Angela Van Zandt v Oncall Group Australia [2023] FWC 271

1 Fair Work Act 2009 s.365—General protections Angela Van Zandt v Oncall Group Australia (C2022/6544) DEPUTY PRESIDENT MASSON MELBOURNE, 1 FEBRUARY 2023 Application to deal with contraventions involving dismissal – jurisdictional objection of no dismissal – found that no dismissal within the meaning of s 386(1) of the Fair Work Act 2009 – objection upheld – application dismissed. [1] On the 25 September 2022, Ms Angela Van Zandt (the Applicant) lodged an application pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 15 September 2022 by Oncall Group Australia (the Respondent) contravened her workplace rights. In its Form F8A response the Respondent raised two jurisdictional objections to the application, that being the Applicant was not dismissed and that the application is barred by s 725 of the Act. [2] The Respondent’s first jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application1. Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s. 368 of the Act2. Consequently, the first issue for determination is whether the Applicant was dismissed from her employment within the meaning of s. 386(1)(a) or (b). [3] Following allocation of the matter to my Chambers on 10 November 2022, correspondence was sent to the parties by my chambers that same day in response to which the Respondent advised that it saw no utility in conciliation at that stage and did not agree to participate in a conference. A mention for the matter was then listed for 17 November 2022, following which Directions were subsequently issued for the filing of material in relation to the jurisdictional objections. The hearing to deal with the jurisdictional objections was listed for 27 January 2023. [4] At the hearing on 27 January 2023, Mr Maurice Addison of Maddison & Associates was granted permission to appear on behalf of the Respondent pursuant to s 596 of the Act and called the following witnesses; • Susan Rundle – Executive Manager People & Culture for Oncall Group Australia Pty Ltd [2023] FWC 271 DECISION -- 1 of 10 -- [2023] FWC 271 2 • Celia Sprake – Payroll Manager for Oncall Group Australia Pty Ltd [5] Ms J Wang of Berrigan Doube Lawyers was also granted permission to appear on behalf of the Applicant pursuant to s 596 of the Act in the hearing on 27 January 2023 and called the Applicant to give evidence. [6] At the outset of the hearing on 27 January 2023, Mr Addison advised that the Respondent did not press its jurisdictional objection in relation to s 725 of the Act operating as a bar to the s 365 application made by the Applicant. The remaining objection that the Applicant was not dismissed within the meaning of s 386(1) of the Act was pressed. Background and Evidence [7] On 17 June 2019, the Applicant commenced with the Respondent as a Recruitment Consultant3. [8] On 11 January 2021, the Applicant moved into the role of Out of Home Coordinator (OHC Role) with the Respondent4. [9] On 10 September 2021, Toula Moustakas, who is the Applicant’s Manager, advised Human Resources (HR) of concerns held regarding the Applicant’s performance5. [10] On 13 October 2021, HR was advised by Applicant’s Manager that formal discipline procedures needed to commence with the Applicant6. [11] On 13 October 2021, the Applicant says she made a formal complaint (the Complaint) via email7 to Ms Marcela Mandarino, Human Resources Manager claiming that she was being targeted, bullied and harassed by her managers, Toula Moustakas and Leanne Goldsworthy 8. [12] On 15 October 2021, a meeting took place between the Applicant and Ms Rundle regarding the formal complaint. The Applicant states that during this meeting and subsequently in an email dated that same day, Ms Rundle outlined several options to her in respect of the complaint including; • Option 1 – whether the Applicant wanted to continue in the OHC Role, in which case it was suggested she withdraw the complaint and work to improve areas of her performance; • Option 2 – if the Applicant did not wish to continue in OHC Role, she could either resign her employment, resign from the OHC Role and “go back to the field” or resign from the OHC Role, “go back to the field” and look for another job; and • Option 3 – if she pursued the complaint, the Applicant needed to think about what outcome she was seeking, what will it achieve and how will it help her to be more effective in her role and happier in the role.9 [13] On 18 October 2022, the Applicant informed Ms Rundle by email that she wished to pursue the Complaint, wanted it investigated by ‘Fair Work’ and wanted everyone from the Respondent removed from any part of the investigation10. -- 2 of 10 -- [2023] FWC 271 3 [14] The Applicant states that due to her concerns about the options set out by Ms Rundle in her email, she formed a view that Ms Rundle wanted her to withdraw the Complaint. She then contacted the Health & Community Services Union (HACSU) to seek assistance in relation to the matter11. HACSU sent an email to Ms Rundle on 18 October 2021 advising that it acted on behalf of the Applicant, stated that the options set out by Ms Rundle to the Applicant may constitute adverse action, requested that the options set out be retracted and that the Respondent provide a formal response by 22 October 2021 setting out what action it proposed take in relation to the Complaint12. [15] On 21 October 2021, Ms Rundle emailed the Applicant and stated that the investigation had commenced and her primary contact would be Leanne Goldsworthy. On the same day HACSU responded to Ms Rundle’s email and raised that Ms Goldsworthy is one of the subjects of the Complaint regarding alleged bullying of the Applicant. HACSU also foreshadowed that the matter may be raised with WorkSafe Victoria13. [16] On 11 November 2021, the Applicant provided her first Certificate of Capacity stating that she was unfit to work. While the Applicant did not attend work after that date, she states that she continued to provide monthly Certificates of Capacity up until the date of her alleged termination of employment14. [17] On 18 November 2021, the Applicant states she received a summary of the investigation report15 (the Report) into her Complaint which stated that the allegations were not substantiated16. The Applicant and HACSU were given an opportunity to comment on the Report by 25 November 2022 and while acknowledging receipt of the Report did not comment on or respond to the contents of the Report17. [18] On 21 November 2021, the Applicant submitted a Workcover claim which was subsequently rejected by the Respondent’s insurer on 29 December 2021 following independent medical reviews and an investigation18. [19] On 6 January 2022, the Applicant filed a general protections no dismissal dispute in the Commission pursuant to s 372 of the Act. The matter was subject to an unsuccessful conciliation on 31 January 202219. [20] On 31 January 2022, the Respondent’s legal representative sent a without prejudice “Caulderbank” offer (the 31 January Letter) to the Applicant’s HACSU representative. The offer was that the Applicant either return to the workplace and in doing so discuss expectations, work performance etc or alternatively she may prefer to leave the Respondent’s employment in which case the Respondent was prepared to offer a separation payment of $5,000 in return for a deed in mutually agreed terms. The offer was stated to be open until the close of business Friday 4 February 202220. The Applicant states that the offers contained in the 31 January 2022 Letter were both rejected21. [21] When questioned on the 31 January Letter the Applicant initially responded during cross-examination that having not accepted either of the offers set out in the letter, she was unsure of her employment status. She states that she asked HACSU to confirm her status of employment in March 2022. She further confirmed that the offer set out in the 31 January Letter was also reissued in April 2022. She also conceded during cross-examination that she knew that -- 3 of 10 -- [2023] FWC 271 4 she remained an employee of the Respondent in June 2022 and also conceded that there was ongoing engagement with the Respondent in that period through her representative (HACSU) and by her pressing appeals of the insurer’s decision to reject her Workcover claim. Notwithstanding her acceptance that she remained an employee in June 2022, she maintained her position that she “didn’t know where she stood”. [22] On 22 March 2022, a Workcover conciliation conference was held in respect of the Applicant’s rejected Workcover claim, with no agreement reached22. [23] On 28 March 2022, the Applicant filed a ‘Mandatory Investigation’ request form with WorkSafe Victoria (the WorkSafe Complaint) as she believed the Respondent had failed to create a safe workplace23. [24] On 7 April 2022, the Applicant received an email from WorkSafe Victoria advising her that after consideration of her request, WorkSafe had decided to commence an investigation into her allegations24. [25] On 14 April 2022, the Respondent was notified that the Applicant’s appeal of the insurer’s decision to reject her Workcover claim had been unsuccessful25. [26] On 6 May 2022, the Respondent was notified that the Applicant had lodged an application for an Independent Review with the Workers Compensation Independent Review Service (the Independent Workcover Review), and that it would be 56 days before a response would be received26. [27] On 23 June 2022 Ms Rundle sent an email (the 23 June Email) to the Applicant in the following terms; “…………….. I write this email as Pay Office have advised that there is a request to approve annual leave taken for you. It seems that an entry into the payroll system for 17 June 2022 has you on annual leave. As you know this is not correct as you are on leave without pay. I can advise that you have an accrual of 24.54 hours this can be paid out on termination of the employment relationship. I note that I have no such request from you. I can only assume that the entry into the payroll system is in error. If not could you advise your intentions. We cannot approve this entry until such time as you have clarified the situation. ………………”27 [28] Ms Rundle confirmed during cross-examination that she sent the 23 June Email to the Applicant in response to the Applicant’s request for annual leave which had been completed via a timesheet which, according to Ms Rundle, was not the correct process for making a leave application. She explained that a leave application could have been made by the Applicant via a leave application form which the Applicant reluctantly conceded during cross-examination -- 4 of 10 -- [2023] FWC 271 5 was the correct process. Ms Rundle also stated in cross-examination that she did not receive a response from the Applicant regarding her “intentions” as sought in the 23 June Email. The Applicant conceded that she did not respond to the 23 June Email although she says she understood from the email that the only way she could access her accrued annual leave was by resigning. [29] On 2 September 2022, the Respondent was notified by Allianz of the outcome of the Independent Workcover Review which had been completed. It was confirmed that the insurer’s decision to reject the Applicant’s Workcover claim had been upheld, and that decision had a reasonable prospect of being maintained in court28. [30] On 5 September 2022, following advice of the Independent Workcover Review outcome, Ms Rundle sent an email (the 5 September Email) to the Respondent’s Pay Office advising it to pay out the accrued annual leave entitlement of the Applicant; “Dear Celia Please pay out any outstanding annual leave accrual. We have received advice that the Final Workcover Appeal Review has been finalised (rejected) and she will not be returning to the work place29. ………” [31] The Applicant agreed that she had not received any other communication from the Respondent that her employment had been terminated, either orally or in writing and that Ms Rundle had not communicated with her. When pressed on why she did not query the payslip in those circumstances she stated that she assumed on the basis of the payslip that she had been terminated and saw no reason to query it. [32] Ms Rundle states that she decided to authorise the pay out of the Applicant’s accrued annual leave entitlement after the Applicant had exhausted all avenues of appeal in respect of her Workcover claim and bearing in mind that she had not received any response to the 23 June Email she had sent to the Applicant. [33] On 15 September 2022, the Applicant received a payslip30 from the Respondent (the Payslip), which relevantly stated that “Employment Ended: 05/09/2022” and included details of her “Termination Payments” which were described as “unused leave payment (normal termination” and included “notes: Annual Leave payout”. The annual leave pay out was that of the 24.539 hours of accrued annual leave previously referred to in the 23 June Email of Ms Rundle. [34] Ms Rundle states that notwithstanding the Payslip, the Applicant’s employment with the Respondent remains on foot. She confirmed that she did not advise the Applicant orally or in writing that her employment had been terminated, that she did not instruct Ms Sprake to process a termination payment for the Applicant and that the Pay Office has no authority to terminate the employment of staff of the Respondent31. -- 5 of 10 -- [2023] FWC 271 6 [35] When cross-examined on her 5 September Email, Ms Rundle gave evidence that she had not heard from the Applicant and nor did she believe the Applicant would be returning to the workplace and thought the Applicant might want her accrued leave in those circumstances. Ms Rundle also reaffirmed that the Applicant remains an employee of the Respondent and is on leave without pay. [36] Ms Sprake confirmed in her evidence that she actioned the instruction she received in the 5 September Email. She went on to state that the Respondent’s Payroll System did not allow for the pay out of accrued annual leave other than in circumstances of employment termination, this resulting in the Payslip reflecting a termination of employment. She concedes that her notes on the Payslip should have made clear that the payments were not a termination payment32. [37] During cross-examination Ms Sprake confirmed that she takes instructions from Ms Rundle regarding matters such as employment termination, received no such instruction in the case of the Applicant and does not have the authority to initiate the termination of an employee. She confirmed during questioning that the Payroll System had no flexibility to pay out accrued annual leave other than on termination of employment, hence the description and notes on the Payslip. She also confirmed that during normal processing of the termination of an employee she would receive an Exit Form from HR. She also confirmed that the Applicant remains an employee in the Respondent’s Payroll system. [38] On 16 January 2023, WorkSafe Victoria wrote to the Respondent in relation to its investigation of the Applicant’s WorkSafe Complaint and advised that “there was insufficient evidence to establish any offences under the Occupational Health and Safety Act 2004 (OHS Act)” by the Respondent and that WorkSafe would not be taking any further action33. WorkSafe subsequently confirmed to the Applicant in an email on 19 January 2023 that the “evidence has been legally reviewed and unfortunately it has been determined that there is insufficient evidence to proceed”34. Statutory framework [39] Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s 365. [40] The circumstances in which a person is taken to be “dismissed” are set out in s. 386 of the Act. Section 386(1) relevantly provides as follows: (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. Consideration -- 6 of 10 -- [2023] FWC 271 7 Whether Applicated terminated at the Respondent’s initiative (s. 386(1)(a)) [41] The Applicant contends that she was dismissed at the initiative of the employer within the meaning of s 386(1)(a) of the Act. She primarily relies on the evidence of the Payslip provided to her on 15 September 2022 which states that her employment ended on 5 September 2022 and that her accrued annual leave pay out was a “Termination Payment”. She took the Payslip as communication of the termination of her employment notwithstanding she received no other advice, be that orally or in writing, from the Respondent that she had been terminated. [42] The Applicant also relies on the 23 June Email from Ms Rundle which states that the means by which she could receive payment of her accrued annual leave was on termination of employment. She also points to the 5 September Email from Ms Rundle to Ms Sprake which authorises payment of the accrued annual leave and states that the Applicant would not be returning to work. [43] When the Payslip is considered in the context of the above-referred emails, it was according to the Applicant open to her to believe that her employment had been terminated at the initiative of the Respondent. She agreed however that she did not raise or query the Payslip with the Respondent. [44] The Respondent while conceding the Payslip should not have been issued in terms indicating termination of employment, submits that on the evidence of both Ms Rundle and Ms Sprake, the Applicant remains an employee of the Respondent and is on leave without pay as she has been since November 2021. The Respondent further submits that the Respondent did not communicate the termination of the Applicant’s employment and the reasons for such termination orally or in writing and that was because no such termination had taken place. The Payslip was a product of the Respondent’s inflexible payroll system as the system did not allow the payout of accrued annual leave to be paid to the Applicant, other than in circumstances of termination of employment. [45] I am troubled by a number of aspects of this case. Firstly, the Applicant assiduously pursued her rights over the course of an 18-month period, including making a formal complaint over bullying and harassment, lodging a workers compensation claim, appealing the decision of the insurer to reject her workers compensation claim, filing an application for a Worksafe investigation, and filing a s 372 general protections non-dismissal dispute application with the Commission. She also instructed HACSU to act on her behalf in communicating with the Respondent in relation to various matters arising from her Complaint and prolonged absence from the workplace. Despite this history of engagement in respect to various matters arising in relation in her employment, she did not query the Payslip with her employer either directly or through her representative in circumstances where there had been no formal communication with her regarding the termination of her employment. [46] I found the Applicant’s explanation of her failure to query the Payslip as unconvincing, as much of her evidence was. She simply stated that she took the Payslip as communication of the decision to terminate her employment despite acknowledging that no-one from the Respondent had communicated with her about her termination. The Applicant was generally evasive in answering questions and was reluctant to make appropriate concessions or answer -- 7 of 10 -- [2023] FWC 271 8 questions directly. This can be seen in her response to questions about the 31 January Letter when she claimed to have been unsure of her employment status in the wake of declining to accept either of the options set out in the letter. She claimed to have been unsure of her employment status at various points despite ultimately conceding she was aware in June 2022 when she put in a timesheet seeking payment of annual leave that she remained an employee. The Applicant also displayed a reluctance to concede that the timesheet she put in for the annual leave did not constitute an annual leave application. Further, despite being initially engaged as a recruitment consultant with the Respondent she expressed quite surprisingly a lack of understanding of formal processes for effecting a termination of employment. [47] The Applicant’s mute acceptance of the Payslip as evidence of the termination of her employment cannot be easily reconciled with her earlier assiduous pursuit of her workplace rights as detailed above. It beggars belief that an employee would simply accept a Payslip noting termination of employment without question or query when no other correspondence or communication of that decision had occurred. [48] As to the Respondent’s case, Ms Rundle’s explanation of the payout of the accrued annual leave to the Applicant soon after the finalisation of the process of appeal by the Applicant of her workers compensation claim cannot be easily squared with the 23 June Email in which Ms Rundle stated to the Applicant that the only way the annual leave could be paid out was on termination of employment. Further, despite attempts to frame the 5 September 2022 email differently, Ms Rundle did state to Ms Sprake that the Applicant would not be returning to work. Notwithstanding a clumsily drafted email, Ms Rundle did not instruct Ms Sprake in the 5 September Email to process the Applicant’s termination of employment. [49] Further to the above, the other normal processes of termination of employment were not communicated to the Pay Office, such as an exit form. Ms Rundle simply requested Ms Sprake to process and pay the accrued annual leave entitlements to the Applicant. That falls short of an instruction to process the Applicant’s termination of employment. That Ms Sprake processed the annual leave accrual payment as a termination of employment payment was, on the unchallenged evidence of Ms Sprake, driven by the inflexibility of the payroll system and not by a decision conveyed to her regarding the termination of the Applicant’s employment. [50] Most significantly, the Respondent did not confirm orally or in writing other than by the Payslip that the Applicant’s employment was to be terminated. Further, the evidence of Ms Rundle and Ms Sprake was that the Applicant remains an employee of the Respondent. It also strikes me as passing strange that the Respondent would have failed to formally communicate the termination of the Applicant’s employment in circumstances where correspondence dealing with the Applicant’s employment following the s 372 application had been communicated formally through the Respondent’s legal representative in the 31 January Letter and which was reissued in April 2022. It is clear given the history of the issues involving the Applicant’s employment that both the Applicant and Respondent were acutely aware of their respective rights and obligations. [51] While the Applicant received the Payslip on 15 September 2022, it was issued in error because of the particular system inflexibilities of the Respondent’s payroll system. Ms Sprake was not instructed to process the Applicant’s termination of employment. Nor was the Applicant otherwise advised orally or in writing of the termination of her employment and the -- 8 of 10 -- [2023] FWC 271 9 reasons for such dismissal. That the Applicant chose to accept the Payslip as communicating the termination of her employment does not persuade me that her employment was terminated at the initiative of the Respondent within the meaning of s 386(1)(a) of the Act. My view on this point is fortified by the evidence of Ms Rundle and Ms Sprake that the Applicant remains an employee of the Respondent, albeit she remains on leave without pay as she has been since November 2021. Whether Respondent’s conduct or course of conduct forced the resignation of the Applicant (s. 386(1)(b)) [52] The Applicant did not contend that she had resigned her employment with the Respondent. Nor is there any evidence that she did so. In the circumstances of this case, it is unnecessary for me to consider the second limb of s 386(1) of the Act. Conclusion [53] I find that the applicant has not been dismissed within the meaning of s. 386(1)(a) of the Act. As there was no resignation, s 386(1)(b) is not relevant. Accordingly, at the time the applicant made the s. 365 application, the applicant was not a person who has been dismissed for the purposes of s. 365 of the Act. The Respondent’s jurisdictional objection is therefore upheld. [54] The application is therefore dismissed. An order giving effect to this decision will be separately issued. DEPUTY PRESIDENT Appearances: J Wang for the Applicant. M Addison for the Respondent. Hearing details: 2023. Melbourne. January 27. Printed by authority of the Commonwealth Government Printer <PR750110> -- 9 of 10 -- [2023] FWC 271 10 1 Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37. 2 Ibid at [51]. 3 Exhibit A1, Witness Statement of Angela Van Zandt, dated 16 December 2022 4 Ibid at [2] 5 Exhibit R1, Witness Statement of Susan Rundle, Attachment SR-1, Chronology 6 Ibid 7 Ibid, Attachment AZ-1, Email dated 13 October 2022, titled ‘Formal Complaint’ 8 Exhibit A1 at [4] 9 Ibid, Attachment AZ-2, Email from Susan Rundle dated 15 October 2021, titled “Re: Complaint” 10 Exhibit A1, Attachment AZ-3, Email from Applicant dated 18 October 2021, titled “Re: Complaint” 11 Exhibit A1 at [7] 12 Ibid, Attachment AZ-4, Email from HACSU dated 18 October 2021, titled ‘Angela Van Zandt – Complaint (case: C20001722)’ 13 Exhibit A1 at [8], Attachment AZ-5, Email from HACSU dated 21 October 2021 titled ‘Re: Investigation (case: C20001722)’ 14 Exhibit A1 at [9] 15 Ibid, Attachment AZ-6, Summary Confidential Workplace Investigation Report 16 Exhibit A1 at [10] 17 Exhibit R1, Attachment SR1 18 Ibid 19 Exhibit A1 at [11] 20 Exhibit A1, Attachment AZ-7, Letter to Applicated dated 31 January 2022, titled ‘ C2022/316 – Van Zandt v Oncall Group Australia Pty Ltd’ 21 Exhibit A1 at [13] 22 Exhibit R1, Attachment SR-1 23 Exhibit A1, Attachment AZ -9, WorkSafe Complaint 24 Exhibit A1, Attachment AZ-10, Email to Applicant from WorkSafe dated 7 April 2022, titled ‘Request under section 131 of the Occupational Health and Safety Act 2004 (the Act)’ 25 Exhibit R1, Attachment SR-1 26 Ibid 27 Exhibit A1, Attachment AZ-8, Email dated 23 June 2022, titled ‘Timesheet notification re annual leave’ 28 Exhibit R1, Attachment SR-1 29 Exhibit R1, Attachment SR-3, email from Ms Rundle to Pay Office dated 5 September 2022, titled ‘Angela Van Zandt’ 30 Exhibit A1, Attachment AZ-11 31 Exhibit R1 at [8]-[10] 32 Exhibit R2, Witness Statement of Celia Sprake, at [2]-[4] 33 Exhibit R3, WorkSafe Investigation outcome 34 Exhibit A2, Email to Applicant dated 19 January 2023. -- 10 of 10 --