[2011] FWA 2720 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Martha Blair
v
Kim Bainbridge Legal Service Pty Ltd T/A Garden & Green
(U2011/4588)
COMMISSIONER GOOLEY |
MELBOURNE, 10 MAY 2011 |
Application for unfair dismissal remedy.
[1] Ms Martha Blair (the Applicant) was employed by Kim Bainbridge Legal Service Pty Ltd (the Respondent) from 2 September 2008 until she tendered her resignation on 20 January 2011.
[2] Ms Blair lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that she was unfairly dismissed.
[3] Ms Blair appeared on her own behalf and Mr Mark McKenney of counsel sought permission to appear for the Respondent. Ms Blair opposed permission being granted. 1
[4] Section 596 of the FW Act provides for representation as follows:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”
[5] The Respondent relied upon sub-section 596(2)(a) of the FW Act to support the application for permission to be represented by counsel. It was submitted that the legal question to be determined, namely whether there was a constructive dismissal, meant that the matter was complex and while Mr Bainbridge was a legal practitioner he did not practice in industrial law.
[6] Having regard to the material filed and given the narrow legal issue that needed to be determined and the lack of significant factual disputes between the parties I refused Mr McKenney’s application for permission to appear. However, he was granted permission to appear when Mr Bainbridge gave evidence and was cross-examined.
Jurisdiction of Fair Work Australia
[7] A jurisdictional objection to the application was raised by the Respondent. The Respondent submitted that Ms Blair resigned her employment and had not been dismissed by the employer and therefore there could be no finding that Ms Blair was unfairly dismissed.
[8] Section 386(1)(b) of the FW Act provides that:
“A person has been dismissed if:
(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.”
Evidence and submissions
[9] Ms Blair was originally employed by the Respondent as a legal bookkeeper. 2 In February 2009 Ms Blair took on the position of Office Manager3 and in early 2010 negotiated to work a nine day fortnight without a reduction in pay. This pay increase was in recognition of Ms Blair’s additional responsibilities.4
[10] In October 2010, for reasons that are not necessary to detail here, Ms Blair resigned her position as Office Manager. 5 By that time a full time book keeper had also been employed which relieved Ms Blair of some of her duties.6
[11] Ms Blair continued to perform conveyancing duties and other work. 7
[12] On 5 January 2011 a meeting occurred between Ms Blair and Mr Bainbridge to discuss Mr Bainbridge’s proposal that Ms Blair cease performing conveyancing duties and work with him in litigation. In that meeting Mr Bainbridge advised Ms Blair that due to her resignation as Office Manager there would need to be a review of her salary. He told her that she would need to return to “a normal legal secretary wage.” 8 Ms Blair advised Mr Bainbridge that she was actively seeking alternative employment.9
[13] On 7 January 2011 Ms Blair sent an email to Ms Jody Hansen, a legal secretary with the Respondent, and lodged a complaint about her employment, in particular her dispute with Dominic Calabro the legal practitioner who oversaw the conveyancing department. In that email Ms Blair sought clarification about where she would be located and what work she would be doing “during the rest of [her] time at Garden & Green.” Ms Blair was by this time absent from work on sick leave. 10
[14] Ms Hansen replied and advised that Ms Blair’s complaint would be investigated and that she understood that Ms Blair would be working in the litigation department. 11
[15] On 7 January 2011 Mr Bainbridge responded to Ms Blair’s email and said that he thought that Ms Blair had resigned her employment and provided her with his notes of the earlier meeting. He asked Ms Blair what notice she was giving. Mr Bainbridge advised that Ms Blair’s salary should have been readjusted when she resigned her position of Office Manager. He advised that he was happy for Ms Bainbridge to remain at work during her notice period but sought information about Ms Blair’s time frame for leaving the firm. 12
[16] On 10 January 2011 Ms Blair advised that she had not resigned her employment and had only advised Mr Bainbridge of her intention to look for other work as a courtesy. 13
[17] On 10 January 2011 Mr Bainbridge acknowledged receipt of that email and Ms Blair’s medical certificate. 14
[18] On 13 January 2011 Mr Bainbridge responded to Ms Blair’s questions in her 7 January 2011 email. Ms Blair was advised that Mr Dunstan would investigate her complaint and that she would be relocated into the back room and would work in litigation. She was told that her salary would be readjusted to that of a legal secretary “bearing in mind you have relinquished both office manager and full time legal bookkeeper positions.” He further asked Ms Blair to advise within a reasonable time once she had secured alternative employment. She was asked if this proposal was acceptable. 15
[19] On 16 January 2011 Ms Blair emailed Mr Bainbridge requesting information about her proposed salary as a senior legal secretary. Mr Bainbridge responded on 16 January 2011 and advised that her position would be a legal secretary not a senior legal secretary and said that her salary as office manager was $26.57 per hour and that her base salary was $24 per hour. He advised that legal secretaries were paid $20 per hour with juniors paid less. 16
[20] On 17 January 2011 Ms Blair emailed Mr Bainbridge and asked him to confirm which of three options about salary he proposed:
(a) a annual salary of $39,520 with a nine day fortnight;
(b) $20 per hour for a 38 hour week for an annual salary of $39,500; or
(c) $20 per hour with a nine day fortnight and an annual salary of $35,568. 17
[21] Mr Bainbridge replied as follows:
“Hi Maureen, I will consider the options you have set out but I have a lot on my plate at the moment and we have the auditor here tomorrow. We are also preparing a flood plan and trying to get everything off the floor.
I need to know your intentions as to when you are leaving the firm, but in the interests of keeping things amicable I am prepared to consider keeping you on as a legal secretary on either a) or (b) .... I will decide that in the next few days, but it will be necessary to agree to some concrete date of your departure.
Perhaps you could give some thought as I am pre-occupied with trying to protect office and home should the worst happen.”
[22] Unfortunately Ms Blair assumed that this email meant that she was required to accept a position at $20 per hour on condition that she resigned her employment.
[23] As a consequence Ms Blair tendered her resignation which was accepted by Mr Bainbridge who waived the requirement that Ms Blair work out her notice. 18
[24] It is unfortunate that this misunderstanding occurred. It is unfortunate that Ms Blair and Mr Bainbridge did not meet to negotiate Ms Blair’s terms and conditions of employment. However the evidence does not support a finding that Mr Bainbridge had determined to reduce Ms Blair’s salary to $20 per hour or that he required her to resign her employment.
[25] An employee’s resignation following a decision by the employer to unilaterally reduce his or her wage may constitute a constructive dismissal. However, in this case there was no unilateral decision by the employer. Ms Blair resigned her position as Office Manager and accepted that there would need to be a reduction in her salary as a consequence. It would have been preferable for that matter to have been dealt with at the time of her resignation as Office Manager or at least after Mr Bainbridge returned from leave.
[26] Mr Bainbridge advised Ms Blair of the need to reduce her salary in January 2011 and again, while it would have been better had Mr Bainbridge in the email of 16 January 2011 advised Ms Blair of his actual proposal, the evidence supports the conclusion that Mr Bainbridge had made no decision at this time about the rate Ms Blair would be paid.
[27] It is clear in his email of 17 January 2011 that no final decision had been made about Ms Blair’s terms and conditions of employment. Therefore Ms Blair’s decision to resign her employment was not caused by Mr Bainbridge’s decision about her rate of pay. Her decision was premature. She in fact had an opportunity to have a further discussion about the matter with Mr Bainbridge but she pre-empted that discussion by resigning.
[28] I find that that Ms Blair resigned her employment and was not forced to do so because of the conduct or a course of conduct engaged in by the Respondent and therefore the application is dismissed.
COMMISSIONER
Appearances:
M Blair on her own behalf.
K Bainbridge on his own behalf.
Hearing details:
2011.
Melbourne:
6 May.
1 Exhibit A1.
2 Exhibit A2 at [1].
3 Ibid at [3].
4 Ibid at [7].
5 Ibid at [24].
6 Ibid at [11].
7 Ibid at [28].
8 Ibid at [32].
9 Ibid.
10 Ibid at attachment G.
11 Ibid at attachment H.
12 Ibid at attachment I.
13 Ibid at attachment J.
14 Ibid at attachment K.
15 Ibid at attachment L.
16 Ibid at attachment M.
17 Ibid at attachment M.
18 Ibid at attachment O.
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