Alison McCaffery v WS Partners Unit Pty Ltd
[2019] FWC 6824
•4 OCTOBER 2019
| [2019] FWC 6824 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Alison McCaffery
v
WS Partners Unit Pty Ltd
(U2019/3043)
| DEPUTY PRESIDENT CROSS | SYDNEY, 4 OCTOBER 2019 |
Application for an unfair dismissal remedy.
BACKGROUND
An application was filed on 19 March, 2019 by Ms Alison McCaffery (the “Applicant”) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant sought an unfair dismissal remedy of monetary compensation following her dismissal by WS Partners Unit Trust trading as Warren Smith & Partners (the “Respondent”) on 28 February, 2019.
The Applicant commenced employment with the Respondent on 13 March, 2013. The Respondent has approximately 60 employees.
The Application was listed for conciliation but did not settle at that conciliation, and the matter was then allocated to me for hearing and determination. I issued Directions from my Chambers on 9 May, 2019, to the parties prescribing a timetable for the filing of Outline of Submissions, together with any witness statements and other documentary material upon which each party intended to rely.
In accordance with my Directions, the following material were filed:
(a) The Applicant filed an Outline of Submissions, together with Statements from the
Applicant, her husband Mr Martin McCaffery, and Ms Catherine Isaacs, all dated 23 May 2019.
(b) The Respondent filed an Outline of Submissions in support of their Jurisdictional
Objection and an Outline of Submissions in Opposition to the Application, together with Statements from Mr Tom Wise, Director of the Respondent dated 16 June, 2019, and Statements from Ms Rochelle Ayuyao, Personal Assistant, Mr Ralph Eriksson, Chief Financial Officer, Ms Jane Ciabattoni, Liason Manager, Mr Michael Cahalane, Director, all dated 6 June, 2019.
(c) In reply, the Applicant filed an Outline of Submissions in Reply, together with reply Statements from the Applicant dated 13 June, 2019, and Mr Martin McCaffery, and Ms Catherine Isaacs, both dated 12 June 2019.
The matter was heard in one day on 18 June, 2019. Permission to represent was granted for each party to be represented by legal practitioners. That representation contributed significantly to the matter being able to be dealt with quickly and efficiently, and in one day only.
THE ISSUES
The Respondent accepted that the applicant was a person protected from unfair dismissal in accordance with s.382 of the Act.
The Respondent further accepted that it was not a small business employer (s.23) and therefore, the Small Business Fair Dismissal Code (s.388) did not apply.
The Respondent raised, however, the jurisdictional objection that the Applicant had not been “dismissed” for the purposes of s.385(a) of the Act.
The issues to be determined in the matter were:
(a) Whether the Applicant had been dismissed?;
(b) If the Applicant was dismissed, was that dismissal harsh, unjust or unreasonable?; and
(c) If the dismissal was harsh, unjust or unreasonable, would the Commission order the payment of compensation?
THE EVIDENCE
(a) The Applicant
The relevant dates for the purposes of the determination of the issues in this matter were 26 and 27 February, 2019, however it is relevant background that after some years of employment, in July, 2018, the Applicant commenced working in a new role at the Respondent as an Executive Assistant for two of the Company Directors, being Mr Wise and Mr Cahalane. After approximately one month, Mr Wise was so busy that the Applicant was working as Executive Assistant solely for Mr Wise.
On Tuesday 26 February, 2019, at approximately 3:00pm, the Applicant was walking past the office of Mr Eriksson (the Chief Financial Officer for the Respondent), where Mr Eriksson was talking to Ms Isaacs.
The Applicant stated that Mr Eriksson beckoned her into his office and closed the door and said, “I want to talk to you about some structural changes that I want to put into place. I want to get you out of the toxic environment that you are currently working in with Tom Wise.” The Applicant indicated to Mr Eriksson that she was open to this potential new role, though she developed a sense that Ms Ayuyao, who was to adopt new duties under the plan, may become upset causing tension between her and the Applicant.
During that conversation, the Applicant claimed Mr Eriksson said, “Rochelle (Ayuyao) was always meant to be working for Tom and Michael and that you was [sic] never meant to be in your current role long term.” The Applicant claimed that that comment upset her further, because this was not what was discussed when she started working for Mr Wise in July 2018, and she felt “blindsided”. The Applicant felt that she was being mucked around by Mr Eriksson, as it was not the first time he had attempted to change her role within the Company. At this point the Applicant said, “I've had enough,” got her bag and left the office.
The Applicant said Ms Issacs was present during the whole discussion, and left the office with the Applicant to help calm the Applicant down. After about an hour, Ms Issacs called Mr Eriksson and he went and met the Applicant and Ms Issacs. There were further discussions that involved, among other issues, the Applicant asking for a pay rise and the Applicant advising Mr Eriksson that she was happy and accepted the new role.
The next day, 27 February, 2019, the Applicant had a discussion with Ms Ayuyao about the new roles, and subsequently had a further discussion with Ms Ayuyao after which she claimed, “I strongly suspected at that time that the new role offered to me on 26 February 2019 by Ralph would no longer be available.” During that morning, the Applicant claimed Mr Wise ignored her but was “overly nice to anyone who came to him to ask him questions and being very helpful to the rest of the hydraulics team, but acting as if I wasn't there at all. I felt very stressed by this. I also felt sick because I had run out of my blood pressure medication. I left the office to get my script filled. I then came back and went about my work.”
The Applicant claimed that Mr Wise continued to ignore her into the afternoon. She claimed Mr Eriksson then called her into his office where Ms Issacs was also present. The Applicant was crying and Mr Eriksson said, “I am so sorry that Tom is behaving this way. I could move you into another role but I can't move you straight away, and I have to get you out of this toxic environment straight away. I think the best thing for you is for us to pay you out and you can leave straight away. Tom is not going to change. We can move you away from him but the problem isn't going to go away. You would still have to see him and be uncomfortable every time you did.”
The Applicant claimed she was shocked and upset because the conversation was different to what had been discussed the day before. She stated that Mr Eriksson continued and said, “We can give you 10 weeks pay plus your holiday pay but we would need you to give us a written resignation. I won't even get Board approval because I am so upset that Tom has put me in this position. Tom is an introvert who cannot deal with difficult situations, so he just goes into his shell and ignores it.”
The Applicant then stated that Mr Eriksson then said, “I hate doing this and I never want to be put in this position again. We will give you a reference saying that you were a well-liked, valuable employee who we didn't want to lose, and that we offered you another position but you couldn't stay any longer because you had a personality conflict with one of the Directors.” The Applicant states she responded, “that sounds like a terrible reference and that makes it sound like I was a difficult employee,” to which Mr Eriksson replied, “No that's definitely not the case, you are a bubbly, well-liked person to have around the office but this situation cannot go on.”
The Applicant stated she said to Mr Eriksson at this time, “I feel like I've just been sacked” to which Mr Eriksson replied, “No, you haven't, the situation just isn't good and you would be better off not being in the toxic environment.”
Shortly afterwards the Applicant, Mr Eriksson and Ms Issacs walked to the Hilton Hotel and the Applicant stated to Mr Eriksson, “I've told my husband what's happened and he thinks this is a classic case of unfair dismissal?” The Applicant stated Mr Eriksson replied, “No it's not because there is a job for you but we just need to get you out of this toxic environment today, and that's why I've have offered to pay you out. But to get the payout, you will have to resign.”
When at the Hilton Hotel the Applicant stated she was still very upset and crying. She stated, “I feel like I've just been sacked.” The Applicant says Mr Eriksson replied, “No way have you been sacked, you will be a big loss and I never want to be put in this position again.”
The Applicant stated that at no did she verbally resign or provide any indication that she did not wish to be employed at the Company. She did not reject the new role that was offered to her, and expressed excitement and happiness about the new role. The Applicant stated that after the events of 27 February, 2019, she understood her employment to be terminated and so she did not go back to work. She did not provide a written resignation letter as requested by Mr Eriksson because she wanted to obtain legal advice first.
The Applicant stated that “On 6 March 2019 I engaged Brander Smith McKnight as my legal representation and they have received and replied to correspondence from the Company.” That correspondence was quite relevant to the proceedings and the issue of whether the Applicant was dismissed.
On 8 March, 2019, the Applicant’s Solicitor wrote to the Respondent, and the relevant parts of that correspondence were as follows:
“On Wednesday 28 February 2019 our client was called into the office of Mr Eriksson and told, “The environment in this office is toxic and we cannot let you work here any longer. We are letting you go for your own good”. Our client understood this to be a termination of her employment and left the Employer’s premises.
Our client has not been provided with any letter of termination or other documentation or any severance pay.
Our client had received no warning about her performance and had an excellent, unblemished employment record with the Employer. The termination was not a result of any disciplinary issues.
As you will be aware an immediate termination can only result from serious misconduct and this was clearly not the case and we understand that the Employer does not allege that this was the case.
We contend that the termination is clearly unfair, harsh and unjust.
Since the unfair dismissal the Employer has approached our client in an attempt to coerce our client to provide a written resignation. Such an attempt by the Employer is extremely concerning and is tantamount to procuring a dishonest act and a concealment of the true nature of the unfair dismissal.
We have advised our client that she must not comply with the Employer’s insistence to provide a written resignation as this would be dishonest.
We have also advised our client that she is entitled to commence legal proceedings for damages arising from the Employer’s unfair dismissal.”
On 12 March, 2019, Respondent replied to the Applicant’s Solicitor, and the relevant parts of that correspondence were as follows:
“I note in your letter you refer to the "recent termination of our client's employment" and that "Our client has not been provided with any letter of termination or other documentation or any severance pay". Please be informed that at no time, either verbally or in writing, was Alison's employment terminated by the company and she continues to be an employee of the company.
I confirm that on the 25th February (subsequently corrected to 26 February) Alison entered my office to discuss her current role and some of the challenges she was facing. Another member of staff was present during this meeting. The outcome of this meeting was that Alison stated she no longer wanted to be with the company. She then promptly went to her desk packed her things and left the office. A member of staff was asked to run after her and over the next hour myself and the staff member persuaded her not to resign. I told her she could go home if she wished.
In a subsequent meeting on 26th February (subsequently corrected to 27 February), we discussed potential resolutions to the issues Alison was experiencing. The same member of staff was also present during this meeting. These resolutions included an increase in pay, reduced working hours at her request and a potential new role. Alison refused all of these potential resolutions and reiterated her desire to leave the company.
Whilst this was not an outcome the company was seeking, we accepted that she had made her decision and understood this to be her verbal resignation. She wanted to leave the office that day and the company was agreeable to paying her notice in lieu and, in recognition of her service with the company, an additional payment above her required notice period which we communicated to Alison and understood she was happy with this outcome.
We have had no communication from Alison since this meeting and, I reiterate, she remains an employee of the company. Whilst we accepted her verbal resignation, we are more than happy to work with Alison if she would like to remain an employee of the company. We would like to engage directly with Alison but accept she may rather communicate through her representatives, so we await further direction on how she would like to proceed at this point.”
There was one further piece of correspondence relevant to the matter. On 26 March, 2019, the Respondent wrote to the Applicant, and the relevant parts of that correspondence were as follows:
“We refer to our discussions held on 26 and 27 February 2019, the subsequent correspondence from your Solicitor (Brander Smith McKnight) dated 8 March 2019 and my reply to Brander Smith McKnight dated 15 March 2019. These discussions and this correspondence have related to the matter of your verbal resignation on 27 February 2019.
Despite several attempts by Warren Smith & Partners to address these concerns with you and to offer reasonable accommodations to you, we have had no indication of your desire to request that your resignation be withdrawn and no indication from you of your intention to return to work.
As a result, we formally accept your verbal resignation, effective from 27 February 2019. We will now process your final pay. This payment (less applicable taxes) will be made on 28 March 2019 and will include the following:
pay in lieu of your 4 weeks' notice from the 27 February 2019
an ex gratia payment of 6 weeks in recognition of your 6 years' service to Warren Smith & Partners
any accrued but untaken annual leave
your final payslip and a certificate of Service is attachedOnce again, we would like to acknowledge your contribution to our business over the past 6 years and to wish you all the very best for your future.”
(b) Catherine Issacs
As noted above, Ms Issacs was present during the conversations with the Applicant and Mr Eriksson on 26 and 27 February, 2019.
Regarding 26 February, 2019, her evidence in her Statement was:
“Alison was asked into Ralph Eriksson's (Chief Financial Officer) office on the afternoon of Tuesday 26th February 2019, by Ralph.
Alison was extremely upset and said that she had had enough and got up to collect her bag, there was no indication that Alison was leaving the Company and that she wouldn't be back the next day.
By my own initiative, I followed Alison out to the elevator and down to the ground floor of the building to discuss what had been happening in the office and to make sure she was ok. I was not asked by Ralph Eriksson to 'run after' her at any stage
After about an hour I called Ralph and asked him to come down to the coffee shop in the foyer of the building to talk to Alison.
Ralph discussed with Alison what he thought would be a good job for her i.e. looking after all marketing and office events i.e. golf days, staff meetings, Hibernian nights, Christmas & Cocktail Functions and any other events the Company would be holding in the future.
Alison was also advised by Ralph Eriksson that Rochelle (Michael Cahalane's PA) would be in charge of all the Administration Staff and Alison would be reporting to her. Alison mentioned to Ralph that she didn't think Rochelle would be happy with Alison's job offer as Rochelle looks after some of the events. Ralph advised that he was restructuring the Administration Section of the Company, Rochelle would work directly for Tom Wise and Michael Cahalane (Director).”
As to the events of 28 February, 2019, Ms Issacs’ evidence in her statement was:
“Later in the day I went in to Ralph's office and said that he had to have a talk to Tom Wise as he was making it extremely difficult for Alison by sitting directly next to her, ignoring her, wouldn't look at her and the tension in that part of the office was unbearable.
Alison was asked in to Ralph's office again and Ralph said again that the environment was a toxic one and that Alison would be better off not working at the Company and that he was happy to pay her 10 weeks pay that very day. I was shocked that he had said this to Alison after the job offer of the day before and said to Ralph 'hang on a minute' and turned to Alison and said 'is this what you want Alison?'. Alison was crying and too upset to answer. Alison was extremely upset with what was and had been happening over the past 2 days as everything in the Office had been friendly the week previous to this and on the Monday 25th February, 2019 and no indication of Tom Wise not being happy with Alison's work was ever mentioned to her, in fact, no one could understand what was happening to Alison. Ralph, in my opinion, left Alison with no options at all but offered her 10 weeks pay to leave the Company.
Ralph said again to Alison that the situation wasn't good and she would be better off not being in the toxic environment. He then asked Alison and I to go for a drink away from the Office, he took us up to the Hilton Bar.
Whilst walking up Castlereagh Street, Alison said to Ralph, more than once, she felt like she'd been sacked and Ralph told Alison that she hadn't.
Ralph Eriksson asked Alison, on the corner of Castlereagh and Park Street's, while waiting at the traffic lights to cross the road on the way to the Hilton Hotel Bar that he would appreciate if Alison would email in to the office her resignation, Alison did not answer Ralph.”
And
“Before Ralph left the Hilton Hotel Bar he again asked Alison to email in her resignation.”
(c) Martin McCaffery
The only direct evidence Mr McCaffery could give related to conversations at the Hilton Hotel. The evidence in his statement was:
“At approx. 4:30pm on Wednesday 27th February 2019, I then met Alison, Cathie and Ralph Eriksson at the Glass Brasserie bar at the Sydney Hilton Hotel. Ralph then purchased a bottle of wine to share amongst us.
In front of both Cathie and I, Ralph then asked Alison for her written resignation in return for her to receive a payout of her leave entitlements+ 10 weeks' pay.
I advised Ralph that this was illegal, as Alison's role wasn't being made redundant, all her performance reviews to-date had always been excellent, and that she had never received any verbal or written warnings from any of the Managers or Directors at WSP about her performance during her entire employment time there.
Ralph responded that he was doing Alison a 'favour', as her team working environment was 'toxic' so this was the only option to resolve the situation.
I advised Ralph that based on Tom Wise's behaviour of totally ignoring Alison all day, that he was deliberately making the working environment difficult for Alison which amounted to bullying.
Ralph replied that Tom wasn't bullying Alison, as Tom had not said anything to her so he couldn't have bullied her.
I also asked Ralph: "is this the culture and message that you want to send to your other employees?" Ralph responded with "Tom is an introvert and this is the way he handles these situations, he just goes into his shell".
Ralph then offered to act as a verbal referee for Alison for future job applications, which would include that Alison was a valuable employee who WSP didn't want to lose, WSP had offered Alison another position but Alison had a personality conflict with one of the directors and couldn't stay with WSP any longer. I found this to be a dishonest and insulting offer.”
(d) Ralph Eriksson
Mr Eriksson gave evidence of minor events prior to 26 February, 2019, where an administration support group was set up in October, 2019, as the Applicant was said to be not coping in her role, and in the week commencing 18 February, 2019, the Applicant was said to have been seen shouting at her computer and saying things like, “I want to resign.” In reply the Applicant strongly disagreed with the claims regarding the week commencing 18 February, 2019.
As to the events of 26 February, 2019, in his Statement, Mr Eriksson said a conversation occurred at around 2.30 pm on Tuesday 26th February 2019, when the Applicant came into his office visibly upset. Ms Isaacs was in the room at the time. He said the Applicant pulled up a chair and Ms Isaacs went to leave. Mr Eriksson raised his hand to Ms Isaacs to stop her from leaving and a conversation occurred to the effect of:
McCaffery: It’s all too hard. There is too much pressure to get things done.
Eriksson: It will be ok. We will sort it out.
McCaffery: There’s just so much pressure to get things done. Tom’s unreasonable.
Ms Isaacs: The bloke is a cunt and can’t be trusted.
McCaffery: And I haven’t had a pay rise in years.
Eriksson: Don’t worry about it. It will be fine we can work this out. It sounds like the job
is toxic to you and you’re not coping with it.
McCaffery: Look I just don’t want to be here any more.
Eriksson: It will be ok. Let’s find something you like doing and can cope with. It is
evident that you are not coping with this job and it is toxic to you.
(In reply, the Applicant denied this version of the conversation).
Regarding the conversation that occurred after the Applicant left the office on 26 February, 2019, Mr Eriksson stated that Ms Isaacs returned to work and he and the Applicant had a conversation to the effect of:
Eriksson: Alison what do you need me to do?
McCaffery: I don’t want to work in that role any longer.
Eriksson: I can sort something out for you. What do you enjoy doing?
McCaffery: I enjoyed what I was doing before, working with Marketing events.
Eriksson: Well I am sure we can have a look at something like that.
McCaffery: I also want my pay looked at – I have not had a rise in years.
Eriksson: We can probably achieve that.
McCaffery: And I want to have more flexible hours and reduce my working hours.
Eriksson: We can probably achieve that too. Let me go away and look into it for you.
Don’t worry about coming back into the office today.
(In reply, the Applicant denied this version of the conversation).
Mr Eriksson sent a text message to Mr Wise at 3.27pm on 26 February, 2019, that said, “Alison may have resigned.” He also states that he had a conversation with Mr Wise at 4.00pm where he said, “Alison has been in my office today distraught. She resigned. I think I have talked her out of it but I don’t know if she will be back in tomorrow. She is very, very delicate right now. I have some ideas, I am working on them.”
Regarding conversations with the Applicant on 27 February, 2019, the evidence in Mr Eriksson’s statement was that they first conversed at 2.30pm when the Applicant entered his office in an agitated state. He asked Ms Isaacs to stay in his office and a conversation to the following effect occurred:
McCaffery: Tom has not spoken to me all day. He is such an arsehole.
Isaacs: Tom is a cunt.
Eriksson: What do you mean he hasn’t spoken to you?
McCaffery: He has not even said “hello” today [repeated].
Isaacs: He can’t be trusted. He is a cunt and will throw you under the bus at any
chance.
McCaffery:I do not want to be around Tom because he has been so horrible by not talking to me today.
Eriksson:Alison, it’s all ok. I have worked out something for you. I am sorry if you feel
that way. I am sure that Tom meant nothing by any action he has not taken today. I have managed to sort out a new role for you. It will entail you running all internal and external as well as staff events. There will need to be some flexible hours involved because it involves running events and you will need to be present at the events. However, this means that you can tailor your hours around those events to suit yourself. We can reduce your hours overall and we will move up your pay. You will report into Rochelle and can chose where you either with
Libby or Rochelle so that you don’t need to stay next to Tom. What do you think
of that?
McCaffery: NO! (said in a very loud voice)
Eriksson: Well what do you want then?
McCaffery: I just want to go.
Eriksson:If that is what you want, we will look after you. We will give you some extra
weeks pay in recognition of your service to Warren Smith & Partners. I am thinking something like 300 hours in total. However, you will need to give me something in writing.
McCaffery: What would that mean for my February pay?
Eriksson:You have already been paid that, so the 300 hours would be on top of that. We
will also give you a very good reference – so if someone rings me, I will tell them what a wonderful staff member you were and how hard we worked to keep you here and that a personality clash was the reason for you leaving. What do you want to do now?
McCaffery:I want to finish Daniel’s [Power (Project Manager – Hydraulics for the
Respondent] birthday poster and then pack my desk and leave.
Eriksson: Do you want to come back for a farewell lunch?
McCaffery: NO! (again, in a loud voice).
(In reply, the Applicant disputed the bulk of this conversation. She partly agreed with Mr Eriksson’s Statement, “We will give you some extra weeks pay in recognition of your service to Warren Smith & Partners. I am thinking something like 300 hours in total.” However, the Applicant stated that Mr Eriksson also said, “However. you will need to give me something in writing,” referring to a resignation).
As to discussions at the Hilton Hotel, Mr Eriksson’s evidence in his statement was that the conversation was to the following effect:
Martin McCaffery: Tom has been bullying Alison all morning by not talking to her.
Isaacs: Yeah. I think it is bullying.
Eriksson:Not talking to someone is not bullying, especially when you are
an introvert.
Martin McCaffery: Well if it’s not bullying, it’s unfair dismissal.
Eriksson: It is not unfair dismissal, Alison has resigned.
Mr Eriksson noted that he did not take back the Applicant’s office access card and her buildings access and IT systems remained open immediately after she left on Wednesday, 27 February, 2019.
Mr Eriksson telephoned the Applicant on Monday, 4 March, 2019. She did not answer and he left her a message requesting she call him back. Mr Eriksson also sent the Applicant an SMS text message on 6 March, 2019, again, asking her to call him back. He did not receive a reply.
After receiving a letter from the Applicant’s Solicitor on 8 March, 2019, it was clear to Mr Eriksson that the Applicant did not intend to return to work so on 12 March, 2019, he then instructed the Respondent’s IT Manager to archive the Applicant’s email account. That archiving was actioned at 11.18 am on 12 March, 2019. No changes were made to any other IT systems, nor was the Applicant’s computer ‘wiped.’
On 12 March 2019, Mr Eriksson wrote a reply to the Applicant’s Solicitor as outlined above. The letter included the following:
“We have had no communication from Alison since this meeting [27 February, 2019] and, I reiterate, she remains an employee of the company. Whilst we accepted her verbal resignation, we are more than happy to work with Alison if she would like to remain an employee of the company. We would like to engage directly with Alison but accept she may rather communicate through her representatives, so we await further direction on how she would like to proceed at this point.”
No reply to that letter was received until April, 2019.
With no response received, and as part of the monthly pay run, on 26 February, 2019, Mr Eriksson processed the termination pay for the Applicant. This comprised her accrued but unused annual leave, pay of 4 weeks in lieu of notice, and the discretionary additional payment (equivalent to 8.5 weeks’ pay). A letter confirming the acceptance of the Applicant’s verbal resignation and outlining the termination payment made was sent to the Applicant on 26 February, 2019.
(e) Tom Wise
Mr Wise was not present at any of the key conversations in this matter on 26 and 27 February, 2019, and so whatever evidence he could give about those conversations was hearsay. He could, however, say where he was on each of those days. On 26 February, 2019, he was out of the office for the whole working day (after being in the office from 7.20am to 8.30am, he returned at 5.00pm). In her reply evidence, and in cross-examination[1], the Applicant did not dispute Mr Wise’s absence from the office.
On 27 February, 2019, Mr Wise went directly from his home to a client for an 8.00am meeting, finally arriving in his office at 11.20am. He stated he was busy with his work all day and did not ignore the Applicant “to any particular degree.” He in fact perceived the Applicant to be ignoring him and to appear “ruffled.”
(f) Rochelle Ayuyao
Ms Ayuyao’s statement was received without objection and she was not cross-examined. She gave evidence about the role restructure. She stated:
“I assumed that this change came about because Mr Eriksson wanted to distribute the workload more evenly in the Admin team. I thought this because of any earlier incident in around October 2018 when Alison Mc Caffery had a breakdown and locked herself in the toilet crying, in relation to the amount of tasks she had. At that point, Mr Eriksson had set up an Admin group to help offset the workload imbalance and help relieve work pressures.”
Ms Ayuyao gave evidence of a conversation with the Applicant at 10.00am on 27 February, 2019. Her evidence was as follows:
“She [the Applicant] looked like she did not want me there and seemed distressed, but I did not know why. We had a conversation to the effect of:
Ayuyao:Are you ok?
McCaffery:Yes. I am fine
Ayuyao:Can you please tell me what they said to you and what's going on for
you?
McCaffery:I am going to take over the marketing side of things.
Ayuyao:Ok. Cool. Let me speak about it with Michael. Are you happy with
these changes?
McCaffery:Yes. It's not a problem for me.
(g) Jane Ciabattoni
Ms Ciabattoni’s statement was received without objection and she was not cross-examined. She gave evidence about the Applicant’s difficulty with her workload in October, 2018. Her evidence also traversed various conversations on 25, 26 and 27 February, 2019, to the effect that the Applicant expressed frustration on the 25 February, 2019, with Mr Wise making enquiries by email as to what work she was doing (which words the Applicant agreed in cross-examination she said)[2], and the Applicant expressing on the 27 February, 2019, that she had no problems with the restructure of her role.
(h) Michael Cahalane
Mr Cahalane’s statement was received without objection and he was not cross-examined. He gave evidence about the restructure of administration roles and stated:
“The new role intended for Alison had not been finalised because of the uncertainty about whether Alison would be returning to work after leaving on 27 February 2019. I am aware that Mr Eriksson sent a letter to Alison’s solicitors on 12 March 2019 The letter states that, “we are more than happy to work with Alison if she would like to remain an employee of the company.” If she decided to return to the company, then it is likely that she would have returned to a role that suited her best. However, as far as I am aware, Alison did not respond to this offer.”
FINDINGS OF FACT
As the above distillations of the evidence of the witnesses disclose, there were significant differences between witnesses as to what occurred, particularly regarding the conversations on 26 and 27 February, 2019. In a broad sense, however, there were two differing chronologies advanced. They were:
(a)That advanced by the Applicant, being that on 26 February, 2019, the Applicant was offered a new role, which she accepted, only to be terminated the following day because the Respondent wanted to get her out of the “toxic environment” straight away. She claimed that the respondent offered ten weeks pay but that a written resignation was required; and
(b)That advanced by the Respondent, being that in the morning of 26 February, 2019, the Applicant was observed to be “not coping well with her role.” In the conversations on that day, Mr Eriksson undertook to look at restructuring her role. On 27 February, 2019, Mr Eriksson outlined a new role to the Applicant, which she rejected. The Applicant thereafter did not attend work or respond to attempts of contact by the Respondent.
Based upon my observation of the Applicant, Ms Isaacs, Mr Eriksson and Mr Wise when giving evidence, and my consideration of all the evidence, while it was finely balanced, I prefer the evidence of the Respondent’s witnesses. The reasons for that conclusion, and the factual findings I make, are the following:
(a)The Applicant had had previous difficulty in early October, 2018, coping with her job. As a result Mr Eriksson set up an Administration Support Group.
(b)On Monday, 25 February, 2019, at around 10.00am, the Applicant expressed concern to Ms Ciabattoni regarding an email received from Mr Wise about her workload.
(c)On 26 February, 2019, at around 9.00am, Mr Eriksson and Ms Ayuyao had a conversation about the Applicant being observed to be not coping again. In that conversation there was a very general outline of an administrative restructure.
(d)At around 2.30pm on 26 February, 2019, the Applicant went into Mr Eriksson’s office and a conversation occurred, also involving Ms Isaacs, as recorded in Mr Eriksson’s statement (and set out at paragraph 32 above). I prefer Mr Eriksson’s recollection of that conversation[3]. The admissible evidence of that conversation of the Applicant and Ms Isaac differed significantly. Further, the Applicant’s evidence was that a role was proposed which she was “open to”, but as discussion progressed she became upset because of what she perceived Ms Ayuyao’s reaction to the change might be, resulting in her leaving the office. That sequence of events was not logical.
(e)Shortly after 3.12pm on 26 February, 2019, a further conversation occurred as recorded in Mr Eriksson’s statement (and set out at paragraph 33 above). I prefer Mr Eriksson’s recollection of that conversation[4]. While Mr Eriksson disputed whether Ms Isaacs was present at this conversation, the Applicant and Ms Isaacs said she was. However, the admissible evidence of that conversation of the Applicant and Ms Isaac again differed significantly. For example, Ms Isaacs recalled issues of Ms Ayuyao’s possible dissatisfaction which the Applicant had said occurred in the previous conversation on that date, and only the Applicant said she “accepted the new role” in that conversation.
(f)Further support for the conclusion that after that second meeting on 26 February, 2019, Mr Eriksson was exploring new roles in order to stop the Applicant leaving employment, as opposed to the Applicant’s contention that she had accepted a new role, arises from the evidence of other witnesses called by the Respondent. In particular:
(i)Ms Ayuyao stating that at 4.30pm Mr Eriksson spoke to her to confirm her position as to the possible restructure;
(ii)Ms Ciabattoni stating that at 5.00pm Mr Eriksson spoke to her (and Ms Ayuyao) regarding the possible restructure of the Admin team; and
(iii)Mr Cahalane being advised during the morning of 27 February, 2019, that there would be changes involving the Applicant and Ms Ayuyao.
(g)On 27 February, 2019, further discussions occurred within the Respondent’s office regarding a restructure of the Applicant’s role. The Applicant asserted that she became stressed as Mr Wise ignored her “for the entire day”. That assertion, however, did not withstand scrutiny. Mr Wise did not attend the office until 11.20am, after which the Applicant had at least minor interaction with Mr Wise regarding booking flights.
(h)At around 2.30pm on 27 February, 2019, the Applicant went into Mr Eriksson’s office and a conversation occurred, also involving Ms Isaacs, as recorded in Mr Eriksson’s statement (and set out at paragraph 35 above). I prefer Mr Eriksson’s recollection of that conversation[5]. The Applicant, after rejecting a proposed restructured role, said “I just want to go.” It was only then that Mr Eriksson began proposing possible payments and resignation. Even on the Applicant’s version of this discussion, when she said to Mr Eriksson, “I feel like I have just been sacked,” he replied (in part) “No”. This was tested in cross-examination of the Applicant as follows[6]:
“Now in paragraph 27 you say that you said to Mr Eriksson, "I feel like I've just been sacked"? --- That's correct.
But Mr Eriksson replied, on your evidence "No, you haven't." That's right, isn't it?--- That's right.
So in actual fact he didn't say you've been sacked, and there's nowhere in your statement or your subsequent statement where you say that Mr Eriksson said that you were sacked?--- That's right.
And in fact the only thing that he said that was definite is he wanted to get you out of that toxic environment?--- That's correct.”
In a sequence of events that would be highly unusual to follow a meeting at which an employee was dismissed, all the attendees at that meeting, and the Applicant’s husband, retired to the Hilton Hotel for a drink. The Applicant sought to rely on statements made by Mr Eriksson on the way to, and at, the Hotel as proof that she had been dismissed. The Applicant was again tested in cross-examination as follows[7]:
“And after offering the opinion that your husband gave to you of the circumstances, to Mr Eriksson, Mr Eriksson replied, "No." And he says, "No, it's not [an unfair dismissal]because there is a job for you." That's what you say in paragraph 30, Mr Eriksson said to you?‑‑‑Right. Yes.
Yes. Then he goes on to say, "But we just need to get you out of this toxic environment today"?‑‑‑That's right.
So in that context, in that moment, he wants to get you out of the toxic environment but he was also confirming that there was a job for you, on your evidence, is that right? That's what paragraph 30 says, isn't it?‑‑‑Yes.
Okay. And then he goes on to say, "Because there's been discussion about this pay out", still in that paragraph, Mr Eriksson said to you, "But to get the payout you will have to resign"?‑‑‑That's correct.
But on your evidence, you never resigned?‑‑‑That's correct.
So therefore you wouldn't be getting a payout up to that point in time. Up to that conversation you could only conclude that you wouldn't be getting a payout because you hadn't resigned?‑‑‑I knew I wasn't – I couldn't go back, but yes, I hadn't resigned.
So you knew you couldn't go back?‑‑‑Yes. I couldn't – I hadn't resigned.
Okay. Then you say, and still in paragraph 30, that you don't remember responding because you were shocked. So that means that you didn't respond to either of the propositions that Mr Eriksson put to you, including, "No, it's not because there's a job for you." So you didn't respond to that?‑‑‑Yes. No, that's correct.
And nor did you resign?‑‑‑I didn't resign, that's correct.
And Mr Eriksson doesn't use the words in that conversation that he dismissed you or terminated you?‑‑‑That's correct.
After that day, that is after 27 February, and after when you had walked out of the office on 27 February, going to the Hilton, that was the last time that you worked, that was the end of your working time at, to put it in neutral words, working time at Warren Smith, the respondent?‑‑‑That's correct.”
(j)Immediately thereafter the Applicant continued to retain her office access card and computer access. Mr Eriksson telephoned the Applicant on Monday 4 March, 2019. The Applicant did not answer and he left her a message requesting she call him back. Mr Eriksson then sent the Applicant a SMS text message on Wednesday 6 March, 2019, again asking her to call him back. Mr Eriksson did not receive a reply and did not receive a telephone call. Ms Isaacs, in cross-examination regarding whether she returned the Applicant’s possessions to her between 27 February and 3 April, 2019, provided the following evidence[8]:
“You took those papers and took them to? --- I put them in my drawer so that Alison didn't have to go back near Tom because she was just too upset.
But of course Alison had already left employment by this stage? --- But we didn't know whether she was coming back or not.
So you didn't know?‑‑‑ I didn't know whether she was coming back to the office.”
(k)The Respondent received a letter dated 8 March, 2019, from the Applicant’s Solicitor that claimed she had been dismissed. The Respondent replied by letter of 12 March, 2019, which stated, in part:
“We have had no communication from Alison since this meeting and, I reiterate, she remains an employee of the company. Whilst we accepted her verbal resignation, we are more than happy to work with Alison if she would like to remain an employee of the company. We would like to engage directly with Alison but accept she may rather communicate through her representatives, so we await further direction on how she would like to proceed at this point.”
(l)The Applicant’s Solicitor did not acknowledge or reply to the above invitation. Thereafter, as part of the ordinary pay cycle, the Respondent paid to the Applicant her accrued but unused annual leave, four weeks pay in lieu of notice, and a voluntary additional payment (equivalent to 8.5 weeks’ pay). A letter confirming the acceptance of the Applicant’s verbal resignation and outlining the termination payment made was sent on 26 February, 2019.
(m)On 28 March, 2019, the Respondent received the Applicant’s unfair dismissal application, which had been filed on 19 March, 2019.
Jones v Dunkel
One issue raised by the Applicant that could have impacted upon the above decisions regarding preferred evidence and factual findings was a submission raised by the Applicant regarding the rule in Jones v Dunkel[9]. The Applicant submitted:
“In his evidence before the Commission, Mr Erikkson stated that he had taken copious notes after each conversation with the applicant on 26 and 27 February 2019.
The substance of the conversations between Mr Erikkson and the applicant are the crux of these proceedings. Considering that both parties have such widely differing versions of events, the applicant submits that it would have been reasonable and logical to tender the notes as evidence in these proceedings.
The notes were not tendered as evidence in these proceedings.
An unexplained failure by a party to tender certain documents may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party’s case (known as the rule in Jones v Dunkel).
Applying ss 590, 591, and 577(a), as well as the case of Sharkey v Life Without Barriers the applicant submits that the Commission is able give consideration to application of the rule in Jones v Dunkel.
In the applicant’s submission, the Commission should be suspicious of the fact that Mr Erikkson’s notes were not tendered as evidence, and the applicant invites the Commission to draw a Jones v Dunkel inference that the notes would not have assisted the respondent’s case.” (Footnotes omitted).
The “evidence before the Commission” referred to in the above submission was an exchange in cross-examination that arose from evidence in chief of Mr Eriksson that he took notes of the conversations of 26 and 27 February, 2019, which he showed to Ms Isaacs. The relevant exchange was as follows[10]:
“Now you also said in reply to my friend's questions in relation to that paragraph that you kept copious notes. Is that correct?‑‑‑That's correct.
They're of your meetings?‑‑‑They are of both conversations that I had with Alison.
Yes, and they're really the meetings, particularly the meeting on 27th is critical to this case, would you agree?‑‑‑I'm not a lawyer.
In your view, do you think that what happened on the 26th is important to this case?‑‑‑I took notes on the 26th and the 27th. It's what I use to structure my response.
But you didn't provide those notes in evidence?‑‑‑I provided them here.
Were they included in your statement or provided to this Tribunal?‑‑‑They were included in this statement.
I think it will just make things easy, if I ask you a question just answer the question, it will probably make it easier. So the question is, did you provide those copious notes in any evidence?‑‑‑As in the original notes, or as in the type-written notes or as in the statement that was created from them?
THE DEPUTY PRESIDENT: The document that you held up and showed Ms Isaacs that you say I have notes?‑‑‑Yes.
Where are they?‑‑‑They would be sitting in my office right now.
I think they're the notes that Mr Smith is talking about?‑‑‑Okay.
MR SMITH: Yes, I got that. Thank you, your Honour. I appreciate that. Just moving to your statement, and I'll just ask a general question. I'm just letting you know, and I'm sure you're aware of this, that there are contradictory versions of events, particularly in relation other meetings of 26th and the 27th. Are you aware of that?‑‑‑Yes.
You would have seen the statements of Mr and Mrs McCaffery and Ms Isaacs?‑‑‑Yes.
They give a different version of those discussion than your evidence?‑‑‑Correct.
You stick with your evidence?‑‑‑Yes.”
Thereafter the Applicant made no call for production of the identified notes.
Quite clearly the identified notes were contemporaneous notes taken by Mr Eriksson upon which he subsequently based his statement. Their location was clearly identified.
The Applicant fails to specify the exact inference I am asked to draw. However, it cannot seriously be suggested that in the circumstance where a witness produces a statement or affidavit based upon contemporaneous notes, if those notes are not also provided that an inference may be drawn that the contemporaneous notes will differ from the statement or affidavit. Unfortunately, that appears to be the Applicant’s submission, and it is rejected.
Had the notes been called for but not produced, then at least a submission regarding a Jones v Dunkel inference could be advanced. That, however, is a vastly different factual scenario.
Finally, if it were to be suggested that a Jones v Dunkel inference were to be drawn against his evidence, I would have expected a more robust challenge to Mr Eriksson than that advanced as a matter of fairness in dealing with a witness[11].
First Issue: Was the Applicant Dismissed?
Pursuant to the Directions issued from my Chambers on 9 May, 2019, the Applicant filed an Outline of Submissions that accompanied her evidence. In those submissions, on the question of whether the Applicant had been dismissed, the Applicant submitted:
“Section 385 (a) FWA
38. It is our submission that the events described in paragraphs 7-36 above constitute a dismissal, because the Applicant’s employment was terminated on the Respondents initiative (s386(1)(a) FWA). Despite assurances by Mr Erikkson that the Applicant was “not being sacked”, we submit that the actions of the Respondent could not be construed in any way other than a dismissal.
39. If the Commission is against us on that submission and is of the view that the Applicant resigned, then in the alternative we submit that the Applicant was forced to resign because of conduct, or a course of conduct, engaged in by the Respondent (s386(1)(b) FWA), as described in paragraphs 24 – 34 above.”
(a) The Respondent’s Submission
As the Respondent was the party that raised the jurisdictional objection, at the conclusion of the hearing, it was agreed that the Respondent would first outline their submissions. The Respondent submitted that their primary case was that the Applicant had not been dismissed because:
(a) On the evidence of both the Applicant and Mr Eriksson, the Applicant had never been informed by the Respondent on 26 or 27 February, 2019, or at any other time that the Applicant was dismissed, or words to that effect, there is no document in evidence which states to the effect that the Applicant had been dismissed.
(b) On the Applicant’s own evidence, on 27 February, 2019, when the Applicant said to Mr Eriksson, during their conversation in the Respondent’s office and thereafter, that she felt like she had been dismissed, Mr Eriksson responded that she had not been.
(c) In stark contrast to being dismissed, on 27 February, 2019, it was the Applicant’s evidence that Mr Eriksson had offered her an alternative position, to move her away from Mr Wise. This, it was said, was not a position consistent with the Applicant’s case that she had been dismissed. In fact, it was consistent with Mr Eriksson’s account of that conversation, that after spending considerable time to find another position for the Applicant prior to meeting with her that day, she had refused the offer and said, “I just want to go.”
The Respondent submitted that it had acted consistently with the position that the Applicant had verbally resigned on 27 February, 2019, after she refused the offer of an alternative position at the Respondent.
Insofar as the Applicant may seek to rely on s.386(1)(b) of the Act, the Respondent submitted that there was no basis for such reliance and referred to the decision of a Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli[12] (“Bupa v Tavassoli”).
(b) The Applicant’s Submissions
The Applicant’s primary case was that the Applicant was dismissed at the Respondent’s initiative as provided at s.386(1)(a) of the Act.
The Applicant submitted while she was not told expressly told that she was dismissed, any reasonable person in the circumstances could only have concluded that she was no longer employed by the Respondent following the events of 27 February, 2019. Despite there being no document effecting a dismissal, the conduct of the Respondent was such that the Applicant was left with no option but to conclude that she had been dismissed.
Further, while the Respondent denied that the Applicant had been dismissed when questioned by the Applicant, the Respondent’s denial was instead a form of pressuring the Applicant to provide a written resignation. The intention of the Respondent in denying that the Applicant had been dismissed was to minimise the possibility of an unfair dismissal claim.
The Applicant agreed that a new role was created for her, but she denied that she refused to accept the new role. Despite her accepting the new role on 26 February, 2019, on 27 February, 2019, the new role was revoked by the Respondent and the Applicant was subsequently dismissed.
On the evidence of the Applicant, during conversations on 27 February, 2019, the Respondent said to the Applicant words to the following effect of, “I need to get you out of this toxic environment straight away” and “I think the best thing for you is for us to pay you out and you can leave straight away.” The conduct of the Respondent on 27 February, 2019, could only be interpreted as a dismissal.
In the alternative, the Applicant submitted that pursuant to s.386(1)(b) of the Act, she was forced to resign because of conduct engaged in by the Respondent.
The Applicant submitted that the statements, “We can give you 10 weeks pay but you would need to give us a written resignation” and “We just need to get you out of this toxic environment today, and that’s why I have offered to pay you out. But to get the payout, you will have to resign,” left her with no effective or real choice but to leave her employment.
(c) Consideration Regarding “Dismissal”
In Bupa v Tavassoli[13], the Full Bench, after a consideration of authorities, regarding termination at the initiative of the employer and forced resignation, observed:
“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here 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 probably result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
The Full Bench referred, inter alia, to Mohazab v Dick Smith Electronics Pty Ltd[14], where the Full Court of the Industrial Relations Court of Australia observed:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:
“ … a termination of employment at the instance [of] the employer rather than of the employee.”
And at p 5:
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.”
Regarding the primary case advanced by the Applicant, I do not consider that the Applicant’s employment with the Respondent was terminated on the Respondent’s initiative (s.386(1)(a)). It is important to note that the Applicant’s submission regarding s.386(1)(a) does not engage the concept of ostensible communication of resignation as referred to in the first limb of the summary contained at paragraph [47] of Bupa v Tavassoli.
Any consideration of whether termination at the initiative of the Respondent occurred must proceed upon the facts as found at paragraph [46(i)] (and referentially paragraph [35]) of this decision. I do not consider that on an objective analysis of the Respondent’s conduct that the Respondent had any intention to bring the Applicant’s employment to an end. The Respondent in fact was involved, particularly on 26 and 27 February, 2019, in detailed efforts to redesign the position of the Applicant to eliminate any stressors, particularly any difficulties the Applicant had perceived from working with Mr Wise.
When Mr Eriksson outlined the new role for the Applicant on 27 February, 2019, she rejected it. The Applicant said “I just want to go”. It was only after that statement that the question of resignation was traversed, being first expressed as, in order to receive some “extra weeks pay”, she would “need to give me something in writing.”
That it was not the intention of the Respondent to bring the Applicant’s employment to an end was reflected (while not established) in Mr Eriksson’s responses to any suggestions that the Applicant had been dismissed. The Applicant agreed that Mr Eriksson said “No, it's not [an unfair dismissal] because there is a job for you.”
Far from the circumstance of an employer jostling for and/or seizing upon a resignation that resulted directly or consequentially from their actions, the Respondent was active in making genuine enquiries as to what the Applicant desired in relation to her continuing employment. Numerous attempts were made to contact the Applicant, and all were resisted by the Applicant. Even Ms Isaacs did not know whether the Applicant was coming back to the office after 27 February, 2019. Quite clearly, the Respondent was attempting to clarify or confirm with the Applicant after a reasonable time that she had genuinely intended to resign.
On 12 March, 2019, in a genuine and certainly not self-serving communication to the Applicant’s Solicitor, the Respondent stated:
“We have had no communication from Alison since this meeting and, I reiterate, she remains an employee of the company. Whilst we accepted her verbal resignation, we are more than happy to work with Alison if she would like to remain an employee of the company.”
The alternative submission of the Applicant was that, pursuant to section 386(1)(b) of the Act, she was forced to resign her employment due to the conduct engaged in by the Respondent. The Applicant’s submission is predicated on my acceptance of the Applicant’s evidence that Mr Eriksson said, “We can give you 10 weeks pay but you would need to give us a written resignation” and “We just need to get you out of this toxic environment today, and that’s why I have offered to pay you out. But to get the payout, you will have to resign.”
My preference of the evidence of Mr Eriksson effectively disposes of the submission of the Applicant, but even were the Applicant’s evidence to have been accepted, it would have fallen well short of establishing dismissal pursuant to s.386(1)(b).
The statements that the Applicant attributed to Mr Eriksson were no more offers of compensation in return for resignation. They could have constituted no more than an invitation to treat capable of acceptance, or rejection. They could not constitute a situation where the Applicant had no effective or real choice but to resign.
For the above reasons, I find that the Applicant was not dismissed pursuant to s. 385 of the Act.
Second Issue: Harsh, Unjust or Unreasonable
Having found that the Applicant was not dismissed, there is no recourse to consideration of the factors outlined in s.387, and any determination of whether there was a harsh, unjust or unreasonable dismissal.
Third Issue: Would the Commission Order the Payment of Compensation?
As with the second issue, having found that there was no dismissal there is no need to consider remedy pursuant to s.392. In the circumstance, however, where the Respondent has made a unilateral ex gratia payment, I do not consider it otiose to address whether an order for compensation would have been made, and if so in what amount, were a dismissal have been found to occur that was harsh, unjust or unreasonable.
In the Applicant’s Outline of Submissions it described as “unusual” the circumstance of the Respondent making the payment a month after the asserted termination date, of 4 weeks notice, plus an additional 8.5 weeks pay. The Applicant submitted in that Outline of Submissions that reinstatement was not sought, and that the appropriate amount of compensation was 20 weeks pay. On questioning by the Commission, the Applicant conceded that any award of compensation would have to take into account at least the 8.5 weeks payment[15]. A finding of dismissal would have had a likely effect on whether the Applicant could advance a claim for payment of pro rata Long Service Leave[16].
I do not consider that Applicant would have been expected to remain in her employment for any considerable period. On either party’s version of the facts, she was clearly upset with her work environment. The Applicant did not want to work for Mr Wise, and there was a complete breakdown in her relationship with Mr Wise. I cannot accept the Applicant’s submission that she would have remained in employment indefinitely. Pursuant to s.392(2)(c), I would not have expected the Applicant to remain in employment more than a further 2 months.
The Applicant was employed on a casual basis from about 13 March, 2013, and then on a permanent part time basis from 1 July, 2017. I do not consider that length of service to be a persuasive factor in increasing or decreasing any assessment of compensation (s.392(2)(b)).
As to issues of mitigation and remuneration earned since dismissal (s.392(2)(d) and (e)), I note the following evidence of the Applicant[17]:
“Thanks Ms McCaffery. Ms McCaffery, in the last paragraph of your statement of 23 May 2019, you state that as at that date you have not been able to obtain other employment?‑‑‑That's correct.
That's the still the case as of today?‑‑‑Yes, that's correct.
Thank you. Ms McCaffery, since 27 February when you last worked for the respondent, for Warren Smith, have you sought employment?‑‑‑No, I haven't.
It's fair then to conclude that you haven't either been employed or been engaged as an independent contractor or a temp or anything like that since 27 February?‑‑‑Yes, that's correct.”
The Applicant clearly did not attempt to mitigate her loss, though I note she did receive the additional payment that would no doubt have obviated any urgent need to seek alternative employment.
No other considerations in s.392(2) of the Act are particularly relevant to the hypothetical determination of compensation in this matter. Were compensation to be a consideration I would not have ordered an amount exceeding the eight and a half (8.5) week payment that the Respondent voluntarily made.
CONCLUSION
The Applicant was not dismissed pursuant to s. 385 of the Act. The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr M Smith, for the Applicant.
Mr P Almond, for the Respondent.
Hearing details:
2019.
18 June.
Sydney.
Final written submissions:
For the Applicant: 18 July 2019.
For the Respondent: 25 July 2019.
<PR712977>
[1] Transcript PN327.
[2] Transcript PN284.
[3] Statement of Ralph Eriksson dated 6 June, 2019, at [9] to [14].
[4] Statement of Ralph Eriksson dated 6 June, 2019, at [20] to [22].
[5] Statement of Ralph Eriksson dated 6 June, 2019, at [35].
[6] Transcript PN389 to PN392.
[7] Transcript PN430 to PN440.
[8] Transcript PN797 to PN799.
[9] (1959) 101 CLR 298.
[10] Transcript PN943 to PN955.
[11] Re National Building Trades Construction Award 1975 & Other Matters [1983] 17 IR 446.
[12] (2017) 271 IR 245; [2017] FWCFB 3941, at [47].
[13] At [47].
[14] (1995) 62 IR 200 at P. 205.
[15] Transcript PN 35 to PN 38, and PN 60 to PN62.
[16] Transcript PN 40.
[17] Transcript PN865 to PN868.
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