Applicant Seeks Commission for General Protections Dispute

Kylie Anne Hehea v Swanfurn Pty Limited [2022] FWC 1338 (18 July 2022)

The applicant filed for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. The Respondent raised a jurisdictional objection to the application on the ground that the Applicant had not been ‘dismissed’. The Court, in resolving this dispute, relied upon the Fair Work Act 2009 (the Act). 

Facts:

On 9 December 2021, Kylie Anne Hehea (Applicant) applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. On 19 January 2022, Swanfurn Pty Ltd (Respondent) filed its F8A Response to the general protections application, raising a jurisdictional objection to the application on the ground that the Applicant had not been ‘dismissed’ as is contemplated in s.365(a) of the Act. In particular, the Respondent states that the Applicant resigned from her employment on 14 November 2021 and that she did so by a written letter given on that date, which expressed her last day of work to be 26 November 2021. The Respondent is a company whose business consists of an independently owned and operated furniture and bedding retailer.

As part of its franchise relationship, the Respondent may report matters to its franchisor from time to time, including workplace issues.  Yoogalu Pty Ltd (Yoogalu) is the franchisor’s appointed representative for those purposes.  There was some confusion in the Applicant’s written material as to who her employer was.  Notwithstanding the Respondent’s association with the wider Harvey Norman business, it was a separate legal entity operating the business.

The Applicant was employed by the Respondent, initially as a casual salesperson in around July 2018 at the Respondent’s business in the Harvey Norman Swan Hill complex. In December 2018, she became a permanent part-time employee. In 2020, the Respondent employed another salesperson, Ms. Maureen Richardson.  A conflict arose between the Applicant and Ms. Richardson that became particularly prominent since about May 2021. 

In July 2020, the Applicant was made “2IC”. A form recording the change described her position as “Sales Person/key holder/ 2IC”.  The Applicant accepted that her main duties as 2IC were opening and closing the store, making sure the sales floor was clean and tidy, and to bring matters to Ms. Gibson's attention, if she wasn't in the store, that she needed to know about.  The Applicant was also given a key to the store for opening. 

The Applicant complained about Ms. Richardson being rude to her, and about her, in front of the customers. Ms. Richardson denied she did so.  Both parties agreed that in the future to let the sales go through, to be courteous and nice in front of the customers, and to not air their differences on the shop floor ever again.  On 27 September 2021, Ms. Gibson then received a call from an administrative staff member in Yoogalu (i.e. the franchisor representative). In that call, Ms. Gibson was told that the Applicant had made a bullying complaint about Ms. Richardson.

At some point between her taking sick leave and 22 October 2021 – although it appears to be after the 15 October 2021 meeting with Ms. Burgess – Ms. Richardson told Ms. Gibson she was going to resign from the store.  She said she would agree to stay on until a replacement was found. Ms. Gibson also indicated that she would roster Ms. Richardson on shorter shifts in the afternoon, to ensure she was unlikely to come into contact with the Applicant.  On 19 October 2021, the Applicant lodged a bullying complaint with the franchisor.  It is not clear if the Applicant intended this to go to the Respondent or not, but it never did so and the Respondent was not told about it (by the Applicant or the franchisor) before this proceeding.

Issue:

Whether or not the termination was “at the initiative” of the Respondent.  

Applicable law:

Fair Work Act 2009 s 365 - allows for a person, who has been “dismissed”, to make an application that they were dismissed in contravention with Part 3-1 of the Act. 

Fair Work Act 2009 s 386 - provides that 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.

Quirk v Construction, Forestry, Maritime, Mining, and Energy Union [2021] FCA 1587 - held that a person has been dismissed if ‘the person’s employment with his or her employer has been terminated on the employer’s initiative’. 

Mahony v White [2016] FCAFC 160 - provides that a termination will be on the employer’s initiative if the act of the employer directly or consequentially results in the termination. 

Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200 - provides that the use of the passive verb ‘terminated’ does not require the legal event which ends the relationship to be the employer’s. 

Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 - considered some of the circumstances where resignation (particularly ‘heat of the moment’ resignations) might be considered under either limb of s.386(1). 

Analysis:

Relations were “toxic” between the Applicant and Ms. Richardson. Ms. Gibson was hearing competing allegations of bullying and other conduct. By 11 October 2021, Ms. Richardson was on leave due to stress. Ms. Gibson’s initial solution was a practical one – she separated the parties. 

By changing Ms. Richardson’s roster, she sought to ensure they would not be in a position to have disputes in front of customers and that confrontation would be avoided.  Even if Ms. Gibson had the time and resources to undertake an exhaustive investigation, from 11 October for the next ten days, Ms. Richardson was substantially unavailable.

Ms. Richardson said she was going to resign. That announcement was made during the time she was on sick leave. The Applicant’s evidence is that Ms. Richardson’s foreshadowed resignation should not be believed because she is “still employed”. However, so far as the Applicant considered that she would be subjected to further bullying (if that was what had occurred), it was not reasonable for her to consider it would continue from this point.

The Respondent did not engage in conduct with the intention of bringing the employment to an end or that the termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.  Since at least 25 October 2021, the employer’s conduct was aimed at separating the disputing parties and it included a permanent solution where one of the parties would be leaving altogether.  So far as the change from 2IC status was an operative reason for the resignation, the Applicant’s pay remained unchanged.  The Applicant was not “dismissed”.

Conclusion: 

The termination was not at the employer’s initiative.  The Respondent’s jurisdictional objection is upheld.  An Order dismissing the application (PR743859) will be published in conjunction with this decision.