DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Katie Phillips
v
Integrated Medical Solutions Group Pty Ltd
(U2019/6222)

Application for an unfair dismissal remedy – jurisdictional objections – applicant not dismissed at respondent’s initiative – dismissal not at respondent’s initiative – no constructive dismissal – application dismissed.

[1] Ms Katie Phillips has made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Integrated Medical Solutions Group Pty Ltd (the respondent).

[2] Ms Phillips commenced employment with the respondent on 30 January 2017 initially as a casual Medical Receptionist. She converted to permanent employment in the same role from 1 July 2017, working an average of 38 hours per week.

[3] The parties are in agreement that the employment came to an end on 17 May 2019, and the application was filed on 5 June 2019. Ms Phillips contends that her employment came to an end at the respondent’s initiative; the respondent denies that it ended the employment at its initiative.

[4] The respondent sought leave to be represented by a lawyer or paid agent. After seeking Ms Phillips’ views on whether I should grant leave for the respondent to be represented, I informed the parties on 13 August 2019 that leave was granted. I advised the parties that the reasons for granting leave would be provided in the substantive decision, and I do so here.

[5] Very sadly, Ms Phillips’ mother became terminally ill in 2018 and passed away in January 2019. Ms Phillips is currently aged 24 years, and has a great deal of hands-on involvement in the care for her younger sister now aged 11 years. In granting leave for the respondent to be represented, I took into consideration the complexity of the issue before the Commission; namely was there a dismissal at the initiative of the respondent? I considered that this was sufficiently complex to warrant the granting of leave. Further, if leave was not granted, it would have been likely that Ms Sarah Day, Group Manager – People and Culture, one the witnesses in this matter would have appeared for the respondent. Alternatively, Mr David Holzgrefe, Director might have appeared for the respondent.

[6] I anticipated that given the sensitivity around the reasons for the employment ending, and the cross-examination that might be required, it would be prudent for there to be a legal representative who might hopefully, and sensitively, buffer the questioning between the applicant and the respondent’s witnesses.

Determinative conference

[7] The application was listed for hearing on 6 September 2019. After obtaining the views of the parties, I decided to hold the matter as a determinative conference.

[8] Ms Phillips appeared and represented herself, supported by her father. The respondent was represented by Dr Max Spry of Counsel, instructed by Ms Sonya Black of Avant Law. Ms Day and Mr Holzgrefe gave evidence.

Legislation

[9] Section 396 of the Fair Work Act 2009 (the Act) sets out several matters that must be considered before the merits of an application can be considered, and states:

“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.”

[10] I am satisfied that the application was made within the 21 day period required by s.394(2) of the Act.

[11] Section 382 of the Act sets out the circumstances that must exist for a person to be protected from unfair dismissal:

“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.”

[12] As set out above, the respondent does not dispute that Ms Phillips had completed the minimum employment period by the date of her alleged dismissal, and her income was less than the high income threshold. I am satisfied that Ms Phillips was a person protected from unfair dismissal.

[13] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:

“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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[14] Section 386 of the Act deals with the meaning of dismissed, providing:

“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.

……………….”

[15] I explained to the parties at the commencement of proceedings that it was necessary for me to determine whether there had been a dismissal; and if there had, I would then consider whether Ms Phillips’ dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act. If I determined that there had not been a dismissal pursuant to s.386 of the Act, the application would be dismissed.

Ms Phillips’ evidence and submissions

[16] Ms Phillips’ mother became ill in April 2018. Ms Phillips commenced unpaid leave on 17 October 2018. On 23 November 2018 she met with Ms Day. It is her evidence that Ms Day agreed that Ms Phillips would “always have a job to return to”, and agreed with Ms Phillips that she could return to work 10:00am – 2:00pm Monday to Friday as a part-time employee. Prior to going off on leave, Ms Phillips worked an average of 38 hours per week across a span of 8:00am – 6:00pm in the respondent’s medical practices, together with working every second Saturday.

[17] Ms Day sent the following email to Ms Phillips following the above meeting:

“Katie and Sara had a meeting today – Katie will be providing Sarah with a Doctors certificate to extend time off with her Mum until Jan 2019.

Sarah has assured Katie that we will review her situation in Jan.

Katie will have a job to return to when she is ready and this may be part time in Morayfield.”

[18] Ms Phillips and Ms Day again met on 4 March 2019, where Ms Phillips informed Ms Day that she was ready to return to work, working 10:00am – 2:00pm, being the hours Ms Day had suggested on 23 November 2018. She stated that she needed to get her sister ready for school, drop her off and pick her up every day. She also wanted to have one week off each school holidays to care for her sister, while their father could care for her on the other week of school holidays. During the summer school holidays she proposed to have three weeks off work.

[19] It is Ms Phillips’ evidence that upon mentioning the school holiday hours, Ms Day’s demeanour changed negatively. Ms Phillips proposed that she could take unpaid leave during these weeks of school holidays.

[20] Ms Day responded that Ms Phillips should consider before and after school care for her sister, together with vacation care during school holidays. It is Ms Phillips’ evidence that she considered that her sister had been through enough with the death of her mother, and that it was discriminatory to question the family’s decision not to use out of hours care.

[21] During a later telephone call with Ms Day, Ms Phillips asserts that Ms Day stated, “We’re just trying to figure out what is best for you and whether that’s to terminate you or you resign your employment.”

[22] On 6 March 2019, Ms Phillips emailed Ms Day, asserting that she had been promised the hours of 10:00am – 2:00pm, and confirming her proposal of working one week of each school holidays to allow her father, who works remotely, to care for her sister on the other week. Her email finished:

“In conclusion, as per our meeting I am informing you again that I am ready to return to work under the hours and role discussed.

I await your decision and look forward to your response.”

[23] Ms Phillips also submitted that during a telephone call she had suggested that she could commence work at 9.00am.

[24] On 11 March 2019 Ms Day responded as follows:

“Dear Ms Phillips

Your request for a flexible working arrangement

We refer to your email dated 6 March, 2019 requesting a flexible working arrangement.

We provide the following response.

Your request

You have requested a flexible working arrangement because you have responsibility for the care of a child who is school age.

You have asked to be employed in a permanent part-time position working 10am to 2pm each day. You have also asked to take leave every school holidays, or at least for that part of the school holidays that your father is unable to provide care for your sister.

During our meeting on 4 March, 2019, I advised you that I would need to speak with the practice owner about your request for flexible working arrangements. I have now done so.

Response to your request

Unfortunately, the IMS Group is unable to accommodate your request. The reasons for this are:

(a) The practice has a greater requirement for reception staff at opening and closing times as these are the busiest times for reception staff

(b) The practice employs a large number of working parents, most of whom request annual leave over school holidays. It would be unfair to decline the leave requests of other staff wanting leave over school holidays because one employee is entitled to leave every school holidays.

(c) The practice would incur significant additional costs if it is required to hire casual staff to work at practice opening/closing times over school holidays.

(d) It can be practically difficult to employ casual staff over school holidays as the available casual staff typically do not wish to work at this time.

Proposed alternate flexible working arrangement

You are currently employed to work 38 hours per week, between the hours of 8am and 5pm (Monday to Friday) and 8am to 1pm (Saturday).

The practice is able to offer you part-time employment on the following basis:

•  You will work 8.30am to 2.30pm, Monday to Friday with half an hour for lunch being 27.5 hours per week.

•  You will be required to apply for annual leave in accordance with practice policy. Annual leave will be allocated amongst reception staff on a fair and equitable basis. As you are aware, many reception staff request leave over school holiday periods. We need to be fair to everyone.

The practice is also able to offer you casual employment on the standard terms. The practice would have no obligation to offer you work and you would have no obligation to accept any offer of work.

You have a right to return to you substantive full time position.

We do appreciate that you have been through a difficult time and that you will need to make alternative arrangements for the care of your sister over the Easter school holidays. To assist you with this, the practice is agreeable to you returning to work on a part time basis on 23 April 2019 (the start of Term 2”). You can, of course, return earlier if you wish.

Please contact me to arrange a time to meet if you would like to discuss further.

Kind regards

Sarah Day

[signature]

Group Manager – People and Culture

[mobile phone number] (original emphasis retained)”

[25] On 18 March 2019, Ms Day sent the following email to Ms Phillips:

“Just following up from my email sent on Tuesday 12th of March, 2019. I am in the process of finalising the rosters, could you please let me know your intentions about returning to work. If you have any questions I am available to meet you at a time that suits.”

[26] On 27 March 2019, Ms Phillips responded:

“I have had issues with my email so I have had to text message you following up from your email on 12/02/2019 regarding Flexible Working Arrangements.

It is a little disheartening to see that from your response that you may no longer have a position at IMSG group for me, due to the sake of a couple of hour difference in availability each day.

You had verbally told me in our meeting on the 23^rd of November 2018 that I would always have a job to return to and you discussed with me the hours being between 10am-2pm on a Monday to Friday basis.

Unfortunately I can not change mine or my families circumstances since the passing of my Mum.

I do now care for my little sister who is only 10 years of age. My availabilities are 10am -2pm Monday to Friday as this is between school drop off and pick up.

I have had my hopes set on returning to work during these hours. At the end of the day it is a simple question;

Do I still have my job as promised or not? [sic]”

[27] On 28 March 2019, Ms Day responded:

“I refer to my letter dated 11/03/2019 which clearly says that there is a position at the IMS Group for you. The practice has offered you three options – return to your full time position, accept a part time position on the terms set out in the letter or accept casual employment.

In our meeting on 23 November 2018, we did discuss your preferred hours of work. I made it clear to you that any decision about your hours of work would need to be made by the practice owner. I did not make any commitment on behalf of the practice.

The practice has supported you over recent months given your personal circumstances. The practice is sympathetic to the position you find yourself in. However, the practice is unable to accommodate your request to work 10am to 2pm each day and/or to take leave every school holidays for the reasons set out in our letter dated 11/03/2019.

I am happy to meet with you in person to discuss this further if you wish.

Otherwise, can you please let me know by 5pm on 5 April 2019 if you intend to return to work on one of the bases set out above.”

[28] On 11 April 2019 Ms Day wrote to Ms Phillips as follows:

“We have not yet received a response from you to our email and text dated 28/03/2019 (copy attached).

Can you please let us know your intentions about returning to work by Wednesday, 19 April 2019. If we don’t hear from you by that date, we will assume that you do not intend to return to work.”

[29] On 2 May 2019 Ms Day wrote to Ms Phillips as follows:

“I refer to my letter dated 11 April 2019, which was delivered to you by registered post on 16 April 2019.

You did not respond to my letter by 19 April 2019 as requested and you have not contacted me in any way since then.

As a result, I assume that you do not intend to return to work. Your final date of employment will be recorded as 8^th of May 2019. Please contact me urgently before the date if you do wish to return to work.

If I don’t hear from you, the 3.1 hours of annual leave owing to you will be paid to you in the next pay run after the 8^th of May, 2019.

Hoping to hear from you prior to the 8^th of May, 2019.”

[30] On 8 May 2019 Ms Phillips wrote to Ms Day as follows:

“Firstly please find attached my updated medical certificate dated 18/3/19 – 14/5/19 inclusive.

In response to your email dated 2/5/19, please do not assume that I do not wish to return to work when in fact I do want to return to work and have stated this on numerous occasions in our meetings and via email. You are making this extremely hard and are adding extra stress to this situation.

As I have stated previously you are aware that I now care for my primary school aged sister due to the passing of our Mum in January 2019.

My availabilities are as previously stated 10am-2pm Monday-Friday.

I would be able to work until 2:30pm on these days if that would help with the needs of the business.

As you know I have been employed with the IMSG group for over 2 years now and prior to my families situation changing in January this year, I was working Full Time hours and always putting in 100% effort during my shifts.

I believe I am a valued team member and I do wish to return to work, hoping you can appreciate my physical availabilities outlined above and in my previous emails.

Please let me know if yourself and the IMSG group intend to accommodate my availabilities or not as soon as you can.”

[31] On 10 May 2019 Ms Day responded:

“As I have repeatedly advised, the practice is unable to accommodate your request to work from 10am to 2pm or 2.30pm each day.

The practice has offered you three options – return to your full time position, accept a part time position on the terms set out in my letter dated 11 March 2019 or accept casual employment.

I require a response from you as to which option you would prefer by Friday, 17 May 2019. If I do not receive a response by that time accepting one of the proposed options, I will pay out your remaining entitlements and treat your employment as being at an end.”

[32] On 20 May 2019 Ms Day wrote to Ms Phillips as follows:

“I refer to my prior correspondence in this matter. I have not received a response from you as requested. Therefore I confirm that your employment came to an end on 17 May 2019.

I have arranged for your outstanding leave entitlements to be paid into your bank account tomorrow.

I wish you all the best for the future.”

[33] On 12 June 2019 Ms Phillips requested a separation certificate, stating that that the respondent had terminated her employment. The separation certificate was completed by Ms Day on 14 June 2019, nominating the reason for separation as “Employee ceased work voluntarily”.

[34] During the determinative conference, Ms Phillips reiterated that she was upset that the separation certificate was issued in the manner that it was, as she did not consider that she had ceased work voluntarily. It also meant that she was restricted up until very recently in receiving unemployment benefits.

[35] In questioning from me during the determinative conference as to why Ms Phillips did not correspond with the respondent between 27 March 2019 and 8 May 2019, Ms Phillips stated that she was not feeling well and felt stressed with the matter.

[36] Her medical certificate, while covering her for the period 18 March – 14 May 2019 inclusive, did not prevent her from taking her sister to and from school, Ms Phillips confirmed.

[37] Ms Phillips maintained that she was dismissed at the respondent’s initiative. She did not submit that she resigned from her employment, being forced to do so because of conduct, or a course of conduct engaged in by the respondent. Ms Phillips gave further evidence relevant to why she submitted that her dismissal was unfair, and efforts relevant to mitigation.

The respondent’s evidence and submission

[38] Ms Day stated that at no time during the meeting of 23 November 2019 did she agree that on Ms Phillips’ return, she could work 10:00am – 2:00pm. Her evidence is that any request for flexible working hours would ultimately need to be approved by Mr Holzgrefe. Ms Phillips was also invited in at this time to try on a new uniform that was being ordered, demonstrating the respondent’s commitment that Ms Phillips had a job with the respondent beyond the tragic family circumstances.

[39] Ms Day denied that Ms Phillips suggested that she could commence work at 9:00am. The emails sent by Ms Phillips to Ms Day of 6 March, 27 March and 8 May 2019 all nominate her availability as strictly 10:00am – 2:00pm only.

[40] Ms Day denied that her demeanour changed significantly when Ms Phillips proposed working only one week of each school holidays. She did agree that she was surprised by this request given it was the first time it had been raised. Ms Day stated that she would need to discuss the request with Mr Holzgrefe.

[41] Ms Day denied that Ms Phillips stated that her father could look after Ms Phillips’ sister one week each school holidays. It is her evidence that Ms Phillips stated that she would need all school holidays off, and there may be times when her father could help out if he was at home, or that “perhaps” her father could do one week and she could do the other. She does not recall Ms Phillips stating that she could take school holidays as unpaid leave.

[42] Ms Day agreed that she proposed Ms Phillips’ sister attend out of hours school care. Ms Phillips responded that she would not consider it as an option as neither she or her brother attended out of hours school care, and her little sister would not be attending.

[43] She denied that she discussed with Ms Phillips termination of employment or resignation of employment after the meeting of 4 March 2019, as alleged by Ms Phillips.

[44] During the determinative conference, Ms Day stated that at the meeting of 23 November 2019 with Ms Phillips, where she was ordering her new uniform, she was also invited to attend the work party the following day, which she did. Further, a collection was organised and approved by Mr Holzgrefe and between the respondent’s doctors, nurses and other staff, where $525 was raised and gifted to the Phillips family in December 2018. Ms Day contended that the respondent had complied with its corporate values in how it treated Ms Phillips from the time she notified the respondent that her mother was unwell.

[45] Mr Holzgrefe gave evidence that upon being informed that Ms Phillips wanted to work 10:00am – 2:00pm and take school holidays when her father was away, he considered the request and concluded that the respondent could not accommodate the request for the following reasons:

•  The practice requires staff to work at practice opening (8am) and closing times (5.30pm, but may be later if patients are still at the practice) as these are the busiest times for the practice;

•  The practice would be required to hire casual staff to cover practice opening and closing times. The relevant award requires casuals to be employed for a minimum period of three hours per shift, and this would significantly increase the practice’s cost;

•  The practice could not accommodate Ms Phillips’ request for annual leave every school holidays as that would impact the ability of other staff to take leave over school holidays, which Mr Holzgrefe considered would be unfair to other staff;

•  Ms Phillips originally requested up to 12 weeks off per annum, but less if her father was available. Even if the practice could cover her absence with casual employees, this would come at a significant cost;

•  Many casual employees elect not to work during school holidays. This would likely leave the practice short-staffed during school holiday periods;

•  The practice employs many working parents who would ideally like to have a similar working arrangement. Allowing one employee to have a working arrangement of 10:00am – 2:00pm each day and not working school holidays would likely cause industrial unrest and dissatisfaction amongst other staff.

[46] Mr Holzgrefe considered flexibilities including commencing at 8:30am so that Ms Phillips could take her sister to school, even though the practice opens at 8:00am. He instructed Ms Day to respond to the flexible work request. Ms Day discussed subsequent developments with him, and he maintained the view that the respondent could not accommodate Ms Phillips’ request.

Consideration

Was Ms Phillips terminated at the initiative of the respondent?

[47] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) a Full Bench of the Industrial Relations Court of Australia declined to exhaustively describe what is meant by ‘termination at the initiative of the employer’, but did state: 1

“…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.”

[48] In O’Meara v Stanley Works Pty Ltd 2 (O’Meara), a Full Bench of the Australian Industrial Relations Commission, as this Commission then was, considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:

“[23] …some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”

[49] In Barkla v G4S Custodial Services Pty Ltd, a Full Bench of this Commission relied upon the detailed consideration of case law set out in O’Meara. 3

[50] Having considered the evidence and submissions before me, as unfortunate as Ms Phillips’ circumstances are, an employer in the respondent’s position is not bound to accept Ms Phillips’ request for working hours of 10:00am – 2:00pm only, and most or half of all school holidays off work. It is not bound by any industrial instrument that would require it to agree.

[51] During the determinative conference I put to Ms Phillips the scenario of a full-time employee returning from maternity leave, seeking only to work two days per week. I suggested to Ms Phillips that the returning employee is certainly entitled to request a return to two days per week, but is not entitled to demand to work only two days per week. An employer has an obligation to consider all requests for flexible working arrangements, but can reasonably refuse such requests.

[52] I do not accept that Ms Phillips proposed a 9.00am commencement time during a telephone call with Ms Day. All of Ms Phillips’ written correspondence maintains a steadfast position on working only 10:00am – 2:00pm.

[53] The respondent repeatedly, reasonably and professionally corresponded with Ms Phillips about the reduced hours of work it could accommodate on her return. It offered to Ms Phillips the opportunity of part-time work of six hours per day, less a half hour unpaid meal break, during school hours. Alternatively, it invited Ms Phillips to return as a casual employee. The respondent made it clear that Ms Phillips would be entitled to request annual leave in accordance with the respondent’s policy.

[54] Ms Phillips’ inability to return on the respondent’s proposed accommodations is unfortunate.

[55] On the evidence before the Commission, and in accordance with the decision in O’Meara, there does not appear to have been a course of conduct on the part of the respondent which was either intended to bring the employment relationship to an end, or which had that probable result. I find that Ms Phillips had a substantive job to return to and she chose not to accept the respondent’s reasonable and accommodating hours of work given her personal circumstances. The respondent’s correspondence of 10 May 2019, stating that if it did not receive a response by 17 May 2019 accepting one of the proposed options, it would consider the employment at an end does not constitute a dismissal at the initiative of the employer.

[56] I am satisfied that Ms Phillips was not dismissed pursuant to the consideration in s.386(1)(a) of the Act.

Was Ms Phillips constructively dismissed?

[57] The Full Bench in Mohazab described when a constructive dismissal occurs, and stated, “...industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.” 4

[58] The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred. 5 Ms Phillips does not allege that a constructive dismissal occurred, however, given she is self-represented, it is worth considering whether this is the effect of her failure to return to work.

[59] 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.” 6

[60] The decision in O’Meara v Stanley Works provides a useful summary on constructive dismissal, as follows:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. 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.” 

[61] Additionally, in Australian Hearing v L Peary, 7 it was stated that:

“[29] The first ground of appeal is that the Commissioner did not give proper effect to s.642(4) of the Act. It was submitted that the use of the word “forced” indicates a legislative intention that in cases of resignation there will be no termination at the initiative of the employer unless the resignation was an intended consequence of conduct or a course of conduct engaged in by the employer. On that basis, the Commissioner’s finding that the resignation resulted from the employer’s conduct is not sufficient to attract the operation of the section. The element of intention is missing. It was further submitted that there was no evidence of such an intention in any event.

[30] We cannot accept this construction of the section. The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer’s intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied.”

[62] In Ashton v Consumer Action Law Centre, 8 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, Mr 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 Mr 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.”

[63] 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

[64] Turning to the present matter, it is apparent that the respondent offered up various options to Ms Phillips for her return to work. It could not accommodate her request to work only four hours per day, and have most or all of each school holidays off work. I do not consider the respondent was unreasonable in its refusal, and it met all of its obligations to respond appropriately to what it understood was a flexible working arrangement request.

[65] I do not find that the respondent’s conduct forced Ms Phillips to resign her employment, even where she maintains and I accept that she did not resign her employment. She did not respond to the respondent’s correspondence that it would consider that her employment was at an end if she failed to respond.

[66] Accordingly, I find that there was not a dismissal pursuant to s.386(1)(b) of the Act.

Conclusion

[67] On the evidence before the Commission, I find that Ms Phillips was not dismissed in accordance with s.386(1) of the Act.

[68] Accordingly, I must dismiss the application and I do so.

COMMISSIONER

Appearances:

K Phillips for the applicant.

M Spry of counsel, instructed by Avant Law, for the respondent.

Determinative conference details:

Brisbane

6 September

2019.

Final written submissions:

Applicant’s outline of argument: merits, 21 July 2019;

Respondent’s outline of argument: merits, 29 July 2019

Printed by authority of the Commonwealth Government Printer

<PR712092>

 1   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at p. 205.

 2   O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 3   Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 (Watson VP, O’Callaghan SDP, Cargill C, 8 July 2011) at [24]; citing O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23].

 4   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at p. 206.

 5   Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].

 6   Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 7   [2009] AIRCFB 680, 28 July 2009 (Giudice J, Kaufman SDP, Larkin C).

 8   [2010] FWA 9356.

 9   See for example Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.