General protections cases not involving dismissal; the legal process

The general protections under the Fair Work Act provide for sperate procedures for determining a claim depending upon whether or not the adverse action contended for involves a dismissal or not.

In a decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford (2020) FCAFC 152 it was held that a proper construction of the Act requires the Commission to determine a dispute about the fact of a dismissal from employment under s 365 of the FW Act before the Commission can exercise powers conferred by s 368.

 

This extract from a recent Commission case decision explains what is involved in doing so.

 

“[62]  Determining whether, on the facts, a person has been dismissed is an objective exercise. That a person believes they have been dismissed or another believes or believed the contrary does not make it so.

 

[63]    A finding as to whether there has been a dismissal is based on a consideration of the evidence as a whole, including inferences reasonably drawn from the conduct of the parties.

 

[64]    In this matter it is clear that no evidence exists of an expressly made decision to dismiss or notification of dismissal. Equally there is no evidence of an expressly made resignation or communication of resignation.

 

[65]    Yet, it is equally clear that both Ms Azevedo and Adelaide Blinds agree that an employment relationship which had existed on 6 February had, at least by Tuesday 13 February, ended.

 

[66]    That there is no express evidence of a dismissal or resignation is a consequence of the conduct of both parties. What is readily apparent is that the employment relationship had fallen into serious disrepair after the argument in the office between Ms Azevedo and Mr Harley on 6 February. In the days that followed, each danced around the other, with both (for different reasons) wanting the relationship to end but neither (again for different reasons) wanting to deliver the final blow.

 

 

 

 

[67]    Ms Azevedo wanted the relationship to end because she had lost respect for Mr Harley (evident by her insubordinate attitude on 6 February), was by the time of these events looking for another job,8 and was offended by being directed on 8 February to attend (what her experience of having previously worked with a union told her9) was a disciplinary meeting the following week where she felt it was likely she would be fired. Yet Ms Azevedo did not want to cast the final blow because she felt it was her employer who had to take responsibility for the relationship ending in this way.

 

[68]    On the other hand, Adelaide Blinds wanted the relationship to end because Mr Harley had lost trust and confidence in Ms Azevedo, regarding her as insubordinate and failing on performance grounds. Yet he preferred to somewhat opportunistically allow her to end things, even if he saw benefit in her departure.

 

[69]    This matter is not however determined by reference to these subjective desires or preferences. It is decided by reference to conduct, objectively assessed.

 

[70]    I do not find that Ms Azevedo abandoned her employment. If well enough, she would have attended for work on her next scheduled working day (13 February) if she was still in employment.

 

[71]    Leaving aside the separate question as to whether a resignation (if any) was forced within the meaning of s 386(1)(b), I turn to what inferences and conclusions can be reasonably drawn from the conduct of the parties in the period 6 to 10 February so as to determine whether the employment relationship ended at the hand of Ms Azevedo (resignation) or at the initiative of the business (dismissal).

 

[72]    Having regard to the evidence, it is readily apparent that no single act is conclusive one way or the other in deciding this question. Rather, the conduct of each party must be viewed in context. In this matter an important contextual consideration is that conduct in this period occurred as part of a continuum concerning a relationship that had come under severe strain. Aspects of the conduct of each party in the period 6 to 10 February inclusive point both in favour of and against the finding they seek; other conduct is ambiguous.

 

[73]    The employer places heavy weight on the collective force of three aspects of Ms Azevedo’s conduct: her final text message to Mr Harley on 8 February; her telephone calls to Mr Harley’s wife and Mr Golding on 8 and 9 February; and her return of company property on 10 February.

 

[74]    For reasons of context, I do not consider these actions as decisive as the employer suggests.

 

[75]    The final text message to Mr Harley on 8 February was a response text. It was a response to Mr Harley implying in an accusatory manner that Ms Azevedo was not being full and frank about her desire to change the date of the disciplinary meeting (“hiding something”), a meeting where she had (moments earlier) been instructed “to bring all company property”. It was in this context that Ms Azevedo then responded:

 

 

 

“Hiding something? Really Mark? Tell you what, I can drop everything off on Saturday morning at Mr Blinds location. It’s on the way to my mum’s. There’s no need to prolong this any further. Let me know if this works. See you then. Regards Margarida”

 

[76]    This response, whilst clearly written by Ms Azevedo in frustration, points somewhat in the direction of Ms Azevedo ending her employment but falls short of a statement of resignation. I accept that Ms Azevedo foresaw the likely demise of her employment by dismissal and, in the moment of writing that further text, sought not to prolong the unpalatable dance of termination. But given that she knew that she had already been removed from the Quote-rite system and had already been instructed to bring company property with her to the disciplinary meeting, she need not have been a prophet to see what was likely coming her way. I accept Ms Azevedo’s evidence that she “felt defeated”10 and wrote this text because she “did not want to feel further baited”11 In the words of her evidentiary statement “I had had enough by now”12.

 

[77]    For the same reasons, Ms Azevedo’s telephone calls to Mr Harley’s wife and to Mr Golding that afternoon and the following morning do not constitute statements of resignation. Neither Mr Harley’s wife nor Mr Golding had the authority of the employer to receive a resignation. Nor were either of these conversations a confirmation of resignation. The conversations were equally consistent with what Ms Azevedo believed to be a constructive dismissal. She was indeed saying thank you and goodbye. Whilst I found Ms Azevedo’s evidence that she only made these calls for personal reasons and out of politeness to be somewhat self-serving, by the time she did so Ms Azevedo had good reason to believe that she had been constructively dismissed. I have found that she had already been taken off the Quote- rite system, had been told to return company property the following Monday, and (by the time of speaking to Mr Golding) had seen a job comparable to hers advertised publicly by her employer.

 

[78]    The return of company property on 10 February cannot therefore be divorced from the instruction first made by Mr Harley two days earlier that company property had to be returned on 12 February. Ms Azevedo was simply bringing that process forward. She did so after hearing nothing more from Mr Harley, and after Ms Jessen repeated (on 9 February) that she should do so. Whilst I accept Ms Jessen’s evidence that she did so in good faith believing that Ms Azevedo had told staff she had resigned, and this was not expressly refuted to her by Ms Azevedo, it is noteworthy that Ms Jessen’s 8.18am email predated the discussion between Ms Azevedo and Mr Golding.

 

[79]    I do not accept the employer’s evidence13 that because property in Ms Azevedo’s possession included product samples it was operationally necessary to ask for those samples to be returned, and that the direction to do so was unrelated to Ms Azevedo’s employment security. Firstly, I prefer Ms Azevedo’s evidence that the stores had additional samples to cover a salespersons absence. Secondly, the text instruction to return property was incorporated into the same instruction to attend the disciplinary meeting on 12 February. As such, there was clearly a connection between the two. Thirdly, Ms Azevedo was not certified to be absent on personal leave beyond 9 February. She was scheduled to next work on 13 February. An instruction to return property on 12 February when it is expected the employee will work and use that property the following day is not reasonably explained on operational grounds.

 

 

 

[80]    I also take into account that an employee ending their employment is a significant act, one that commonly (and in the case of Ms Azevedo who had no other job lined up despite what she told Mr Golding) places financial pressure on them. For these reasons, the fact of resignation needs to be clearly established on the balance of probabilities. In this matter, that finding is not reasonably open.

 

[81]    Even if Ms Azevedo’s final text to Mr Harley on 8 February 2024 and conduct in the two days that followed (the phone calls and return of property) could be construed as a resignation, the overall context would lead me to conclude that it was unreasonable for the employer to rely on it as such. This context includes that Ms Azevedo was at the time unwell on personal leave, her text of 8 February was clearly written in frustration, and was responsive to a directive which barely concealed a disposition by the employer that her employment end one way or the other and an unreasonable suggestion of bad faith on her part.

 

[82]    In contrast, the conduct of Adelaide Blinds more clearly supports a finding that Ms Azevedo’s employment was terminated at its initiative despite there being no singular act of dismissal.

 

[83]    Firstly, whilst Ms Azevedo was absent on personal leave, the employer disengaged her access to the Quote-rite system, in all probability on 7 February but certainly by the early morning of 8 February. The effect of this was that Ms Azevedo could not do her job. Further, and importantly, Ms Azevedo had expressly informed Mr Harley by text on the morning of 7 February that even though she was unwell, she would check on quotes during her days of sickness:14

 

“I will finish any other outstanding quotes and follow up on those I need to.”

 

[84]    Mr Harley’s evidence was that Ms Azevedo was disengaged from the Quote-rite system because “the previously booked appointments had to be rescheduled and quotes had to be sent…so another user could use the licence as we only have a licence for 5 users at a time”.15 There are a number of difficulties with this explanation. Firstly, no evidence was led as to the holders of the five licences and whether the number of licensees could be adjusted or was within the employers control to adjust. Secondly, no evidence was led as to why disengagement from the Quote-rite system was the only reasonably available option. Rather, the evidence is that no notice was given to Ms Azevedo of the unilateral decision to withdraw her access and, if indeed only she was licensed to access her quotes, no thought was given to asking her to enter the system and provide quotation details back to the office rather than disengage her access. Thirdly, whilst taking into account that a three day absence is likely to be more disruptive to a business than a single day, Ms Azevedo’s access to Quote-rite had not been disengaged on previous occasions when she had taken personal leave.

 

[85]    In short, despite knowing that Ms Azevedo intended to follow up her quotes whilst on personal leave, and despite Ms Azevedo having done so on prior occasions,16 her access to the quotation system was unilaterally disengaged.

 

[86]    In so doing, Adelaide Blinds may have been acting in the best interests of its clients. However, the employer’s explanation does not reasonably explain its conduct as being in the ordinary course of business and unrelated to its desire to conclude Ms Azevedo’s employment.

 

 

 

 

[87]    Secondly, Ms Azevedo was unilaterally told on 8 February to attend a meeting on 12 February. The purpose of the meeting was not expressly disclosed but what was disclosed clearly inferred it was of a disciplinary character. Ms Azevedo was told that it would be with the owner, that Mr Harley “will have my HR lady there”, that she could “bring an advocate” and that she should “bring all company property for that meeting”. These facts support an inference that Mr Harley, despite telling Ms Azevedo two days earlier that he did not want her to resign but to do her job better, had by then formed the view that he wanted the employment relationship to end by at least the scheduled meeting (whether by resignation, agreed parting, or dismissal).

 

[88]    Thirdly, the employer ignored Ms Azevedo’s request that the meeting be deferred to the Tuesday or Wednesday. This request was reasonable; Monday was Ms Azevedo’s day off. Mr Harley’s response simply referenced the managerial prerogative and doubled down on his insistence that Ms Azevedo attend as she had been instructed (“I am well within my rights to do so”). Mr Harley’s evidence17 that he did not suggest an alternate date because of the text message he then received presupposes that the subsequent text message by Ms Azevedo was a clear expression of resignation. I have found that, in context, it pointed somewhat in that direction but did not of itself have that character and that reliance on it as such was unreasonable.

 

[89]    Fourthly, by at least 9 February (and in all probability on 8 February) the employer placed a job recruitment advertisement for a position equivalent to that held by Ms Azevedo. I found Mr Harley’s evidence18 that this advertisement was simply part of an ongoing attempt to maintain labour supply in his business self-serving and unconvincing.

 

[90]    Fifthly, despite Mr Harley asking Ms Jessen to obtain confirmation of what he believed to be Ms Azevedo’s resignation, he subsequently proceeded to arrange for final payments to be made via the payroll system despite the requested written confirmation of resignation never having been proffered. I accept that Mr Harley did so because Ms Azevedo had returned company property on 10 February. However, for reasons outlined above, that act alone, when viewed in context, was not an act of resignation.

 

[91]    For these reasons, I conclude that Ms Azevedo’s employment ended, in reality, at the initiative of Adelaide Blinds, and not by Ms Azevedo. Although, as I have observed, each somewhat opportunistically danced around the other waiting for the other to strike the blow ending the employment relationship and Ms Azevedo foresaw what was coming, it was the employer’s conduct which more clearly initiated and then controlled the ending of the relationship.

 

[92]    I make this finding recognising the sincerity of Mr Harley’s closing address in which he stated that as a small business person he had in good faith believed Ms Azevedo’s 8 February text message to have been a resignation and that this belief had informed the employer’s subsequent conduct. As I have indicated, subjective belief does not determine this matter as the events fall for objective assessment. A finding of dismissal in a sea of ambiguous and somewhat conflicting conduct by both parties need not result in the reputational damage opined by Mr Harley.

 

 

 

[93]    I make no finding as to the reason or reasons why the employer did so, as such a finding is unnecessary to determine this jurisdictional issue.

 

[94]    Whilst it is also unnecessary to consider s 386(1)(b), had I found Ms Azevedo to have resigned, it would have been clearly open to find that the resignation was the probable result of a course of conduct by the employer between 6 and 10 February 2024, and as such a dismissal by forced resignation within the meaning of the FW Act.

 

Conclusion

 

[95]    As Ms Azevedo was dismissed within the meaning of the FW Act, her application is within jurisdiction. It will be listed for conference under s 368. The jurisdictional objection by Adelaide Blinds is dismissed.

 

[96]    An order giving effect to this decision accompanies its publication.19”

 

Azevedo v The Trustee For The Harley Family Trust (2024) FWC 1149 delivered 3 May 2024 per Anderson DP