Constructive unfair dismissal

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