1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Belinda Williams
v
Valley Healthcare Group Pty Ltd
(U2022/9846)
COMMISSIONER RIORDAN SYDNEY, 15 MARCH 2023
Application for an unfair dismissal remedy
[1] On 6 October 2022, Ms Belinda Williams (the Applicant) filed an application with the
Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal
pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant’s former
employer was Valley Healthcare Group Pty Ltd (the Respondent).
[2] The Applicant commenced employment with the Respondent as Human Resources
Manager on 7 June 2021. The Applicant resigned on 15 September 2022.
[3] The Applicant claimed that her employment with the Respondent came to an end as the
result of a “forced resignation” constituting a constructive dismissal by the Respondent. The
Respondent raised a jurisdictional objection to the application, on the basis that the Applicant
was not dismissed and resigned of her own volition to take up a role with another organisation.
[4] The Applicant seeks compensation.
Background
[5] On commencement with the Respondent, the Applicant reported to the Respondent’s
General Manager, Ms Renee Jones. The Applicant’s primary role was Human Resources and
Compliance for the Valley Healthcare Group of companies.
[6] Due to the departure of Ms Jones, the Applicant subsequently reported directly to Mr
Ross Thompson, the Respondent’s Managing Director and Owner.
[7] On 7 September 2022, the Applicant filed a Form F72 Application for an order to stop
bullying with the Commission, listing Mr Thompson as the named person.
[8] The Applicant attended an all-staff Microsoft Teams meeting at around 9:00am on 14
September 2022, during which the Applicant was told that her position was being modified and
that there was no longer a requirement for her to perform the role of as HR Manager for South
[2023] FWC 614
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 614
2
Coast Facility Services and that she would no longer be involved in any recruitment activity for
the business.
[9] The Applicant sent various correspondence to the Respondent following the meeting on
14 September 2022, including the making of a ‘Formal Workplace Complaint’ as follows:
“From: Belinda Williams [VH] belinda@valleyhealthcare.com.au
Sent: Wednesday, 14 September 2022 11:06 AM
To: Ross Thompson [Health Staffing]
ross.thompson@healthstaffingaustralia.com.au; Sandra Soper
sandra.soper@valleyhealthcare.com.au
Subject: Formal Workplace Complaint
Hi Sandra and Ross
Your recent decisions to take away my managerial role of the Recruitment Team has
been unjust and unfair. At no time have I ever said that I had an issue about managing
the team or my workload. I have simply stated that I am very busy and have a lot on my
plate each week, in comparison to other Managers. You have for some weeks now made
it difficult for me to manage the team, by having the Team Leader – Shannon Wilding,
report to you instead of me. You have also asked to be involved in notifications
regarding new hires, so that you are aware of the recruitment stats and still insisted that
I submit formal reports to you on a Monday each week.
I request that your decision be reconsidered and allow me to retain what was agreed
some months ago to be a suitable function of my role and allow me to continue to
manage the Recruitment Team.
Kind Regards,
Belinda Williams
HR Manager”
[10] Mr Thompson provided a response to the Applicant on 14 September 2022 at 12:02pm
as follows:
“Belinda,
Thank you for your formal complaint, but as we discussed in the all staff meeting and I
believe Sandra communicated to you, we as a organisation have made decisions due to
the financial viability of both business and discussions with my mentors last week and
our long term vision for our businesses we have made these decisions.
With Chelsea’s departure and our appointment of Helena as General Manager of Valley
Healthcare we have decided to restructure the business to fit a new management
structure. This decision was taken when we learnt of Chelsea’s resignation a few weeks
ago as it presented us an opportunity to bring in a family member who will over time
become managing director of the business as part of my transition out of the company
[2023] FWC 614
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over the next several years. Our succession planning has been under consideration for a
while. I have been presented with a opportunity that may take me away from the
business so this is why these decision were made while Sandra and I were in Hobart and
discussions with my mentor. In effect we are reversing a decision to combine
operational functions of both businesses and moving the recruitment team back into
control of one person being the General Manager. We have also chosen to abolish the
executive team and just have the two managers of both businesses report to me for SCFS
and Valley to report to Sandra, so we have more control of our businesses moving
forward.
Valley Healthcare needs to restructure due to it financial viability and has now
commenced on a formal restructuring plan to change the structure to be able to move
forward in a profitable way.
In conclusion we will not be reconsidering our position.
Regards,
Ross Thompson”
[11] The Applicant responded to Mr Thompson as follows:
“So in effect you are taking adverse action against my position as HR Manager, by
making sure that I no longer have any significant function within any of the businesses.
Kind Regards,
Belinda Williams
HR Manager”
[12] Mr Thompson provided a further response as follows:
“Belinda,
You are still Human Resources Manger (sic) for Valley Healthcare reporting to Helena
Hordpenko as General Manager. Sandra is the acting Managing Director, so you do still
have significant responsibilities for the Valley Healthcare Business, all we have done is
reverted the reporting lines back to what they were prior to merging operational
functions of the business on Renee’s departure. Previously you did report to the general
manger Renee when that role existed previously. SCFS doesn’t need HR support as Deb
and her team will be doing this function in house to their business and don’t need HR
support.
Ross”
[13] The Applicant questioned why she had not previously been consulted on “this
significant change to her role”, to which Mr Thompson responded:
[2023] FWC 614
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“Belinda,
There is no requirement to consult as your role is invariably the same for Valley
Healthcare who is your employer, you are still preforming (sic) an HR manager role
for Valley Healthcare all we have done is revert the reporting lines back to what
they were under Renee as GM. It would be like me selling the SCFS business, there
is no requirement for SCFS to have an HR function as it is a much smaller business.
Ross”
(My emphasis)
[14] The Applicant further wrote to Mr Thompson stating:
“Ross
There is a requirement for consultation when there is significant change to a person’s
role, and this qualifies. When Renee was GM I still performed work for SCFS and
reported on my activities for the work that I performed for SCFS to both her and yourself
weekly.
Kind Regards,
Belinda Williams
HR Manager”
[15] Further correspondence was exchanged between the Applicant and Mr Thompson on 14
September 2022, which have not been included here.
[16] On 15 September 2022, the Applicant wrote an email to Ms Sandra Soper, Acting
Managing Director, resigning from her position as follows:
“Hi Sandra
My position of HR Manager with Valley Healthcare Group Pty Ltd and South Coast
Facility Services Pty Ltd as of today’s date. In accordance with my employment contract
dated 9th June 2021, I am giving 2 weeks’ notice so that my last day of employment to
be 29th September 2022.
You should be aware that I am resigning in response to your repudiatory breach of
contract by Valley Healthcare Group Pty Ltd and South Coast Facility Services Pty Ltd
and I therefore consider myself constructively dismissed.
You rejected my grievances dated 14th September 2022 which sets the basis on which
I believe you have seriously breached my contract. As you have not upheld my
grievances, I now consider that my position at Valley Healthcare Group Pty Ltd and
South Coast Facility Services is untenable and my working conditions intolerable,
leaving me no option but to resign in response to your breach,
[2023] FWC 614
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As previously indicated to you that I was working under protest, until my grievances for
many things but not limited to Workplace Bullying by Ross Thompson, adverse action
by you in trying to take leave, significant changes to my position being made without
consultation and having the recruitment team taken out of my remit, without a
reasonable explanation for having done so. I do not in any way believe I have affirmed
or waived your breach.
Yours sincerely,
Belinda Williams
HR Manager”
[17] On that same date, Ms Soper responded to the Applicant by email as follows:
“Hi Belinda,
Thank you for your email, your resignation is accepted. It is accepted and your date of
registration (sic) will be effective immediately, we will pay notice period of the two
weeks, and this will be paid out along with any and all entitlements next week.
To be clear your last date of employment is today 15/09/2022
We will ask that you abide by your post employment obligations that you have signed.
I will get someone to come by and pick up any company property this afternoon.
I wish you all success for the future.
Kind Regards
Sandra Soper
Acting Managing Director”
[18] On 16 September 2022, the Applicant discontinued her antibullying application on the
basis that she had been “constructively dismissed by the Respondent”. The Applicant
subsequently lodged the present unfair dismissal remedy application with the Commission.
[19] A Determinative Conference was conducted by Video via Microsoft Teams on 27
January 2023, addressing the Jurisdictional Objection and the Merits of the application. The
Applicant appeared and gave evidence on her own behalf. Mr Ross Thompson, Managing
Director, appeared and gave evidence for the Respondent.
[20] Mrs Debra McGarrity, former Business Manager of South Coast Facility Services, also
gave evidence for the Applicant. Ms Shannon Wilding, Recruitment Team Leader for the
Respondent, gave evidence for the Respondent.
Statutory Provisions
[2023] FWC 614
6
[21] The relevant sections of the FW Act relating to an unfair dismissal application are:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under
Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal
Code;
(d) whether the dismissal was a case of genuine redundancy.
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on
reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner
of deciding on and working out such remedies, are intended to ensure that a “fair go all
round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and
Holloway v Australian Workers’ Union [1971] AR (NSW) 95.
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his
or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts
(if any) worked out in relation to the person in accordance with the
regulations, is less than the high income threshold.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the
period of continuous service the employee has completed with the employer atthat time
as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the
employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic
basis; and
[2023] FWC 614
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(ii) during the period of service as a casual employee, the employee had a
reasonable expectation of continuing employment by the employer on a
regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business
from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when
the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new
employment started that a period of service with the old employer would not
be recognised; the period of service with the old employer does not count
towards the employee’s period of employment with the new employer.
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code;
and
(d) the dismissal was not a case of genuine redundancy.
see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable,
the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related
to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person— whether
the person had been warned about that unsatisfactory performance before the
dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Applicant’s Submissions
[22] The Applicant submitted that there are three issues to be decided in this matter, being:
“(a) Whether the behaviour of the Respondent is considered a significant breach of the
terms of the employment contract, and;
[2023] FWC 614
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(b) If an unauthorised variation of the contract by way of reduced duties i.e., demotion
was unreasonable in the circumstances, where such behaviour could be considered a
dismissal and;
(c) The employee was subjected to unacceptable conduct, such as bullying and
harassment by her Manager Mr Ross Thompson - the Respondent and the employer
failed to stop the offending conduct.”
[23] The Applicant submitted that she was on numerous occasions expected to provide
“recruitment stat reports” unreasonably to the Respondent. The Applicant submitted that these
requests were unreasonable as Mr Thompson already had access to the same data/information
through other means, which he later disclosed to her. The Applicant submitted that Mr
Thompson “continued to insist on the reports being provided by [her], even after he became
privy to an email trail that gave detailed insight into the “outcomes” of the Recruitment Team”.
[24] The Applicant submitted that the Respondent attempted to ‘performance manage’ her
when she questioned the changes in reporting requirements. The Applicant submitted that Mr
Thompson constantly moved the “goal posts” on the matter and did not communicate his
expectations around how and when ‘the reports’ were to be submitted, until an email chain
commenced a few weeks after the reporting started.1
[25] The Applicant submitted that she was not consulted about changes to be made to her
role on 14 September 2022. The Applicant submitted that in a phone call from Ms Sandra Soper,
Acting Managing Director, to her, Ms Soper said words to the effect of:
“You will from now on be reporting to the new General Manager and the Recruitment
Team would no longer fall under your remit, instead they will report to the new General
Manager”.
[26] The Applicant submitted that she protested about the changes, saying words to the effect
of: “This is unfair, unjust and not liked”, to which Ms Soper replied with words to the effect of:
“Well you know how I feel about that”.
[27] The Applicant submitted that she was then told by Ms Soper to dial into a Microsoft
Teams meeting scheduled to take place in 5 minutes time. The Applicant submitted that she
was on sick leave at the time.
[28] The Applicant submitted that during the all-staff Teams meeting at approximately
9:00am on 14 September 2022, she was told that she would no longer have the Recruitment
Team reporting to her, that she would no longer be the HR Manager for South Coast Facility
Services and no longer be involved in the recruitment activities of both Valley Healthcare
Group and Health Staffing Australia.
[29] The Applicant sent various correspondence to the Respondent following the meeting on
14 September 2022, including the correspondence extracted at paragraphs [9]-[16] of this
Decision. The Applicant submitted that this correspondence confirmed the changes to her
[2023] FWC 614
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position and left several questions unanswered regarding the scope of her position moving
forward.
[30] The Applicant further submitted that from 7 August 2022, the Respondent had often
held meetings in secret with the Team Leader of Recruitment, purposefully not including the
Applicant. The Applicant submitted that the Respondent often provided the Team Leader with
direction and provided her with work to complete, even though the Team Leader, at the times,
fell under the remit of the Applicant. The Applicant submitted that the Respondent made no
effort to advise the Applicant in her position as HR Manager, of intricate details pertaining to
the operational demands and needs of any of the business units that impacted recruitment and
human resources, thus creating a culture of mistrust, confusion, and miscommunication,
especially within her own team.
[31] The Applicant submitted that the Respondent coerced other staff to act against her when
she made a formal application to the Commission to stop workplace bullying. The Applicant
submitted that from May 2022 onwards, Mr Thompson would often yell at her in front of other
staff, often questioning her knowledge of HR/Recruitment and going into a “tirade” of stating
how he knew more, and how he had more expertise in the field, putting her down and making
her feel small. The Applicant submitted that this was witnessed by Mrs McGarrity, who was
often in attendance at such meetings. The Applicant relied here on a written statement of Mrs
McGarrity dated 31 October 2022 as follows:
“To Whom It May Concern,
I, Debra McGarrity was recently made redundant from South Coast Facility Services of
Albion Park Rail that is managed by Ross Thompson.
While I have no issue with the redundancy, I would like to make it clear that I knew 3
weeks before it happened, I was being pushed out the door due to the way things where
(sic) changing dramatically. This included how employees are treated and bullied in the
workplace. I have no desire to make any bullying claims at this stage, but I would like
it be known the way you are made to feel during this period of being pushed to leave is
horrible. It made me feel completely unvalued as an employee, humiliated and
embarrassed in front of other staff members along with occasions of bullying. I am
writing this in hope that no one has to experience this whilst employed in this business.
During my employment, I was pressured into by Ross Thompson in writing a letter on
the 14th of September 2022, stating I had not witnessed any bullying in South Coast
Facility Services towards employee Belinda Williams.
Due to no longer being employed by South Coast Facility Services, I would like to
withdraw that letter of the 14th of September 2022 against Belinda Williams, as at the
time I felt intimidated to complete the letter.
Kind Regards
Deb McGarrity”
[32] As to her position that she was constructively dismissed, the Applicant submitted that a
“significant casual (sic) factor” was the distress, hurt and humiliation she experienced due to
the manner by which the employer obtained information from employees about her.2
[2023] FWC 614
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[33] Further, the Applicant relied on her demotion by the Respondent. The Applicant
submitted that where there is non-consensual termination of contract by employer and
subsequent acceptance of fresh contract there will be termination of employment at the initiative
of the employer.3 The Applicant submitted that she was constructively terminated, on the
ground that her demotion resulted in her resignation.4
Remedy
[34] The Applicant seeks an order that the Respondent pay her 4 weeks’ wages for lost wages
from the date of her forced resignation, being 14 September 2022, to the time she commenced
employment with her new employer on 4 October 2022.
[35] The Applicant also seeks an order that the Respondent compensate her for “non-
economic loss s369(2)(b)”.
Respondent’s Submissions
[36] Mr Thompson submitted that in July 2022 the company started assessing its future with
the view of restructuring the business, as it was suffering substantial costs. Mr Thompson
submitted that the Applicant was aware of these financial issues.
[37] Mr Thompson submitted that in July 2022, it was agreed that there would be a trial of
the recruitment team reporting to the Applicant directly.
[38] Mr Thompson submitted that on 1 August, he sent an email to Ms Chelsea Wilding,
Allocations Manager, and the Applicant to set the expectation of management reports to be sent
by 10 am on Mondays. Mr Thompson submitted that:
“not once did [the Applicant] send this report in by the deadline and insisted that [Mr
Thompson] had all access to the data and did not see the point of the report”.
[39] Mr Thompson attached evidence in support of the Applicant ignoring or questioning
management directives repeatedly. Mr Thompson submitted that when the Applicant did not
get the answer she wanted, she would become argumentative. Mr Thompson submitted that he
spoke regularly to the Applicant about her management style and her apparent lack of
knowledge of on-hire recruitment.
[40] Mr Thompson submitted that on Friday, 5 August, he informed the Applicant that he
would be doing training with the recruitment team, at which time she became argumentative.
Mr Thompson annexed and referred to an email chain in support of this submission, which
included the following exchange:5
“From: Ross Thompson [email redacted]
Sent: Friday, August 5, 2022 1:56:21 PM
To: Belinda Williams [email redacted]
Subject: RE: Seek Premium Talent search
[2023] FWC 614
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As stated I will be doing a training session with the recruiters to teach them how to use
it properly
From: Belinda Williams [email redacted]
Sent: Friday, August 5, 2022 1:57 PM
To: Ross Thompson [email redacted]
Subject: RE: Seek Premium Talent search
Ross they have already done the training directly with Seek on Tuesday. It would be a
waste of your time.
From: Ross Thompson [email redacted]
Sent: Friday, August 5, 2022 1:57:54 PM
To: Belinda Williams [email redacted]
Subject: RE: Seek Premium Talent search
Again I WILL be doing the training.
From: Belinda Williams [email redacted]
Sent: Friday, August 5, 2022 2:01 PM
To: Ross Thompson [email redacted]
Subject: RE: Seek Premium Talent search
Again, I do not see this as a good use of your time & beside I did a follow up session
with them on this yesterday to ensure they knew how to use the resource & we have
come up with a coaching program that Shannon will lead on her return next week.
Thanks
Bel
From: Ross Thompson [email redacted]
Sent: Friday, August 5, 2022 2:05:19 PM
To: Belinda Williams [email redacted]
Subject: RE: Seek Premium Talent search
I am the Managing Director and I WILL be doing this training and that is the end of it.
This IS MY BUSINESS and I DO have the final say.
From: Belinda Williams [email redacted]
Sent: Friday, August 5, 2022 2:06 PM
To: Ross Thompson [email redacted]
Subject: RE: Seek Premium Talent search
And you keep on ensuring that you micro manage your managers instead of leading
them, Ross.
From: Ross Thompson [email redacted]
[2023] FWC 614
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Sent: Friday, August 5, 2022 2:07:35 PM
To: Belinda Williams [email redacted]
Subject: RE: Seek Premium Talent search
I have spoken about this repeatedly and NOTHING had happened SO I WILL NOW do
this training.
From: Belinda Williams [email redacted]
Sent: Friday, August 5, 2022 2:08 PM
To: Ross Thompson [email redacted]
Subject: RE: Seek Premium Talent search
You are referring to stats that occurred before the training was done.
From: Ross Thompson [email redacted]
Sent: Friday, August 5, 2022 2:10:00 PM
To: Belinda Williams [email redacted]
Subject: RE: Seek Premium Talent search
I’m not discussing this further I WILL be doing the training with the recruiters next
week.”
[41] Mr Thompson submitted that on 8 August 2022, an executive meeting was held at
Kiama Golf Club, where the viability of the business was discussed at some length. Mr
Thompson submitted that at that meeting, it was decided that two staff members from the
recruitment team were to be made redundant at the end of the week. It was also agreed that the
business would be looking at closing South Coast Facility Services if the situation did not
improve.
[42] Mr Thompson submitted that after the recruitment team started to report directly to the
Applicant, he received repeated complaints from his Recruitment Team that the Applicant was
an incompetent manager and did not know the necessary specifics about recruitment.
[43] Mr Thompson submitted that on 7 September 2022, the Applicant lodged an
antibullying application to the Commission because she was not satisfied with a response that
he gave her when she questioned his decision.
[44] Mr Thompson denied that he was performance managing the Applicant at the time of
her dismissal.
[45] Mr Thompson submitted that he did not ask or want the Applicant to resign, and that he
was shocked when the Applicant submitted her resignation.
[46] Mr Thompson submitted that the Applicant took every direction from him as bullying,
however, this was not the case.
[47] Mr Thompson submitted that the Applicant resigned due to her taking another position
with another company on the day that she resigned.
[2023] FWC 614
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[48] Mr Thompson testified that the Applicant complained about her excessive workload.
Mr Thompson submitted that, even after the corporate restructure, the Applicant was going to
maintain her existing hours and salary.
Applicant’s Reply Submissions
[49] The Applicant submitted that the Respondent has failed to address how it mitigated any
risk of potentially constructively dismissing the Applicant on 15 September 2022. The
Applicant submitted that the Respondent has failed to establish how any financial difficulties
being suffered by the business at the time correlated with its decision to act without consultation
in altering the duties of her position.
[50] The Applicant submitted that the Respondent’s submission that the HR Manager “was
on trial” with regards to the reporting line of the Recruitment Team is not evidenced in any
way. The Applicant submitted that the Respondent “made this up” and noted that she would be
relying on further witness evidence by Ms McGarrity in contesting this submission.
[51] As to the Respondent’s submission that “clear expectations” of how and when the
reporting of recruitment statistics were to be provided was established on 1 August 2022, the
Applicant refuted this submission and submitted that it is not supported by evidence. The
Applicant submitted that she presented reports which exceeded what was required, as the report
was presented to the Respondent through an MS Excel spreadsheet and not a mere email as had
previously been the case by the former Business Manager, Ms Wilding. The Applicant
submitted that “how the Respondent interprets this as the Applicant not “seeing the point in
completing the stats reports” remains inexplicable”.
[52] As to witness evidence provided in support of the Respondent’s submissions, the
Applicant submitted:
“The Respondent’s evidence in point ten was coerced out of staff and is completely
contradicted by the evidence provided by Mrs Debra McGarrity, who recants her earlier
submission, stating that she was exactly that coerced into providing it. If you read the
opening statement of Miss Shannon Wilding’s statement, it also indicates that she was
requested to comply with a directive by the Respondent and submit a letter which
supports his position”.
[53] The Applicant refuted the submission by the Respondent in relation to her work
experience. The Applicant relied here on her CV, which she annexed to her submissions, stating
she has extensive HR Management and HR Consultancy experience expanding over 15 years,
which includes K.S.A.’s in recruitment.
[54] As to the Respondent’s submission that it was not performance managing the Applicant
at the time of her dismissal, the Applicant relied on attachments to her initial submission. The
Applicant submitted that the Respondent contradicts itself on this point, as its submissions “up
until this point indicate that the Respondent was in fact attempting to performance managing
(sic) the Applicant”.
[2023] FWC 614
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Respondent’s Reply Submissions
[55] Mr Thompson submitted that in the Applicant’s reply submissions, the Applicant has
provided evidence of her disregarding clear management directives via the following:
“The Applicant was on numerous occasions expected to provide ‘recruitment stat reports’
unreasonably to The Respondent. As The Respondent already had access to the same
data/information through other means”.
[56] Mr Thompson again denied that he was performance managing the Applicant. Mr
Thompson submitted there is clear evidence that the Applicant failed to comply with
management directions.
[57] Mr Thompson contested the Applicant’s submission that she was on sick leave on 14
September 2022.
[58] Mr Thompson submitted that the Applicant’s direct reports had no confidence in her,
which is why they sought his advice.
[59] Mr Thompson submitted that the Applicant had regularly disregarded management
directions with an argumentative behaviour, and that when he “called her on it”, she claimed
bullying and harassment via an application to the Commission.
Consideration
[60] I have taken into account all of the submissions that have been provided by the parties
and I have attached the appropriate weight to the evidence of the witnesses.
Dismissal
[61] As this is an unfair dismissal application, the Applicant must establish that she was
dismissed and that the dismissal was harsh, unjust or unreasonable.
[62] Section 386 of the Act defines the term “dismissed” in the following terms:
“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.”
[63] It is not in dispute that the employment relationship ceased as a result of email
correspondence on 15 September 2022.
[2023] FWC 614
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[64] In O’Meara v Stanley Works Pty Ltd,6 the Full Bench of the Commission concluded
that:
“some action on the part of the employer which is either intended to bring the
employment or has a probably result of bringing the employment relationship to an
end...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 probably result or that the...
[employee] had no effective or real choice but to resign”.
(My emphasis)
[65] Further, in Bruce v Fingal Glen Pty Ltd (in liq),7 the Full Bench of the Commission
stated:
“although it is an ‘important feature’ of constructive dismissal, it is not sufficient that the
act of the employer results directly or consequently in the termination of the
employment. There must also be either an intention to force an employee to resign,
or else the conduct must be of such a nature that resignation was the probable
result.”
(My emphasis)
[66] I am satisfied that the Applicant was not constructively dismissed for the following
reasons.
[67] The Applicant complained about her workload. Mrs McGarrity testified that the
Applicant’s workload “doubled” when another employee had left the business and that the
Applicant’s workload was “too big” for one employee. The evidence suggests that the Applicant
could not meet the weekly reporting expectations of Mr Thompson.
[68] Mr Thompson would be failing in his duty as a manager if he did not take steps to
alleviate the workload of the Applicant after she had made a complaint. Common-sense would
dictate that Mr Thompson would look at the new “trial” workload which had been placed upon
the Applicant. As it turned out, Mr Thompson had received complaints about the management
performance of the Applicant in relation to the recruitment team. I accept that the Applicant
claims to have extensive experience in the recruitment field, but her performance may have
been below expectations based on her excessive workload.
[69] Further, I note that the Applicant was not being demoted. Her title was not changing.
There was no reduction in her hours of work or her salary. I accept that the Applicant was going
to report to a new General Manager due to changes at the senior level of the Respondent, but a
change in a reporting line does not constitute constructive dismissal.
[70] I accept that the Applicant did not support the change to her responsibilities, even though
she had complained about her workload. I am satisfied that Mr Thompson could have dealt with
the situation better by discussing the proposition directly with the Applicant prior to a final
decision being made. However, I also accept that it was highly unlikely that the Applicant
[2023] FWC 614
16
would have accepted this decision no matter what level of consultation was entered into by Mr
Thompson. I accept the evidence of Mr Thompson that the Applicant regularly challenged his
authority and had previously berated Mr Thompson on a decision that he had taken in relation
to another employee.
Conclusion
[71] I am satisfied and find that the reduction in the Applicant’s duties was undertaken due
to the needs of the business and the complaint made by the Applicant in relation to her excessive
workload.
[72] In light of my findings as set out above, I am satisfied that:
(a) There was no action on the part of the Respondent which was either intended to bring
the employment to an end or had the probable result of bringing the employment
relationship between Ms Williams and the Respondent to an end;
(b) Ms Williams’s employment with the Respondent was not terminated on the
Respondent’s initiative; and
(c) This is not a case in which Ms Williams resigned from her employment with the
Respondent, but was forced to do so because of conduct, or a course of conduct, engaged
in by the Respondent.
[73] Accordingly, Ms Williams was not dismissed within the meaning of s.386 of the Act. I
therefore dismiss Ms Williams’s application for unfair dismissal.
[74] I so Order.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR760291
1 Applicant’s Outline of Submissions, ‘Appendix C’.
2 Storey v The Monitoring Centre Pty Ltd & Ors (2015) FFCA 33100.
3 Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 74 SASR 240.
4 Liongson v Olims Canberra Hotel [2009] FMCA 572; BC200905616.
5 Respondent’s Outline of Submissions, Annexure – ‘Questioning Management Directive 4’.
6 PR973462 [2006] AIRCFB 496 at [23].
7 [2013] FWCFB 5279 at [23].
https://www.fwc.gov.au/documents/decisionssigned/html/pr973462.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb5279.htm
