1
Fair Work Act 2009
s.365—General protections
Frances Jane Booth
v
Multiple Sclerosis Society Of Western Australia Inc
(C2022/2283)
COMMISSIONER SCHNEIDER PERTH, 17 JANUARY 2023
Application to deal with contraventions involving dismissal
[1] Frances Jane Booth (the Applicant) has made an application pursuant to section 365 of
the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving her
alleged dismissal by Multiple Sclerosis Society of WA Inc T/A MSWA (the Respondent).
[2] The Respondent has raised a jurisdictional objection to the application on the basis that
the Applicant was not dismissed. The Applicant does not dispute that she resigned but claims
that she was forced to resign from her employment due to the conduct of the Respondent. The
Commission must determine whether the Applicant was dismissed before the matter may
proceed.
[3] The jurisdictional objection was the subject of a Hearing on 6 October 2022. The
Applicant gave evidence on her own behalf and Ms Victoria Amey (Ms Amey), Ms Karen Van
Der Merwe (Ms Van Der Merwe), and Ms Alison Cox (Ms Cox) gave evidence on behalf of
the Respondent.
Background
[4] The Applicant commenced employment with the Respondent on 8 June 2021 in the
position of Operations Manager.
[5] The Respondent’s business was subject to a number of directions from the West
Australian State Government regarding COVID-19 mandatory vaccination requirements (the
State Directions), including:
Community Care Services Worker (Restriction on Access) Direction (No 3)
(Community Worker Directions) which took effect on 1 December 2021.
Health Worker (Restrictions on Access) Directions (No 4); and
[2023] FWC 89
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 89
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The Booster Vaccination (Restrictions on Access) Directions (No 2) which were
released on 7 January 2022 and came into effect from 5 February 2022 (Booster
Vaccination Directions).
[6] A majority of the Respondent’s employees were required to comply with any
vaccination requirements and timeframes contained within the State Directions.
[7] Leading up to the Booster Vaccination Directions coming in effect on 5 February 2022,
there was significant internal dialogue at the Respondent, including conversations with the
Applicant, over the impact of the Booster Vaccination Directions and how to manage
employees who were not compliant with the direction.
[8] The Applicant resigned from her employment with the Respondent on 19 February
2022. The Applicant was required to provide two weeks’ notice, however provided four weeks’
notice.
[9] The Applicant’s employment with the Respondent concluded on 18 March 2022.
Legislation
[10] Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the
industrial interests of the person, alleges that the person was dismissed in
contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal
with the dispute.”
[11] The meaning of “dismissed” is provided at section 386 of the Act:
“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.
[2023] FWC 89
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(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
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or
her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the person
under a contract of that kind is, or was at the time of the person’s employment, to avoid
the employer’s obligations under this Part.”
[12] This decision deals only with the jurisdictional objection to be determined.
Submissions
Respondent
[13] The Respondent submits that the Applicant was not dismissed for the purposes of
section 365 of the Act.
[14] The Respondent submitted that the Applicant resigned from her employment on 19
February 2022 and proceeded to work out a notice period of four weeks before her employment
ended on 18 March 2022.
[15] The Respondent acknowledges that the Applicant had raised a concern with various
senior managers of the Respondent. Specifically, the Applicant held concerns over how to roster
employees who were not yet compliant with the Booster Vaccination Directions.
[16] The Respondent acknowledges that, initially, through Ms Amey, the Applicant was
directed to roster employees who were not compliant with the Booster Vaccination Directions.
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The Respondent submits that this was a lawful and reasonable direction from her manager. The
Respondent notes that the Applicant had a further conversation with Ms Steer on 8 February
2022 who confirmed the information provided by Ms Amey on 4 February 2022.
[17] The Respondent denies ever taking disciplinary action against the Applicant for seeking
further assurances and seeking clarification about the Booster Vaccination Directions and
rostering requirements.
[18] The Respondent also provided the below timeline of events, which it submits is evidence
that the Applicant duly considered her resignation:
“Thursday, 3 February 2022
Respondent obtains 30 day extension from Chief Health Officer to comply with
Booster Directions.
Friday, 4 February 2022
Applicant stands down 3 ‘unboosted’ care workers.
Ms Amey advises Applicant to place one of the workers back on the roster as the
Respondent had obtained an extension.
Applicant places one worker back on roster.
Saturday, 5 February 2022
Booster Directions Commence.
Tuesday, 8 February 2022
Applicant speaks with Ms Steer and is told that the Respondent had received a 30 day
extension.
Saturday, 19 February 2022
Applicant emails a written resignation which does not reference the Booster Directions
or assert she was forced to resign.
Friday, 18 March 2022
Applicant’s last day of employment (works the notice period).
Respondent provides a farewell event and gift.”
[19] The Respondent submitted the below, regarding the delay between the direction to roster
the workers and the act of the Applicant resigning, to reflect the lack of link between the two
events:
“The facts are that the event said to have ‘forced’ the resignation, being the direction to
roster the worker, occurred 15 days prior to the resignation, and 6 weeks prior to the last
day of employment. This is not consistent with circumstances where a person is ‘forced’
to resign because of that direction.”
“These facts alone, along with the resignation letter, make it clear that there is no causal
relationship between the ‘direction’ and the resignation, and no such causal relationship
arises from proximity, or an objective assessment of the facts.”
[2023] FWC 89
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[20] The Respondent also submitted that, in the Applicant’s resignation letter, the Applicant
did not raise any of the issues she claims forced her resignation and instead provided:
“As I leave MSWA, I have plans to run my own businesses again. While the
restaurant in Bali operates under management, I would like to be there for a few
months, to support my team for the re-launch, after a very long and extremely
difficult time. I also plan to return to the freelance space as a learning consultant
and instructional designer, which will allow me the freedom to travel between
Australia and Bali. I have a lot of experience in developing and implementing
custom e-learning solutions so I’m confident I will have success in that field
again.
I understand that my resignation comes at a difficult time. Therefore, I would
like to give you four weeks’ notice and will do all I can to support MSWA during
that time.
My final day at MSWA will be Friday, 18 March.”
[21] The Respondent denies partaking in conduct which forced the Applicant to resign or
created an environment whereby the Applicant had no choice but to resign. The Respondent
submits that the Applicant resigned from her employment on 19 February 2022 on an entirely
voluntary basis.
[22] The Respondent submits that, as the Applicant resigned, the application must be
dismissed.
Applicant
[23] The Applicant submitted that her resignation was forced by the Respondent and as such
she was dismissed consistent with section 386(1)(b) of the Act.
[24] The Applicant submitted that she was directed by the Respondent to roster a worker
without having confirmation in writing that the Respondent had an exemption or extension from
the Booster Vaccination Directions and, as a result, she had no alternative but to resign from
her employment with the Respondent.
[25] The Applicant submitted she had exercised a workplace right by seeking to get written
confirmation of the verbal directions and assurances that she had been provided by senior
management in relation to exemptions being provided to “non-operational” employees who had
not yet complied with the directions in place.
[26] The Applicant raised her concerns over the direction to roster employees who had not
yet complied with the Booster Vaccination Directions with the below staff at the Respondent:
Ms Amey (The Applicant’s Manager).
Ms Teresa Gray (Ms Gray) (Manager, Rostering & Service Delivery).
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Ms Van Der Merwe (Senior HR Advisor).
Ms Laura Steer (Ms Steer) (OSH Manager).
Ms Melanie Kiely (Ms Kiely) (CEO).
[27] The Applicant submitted that the repeated inaction of the Respondent in providing her
the written assurances she was seeking left her with no alternative but to resign from her
employment. The Applicant also submitted that she was concerned over her own personal
liability under the Booster Vaccination Directions and that the action of the employer, in failing
to provide these assurances in writing, forced the Applicant to resign from her employment.
[28] The Applicant submits she never received any assurance in writing that confirmed the
directions she was being provided with by the Respondent were lawful or reasonable.
[29] The Applicant submitted that her resignation letter did not include the full reasons for
her leaving the Respondent and this was done so to avoid “burning bridges”, as the Applicant
was concerned over how this would impact her future employment opportunities.
[30] The Applicant submits that, at the time of her resignation, she was stressed because of
the conduct of the Respondent.
[31] The Applicant highlighted her concerns over the “hierarchical and siloed structure”, of
the Respondent’s business. Which, in the Applicant’s opinion, meant that issues were not
resolved in a timely or efficient manner. The Applicant highlights issues with payroll, hours of
work, and overtime as examples of issues that were raised but were hard to resolve under the
Respondent’s structure.
[32] The Applicant submitted that, after her resignation, she sent an email to Ms Kiely
outlining her concerns. In summary, the Applicant had four main on-going concerns regarding
the Respondent’s business (points 1 to 4) and one trigger (point 5) which led to her resignation:
1. Issues with Mr Geoff Hutchinson (Mr Hutchinson) (one of her two
managers) and what the Applicant believes was a lack of communication
and support from Mr Hutchinson.
2. Lack of administration support for her position.
3. Lack of decision-making authority, with many decisions requiring more
senior approval.
4. Lack of resources, leading to employees working excessive hours.
5. The Booster Vaccination Directions extension and associated
communication between the Applicant and senior management.
[2023] FWC 89
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Consideration
[33] Central to the consideration in this case is the operation of section 386(1) of the Act.
The word ‘dismissed’ is defined in section 12 of the Act as having adopted the meaning in
section 386 of the Act. Section 386(1) of the Act reads:
“(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.”
[34] This definition contains two elements. The first concerns termination on the employer’s
initiative and the second, resignation in circumstances where the person was forced to do so
because of conduct or a course of conduct. The two tests were explained by the Full Bench in
Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.1
[35] In this matter, the Applicant does not claim that she resigned in the heat of the moment
nor does there appear to be special circumstances giving rise to any additional obligation of the
Respondent to ensure the resignation was legitimate in that regard. In my assessment of the
circumstances, the relevant test is that under section 386(1)(b) of the Act. Having determined
that section 386(1)(b) of the Act is the relevant test for this matter, I now turn to consider the
conduct of the Respondent and the decision of the Applicant.
[36] The Applicant was seeking further assurances in writing from the Respondent that the
Respondent had received an extension from the relevant authorities in relation to the Booster
Vaccination Direction. From the evidence provided, it is clear that the Applicant was provided
with verbal directions from the business that the Respondent had been provided with an
extension by the relevant authority and that the Respondent was not directing the Applicant to
do anything wrong.
[37] It appears the Applicant was seeking assurance in writing to provide her with greater
peace of mind, however there is no evidence to indicate that the Respondent was deliberately
not forthcoming with the information in an attempt to force the Applicant to resign or create an
untenable employment relationship by requiring her to carry out her duties in an unlawful way.
[38] Rather, the Respondent provided the Applicant with assurances surrounding its
instruction, specifically, telling her the executive team were actively dealing with compliance
and that the Minister had approved an extension for compliance. Ms Amey told the Applicant
that the General Manager of her department had instructed her to roster the workers in question.
Additionally, Ms Steer, who is responsible for managing workplace health and safety,
confirmed to the Applicant that the Respondent had received an extension to the Directions. I
1 [2017] FWCFB 3941.
[2023] FWC 89
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am satisfied the Respondent was forthcoming and clear with its assurances despite those
assurances not being made in the manner requested by the Applicant.
[39] The Respondent, in their own submission, highlighted that they were not prepared for
the Booster Vaccination Directions to take effect so soon and they were caught off guard. From
the evidence available, it is clear the Respondent was seeking to try and manage a significant
business risk and, in doing so, communication between senior management and the Applicant
was lacking. The Respondent’s failures in communicating with the Applicant in a way that
would satisfy her reflects deficiencies in organisational communication however I do not find
this deficiency to be consistent with conduct that would bring about the Applicant’s resignation.
[40] It is evident that the Applicant held concerns more broadly regarding the management
and systems of the business. On the submissions provided by the Applicant, it is clear that she
was not happy with the communication structures in place at the business or with how the
business escalated issues though a complex management structure. It appears that the Applicant
considered the Respondent’s workplace structure and management methods to be incompatible
with her own work methods and accordingly made a considered decision to resign from the
Respondent and pursue other opportunities. The Applicant’s dissatisfaction with the
Respondent’s preferred means of managing its organisation does not directly support a finding
that the Respondent forced the Applicant to resign or created an environment whereby the
Applicant had no alternative but to resign. Although not ideal to the Applicant, the
Respondent’s choice of organisational management, even if somewhat deficient, is not so
dysfunctional that I can conclude it constitutes conduct of the type currently in question.
[41] The line distinguishing conduct that leaves an employee no real choice but to resign,
from an employee resigning at their own initiative is a narrow one.2 On the evidence provided,
it appears that the Applicant was dissatisfied with the Respondent as an employer and made a
considered decision to resign from her employment. On assessment of the evidence provided,
I cannot find the Respondent acted in a manner which left the Applicant with no alternative but
to resign from her employment with the Respondent nor would its conduct lead to that probable
result.
Conclusion
[42] Not being satisfied that the Applicant has been dismissed for the purposes of section
386 of the Act, I have no alternative but to dismiss the application for want of jurisdiction.
The application is dismissed an Order reflecting this will be issued in due course. 3
2 (1995) 62 IR 200, 206.
3 [PR749617].
MISSION THE SEA! WORK GDY HE FA
[2023] FWC 89
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COMMISSIONER
Appearances:
F Booth, Applicant.
J Parkinson of Kingston Reid for the Respondent.
Hearing details:
2022.
Perth (by video):
October 6.
Printed by authority of the Commonwealth Government Printer
PR749616
