| [2022] FWC 166 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Melissa Marie Bruno
v
Victoria Building Authority
(C2021/7763)
COMMISSIONER O'NEILL |
MELBOURNE, 28 JANUARY 2022 |
Application to deal with contraventions involving dismissal – no dismissal – application dismissed.
[1] This decision concerns an application made by Ms Melissa Bruno under section 365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed in contravention of the general protections contained in Part 3-1 of the Act.
[2] The Respondent objects to the application on the basis that Ms Bruno was not dismissed.
[3] A hearing to deal with this objection was scheduled for 28 January 2022. On 25 January, the parties advised that no witnesses were required for cross-examination and consented to the application being determined on the papers.
[4] The Applicant filed a witness statement of Mr Savvas Hercules. However, she did not file any witness statement of her own evidence. Ms Bruno did file a signed outline of submissions accompanied by various documents. In the circumstances, I have treated this material, and the initial application form, as evidence. The Respondent filed a witness statement of Ms Fraser, and two witness statements of Ms Halloran, along with written submissions. I have considered all this material in reaching my decision.
[5] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute.
[6] Section 386 provides that a person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative 1 or the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.2 However, a person has not been dismissed if the person was demoted in employment, but the demotion does not involve a significant reduction in his or her remuneration or duties; and the person remains employed with the employer.3
[7] The Respondent contends that Ms Bruno’s employment was not terminated at its initiative, rather her employment ended four months after she commenced, when she resigned on 23 September 2021. The Respondent submits that Ms Bruno was therefore not dismissed within the meaning of section 368 of the Act and the Commission does not have jurisdiction to deal with the dispute.
[8] Ms Bruno submits that her employment ended at the Respondent’s initiative because the Respondent had demoted her. Whilst not entirely clear, I also understand the Applicant to contend that she was forced to resign.
[9] For the reasons set out below, I have concluded that Ms Bruno’s employment ended by her decision to resign, and not from any conduct of the VBA. Because she was not dismissed, she is unable to make a general protections application under s.365 of the Act.
[10] The Applicant commenced employment with the Respondent on 17 June 2021. Her signed offer of employment details that the position is a fixed term contract from 17 June 2021 to 16 June 2022. The position is a Grade 4 Lawyer (1264N) within the Corporate Services Division. The Applicant’s Position Description specified the following Key Accountabilities: 4
1. Provide quality and timely legal advice on simple and complex matters under the supervision of the Legal Counsel – Legislative Functions, Reforms and Advice and the Legal Counsel – Commercial & Corporate to internal stakeholders.
2. Responsible for carriage of drafting and negotiating commercial arrangements and agreements.
3. Responsible for making decisions on FOI and privacy matters.
4. Review and prepare decisions under the Freedom of Information Act 1982 within the statutory time limits and ensure that the VBA complies with its Freedom of Information, privacy and data security statutory obligations.
5. Assist with the preparation of reports, submissions, briefings and responses to correspondence on a broad range of matters for the Minister, VBA Board, Chief Executive Officer and other internal stakeholders.
6. Support the Project Management Office in relation to any legislative reforms.
7. Provide advice on legal risk and other corporate governance matters as required.
8. Providing reports, briefs and other documentation associated with the legislative reform as required.
9. Participate in Legal Services and Office of the Chief Executive Officer initiated projects and teams aimed at helping the VBA and/or Legal Services meet their objectives, goals and targets and undertake such other work as directed by the General Counsel or the Assistant General Counsel.
10. Support the General Counsel in terms of business improvement and supporting the general operating requirements of Legal Services.
11. Assisting the Legal Counsel – Legislative Functions, Reforms and Advice and the Legal Counsel – Commercial & Corporate to execute regular and consistent data recording, performance monitoring and reporting functions for the team.
[11] For the first few weeks of Ms Bruno’s employment, her manager’s position was vacant. During this time the Applicant was supervised by and allocated work from: Lawyer Vujan Krunic (VPS4); Practice Manager, Savvas Hercules (VPS6); Legal Counsel Commercial, Keely O’Dowd (VPS6); and General Counsel, Justine Halloran (Executive). Following her appointment as Legal Counsel Legislative Functions, Reforms and Advice, Ms Fraser was the Applicant’s direct line manager from 19 August 2021 to the Applicant’s last day at the VBA.
[12] Ms Fraser’s evidence is that on 10 September 2021, she received an unexpected email, from the Applicant’s former employer, requesting a reference check. Ms Fraser says the Applicant had not asked her to be a referee or given any indication that she was seeking alternate employment. 5
[13] Ms Bruno’s evidence is that her former employer contacted her by telephone and offered her a role. 6 It is not clear when this offer was made, however I infer it was prior to 10 September 2021.
[14] Also on 10 September, Ms Fraser and Ms Bruno met to discuss the Applicant’s draft performance plan. Ms Fraser mentioned that she had received a reference check and asked if the Applicant wanted to talk about it as she had not raised it with her previously.
[15] According to Ms Fraser, the Applicant advised her that the reference check was for a permanent position which was a factor in her decision to apply for it as she needed more certainty than a fixed term contract. 7
[16] The Applicant asked Ms Fraser for feedback about her work. Ms Fraser commented that her work was not well received by other managers including the General Counsel, but that she had not formed an opinion because they had worked together for less than four weeks. The Applicant wanted further detail and Ms Fraser talked about changes she had made to her work so far and said something to the effect that she knew she was making an effort and could tell that she was trying to take on board some of her comments. Ms Fraser reiterated that she had not formed an overall view of her work at this stage. They discussed some recent advice on modern slavery that the Applicant had emailed to Ms Halloran (General Counsel) without prior review by her manager. The advice was inaccurate and had to be revised by Ms Fraser. Ms Bruno said something like she wished she had never sent the email, to which Ms Fraser told her not to focus on it too much as it was just one piece of advice. 8
[17] Ms Fraser then said that as the backlog of legal advice requests was clearing, and fewer new requests were coming in, the Applicant would be working on FOI and privacy matters, as this was where the team had a current need.
[18] At the end of the meeting Ms Bruno said that she would take the job she had applied for if it was offered to her. Ms Fraser said something to the effect that it was her decision to make. 9
[19] Ms Bruno’s account of this meeting includes that Ms Fraser told her that Ms Halloran, did not like her and that while her contract would be seen out and she would not be performance managed, her position would not continue after the contract expired. 10 She says that she was told to help in FOI in an administrative capacity and that this work did not require a law degree or a current practising certificate.11 Ms Bruno states that as a result of this conversation she became scared and concerned, felt that her position may be terminated and became unwell. She reluctantly tendered her resignation a week later.12
[20] Mr Hercules also gave evidence for the Applicant. He recounts a discussion, in confidence, with Ms Fraser where she told him that the Applicant had provided some poor advice about modern slavery which had embarrassed Ms Halloran, and she is “not a fan” of the Applicant. Ms Fraser told him that she hadn’t had enough time to assess her work, although Ms Halloran had already formed a view. 13
[21] Mr Hercules told the Applicant on 10 September that “there may be some changes that she may not like and if the NDIA offer her a position she should take it”. 14 The Applicant asked him if there was an issue with her work and whether her position was being made redundant. Mr Hercules said no, but there are budget issues, and he didn’t think her position was being made redundant right now, but anything can happen.
[22] The Respondent says that Mr Hercules was not under instruction from either Ms Halloran or Ms Fraser in choosing to make these statements to the Applicant, was acting independently, and not following advice given to him by Ms Halloran to the effect that it was far better to provide honest and constructive feedback to people rather than telling them something which is not accurate to preserve their feelings. 15
[23] Shortly after 10 September the Applicant began to work with the FOI team which was then managed by Mr Hercules. Ms Fraser, noting that FOI is part of the Applicant’s position description, says that she continued to provide Ms Bruno with marked up reviews of her draft advice work and continued to have weekly catch ups and other meetings as required. Ms Bruno raised no concerns or issues with this arrangement with Ms Fraser. No change was made to the Applicant’s grade, pay or fixed term tenure. No formal performance management process was commenced. 16
[24] Less than two weeks later, on 23 September the Applicant, having secured a role with the NDIA, resigned by email addressed to Ms Fraser and Mr Hercules stating:
“Dear Savvas and Rebecca
This email is to notify you that I am resigning from my position here as lawyer, effective on 25 October 2021.
Savvas, it has always been a pleasure to work with you.
Rebecca, in the short time I’ve worked with you, I appreciate your kindness and willingness to provide guidance and support and no doubt in different circumstances, I could have learned a great deal from you.
Thank you.” 17
[25] Ms Fraser replied accepting her resignation. She arranged her virtual farewell, group present and card. The Applicant attended and participated in a virtual farewell hosted by the Legal Services team. 18
[26] The Respondent referred to the decision in Neil Ashton v Consumer Action Law Centre where Commissioner Bissett said:
“It is not expected that employees will always be happy in their employment. Dissatisfied employees resigned 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.” 19
[27] The Respondent submits that the Applicant was not dismissed because:
“• The Applicant was afforded the same access as all VBA employees to COVID-19 special leave provisions and instigated a request to utilise five days of this paid leave to assist in supporting home-schooling requirements in September 2021;
• The Applicant performed duties in line with her position description for the duration of her engagement, which included duties aligned to the VBA’s Freedom of Information function;
• The Applicant proactively sought alternate employment while engaged with the VBA, including requesting that the VBA complete external reference checks on her behalf with the NDIA on 10 September 2021;
• The Applicant voluntarily tendered her resignation in writing on 23 September 2021, attended a team farewell meeting and completed a notice period of 4 weeks. 20
[28] The Respondent further submits that:
• There was no action taken that intended to bring or had the probable result of bringing the Applicant’s employment to an end;
• There was no formal misconduct or underperformance process;
• There was no direction – verbal or written – that indicated employment would cease prior to the agreed 12-month fixed term period, or, that it could be reasonably inferred the Applicant should tender her resignation;
• There was no action taken to diminish the Applicant’s duties performed in the role of Lawyer, grade or remuneration;
• The Applicant was provided with an appropriate level of supervision and professional feedback from senior lawyers on the quality and content of her work; and
• The Applicant did not resign in the heat of the moment but rather, sent her resignation by email thanking her line manager, attended and participated in her virtual farewell, and completed the 4-week notice period prior to separation. 21
[29] The Applicant submitted that the direction on 10 September 2021 to start working in the FOI team amounted to a demotion. The work involved was administrative and not legal work. Whilst she acknowledges that she tendered her resignation, she contends that her role was obsolete due to the actions taken by the VBA and there was no point in her staying. She was embarrassed and humiliated. 22
[30] Ms Bruno contends that the work in the FOI team that she was required to perform was administrative, and not what she was employed to do. She was in fact demoted, no longer reported to Ms Fraser, and was not provided with opportunities to engage in any of the other duties in her position description, which was legal based work working under General Counsel. The Applicant says (and the Respondent disputes) that she was told she was simply assisting Andrea, and Ms Fraser said words to the effect “ you are not working within legal advisory work - general, and will need to assist Andrea in FOI for the duration of your employment as Justine is not a fan of you [sic] due to Keely’s feedback of you”. The work she did in FOI was commonly done by an administrative assistant. The Applicant asserts that she did not have delegation to make FOI decisions and that this was not looked into until a week before she left. 23
[31] The Applicant contends that this amounted to coercion and encouraging action by the Respondent to make her leave and tender her resignation. The reduction of her duties was significant in that she went from acting as a lawyer to essentially an administrative assistant.
[32] Section 386(2)(c) of the Act explicitly provides that a demotion can constitute a dismissal in certain circumstances. However, neither this section nor the implication which arises from it is engaged unless “the person was demoted in employment”.
[33] Neither party drew my attention to any cases on the meaning of “demoted” or “demotion” in section 386(2)(c). I am not aware of any. As Deputy President Saunders has commented 24, that is probably because most of the cases concerning demotions do not involve a contest as to whether or not there was a demotion. The Deputy President considered that the ordinary meaning of the word “demote” is “to reduce to a lower grade or class” (opposed to promote), and that this is the legal meaning of the word in section 386 of the Act. I agree and adopt the same approach.
[34] It is not contested that the Applicant’s classification, remuneration or period of tenure remained unchanged throughout her employment with the VBA. Ms Bruno remained in the position to which she was employed, as a Grade 4 Lawyer. That position included, as set out in her Position Description, reviewing and preparing FOI decisions, and ensuring that the VBA complies with its freedom of information, privacy and data security statutory obligations.
[35] The Applicant’s contention comes down to her assessment that the work she was required to undertake in the FOI team from on or around 10 September 2021 to 23 September 2021 when she resigned, was not what she was employed to do. I am not satisfied that this is a demotion. There was no reduction in her grade or classification. Even if I was satisfied that she had been demoted, I would not find it to be a demotion that involved a significant reduction in her duties (and as discussed above, involved no reduction in remuneration). Further, on the evidence, this change occurred around 10 September 2021, less than two weeks before the Applicant resigned. There is no evidence that the Applicant raised any concerns or objections at the time. FOI was within her duties. Ms Fraser’s explanation as to why she was being required to work on FOI was eminently reasonable. The Applicant was simply directed to undertake work, within her position description, that was different to what she had been performing. Ms Fraser was simply allocating resources to where they were needed by the VBA at that point in time. That the Applicant did not have delegation to make FOI decisions may have been an issue, however viewed in context, she was performing this work for less than two weeks before she resigned. It was reasonable that not all arrangements were immediately in place to enable the Applicant to undertake the full range of FOI-related duties in her position description.
[36] The Applicant referred to the decision in Irvin v Group 4 Securitas Pty Ltd. 25 It does not assist her beyond demonstrating that some actions of an employer, short of dismissal, can constitute a termination of employment at the initiative of the employer. That is an uncontentious proposition.
[37] In the second case referred to by the Applicant, Blair v Chubb Security Australia Pty Ltd 26 the Commissioner found that there was not a significant reduction in the duties or remuneration of the applicant. It was not explained how this case assists the Applicant.
[38] In some circumstances a person who resigns from their employment, can still be found to have been dismissed by their employer. That is when “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.” 27
[39] Previous cases have considered what is meant by a ‘forced resignation’. For example, it has been found that an employer who said to an employee “resign or we’ll call in the police” 28 was not a real choice and was, really, a termination of employment by the employer.
[40] A critical element is whether, considered objectively, the employer’s conduct was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. It is the employer’s conduct that is critical. 29
[41] The onus to prove that a resignation was not voluntary is with the Applicant. Ms Bruno’s evidence is that she resigned ‘reluctantly’. 30 She does not assert in her evidence that she had no option but to do so or was forced in any way by the actions of the VBA. There was no request by the VBA that she consider doing so. She did so to take up a role that she had applied for. She applied for the new job prior to the change in her duties that she subsequently complained of.
[42] It seems to me that Ms Bruno was unhappy with the work she was being required to perform and believed that senior management had a poor view of her capability and concluded that she was unlikely to be offered a new contract when her fixed term contract expired. She sought more certain employment than she had with the VBA and made a rational decision to accept an offer of employment with the NDIA and resigned.
[43] There was no action taken by the VBA that intended to bring or had the probable result of bringing the Applicant’s employment to an end. Her manager, Ms Fraser, made it clear that her contract would be seen out and that she had not formed a view about the Applicant’s capability. Ms Fraser provided constructive feedback about the Applicant’s performance. At its highest, a manager (without authority) advised her to take a new job that the Applicant had applied for, if she were offered it. The actions of the VBA go nowhere near a finding that Ms Bruno was forced to resign.
[44] I find that Ms Bruno resigned voluntarily and was not dismissed for the purposes of section 365 of the Act. Consequently, the Commission does not have jurisdiction to deal with the application and it must be dismissed. An Order will be separately issued. 31
COMMISSIONER
Final written submissions:
Applicant, 17 January 2022.
Respondent, 24 January 2022.
Printed by authority of the Commonwealth Government Printer
<PR737771>
1 s.386(1)(a) of the Act.
2 s.386(1)(b) of the Act.
3 s.386(2)(c) of the Act.
4 Annexure 1 to Applicant’s submissions.
5 Witness Statement of Rebecca Fraser at [11].
6 Applicant’s submissions para 5(iv).
7 Witness Statement of Rebecca Fraser at [15].
8 Ibid at [13]-[22].
9 Ibid at [22].
10 Form F8, p.7.
11 Witness Statement of Rebecca Fraser at [22].
12 Form F8, p.8.
13 Witness Statement of Savvas Hercules at [13].
14 Ibid at [18].
15 Second Witness Statement of Justine Halloran at [11].
16 Witness Statement of Rebecca Fraser at [23]-[25].
17 Attachment 6 to Form F8A.
18 Witness Statement of Rebecca Fraser at [28].
19 [2010] FWA 9356 at [59].
20 Respondent’s submissions at [4].
21 Ibid at [8].
22 Applicant’s submissions para 5(v).
23 Ibid para 5(ii).
24 James v NSW Trains [2021] FWC 4733 at [24].
25 PR92590.
27 s.386(1) of the Act.
28 Mohazab v Dick Smith Electronics Pty Ltd [1995] 62 IR 200.
29 Bupa v Tavassoli [2017] FWCFB 3941 at [47].
30 Form F8, p.8.
31 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.