manager had authority to remove the
restrictive practices in place at Miami Lane. There was no obligation or necessity to consult
with Ms Sharkey about the instruction to remove these practices. Compliance with the Code
and LWB’s contractual obligations with the DSC were at the forefront of the State Clinical
Service Manager’s decision to send her email dated 5 September 2018. The conduct of LWB
on any objective view cannot be said to have been undertaken with the intent to bring to an
end Ms Sharkey’s employment. LWB’s conduct was centred on safeguarding the dignity of
its clients. LWB’s direction that the restrictive practices were to be removed was completely
understandable given the evidence that they could be considered inhumane and in breach of
human rights.
The violent incident
[73] Ms Sharkey was aggrieved by what she considered to be a complete lack of support
regarding the incident on 30 August 2018. However, I have found that, at the relevant times,
Ms Hill did not know that there had been an incident involving violence directed toward
Ms Sharkey. The evidence did not show that this had been communicated to Ms Hill, and
Ms Sharkey’s communication indicated that all was in hand, and made no mention of a
violent attack toward her. Having received information that staff were ‘shook up’, Ms Hill
took the step of providing guidance regarding EAP, a reasonable step in the circumstances.
Hospitalisation on 14 August 2018
[74] On 14 August 2018, Ms Sharkey said she was taken to hospital by ambulance from
Miami Lane with suspected cardiac problems,73 and Ms Hill had not enquired with her about
her hospitalisation.74 According to Ms Hill, she was aware that Ms Sharkey had been unwell
and on 14 August 2018 as she received a text message from Ms Sharkey that she had been
discharged from hospital and signed off for work the next day.75 However, Ms Hill’s
evidence was that at the time she was unaware of Ms Sharkey’s suspected cardiac problems.
73 Sharkey Statement [26].
74 Ibid.
75 Hill Statement [51].
[2019] FWC 569
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[75] It is observed the evidence was not suggestive that Ms Hill was made aware of the
seriousness of Ms Sharkey’s plight on 14 August 2018. Further, Ms Sharkey was cleared to
work the very next day, and had communicated this to Ms Hill. In circumstances where
Ms Sharkey had communicated to Ms Hill she was in effect fit for work, it is unclear why she
considered Ms Hill’s conduct so egregious that it would form a reason for her resignation.
Removal of vehicle
[76] A Holden Captiva had previously been made available at Miami Lane for use by
support workers.76 Ms Sharkey stated that the removal of the Captiva from Miami Lane was
one of her reasons for her resigning.77 The assertion is remarkable given Ms Sharkey had no
contractual entitlement to use the car privately and it was not specifically allocated to
Ms Sharkey. Further, while it was removed from the Miami Lane site to be used at another
LWB facility for sound reason, and another vehicle remained at Miami Lane available for use
and located on site.
Findings
[77] Often it will be a narrow line that distinguishes conduct that leaves an employee no
real choice but to resign from employment, from conduct that cannot be held to cause a
resultant resignation to be a termination at the initiative of the employer. There is no such
narrow line here. Having considered al of the evidence, and the submissions made by both
parties, I have found that LWB did not engage in conduct with the intention of bringing the
employment to an end, and Ms Sharkey’s termination of employment was not the probable
result of LWB’s conduct. On the evidence it is clearly established that Ms Sharkey’s
resignation was not forced.
[78] Ms Sharkey had an effective or real choice not to resign. She has, in my view, and as
submitted by LWB, agitated this matter in response to reasonable and lawful management
action to which she took umbrage. There were alternative pathways available to Ms Sharkey
to voice her dissatisfaction with the reasonable management action that was taken, and her
dissatisfaction with Ms Hill’s means of communication.
Conclusion
[79] The Commission does not have the jurisdiction to determine the matter as Ms Sharkey
was not dismissed within the meaning of s 386. The Application is dismissed.
76 Ibid [54].
77 Sharkey Statement [20]; Exhibit A2, 19.
WORK MMISSION
[2019] FWC 569
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DEPUTY PRESIDENT
Mr P Mullally for the Applicant
Mr R McMahon and Ms K Nelson for the Respondent
Hearing details:
Friday, 01 February 2019
Printed by authority of the Commonwealth Government Printer
PR704440
