1
Fair Work Act 2009
s.394—Unfair dismissal
Jodie Moore
v
Woolworths Group Limited T/A Big W
(U2019/11077)
DEPUTY PRESIDENT LAKE BRISBANE, 21 FEBRUARY 2020
Application for an unfair dismissal remedy – jurisdictional objection – applicant resigned –
show cause process – no final outcome – no compulsion by the Respondent - application
dismissed. Application for an unfair dismissal remedy.
[1] Mrs Jodie Moore (the Applicant) has made an application pursuant to s 394 of the
Fair Work Act 2009 (the Act) alleging that the way in which her employment ended with
Woolworths Group Limited T/A Big W (the Respondent) constituted a dismissal, and was
harsh, unjust or unreasonable.
[2] The Applicant commenced employment with the Respondent on 27 January 2001 and
her employment came to an end on 11 September 2019. In her Form F2 Application filed on
26 September 2019, the Applicant states that she resigned from her employment on 11
September 2019 and was forced to do so due to a course of conduct engaged by the
Respondent.
[3] The Respondent raised a jurisdictional objection to the Applicant’s application on the
basis that she was not dismissed, submitting that she voluntarily resigned with immediate
effect on 11 September 2019.
[4] It is not in dispute that the Applicant is a person protected from unfair dismissal and
that the Respondent is not a small business employer. It is also the case that the Applicant’s
employment did not end by reason of redundancy. The question of whether the Applicant was
dismissed on the 11 September 2019 in circumstances that constituted constructive dismissal
is a matter for determination.
[5] Directions were set for the filing of material and the matter was dealt with by way of
hearing on 13 and 14 January 2020. Both parties sought permission to be represented by
lawyers at the hearing and permission was granted on the basis that I was satisfied that it
would allow the matter to be dealt with more efficiently having regard to its complexity. The
complexity was enhanced by the fact that the matter involved a jurisdictional objection.
[2020] FWC 963
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 963
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[6] The Applicant was represented by Mr Wayne Hampton of Hampton Law Services.
The Respondent was represented by Mr Andrew Wydmanski of Ashurst Australia.
Evidence
[7] The Applicant was employed by the Respondent in its Big W Browns Plains store (the
Store) in the position of Softgoods Leader. The position did not require her to use machinery
regularly. She stated that during her employment she did not receive any warning or
complaints about her work.
[8] On 2 September 2019, the Applicant assisted in night fill duties with other team
members in the store. The Applicant states that performing night fill was not part of her usual
duties, and is something she only performs twice a year.
[9] The Applicant’s evidence is that prior to commencing the night shift on 2 September
2019, she was required to pick an item from another store in the morning. As a result of this,
the Applicant asserts she was suffering from onset fatigue during her shift of 2 September
2019, when the incident occurred.
[10] On 3 September 2019, the Respondent states that the Store Manager, Ms Amanda
McPhillip, received a report that managers, including the Applicant, had been observed using
machinery, the Pallet Mover, without the correct safety equipment. Ms McPhillip confirmed
this by viewing CCTV footage of the Store’s storage area on the night of 2 September 2019,
in which she states to have observed the Applicant moving an electric pallet jack without:
wearing a safety vest;
wearing steel cap boots; and
putting up barricades.1
[11] The Respondent tendered a procedure, “SOP-BW-09 – Pallet Mover”, which covers
the safety requirements for electric pallets. Relevantly, the Procedure provides with
accompanying images:
Isolate the work area with barricades prior to moving the Pallet mover
Always consider the safety of people, products and equipment when using the pallet
mover
Always wear protective equipment: safety boots. Hi-Vis vest is to be worn while
operating pallet mover outside
…
Isolate the designated work area with barricades prior to moving the Pallet Mover
every time in use.
1 Witness statement of Amanda Katherine McPhillips at paragraph [33].
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[12] The Applicant stated that she was aware their barriers were faulty, as it had been
brought up in staff meetings. As such, the Applicant states that she did not attempt to use
them as she was only moving the Pallet Mover a short distance.2
[13] On 4 September 2019, the Applicant attended a meeting with Ms McPhillips and
Lachlan Flew, Second in Charge. The Applicant was suspended with remuneration while the
incident was being investigated. The Respondent states that during this meeting, the Applicant
was upset and asked whether to resign, to which Ms McPhillips replied to the effect of “I
cannot answer that question for you.”3
[14] On 5 September 2019, the Applicant attended an investigation interview with Ms
Candice Walker, Senior Culture and People Partner for the Northern Region, and Mr Robert
Scott, Regional Safety Specialist. It is not in dispute that the Applicant admitted to the alleged
safety breaches when using the Pallet Mover.
[15] In a meeting on 8 September 2019, a show cause letter was read out to the Applicant
by Ms McPhillips. The Applicant was advised that the Respondent was considering
terminating the Applicant’s employment, however she had an opportunity to tell the
Respondent why it should not do so by 5:00 pm the following day. The Applicant states that
she had not been advised a support person could attend this meeting with her.
[16] On 9 September 2019, the Applicant provided her response to the show cause letter by
email to Ms McPhillips.
[17] On 10 September 2019, the Applicant received a phone call from Ms McPhillips
requesting her to attend a meeting at 1:00 pm on the 11 September 2019 to discuss the
outcome of investigation and show cause process. The Applicant was invited to bring a
support person.
[18] The Applicant states that at 9:11 am on 11 September 2019, a Senior Manager called
her to advise that her employment will be terminated during the meeting that was scheduled
for 1:00 pm that day. Prior to the hearing, the Applicant did not tender evidence of the
particulars of this phone call, but in the hearing stated that it was the Second in Charge,
Lachlan Flew. The Applicant tendered into evidence screen shots of a computer screen. On
the screen was a draft termination letter to terminate the Applicant’s employment. The letter
was unsigned, but the signature line indicated the letter was from the Store Manager, Amanda
McPhillips. The email attaching the letter stated for Ms McPhillips to “Please review.”
[19] At 11:00 am on the 11 September 2019, the Applicant attended Ms McPhillips office
and provided a letter of resignation, while Ms McPhillips was on a call. The Respondent
states that Ms McPhillips asked the Applicant to wait until the call was over so they could
talk, however the Applicant refused and left the store.4 The letter from the Applicant was as
follows:
11/09/2019
Dear Amanda McPhillips
2 Applicant’s outline of arguments: Merits at Q.4d.
3 Witness Statement of Amanda Katherine McPhillips at paragraph [47].
4 Witness Statement of Amanda Katherine McPhillips at paragraph [71].
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I would like to inform that I am resigning from my position of Softgoods Leader at Big
W Browns Plans, effective immediately.
Sincerely,
Jodie Moore
Legislation and applicable case law
[20] Section 386 of the Act states:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the
employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.
[21] Section 386 of the Act has created a clear “bifurcation in the definition of “dismissal”
and has created two clear grounds on which a claim could potentially proceed.5 In Bupa Aged
Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB
3941, the Full Bench expanded on the content of the two limbs:
[47] Having regard to the above authorities and the bifurcation in the definition of
“dismissal” established in s.386(1) of the FW Act, we consider that the position under
the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in
s.386(1)(a) where, although the employee has given an ostensible
communication of a resignation, the resignation is not legally effective because
it was expressed in the “heat of the moment” or when the employee was in a
state of emotional stress or mental confusion such that the employee could not
reasonably be understood to be conveying a real intention to resign. Although
“jostling” by the employer may contribute to the resignation being legally
ineffective, employer conduct is not a necessary element. In this situation if the
employer simply treats the ostensible resignation as terminating the
employment rather than clarifying or confirming with the employee after a
reasonable time that the employee genuinely intended to resign, this may be
characterised as a termination of the employment at the initiative of the
employer.
(2) A 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
5 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941, [47].
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whether termination of the employment was the probable (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.
(emphasis added)
[22] It is clear on the facts of this case that Ms Moore was not terminated in her
employment. The Applicant’s case expressly relied upon s 386(1)(b) – the claim being that
Ms Moore was forced to resign. No reliance was placed on s 386(1)(a) and the Applicant’s
representative confirmed this at the hearing.
[23] The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 is a
foundational case in determining what is classified as a ‘forced resignation’. There it was
stated:6
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.
(emphasis added)
[24] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin
Tavassoli [2017] FWCFB 3941, the Full Bench helpfully expounded on Mohazab:
[31] The approach taken in Mohazab that a termination of employment at the
initiative of the employer could be constituted by a “forced” resignation was followed
in numerous decisions made in respect of the various iterations of the termination of
employment scheme in the Workplace Relations Act 1996. These decisions most
notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley
Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J)
referred to Mohazab and said:
“However it is plain from these passages that it is not sufficient to demonstrate
that the employee did not voluntarily leave his or her employment to establish
that there had been a termination of the employment at the initiative of the
employer. Such a termination must result from some action on the part of the
employer intended to bring the employment to an end and perhaps action
which would, on any reasonable view, probably have that effect. I leave open
the question of whether a termination of employment at the initiative of the
employer requires the employer to intend by its action that the employment will
conclude. I am prepared to assume, for present purposes, that there can be a
6 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200, 205-206 (Mohazab).
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termination at the initiative of the employer if the cessation of the employment
relationship is the probable result of the employer’s conduct.”
[32] In the latter decision a 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 or that the appellant had no effective or real choice but to
resign.”
[33] Notwithstanding that it was clearly established, prior to the enactment of the FW
Act, that a “forced” resignation could constitute a termination of employment at the
initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way
that retained the “termination at the initiative of the employer” formulation but
separately provided for forced resignation. This was discussed in the Explanatory
Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be
dismissed. A person is dismissed if the person’s employment with his or her
employer was terminated on the employer’s initiative. This is intended to
capture case law relating to the meaning of ‘termination at the initiative of the
employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR
200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they
resigned from their employment but were forced to do so because of conduct,
or a course of conduct, engaged in by their employer. Conduct includes both
an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of
constructive dismissal, and allow for a finding that an employee was dismissed
in the following situations:
• where the employee is effectively instructed to resign by the employer
in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the
employer which gives them no reasonable choice but to resign.”
(emphasis added)
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[25] The onus to prove that a resignation was not voluntary and formed a constructive
dismissal lies with the employee alleging constructive dismissal occurred.7 Case law
regarding constructive dismissal has established that the line distinguishing conduct which
leaves an employee no real choice but to resign, from an employee resigning at their own
initiative is a narrow one, which must be “closely drawn and rigorously observed.”8
[26] Further, it has been found that where an employee is subject to disciplinary
procedures, this is not in itself sufficient to demonstrate that a resignation was forced by
actions of the employer.9 In Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, Mr Bell
resigned prior to the conclusion of a formal determination regarding his falsely signing of
timesheets. He contented in his resignation letter that his resignation was “due to
circumstances beyond his control”. Further, there was reliable evidence that the employer
stated that “it’s serious business and [Mr Bell’s] employment may be terminated.” The Full
bench concluded that “this was no more than mere fact, acknowledged by Mr Bell on his own
appreciation of the position.”10 A statement that an employee may be terminated as a result of
an investigative process is not, on its own, determinative of whether a constructive dismissal
has occurred.
[27] In the current case, the Applicant was put on notice of the investigation and show
cause process and was aware that these could lead to a termination of the Applicant’s
employment. However, this alone could not be enough to class the Applicant’s resignation as
one forced upon her.
[28] The decision of Senior Deputy President Richards in Megna v No 1 Riverside Quay
(SEQ) Pty Ltd11 provides instruction on how to interpret “forced”:
[14] It seems that the term “forced” is the past tense of the verb form “to force”, and
as such, an understanding of the plain meaning of the term “force” is relevant to
applying s.642(4).
[15] Relevantly, the Macquarie Dictionary defines “force” as:
… strength or power exerted upon an object; physical coercions; violence …
power to influence, affect or control; power to convince … to compel;
constrain or oblige (oneself or someone) to do something … to bring about or
effect by force; bring about of necessity or as a necessary result … to put or
impose (something) forcibly on or upon a person … to press, urge or exert to
violent effort or to the utmost …
[16] The term “force” appears to encompass both the application of physical power
to directly achieve a result and the actions of a person to persuade or otherwise
convince another for the same purpose. In either case, there is an important element
of compulsion present.
7 Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].
8 Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December
1996).
9 See for example Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.
10 Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, [38].
11 PR 973462, 11 August 2006.
http://www.fwc.gov.au/decisionssigned/html/2009aircfb680.htm
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[17] In the contextual circumstances now before the Commission, the issue is whether
the Applicant herself is able to demonstrate:
That she did not voluntarily resign her position or employment;
But that her employer, because of its actual conduct, forced her to do so,
such that there was an element of compulsion present. (emphasis added)
[29] There is no reliable evidence before the Commission that the Respondent engaged in
any conduct that satisfies the requisite element of compulsion. It would be a perverse outcome
to consider an objectively fair investigation and show cause process as imposing forcibly
upon the Applicant that they must resign.
[30] In Ashton v Consumer Action Law Centre,12 Commissioner Bisset considered whether
an employee was forced to resign due to supervisory requirements placed on the employee,
which he claimed were so onerous that it made his job impossible to do. However, it was
stated in that decision that even where an employee believes supervisory requirements to be
harsh, it does not mean they are so. Further, it was determined:
[59] It is not expected that employees will always be happy in their employment.
Dissatisfied employees resign from their employment on a regular basis. That they
were not satisfied with management’s actions or decisions does not mean that there
was a constructive dismissal or that the actions of the employer, viewed objectively,
left the employee with no choice but to resign.
[60] That, following the grievance outcome and the delivery to him of a letter
seeking his response on performance matters, Ashton felt he had no choice but to
resign does not mean that the actions of the Respondent were intended to force that
resignation.
[61] In this matter, viewed objectively, the actions of the employer in investigating Mr
Ashton’s grievance and/or in instigating higher level supervisory requirements and/or
in providing him with a letter outlining specific areas of concern with his performance
were not designed to force Ashton to resign.
[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of
conduct, engaged in by his employer.
[31] In determining whether an employer’s conduct has forced an employee’s resignation,
it is important to consider the specific acts which are alleged to have forced the applicant to
resign. In this case, the Second in Charge’s conduct in communicating the existence of the
draft termination letter is significant. In communicating this, the Applicant alleges that she
was forced to resign on the basis that she would have been terminated regardless. On the
evidence before me I cannot consider the conduct of the Second in Charge forced the
Applicant’s resignation. This is because:
Apart from his initial involvement, Mr Flew, despite being the Second in Charge was
not involved the disciplinary process;
12 [2010] FWA 9356.
http://www.fwc.gov.au/decisionssigned/html/2010fwa9356.htm
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The Applicant was aware that Mr Flew was not responsible for dealing with the
disciplinary matter, meaning it is difficult for his actions to be reflected as those of
the Respondent;
The document which he showed the Applicant was not sent to Mr Flew, having
gained access to it without authorisation;
There is no evidence to suggest that Mr Flew had any knowledge from the decision
maker that there were plans to dismiss her, meaning he could not indicate to the
Applicant her dismissal was inevitable; and
The Applicant had, during the meeting of 4 September 2019 questioned whether to
resign – this was prior to viewing the photographs, meaning she had at least had in
her mind contemplated resigning as a result of the show cause process more
generally and not on being informed of the draft termination letter.
[32] The Applicant in cross examination made it clear she was aware that the conduct of
the Second in Charge was not appropriate and she even asked to delete evidence of what had
been sent to her:13
Okay, but in your evidence earlier, you said that you asked the person, who you now say
is Mr Frew, to take photographs of this letter, so how did he obtain those
photographs? - He went into the screen and it was on the screen.
Whose screen was that? - Amanda’s. He had access to her emails.
Do you think it was appropriate for him to do that? - Probably not, I’m not sure.
You said earlier that he asked you to delete what he’d sent you or delete the
email? - Correct.
So does that suggest to you that that was an official notification by the company that
you were going to be terminated or dismissed? - What do you mean? I knew I was
going to be terminated, I knew I was going to get handed the letter.
Right, but that wasn’t through any official means, it wasn’t the company officially
coming to you and saying, “Here’s your termination letter, either you are dismissed or
you have the chance to resign.” You submitted your resignation letter before that
official meeting was scheduled; isn’t that right? - Correct. He is a senior leader,
though.
Correct, but he’s not the leader who was dealing with the disciplinary outcome of this
matter, was he? - No.
[33] Given this context and on an objective analysis of the Respondent’s conduct it cannot
be shown that there was any compulsion on the facts which led to the Applicants resignation.
[34] First, the show cause process undertaken by the Respondent had not come to a
conclusion. The Respondent had not implemented any decision regarding the Applicant. On
the evidence of Ms McPhillips, which I accept, she was the final decision maker responsible
for signing the termination letter and notifying the Applicant. While the Applicant was made
13 PN105 – PN111.
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aware of an unsigned, draft termination letter, this was not done through any formal channel
that could be considered the Applicant being advised of the Respondent’s final decision. The
Applicant was made aware of the draft termination letter through the Second in Charge,
Lachlan Flew, acting entirely outside of proper procedure; this unauthorised action of a rogue
manager cannot be taken to be a formal confirmation of a decision by the Respondent.
[35] As a point of practice, draft termination letters are a standard template utilised by
human resource managers; this is done for consistency and to ensure proper company practice
and general legislative requirements are followed. The distribution of a draft termination letter
cannot be conflated with a confirmed and final decision of the Respondent. This is consistent
with the evidence of Amanda McPhillips, which I accept, that she was the final decision
maker and was capable at all times of deciding what course of action to take – whether it be
finalising the draft letter or some other course of action.
[36] Second, the Respondent has an obligation under the Work Health and Safety Act 2011
(Qld) (WHS Act) to ensure the safety, and take reasonable care of workers’ health and safety.
Initiating a show cause process in response to breaches of safety is a legitimate action on the
part of the employer.14 If the employer failed to pursue safety breaches, they may breach their
obligations under the WHS Act, therefore, it is unlikely that pursuing such a process was done
with the intent of forcing the Applicant’s resignation.
[37] Taking into account all of the circumstances and the totality of the evidence in this
matter, I am not satisfied that the Respondent’s actions – through their management staff –
left Ms Moore no option but to resign. Ms Moore was not forced to resign because of conduct
or a course of conduct engaged in by the Respondent. The Applicant was entirely capable of
seeing out the process, but of her own volition decided to ‘jump before she was pushed’.15
There was clear benefit in the Applicant doing so: she gained the ability to state that she
resigned from her employment. However, in doing so she has foregone the right to pursue a
claim that she was unfairly dismissed, as she was not in fact dismissed at all.
[38] Accordingly, I find that there was not a dismissal pursuant to s.386(1)(b) of the Act.
Conclusion
[39] I find that the Applicant was not dismissed in accordance with subsection 386(1) of
the Act.
[40] Accordingly, I must dismiss the application and I do so.
14 For example, Colin Gottwald v Downer EDI Rail Pty Ltd [2007] AIRC 969, [102] where reference is made to conduct that
might not be wilful or intentional, but that can imperil or put other employees in the workplace in jeopardy.
15 Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.
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DEPUTY PRESIDENT
Appearances:
Mr Wayne Hampton of Hampton Law Services for the Applicant
Mr Andrew Wydmanski of Ashurst Australia for the Respondent
Hearing details:
13 January 2020
14 January 2020
Printed by authority of the Commonwealth Government Printer
PR716952
MISSION THE SEAL OF THE WORK CO
