These findings by a member of the Fair Work Commssion in an unfair dismissal case constitute a reasonably rare case of a resignation being regarded as a constructive dismissal thus attracting a potential remedy for unfair dismsal.
“I find that the applicant’s letter of resignation was clearly brought about by the fact that
the respondent intended to not provide any work/shifts, or any meaningful number of shifts, to
the applicant for the better part of a year as a result of the renovations. Moreover, the respondent
clearly failed to adhere to its obligations under the modern award. I note that the respondent is
now (as at the date of the hearing) hopeful that the renovations may be completed in the nearer
future. One way or the other, this means that the applicant would not have been given any
shifts/work for somewhere between approximately half-a-year to approaching one year after 12
November 2022. That was plainly untenable for an employee who had been accustomed to
wages received as a regularly rostered employee, and who depended on those wages. The
applicant needed the wages from her (second) job at the hotel; she is a “solo parent” who lives
in rental accommodation, supporting both an elderly parent and a school-aged child. The derostering was also reasonably proximate to the 2022 Christmas period and the additional
expenses which that period of year can bring.
[19] Section 386 of the Act provides the following meaning of “dismissed”:
“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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified season, and
the employment has terminated at the end of the period, on completion of the
task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any
reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
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(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the person
under a contract of that kind is, or was at the time of the person’s employment, to avoid
the employer’s obligations under this Part.”
[20] I am satisfied that the applicant was dismissed within the meaning of s.386 of the Act,
in that she resigned from her employment as a casual employee but was forced to do so because
of the conduct of the respondent in de-rostering her after 13 November 2022; not having any
modern award-required consultation with the applicant; and in circumstances where the
renovations meant there would be no likelihood of further casual work under the employment
contract for an indeterminate/unspecified number of months. Moreover, the applicant was not
informed that she would be offered any future shifts even if, for example, she nominally
remained on the employment books as a casual employee of the respondent in the ensuing
months. The dismissal was bad for want of adherence to the clearly-defined obligations imposed
on the respondent by the modern award.
Conclusion
[21] For the reasons that I will now explain, it is unnecessary to further consider the matters
that ordinarily arise for consideration in relation to an application for an unfair dismissal
remedy. Specifically, the applicant identified in the Form F2 application form that the outcomes
sought by lodging the application were: (a) reimbursement of long service leave; (b) payment
in lieu for insufficient notice; (c) a redundancy payment; and (d) reimbursement of the costs
incurred in making the application. As a result of discussions I had with the parties, they are
aware that the Commission cannot make any orders concerning (a), (b) or (c). As a casual
employee, the applicant would not, in any event, have had an entitlement to payments with
respect to (b) or (c). Moreover, as to (d), the applicant will not be reimbursed for her application
fee in making the application as there is no basis for an order for costs.
[22] I confirmed with the parties in the proceedings that this application had at its core the
question of whether this was a termination of employment that amounted to a dismissal; and I
have found that it was. The applicant confirmed that she was not seeking an order such as
reinstatement or compensation; and would be content with a finding that the circumstances of
the termination of employment constituted a dismissal – contrary to the respondent’s contention
it did not. This was a relevant matter for the parties in circumstances where there is dispute as
to whether the applicant had any entitlement to a pro rata long service leave payment in
connection with the termination of employment. Here, Lesday had paid the respondent an
amount of $1,896.45 in connection with the applicant’s long service leave accruals to 29 July
2022; and the applicant’s employment with the respondent continued to 12 November 2022,
which gave her a few months of long service leave accruals additional to the accruals to 29 July
2022.
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[23] Given my finding that this case did involve a dismissal within the meaning of the Act
(and, relevantly as to long service leave entitlements, not a dismissal arising from serious and
wilful misconduct by the applicant), I recommend that the respondent revisit its earlier refusal
to pay the applicant pro rata long service leave. Reliance should not necessarily be placed by
the parties on Lesday’s calculations based on 5.8373 weeks of long service leave accruals to 29
July 2022, in circumstances where the employment commenced on 30 May 2015 (i.e., which
would have been more than seven years to July 2022). The parties will need to check the
calculations for themselves, independently of the calculations made by Lesday in connection
with the transfer of money to the respondent on the transmission of business with respect to the
applicant’s long service leave accruals and use 12 November 2022 as the date of dismissal, as
service for long service leave purposes continued to accrue in the period 29 July 2022 to 12
November 2022. If this long service payment matter can now be agreed, it will avert the need
for the applicant to make a complaint concerning non-payment.
[24] The proceedings are concluded.”
Boes v Earlwood Hotel Operations Pty Ltd [2023] FWC 818 delivered 6 April 2023 per McKenna C