No dismissal, no general protections dismissal application (Johansen v Blackwood & Co)

Background

The applicant was employed by the respondent as a Senior Operations Manager. She raised several allegations in relation to the Operations Manager, Jake Page. After investigation, he was counselled and the applicant’s workstation was moved away from him. Ms Ely, the respondent’s General Manager, confirmed that the applicant made no further complaints about him.

On 6 August 2024, the applicant stated that Mr Page quipped that it was cold and that perhaps they should ‘just burn Jodie (the applicant) to stay warm’. She further stated this remark had been made several days in a row, which she said Ms Ely was aware of and took no action. The applicant stated that this was the last straw, which caused her to type up her resignation giving two weeks notice.

Ms Ely stated that on reading the resignation letter she asked the applicant her reasons for resigning to which the applicant responded that it was for reasons related to her health. Mr O’Hare, the CEO, stated that he also spoke with the applicant that day during which conversation she again confirmed she was leaving for health reasons.

Later, Ms Ely overheard the applicant discussing with another employee her move to ATM, a rival company. At Ms Ely’s request, the applicant returned her company mobile phone prior to going home. Ms Ely discovered then what she described as concerning text messages with clients and employees of the respondent, which caused her to be concerned that the applicant might take some of the respondent’s customers over to ATM.

On 7 August 2024, Ms Ely and Mr O’Hare, among other things, raised with the applicant that she would not be required to work out her notice period and that it would be paid out. The applicant did not return to the office thereafter. The applicant claimed that she took Mr O’Hare’s statement that her services were no longer required as terminating her employment with immediate effect.

While confirming that she accepted and subsequently commenced employment with ATM on or about 14 August 2024, the applicant rejected that she had resigned her employment with the respondent because of her intention to move to the ATM. The reasons for resigning were related to her ‘mental health’, which she says was put at risk by Mr Page.

Decision

Masson DP found that the applicant was not dismissed within the meaning of s 386(1)(a) of the FW Act because, among other things —

• The applicant gave notice of her resignation on 6 August 2024, prior to her alleged dismissal on 7 August 2024.
• There was no evidence that the resignation was given in the heat of the moment or that there was ‘jostling’ by the respondent in the manner referred to by the Full Bench in Bupa.
• The respondent chose to not require the applicant to work out her notice period, but nonetheless paid her for it, which was within its rights and did not render the dismissal as being at its initiative.

Further, Masson DP was not persuaded on the evidence that the applicant was left in a position of having had no effective or real choice but to resign. As such, she was not dismissed within the meaning of s 386(1)(b)of the FW Act. Accordingly, at the time that she made her application on 8 August 2024, she was not a person who had been dismissed for the purposes of s 365. The respondent’s jurisdictional objection was upheld accordingly, and the application was dismissed.

Key takeaways

An applicant must have been dismissed withing the meaning of s 386(1)of the FW Act in order that the FWC have jurisdiction to deal with a general protections dismissal dispute application.

Read the full text of the FWC’s decision here: Jodi Johansen v Blackwood & Co Pty Ltd [2024] FWC 2806

For assistance with workplace issues contact Red Wagon on 08 8166 2110.

Red Wagon - Straight-talking HR Solutions to Complex Workplace Problems.