1 Fair Work Act 2009 s.365—General protections Annalise Maddrell v Presbyterian Ladies College Sydney and Dr Paul Burgis (C2024/5440) COMMISSIONER SLOAN SYDNEY, 21 OCTOBER 2024 Application to deal with contraventions involving dismissal – jurisdictional objection –whether the applicant was dismissed from her employment –termination not on the employer’s initiative – employee was not dismissed –application dismissed [1] Annalise Maddrell has made an application to the Fair Work Commission under s 365 of the Fair Work Act 2009 (“Act”).1 She alleges that she was dismissed from her employment with Presbyterian Ladies College Sydney (“PLC”) and that the dismissal contravened the general protections provisions in Part 3-1 of the Act. [2] The respondents to the application are PLC and its principal, Dr Paul Burgis (“Respondents”). The Respondents contend that Ms Maddrell was not dismissed, and that consequently the Commission does not have jurisdiction to deal with her application. [3] I have determined that Ms Maddrell was not dismissed. These are my reasons. The Commission’s Jurisdiction [4] Section 365 is in these terms: 365 Application for the FWC to deal with a dismissal dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute. [5] The Commission is required by s 368 to “deal with” a dismissal dispute “other than by arbitration”. The statutory note to s 368(1) states, by reference to s 595(2), that the Commission may “deal with” such a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion. Section 368(3)(a) provides that if the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to [2024] FWC 2909 DECISION [2024] FWC 2909 2 be, unsuccessful, then the Commission must issue a certificate to that effect. Once such a certificate has been issued, the applicant is entitled to make a general protections court application (subject to the time limitation in s 370(a)(ii)), unless the parties have agreed to the Commission arbitrating the dispute pursuant to s 369. [6] It is an essential precondition to the Commission’s authority to perform its functions under s 368 that the application is properly made under s 365.2 If a respondent asserts that there has been no dismissal, it gives rise to an antecedent dispute going to the entitlement of the applicant to make the application that must be resolved before the powers conferred by s 368 can be exercised at all.3 [7] The meaning of “dismissed” is set out in s 386(1), which is in these terms: 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. [8] A termination will be “on the employer’s initiative” within the meaning of s 386(1)(a) if it is brought about by an employer and is not agreed to by the employee.4 The focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which resulted, directly or consequentially, in the termination of the employment.5 [9] Section 386(1)(b) is intended to reflect the common law concept of constructive dismissal.6 The test to be applied is whether the employer engaged in the conduct with the intention of bringing the employment to an end, or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.7 An employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign.8 The facts of the matter [10] The Respondents relied on a statement by Faith Entwisle, the Head of Human Resources for PLC. Ms Maddrell relied on an Outline of Submissions, which in many respects served also as a statement of her evidence. Each party adduced into evidence a significant number of documents. [11] It is not necessary to traverse in full the facts asserted in the parties’ evidence. The following are the salient facts. [12] PLC is an independent early learning, primary and secondary school for girls. It operates a “Futures Extension Centre” which provides after-school and Saturday tutoring services to students of the school (“Futures Centre”). [2024] FWC 2909 3 [13] Ms Maddrell was employed in the Futures Centre on a casual basis over a number of years up to and including 2024. The Respondents described her as being as a “Tutor”. Ms Maddrell suggested that this did not properly reflect the work she did, largely on the basis that she led classes rather than engaging with students one-on-one. To my mind, nothing turns on this for present purposes. [14] When she was offered engagement at the Futures Centre in 2024, Ms Maddrell was requested to sign a document titled “2024 Tutor Handbook” (“Tutor Handbook”). She had signed a similar document in 2023. However, Ms Maddrell had concerns with what she perceived to be a change to the intellectual property provision of the Tutor Handbook as compared to the previous year’s version, as well as with the rates of pay being offered to her. These concerns were the subject of email correspondence between Ms Maddrell and Andreea Leibov, the Manager of the Futures Centre, in February 2024. [15] Separately, PLC determined to introduce a new employment contract for tutors employed in the Futures Centre. Ms Maddrell was provided with such a contract on 27 February 2024 offering her “casual employment as a Futures Centre Enrichment Tutor…with the Futures Centre” (“Contract”). [16] Ms Maddrell sent an email to Rowena Barnett, the Director of the Futures Centre, on 1 March 2024. She acknowledged having received the Contract but that she would “hold off signing until I hear more regarding the Saturday double time”. Ms Maddrell also referred to “some slight errors in the contract”. [17] Ms Barnett responded to Ms Maddrell’s email the same day, providing information regarding Ms Maddrell’s rates of pay and inviting Ms Maddrell to provide more detail as to any concerns that she had with the Contract. There is no evidence of a response to that email. [18] Ms Barnett sent an email to Ms Maddrell and others on 7 March 2024, which invited the recipients to sign and return the contract which had been issued to them. The recipients were also informed that they could raise any questions regarding the new contract with Ms Barnett, and that Dr Burgis would meet with any tutors who had questions about the contract. [19] Ms Maddrell did not take up the opportunity of meeting Dr Burgis. She stated in her Outline of Submissions that she had been subjected to reprisals for having raised concerns about the Tutors Handbook and feared “further retribution by the Futures Centre” if she met with Dr Burgis. [20] Despite the fact that Ms Maddrell had not signed the Contract, PLC offered Ms Maddrell engagement in the Futures Centre in Terms 1 and 2 of 2024. [21] On 18 July 2024 Dr Burgis wrote to Ms Maddrell. His letter included the following: “I am aware that you have chosen, at present, to not sign the contract offered to you. Whilst we value very highly the work you have done and the contributions you have made to young people in our area (and beyond) we very sadly cannot continue to engage you unless you agree to the terms and conditions on [sic] the published contract and sign it. It places the College at risk for us to continue in this way. … [2024] FWC 2909 4 Regretfully, I therefore need to ask you to return the signed contract by Friday 19th July 2024 or we will not be able to engage you in the Futures Centre. We are unable to have you join us on Saturday 20th July or beyond. … If you choose to not sign, I respect this. It does mean the conclusion of your relationship with The Futures Centre. If this is your choice, I wish to thank you for the tremendous difference you have made in the lives of many young people.” [22] On 19 July 2024, Ms Maddrell sent an email to Ms Entwisle. Distilled to its essence, the effect of the email was to seek one of two things: either the removal of the intellectual property provision in the Contract, or the payment of additional compensation for the time spent preparing course materials. Under the intellectual property provision, in short, Ms Maddrell was required to assign to PLC all of the intellectual property rights in all of the work she generated as a result of her employment. [23] Ms Maddrell took part in a telephone conversation with Dr Burgis on 26 July 2024, which lasted approximately 45 minutes. Ms Entwisle was with Dr Burgis at the time, but could only hear his side of the conversation. She gave evidence as to what she heard. Ms Maddrell provided her own version of the discussion, which differed in several respects. It is not necessary to recount each version at length. It suffices to say that I have determined that during the conversation: a. Ms Maddrell continued to press for the removal of the intellectual property clause from the Contract or, in the alternative, payment for the time spent preparing course materials; b. Dr Burgis refused to agree to any changes to the Contract; c. Dr Burgis said that he was willing to review the rate being paid to Ms Maddrell “as a tutor”, albeit not perhaps as compensation for any intellectual property rights Ms Maddrell may have had, if she wished to write to him in that regard; d. Dr Burgis twice said words to the effect “No, we haven’t terminated you”; e. Dr Burgis invited Ms Maddrell to sign the Contract; and f. Dr Burgis told Ms Maddrell that she could have until 7 August 2024 to do so. [24] Ms Maddrell sent an email to Ms Leibov on 1 August 2024 in which she stated, amongst other things: “Dr Burgess has made his position clear that without a signed contract my employment will be terminated. I haven’t been presented with any other options to dispute the contract further or seek a solution while maintaining my employment (which goes against General Protection Law as brought to my attention by my lawyer). [2024] FWC 2909 5 While I have been provided with an extension to sign the contract by August 7th, I can’t in good faith sign the contract as it stands due to the statements regarding intellectual property.” [25] Ms Leibov responded by email the same day. Her response included the following: “Regarding the contract situation, I understand that it has been a challenging and uncertain time. I agree that students need continuity and support, so while you are in discussions about the contract, it is best for another teacher to take over from the start of the term.” [26] Ms Maddrell commenced these proceedings on 5 August 2024. The positions of the parties [27] The Respondents contend that Ms Maddrell was not dismissed by PLC and that therefore she is not eligible to bring these proceedings. They submit that at no time was there an intention to bring an end to the employment relationship. To the contrary, they say they sought to address Ms Maddrell’s concerns with the Contract and that they had informed Ms Maddrell on 26 July 2024 that her employment had not been terminated. The Respondents argue that in all of the circumstances, Ms Maddrell’s employment was not terminated on the employers’ initiative. [28] Ms Maddrell submitted that she was “constructively dismissed” in that “she was presented with no alternative to maintaining her employment”. She further submitted that the constructive dismissal was brought about “when they revoked special training for the Applicant, in conversations regarding the contract, again in July and August when the Respondent was unwilling to find a solution, with the applicant, with regards to the signing of the contract as a matter of maintaining employment”. [29] At the hearing of the Respondents’ objection, I clarified with Ms Maddrell (who was self-represented) what she meant by the use of the term “constructive dismissal”. It became clear that she was not seeking to assert a dismissal within the meaning of s 386(1)(b). She stated that she had been “forced out of her job” as a consequence of the refusal by the Respondents to negotiate in relation to the Contract. Her position is best regarded as a contention that the termination of her employment had been “on the employer’s initiative” within the meaning of s 386(1)(a). Consideration [30] On my observation, Ms Maddrell genuinely considers that PLC should not have included the intellectual property clause in the Contract, particularly given her casual status, at least without (in her view) appropriately compensating her for the time spent preparing the materials to which the clause relates. She is clearly of the view that the Respondents acted unreasonably in refusing to negotiate with her in respect of these matter. I formed the impression that Ms Maddrell’s umbrage may have been heightened by a perception that having been engaged at the Futures Centre over a number of years, and being a former student of PLC, [2024] FWC 2909 6 exceptions might have been made for her. She appeared aggrieved that she no longer works at the Futures Centre. [31] Even so, however genuinely Ms Maddrell may believe the Respondents treated her unfairly or unreasonably, I do not accept that the termination of her employment was on the employer’s initiative. This is for several reasons. [32] First, I am satisfied that neither of the Respondents intended to bring about a termination of the relationship between Ms Maddrell and PLC. To the contrary, the conduct of the staff of PLC, including Dr Burgis, is more consistent with the intention of maintaining that relationship. [33] The staff of PLC engaged with Ms Maddrell regarding the Contract over several months when, as the Respondents correctly submitted, they need not have. They offered Ms Maddrell periods of engagement in the Futures Centre despite the fact that she had raised concerns with the Contract and had not yet signed it. The purpose of the conversation on 26 July 2024, at least in part, seems to have been to encourage Ms Maddrell to sign the Contract. During that conversation, Dr Burgis sought to reassure Ms Maddrell that her employment had not been terminated and that he weas open to reviewing her rates of pay. None of this conduct is indicative of an intention to terminate the employment. [34] Second, there was nothing exceptional or untoward in the conduct of the Respondents. On her own evidence, Ms Maddrell was employed at the Futures Centre on a casual basis for a semester at a time. In offering Ms Maddrell the Contract, PLC was not imposing a unilateral change on a subsisting contractual arrangement between itself and her. Rather, it was setting out the terms on which future casual engagements would be offered. [35] Further, while Ms Maddrell objected to the intellectual property clause in the Contract, I was not provided with anything on which I could properly determine whether its inclusion – and the Respondents’ repeated insistence on its inclusion – was necessarily unreasonable. [36] In July 2024 the Respondents sought to bring matters to a head. They were entitled to do so. In my view, the Respondents had been accommodating and patient since February 2024. Even when Dr Burgis spoke to Ms Maddrell on 26 July 2024, he offered her a further period of to consider her position and sign the Contract. Ms Leibov’s email of 1 August 2024 indicates that she understood that discussions regarding the Contract were continuing. [37] To suggest that it was unreasonable for the Respondents to draw a line in the sand would be to accept that Ms Maddrell ought to have been permitted to continue to work indefinitely without a contract until such time as she was offered one acceptable to her. That is simply untenable. [38] Finally, this is not a circumstance where, had PLC not taken the action it did, Ms Maddrell would have remained in the employment relationship.9 She was a casual employee. It had been made clear to her since February 2024 that ongoing casual engagements were subject to her signing the Contract. The fact that PLC accommodated Ms Maddrell by offering her engagements while it sought to address her concerns with the Contract does not change that fact. [39] I am not satisfied that there were any steps by PLC that amounted to a termination on the employer’s initiative. [2024] FWC 2909 7 [40] For all of these reasons, I find that Ms Maddrell was not dismissed by PLC. It follows that she is not entitled to bring a claim under s 365. Order [41] The application is dismissed. COMMISSIONER Appearances: Annalise Maddrell, Applicant Kristen Lopes and Faith Entwisle for the Respondent Hearing details: 2024 Sydney (in person) 18 October Printed by authority of the Commonwealth Government Printer <PR780416> 1 All references to legislative provisions in this decision are to provisions of the Act, unless stated otherwise. 2 Coles Supply Chain Pty Ltd v Milford (2020) 300 IR 146; [2020] FCAFC 152 at [51] 3 ibid. at [67]. See also Lipa Pharmaceuticals Ltd v Mariam Jarouche (2023) 324 IR 375; [2023] FWCFB 101 at [4]. 4 Saeid Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75], citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 5 ibid. 6 Explanatory Memorandum for the Fair Work Bill at par 1530; City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [9] and [13] 7 Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245; [2017] FWCFB 3941 at [47] 8 Kylie Bruce v Fingal Glen Pty Ltd [2013] FWCFB 5279 at [23] 9 Mohazab v Dick Smith Electronics Pty Ltd (No 2) at 205-206