[2014] FWC 2119 [Note: An appeal pursuant to s.604 (C2014/3948) was lodged against this decision - refer to Full Bench decision dated 7 April 2014 [[2014] FWCFB 4007] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Anne Crowther
v
Ray Marshall Transport Pty Ltd
(U2013/13516)

DEPUTY PRESIDENT SAMS

SYDNEY, 1 APRIL 2014

Application for unfair dismissal remedy - jurisdiction - whether applicant a person protected from unfair dismissal - whether applicant dismissed - forced resignation - abandonment of employment - constructive dismissal - confrontation between applicant and employer - conduct of employer did not force resignation - applicant intended to resign - evidence of unbiased witness - applicant not dismissed - no jurisdiction of the Commission - application dismissed.

[1] This decision arises from an application filed on 13 September 2013 by Mrs Anne Crowther (the ‘applicant’), in which she seeks a compensatory remedy for her alleged unfair dismissal by Ray Marshall Transport Pty Ltd (the ‘respondent’) on 4 September 2013. The application is brought pursuant to the provisions of Part 3-2 of the Fair Work Act 2009 (the ‘Act’).

[2] A fundamental prerequisite to the Fair Work Commission’s (the ‘Commission’s’) unfair dismissal jurisdiction is that an employee who claims to be a person protected from unfair dismissal, must have been dismissed. While this proposition might appear to be self-evident, as this case demonstrates, it is not always so clear cut. The meaning of ‘dismissed’ is to be found at s 386 of the Act as follows:

‘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.

Sub-sections 386(2) and (3) are not relevant to this matter.

[3] The more obvious cases of unfair dismissal are those falling under sub-paragraph (a) of s 386(1) as there will invariably be no argument that a person has been terminated in the more conventional way on the employer’s initiative. This could be by way of letter or direction. Sub-para (b) of s 386(1) contemplates the notion of constructive dismissal; that is, the employee has been forced to resign (or abandon their employment) because of the conduct, or course of conduct, engaged in by the employer. Of course, if the employee resigns of his/her own accord, the person cannot have been dismissed and no application for unfair dismissal can succeed. I shall return later to the principles and authorities on the question of constructive dismissal.

[4] At this point, I highlight a number of applicable legislative provisions, which the Commission is required by s 396 of the Act, to determine prior to considering the merits of the application. These include the following:

(a) the application was filed within the requisite time period of 21 days (s 394(2));

(b) the applicant has served the minimum employment period in that she worked for the respondent for 8 ½ years (ss 382 and 384);

(d) the employer is a small business (12 employees) and the Small Business Unfair Dismissal Code would apply if the jurisdictional objection is dismissed.

[5] In cases where the employer maintains the employee abandoned his/her employment of his/her own accord, and without any notice and where the employee insists he/she was forced to resign by the conduct of the employer, the evidence of the merits of the matter will invariably overlap with evidence on the jurisdictional issue.

[6] The application was unsuccessfully conciliated by a Fair Work Conciliator and referred to me for arbitration. At the commencement of proceedings, I encouraged the parties to make further attempts to settle the applicant’s claim. This proved unsuccessful. I proposed to deal with the evidence as to the jurisdictional objection and the merits of the matter at the same time. Pursuant to s 596 of the Act, I granted permission for the applicant to be represented by Counsel, Mr C Bolger. The respondent was represented by Mr Danny Rifai, an employee of the respondent.

THE EVIDENCE

[7] The following persons provided written and/or oral evidence in the proceeding:

● The applicant;
● Mr Raymond Marshall, the Managing Director of the respondent;
● Mr Dany Rifai; and
● Mr Warren Peacock.

[8] The applicant is 67 years of age and has been engaged in clerical positions for all her working life, including book-keeping and office administration. She commenced employment with the respondent on 1 April 2005. She had various office duties, including responsibility for the National Heavy Vehicle Assessment Scheme.

[9] On 2 August 2013, the respondent purchased premises at 307 Northern Rd, Londonderry and moved its transport operations to that location from Girraween. The site includes a residential property and two free standing portable sheds. One of these contains the offices of Mr Ray Marshall (Mr Marshall), his son Robert and most of the day to day business records of the respondent. The other is the administrative office, containing accounts, insurance, banking, payroll, debtor/creditor records and the drivers’ recreational area. The applicant said she had unsuccessfully complained to Mr Marshall about the location of the administrative office and her lack of access to the day to day business records. It is noted that the two buildings are 25 metres apart.

The events of 4 September 2013

[10] The applicant said that on 3 September 2013, she received a telephone call from an officer of the Australian Taxation Office (ATO), who informed her that the respondent would be subject to a tax audit in respect to its transport operations. On 4 September 2013, the applicant arrived for work at her usual start time of 4:00am and commenced her daily routine. This included processing the mail. However, on this day there was no mail. She found this to be very unusual.

[11] At around 10:00am, Mr Marshall entered her office with the mail. She said he moved to the corner of her desk and inquired in an aggressive tone what the ATO had wanted the day before. She said he thumped his right index finger on the desk and shouted, ‘My name is Ray’. She responded, ‘Ah, go away.’ The applicant said Mr Marshall moved closer to her and, in an even more threatening tone said, ‘You don’t like this yard. It’s probably better than your yard.’ She said he then screamed, ‘If you don’t want to be here, then don’t be here. I can get someone else to come in.’ The applicant said she became very nervous at Mr Marshall’s comments and replied, ‘Under the circumstances, I can’t be here.’

[12] The applicant said she then shut down her computer, put the unfinished paperwork on the desk, picked up the outgoing mail, envelopes and stamps, her work bag and handbag and started to move away from the desk. Mr Marshall inquired as to location of the USB stick for internet banking and for the banking details. She gave him the password details and client numbers. As she moved to leave, the applicant claimed Mr Marshall blocked her path and asked where the gate key was. She said it was on the dashboard of her car.

[13] Mr Marshall let her pass, but when she went to collect her small television, Mr Marshall followed her. She proceeded to her car as quickly as she could. Mr Marshall followed and, when she reached her car, she handed him the gate key and then left the site.

[14] In cross examination, the applicant denied that she had been looking for alternative work prior to the 4 September 2013. She also denied that she had told anyone she had been looking for other work. Nor had she had any job offers prior to 4 September 2013.

[15] Mr Rifai, for the respondent, asked the applicant about the final rental transactions on the former site at Girraween. In my view, the date the respondent moved to its Londonderry premises is irrelevant to the issues to be decided in this matter.

[16] The applicant claimed that she first complained about the office location about a week after moving there. Mr Marshall was not interested in making any changes. She complained that she felt segregated from others and had little contact with other employees. She could not get the information she needed on a day to day basis. While she accepted that various people had visited her office, this was irregular and she felt isolated.

[17] The applicant agreed she had dealt with sensitive personal payroll details in the course of her work. She acknowledged that her office was about 25 metres from the other office. She believed it was unreasonable to walk that distance numerous times in the day, particularly after travelling 75km to work. While there was phone communication between the offices, paperwork could not be checked over the phone.

[18] In answer to questions from me, the applicant said she wanted Mr Marshall to move the offices closer together. This would have been simple, as they were portable. She was not entirely clear as to whether she had actually suggested this solution to Mr Marshall, but she had complained to others about the practical problems of her work location.

[19] Mr Marshall’s version of the events on 4 September 2013 is markedly different to that of the applicant. In his statement, Mr Marshall said that that morning, the applicant had communicated with him by pointing her finger and then yelling at him about his accountant and the tax audit. When he asked, ‘You’re not really happy here, are you Anne?’ she replied, ‘No, I’m not and I’m going now!’ When asked if she was coming back, she replied, ‘I won’t be back, I’m getting out of this dirt’ (referring to the rota mill on the roadways). She then collected all her personal belongings and handed him the access key. Mr Marshall asked again if she was coming back and she replied, ‘No’.

[20] Due to the brevity of Mr Marshall’s statement, considerable latitude was granted to Mr Rifai’s further questioning of him in evidence-in-chief.

[21] Mr Marshall insisted that he did not terminate the applicant’s employment. He had never bullied or harassed her and had never had any other employee complain of harassment or bullying.

[22] On the morning of 4 September 2013, Mr Marshall recalled that he went to the applicant’s office for a stamp and to ask her about the ATO’s inquiry. The ATO had also spoken to him the day before. He had also heard of the ATO audit from another employee, Mr Jeff Moore, who laughingly told him the applicant had told the tax person not to wear good shoes, because of the dirt on the site.

[23] It was Mr Marshall’s evidence that whenever he met the applicant, she was non-responsive and ignored him. Her practice was to tap on the desk and not even use his name. On this occasion, Mr Marshall told her not to tap when talking to him and to call him Ray. Mr Marshall recounted that the applicant hadn’t used his name in two years, but he didn’t care, as she did her job well. He reaffirmed what he had deposed to in his statement about the events of 4 September 2013.

[24] In cross-examination, Mr Marshall agreed that no one else had witnessed the conversation on 4 September 2013. He firmly believed the applicant had resigned that day, notwithstanding the applicant had never given him a written resignation. Mr Marshall denied contacting the applicant the next day.

[25] Mr Marshall accepted that he had not mentioned the conversation with Mr Moore in his statement. He said that Mr Moore could not give evidence because he was currently on workers’ compensation and lived 600km away. Mr Marshall said he was not particularly concerned about the ATO inquiry as he was already aware of it and he had been audited before. He just wanted to ask the applicant if she knew what was going on and to obtain a stamp from her. Mr Marshall agreed he did not look for a stamp himself, because he did not know where the applicant kept them. He denied going to her office to ask specifically about the tax audit. He denied speaking aggressively to her; rather, it was the applicant who behaved aggressively and screamed at him. She demanded to know what the audit had to do with her.

[26] Mr Marshall conceded that he had tapped, but not thumped, the desk with one finger when he had said to her, ‘My name is Ray.’ He agreed that this was not mentioned in his statement, but he had not recorded everything that was said in the conversation. Mr Marshall said he acted this way, because that was how the applicant had communicated with him over the previous two years - by tapping on the desk. Mr Marshall denied moving close to the applicant and standing at the side of her desk. He was no closer than 3-4 feet. He insisted that he had never intimidated her. Mr Marshall said that while the applicant was packing up her gear, he went outside and stood on the verandah. She told him she was leaving and he replied, ‘Well, if you’re going, it might be better, because no-one wants to talk to you anyway.’ He clarified this as meaning that no customer wanted to talk to her.

[27] Mr Marshall insisted that it was the applicant who had shouted at him when she got out of her chair and told him the audit had nothing to do with her. Mr Marshall denied he was upset that the applicant did not tell him or phone him about the audit. He claimed it was the applicant who raised the dirt issue and he had replied, ‘This yard is probably cleaner than your yard.’ She had replied, ‘Have you seen my yard?’

[28] Mr Marshall expressed his belief that as long as people were doing their job, he did not care if they ignored him and the applicant did her job ‘100%’. He reaffirmed that the applicant had replied to his question about not being happy, by saying, ‘No, I’m not. I’m going now!’ He denied saying, ‘I can get someone else to come in’. He noted that it was ten days before he could get help to perform her duties. She had not said, ‘Under the circumstances, I can’t be here’. He agreed that she had taken the mail with her. Mr Marshall said that he did not take any notes of the incident and he added ‘if someone wants to go, they go’. However, he never shouted at her, intimidated her or ‘thumped’ the desk. Mr Marshall insisted that he asked the applicant, three times, if she was coming back. He said there ‘was no way’ the applicant was upset during this conversation. It was she who was shouting at him.

[29] Mr Marshall acknowledged that he had asked the applicant for the banking stick and that he did not mention this in his statement. He agreed she had said there wasn’t one, but she had not provided him with any other banking details. He denied moving at any stage behind, or in front of her desk, so as to block her exit from the building. He said when she walked out of her office, he was on the verandah. He followed her to her car and she handed him the gate key. He had asked for the key, because she had told him three times she was not coming back.

[30] Mr Marshall accepted the applicant had a remote control to operate the car park in the depot. Not everyone had this access and the depot opened at 6:00am. However, she had never been authorised to start work at 4:00am. He agreed that he was not there at that time. Mr Marshall denied he had dismissed the applicant when he asked her for the remote key.

[31] Mr Peacock is a specialised transport insurer, based in Wagga Wagga. He visited the depot on 22 August 2013 to discuss Mr Marshall’s transport insurance. He had been dealing with the applicant for over eight years in respect to completing all the necessary insurance paperwork. He met the applicant that day and asked how she was enjoying the new premises. She had replied, ‘No good, no good, no good. I give it 30 days. The 30 days is just about up and I’m not staying.’ Mr Peacock did not tell Mr Marshall of this conversation. Some days later, he rang Mr Marshall about another matter and asked if the applicant was there. When Mr Marshall said she no longer worked for him, he then told Mr Marshall of the conversation he had had with her on 22 August 2013.

[32] In cross examination, Mr Peacock denied saying to the applicant, ‘You don’t look happy, love’. Rather, he asked how she was going. She did not say to him that if the two offices were joined, there would be information flow and everyone would know what was going on.

[33] Mr Peacock reiterated that the applicant had told him she would not be staying after 30 days if nothing changed. While he did not make notes of the conversation, he denied that anyone had suggested to him what to put in his statement. He could not recall exactly when he next spoke to Mr Marshall, because he receives 50-100 phone calls per day.

[34] Mr Peacock confirmed that he had not raised with Mr Marshall any of the applicant’s complaints concerning the new premises. He said she had not mentioned that she had raised any of her concerns with Mr Marshall. Mr Peacock believed it had not been his place to raise the matter initially with Mr Marshall, although he had known him for ten years and regarded him as a friend. Mr Peacock stressed he was not confused or mistaken about whether the applicant had mentioned she would not be staying. As she had been upset, it was not something he was likely to forget. Mr Peacock also told the applicant that if she was not happy, ‘maybe it’s time to leave’. He denied she had said she would give it a month and see how the change worked. Rather, she said, ‘I’ve given it 30 days and the 30 days is nearly up and I’ll be leaving’. Mr Peacock believed she had mentioned ‘30 days’ and not ‘four weeks’.

[35] Mr Peacock said his concern for the applicant arose after eight years of dealing with her. It was clear that she did not want to be there. He told her if she was not happy, maybe she should leave. There was nothing else said about the new premises or the longer travel times for the drivers.

Events subsequent to 4 September 2013

[36] The applicant said she received a phone call on 5 September 2013 from a person claiming to be Dany, the brother of Tarek Rifai, an IT Technician engaged by the respondent. She said Dany asked if she knew the MYOB password for the respondent. She replied no and terminated the conversation. Later that day, she phoned the Fair Work Commission and was advised to commence unfair dismissal proceedings.

[37] On or about 12 September, the applicant made arrangements with Mr Marshall, in writing, to collect her personal belongings from the respondent’s premises.

[38] The applicant deposed that since her dismissal, she had registered online with three employment websites and with Hayes employment agency and had sought two administrative positions; both of which were still pending. She believed that her age and address (Blackheath) would make it difficult for her to find alternative employment. In oral evidence, she said she had applied for around thirty positions, but has had only one interview.

[39] It was Mr Marshall’s evidence that he had not even known of Mr Dany Rifai until about a week before 12 September, when Tarek Rifai told him his brother was looking for work. He did not meet Dany Rifai until 12 September 2013 (refuting the applicant’s evidence that Mr Dany Rifai was acting on behalf of the respondent in the phone call on 5 September (see para [36] above). In cross examination, Mr Marshall specifically denied that he had arranged for Mr Rifai to contact the applicant on 5 September. He had not even known him on this date.

[40] Mr Marshall agreed that the applicant made arrangements to collect the rest of her personal belongs on 11 or 12 September. Mr Marshall emailed to tell her to come at 1:30pm, but when she arrived at 12:00pm, he told her he was a bit busy and to wait. However, she said she had a sick friend in hospital and was not there to be ‘mucked around’. Mr Marshall said he gathered her possessions (which he believed were only fit for the bin), including a 30 year old black and white television, and handed them to her.

[41] On 16 September, 2013 Mr Marshall emailed the applicant and made two offers as follows:

‘(a) Since your decision to summarily terminate your position on 4th September 2013 may have been emotionally effected [sic]. We would like you to reconsider and return to your position again. The position will be the same as you had previously left it.

Subject to you accepting the reinstatement, we would like to recommence communication between Rob, Ray and yourself. We are offering joint counselling to extinguish issues and to move forward. Or

(b) We accept your termination and the outstanding payment is available for collection at our office immediately and is as follows:

Anne Crowther
Termination Payment
As at 16th September 2013
Description	Hours	Rate	Total
Holidays	582.156	$30.00	$17,464.68
Holiday Leave Loading	582.156	$5.25	$3056.32
Unpaid work	26.6	$30.00	798.00
1190.912	$21,319.00
Less
Termination Notice	152	$30.00	$4560.00
Tax	$3517.63
Total Deduction	$8,077.63
Total Amount Payable	$13,241.36

The Termination Notice deduction is inline with your Modern Award section 13.2 and the notice period can be found at the following link:
(

Should you accept option B, all outstanding Superannuation will be paid to your nominated fund by the due date payable.

A letter of termination will also be generated and produced and should you require a letter of recommendation please do not hesitate to ask.

Please note the offers are open till Monday 23rd September 2013. If we do not receive a reply accepting either one of the offers, we will assume you have accepted option b and payment will be mailed to your home.

We look forward to hearing from you and in the mean time should you require anything please do not hesitate to contact us.

Thank
Ray Marshall’

[42] Mr Marshall said that after the applicant walked out on a Wednesday and left nothing, he had arranged for his granddaughter to process the payroll for that week after the relevant details were obtained from the Commonwealth Bank by Mr Gary Morgan, another employee. He did not know any of the passwords and because he trusted her, he had left computer issues to her. Mr Marshall said he was not computer literate and relied on others to deal with such matters. He asked, rhetorically, why he would terminate the applicant the day before the pays were to be processed when he knew nothing about computers? Mr Marshall said he had not asked anyone to ring the applicant the next day and ask for the password.

[43] Mr Marshall agreed that he had not paid any of the applicant’s outstanding entitlements and, in respect to notice, it had also been withheld because she had given him no notice of her leaving.

[44] Mr Marshall was shown an email from the applicant dated 1 October 2013, in which she agreed with him that her termination may have been ‘emotionally affected’. She had proposed to return to work and have an independent mediator work through their issues. She claimed to have only received his email of 16 September 2013 on 25 September 2013. Mr Marshall said that her response was too late. Nevertheless, he maintained that he had had no intention of dismissing her. She had walked out on him. He explained that neither Mr Morgan or his granddaughter were called to give evidence as he believed that this case had nothing to do with them.

[45] Mr Marshall did not believe the applicant had only received his 16 September email on 25 September. He conceded that he could not know when she had received it. Mr Marshall acknowledged that from 4-16 September, he had not asked the applicant to confirm her resignation.

[46] Mr Marshall said that he had asked Mr Rifai to call the applicant on 13 September to ask for the MYOB details. He was standing next to him when he did so, but as soon as Mr Rifai said who he was, the applicant hung up the phone. While he agreed he had not mentioned this conversation in his statement, he strenuously insisted that he did not lie. He did not expect to put every conversation he had with others, in his statement.

[47] In re-examination, Mr Marshall stated that he sent the email of 16 September to the applicant, because he wanted her to come back. Otherwise he would have to go elsewhere.

Mr Dany Rifai

[48] In his statement, Mr Rifai explained the circumstances of his employment by the respondent. He claimed that prior to 11 September 2013, he had never heard of, spoken to or known of Mr Ray Marshall or his business. Mr Rifai attested to the conversation with Mr Marshall on the day he started work (12 September 2013) concerning contacting the applicant, which he did later that day. He said the conversation with her went as follows:

Mr Rifai:	Hello Anne, my name is Dany Rifai and I am calling from Ray Marshall Transport, could you give me a moment of your time please?
Mrs Crowther:	I don’t want to talk to you guys anymore. She then hung up.

[49] In cross examination, Mr Rifai said he did not make any notes of the conversation he had with Mr Marshall on 12 September 2013 before phoning the applicant. But he did make notes of the conversation with her and typed them straight into his computer.

[50] It was Mr Rifai’s evidence that he was not actually an employee of the respondent on 12 September. Mr Rifai agreed he had taken over the applicant’s job, but he had not been made permanent until the end of September, because he is also a full time student. As Mr Marshall was very flexible, his hours were arranged to fit around his studies. He worked varied hours and some half days. According to records produced by Mr Rifai, he worked 36.75 hours from 13-19 September 2013 and 36 hours between 20-26 September 2013. Mr Rifai denied that he had been working full time for the respondent since 13 September 2013.

[51] Mr Rifai believed that Mr Marshall had wanted the applicant to return to work and he had appeared upset by what had happened. When he offered to try calling her, Mr Marshall expressed doubts that she would come back. When he rang the applicant, she cut him off after he had introduced himself and hung the phone up. He may have asked for the MYOB password before she cut him off. She had said ‘I don’t want to talk to you guys anymore.’

[52] Mr Rifai deposed that he had not known, at that time, that the applicant had lodged an unfair dismissal claim. Mr Rifai made further unsuccessful attempts to contact the applicant on 18 September, and at other times, using his personal mobile. However, he did not log these calls on the computer.

SUBMISSIONS

For the applicant

[53] In written submissions, Mr R Betts, Solicitor, put that the actions of the respondent on 4 and 5 September 2013 ‘directly’ terminated the applicant’s employment. In the alternative, Mr Betts submitted that the applicant was forced to resign due to the conduct of Mr Marshall on 4 September 2013. Her resignation had occurred due to the applicant’s fear for her safety, in that she had no real choice, but to resign; See: Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200 (‘Mohazab’).

[54] Mr Betts said that after the respondent had purchased the Londonderry premises, the applicant worked in an administration office twenty metres away from the main buildings. The evidence disclosed that the respondent did not provide the applicant with access to the information she needed for her work. She had complained to Mr Marshall about the effect on the efficiency of the workplace, but Mr Marshall refused to change the location of the administration office. This conduct was deliberately intended to coerce her into resigning from her employment.

[55] Mr Betts further submitted that the termination of the applicant’s employment was ‘harsh, unjust and unreasonable’. There was no valid reason for the applicant’s dismissal. He described her hard work and the innovations she had introduced to the company over her eight and a half years working for the respondent. The reason the applicant had complained about the location of her office was that she was concerned as to the effect on efficiency and profitability. Mr Betts said that due to the circumstances of the dismissal, the applicant was not notified of the reason for her dismissal and was therefore obviously given no opportunity to respond. Nor had she had any opportunity to seek a support person. While the respondent was a small business, its actions were ‘unconscionable’ and breached codes and procedures under relevant occupational health and safety legislation.

[56] Mr Betts said that the applicant continued to fear for her wellbeing if she returned to work and that reinstatement was therefore inappropriate. She sought orders for compensation and five weeks in lieu of notice and pro-rata long-service leave entitlements.

[57] In oral submissions, Mr Bolger of Counsel argued that while certain of the applicant’s conduct after the termination may seem to be inconsistent with what occurred on 4 September 2013, it was really the events on that day which the Commission should have regard to. The applicant’s primary submission was that she had been dismissed. Even if the Commission found that the words uttered by the applicant evinced a resignation, it was still at the initiative of the employer, within the meaning of s 386(1) of the Act.

[58] Mr Bolger said that there was no corroborative evidence from the respondent as to why and when the respondent moved its premises. A ledger showed that the rent was paid a month in advance, up to the end of June and not for July.

[59] Mr Bolger submitted that the applicant had not returned to work when she was invited to do so (16 September 2013) because she had not resigned and Mr Marshall had previously made it clear that he did not want her to return. He had behaved in an intimidating fashion. He noted that Mr Marshall was upset about the manner in which the applicant would engage with him. While he had not said anything about ‘banging’ on the table in his statement, he had admitted, in cross-examination, that he had ‘tapped’ the table. He had effectively told the applicant that if she did not like it, she could leave. While no party had actually used the word ‘terminate’, the applicant’s actions in taking the respondent’s mail and leaving her personal effects behind were inconsistent with the actions of someone who had just resigned. It was instructive that Mr Marshall had asked the applicant to return the gate key and provide the banking details.

[60] Mr Bolger put that Mr Marshall’s evidence as to the applicant becoming upset and shouting at him in relation to the tax audit, should not be accepted as there was no reason why she should have been upset about such an audit. Mr Marshall had not mentioned asking for materials relevant to the bank accounts in his statement, but had agreed, in cross-examination, he had done so. The applicant had said that Mr Marshall had blocked her path until she had given him what he wanted.

[61] It was Mr Bolger’s submission that the authorities in relation to a ‘heat of the moment’ resignation demonstrate that there was, if not an onus, then at least a reasonable requirement for the employer to clarify an ambiguous situation. This was putting the respondent’s case at its highest. If the Commission accepted the evidence of the applicant, it would find that she had been dismissed. He noted that it was not until an unfair dismissal application was lodged on 13 September 2013 that the applicant had been asked if she wanted to come back. There were three accounts of when the phone call to the applicant had occurred (on 5, 12 or 13 September). None of these calls had opened with a query as to applicant’s intentions in relation to her employment - she was contacted for the passwords. It seemed more than likely that she was called on 5 September as that was the day the pay run was to be done.

[62] Mr Bolger said that the fact that Mr Rifai and other persons had performed aspects of the applicant’s job was consistent with the applicant having been terminated. No separation certificate was issued and there was nothing in writing confirming that the applicant had left employment of her own volition, until after she had told the respondent that she had contacted the Commission. The email of 16 September 2013 really represented a ‘without prejudice’ offer after the application was filed. Nor was the fact that the applicant had been made to wait an hour to collect her personal effects consistent with some form of ambiguity or confusion as to her employment status. The reason she had not responded until 1 October was that there was a delay in her receiving the email sent on 16 September. She had not been challenged on that delay. Her behaviour was consistent with her challenging her dismissal.

[63] Mr Bolger submitted that there was no evidence to support the respondent’s case that the applicant had wanted to leave her employment or had been considering doing so. Mr Peacock’s evidence should only be accepted to the point where he said that the applicant was unhappy in the workplace. He had been unsure as to whether the applicant had said she’d give it a month, four weeks or thirty days. Mr Peacock admitted he took a lot of phone calls and it was reasonable to conclude that his recollection was not dependable. Moreover, there was no evidence to demonstrate that she had been looking for alternative employment.

[64] In addressing the Commission on remedy, Mr Bolger noted that Mr Rifai had assumed the applicant’s duties, so there was no position to which she could be reinstated. Additionally, time had passed and it would be inappropriate for the parties to work together in a small workplace. Mr Bolger noted that the respondent had failed to pay the applicant her long-service leave entitlements. He said that while outstanding entitlements could not be awarded in this jurisdiction, it did go to the ‘harshness’ of the termination. The applicant was 67 years old and had been working a 38 hour week, earning $30 per hour. She had been working for the respondent for eight and a half years and, to this date, had been unable to find alternative employment.

For the respondent

[65] The written submissions of the respondent took the form of a summary of the respondent’s evidence and a line by line rebuttal of the witness statement of the applicant. This material has been summarised above and I will not repeat it here.

[66] In oral submissions, Mr Rifai put that this was a case where an employee had abandoned her position, regretted her actions and then sought compensation. She had worked for eight years, without complaint, and now claimed she had been forced to leave. She had disliked the new premises of the respondent and left without providing notice the day before payroll duties were due to be performed, causing detriment to the business.

[67] Mr Rifai submitted that there was no evidence that the applicant had been mistreated prior to 4 September 2013 or that she had been dismissed on that date. If she had complained to management about the issues she was having with the new premises, the complaints would have been acted upon. She chose not to do so and constructed a different reason for resigning arising from the verbal confrontation on 4 September 2013.

[68] Mr Rifai claimed that up until 11 September 2013, the respondent had still expected the applicant would return to work. This was why she had not been paid her statutory entitlements within seven days.

[69] Mr Rifai said that when he was appointed, he had been directed to call the applicant and ask her to return to work. It was not disputed that he had called her on 11 or 12 September 2013. The applicant had terminated this call. The email of 13 September offered an apology and noted that she had not raised any workplace issues with Mr Marshall. The email of 16 September had asked if she wanted to reconsider her decision to terminate her employment. The respondent had wanted the applicant back as she had been managing its financial affairs. In addition, the applicant had also been offered counselling to smooth the process of reinstatement.

[70] Mr Rifai accepted that there was a duty on the employer in such ambiguous circumstances to clarify the employee’s position, but this duty had been fulfilled. Conversely, an employee has a duty to inform the employer if they are returning to work or not. She had not responded to any correspondence until 1 October 2013 and had ignored all requests to provide passwords.

[71] Mr Rifai believed that the language used by the applicant in relation to the events of 4 September 2013 changed according to her purpose. He noted that her email of 1 October 2013 had referred to the respondent’s decision to terminate her, while on her own evidence she had said on 4 September 2013, ‘Under the circumstances, I cannot be here.’ These responses were inconsistent.

[72] In reply, Mr Bolger clarified that it was the applicant who had sent the first email on 11 September. He noted that she had taken action to contest her dismissal by contacting the Commission. It was also significant that there had been no discussion about returning to work in the course of the phone call on 5 (or 12) September 2013.

CONSIDERATION

Principles applicable to a constructive dismissal

[73] Two well known cases have considered the concept of termination of employment at the initiative of the employer. In Mohazab, the Full Court of the Industrial Relations Court of Australia said:

‘The critical issue in this appeal is whether there had been a termination of the employment of the appellant. The statutory right to seek a remedy depends upon there having been. This emerges from the provisions of s 170EA(1) which reads:

‘A person (“the employee”) may apply to the Court for a remedy in respect of termination of his or her employment.’

Section 170CA provides that the object of Div 3 of Pt VIA is to give effect to the Convention concerning Termination of Employment at the Initiative of the Employer and the Recommendation concerning Termination of Employment at the Initiative of the Employer which are Schs 10 and 11 of the Act respectively. Section 170CB provides that an expression has the same meaning in the Division as it has in the Convention. The terms ‘termination’ and ‘termination of employment’ are defined in the Convention as meaning ‘termination at the initiative of the employer’. Accordingly the terms ‘termination’ and ‘termination of employment’ in the Act have the same meaning. The Convention does not, however, define the expression ‘‘at the initiative of the employer’’ and its meaning in the Convention must be gleaned from the Convention as a whole. This expression does not appear in the Act and is imported into the Act by s 170CB.

It is distracting, in our opinion, to treat the question posed in the present case to be whether the applicant resigned or had his employment terminated by the respondent. A question framed in those or similar terms assumes that a resignation is not or could not be a termination at the initiative of the employer. The present task is to construe the expression ‘termination at the initiative of the employer’ as it appears in the Convention and determine whether there has been such a termination in relation to the employment of the applicant…

It is necessary to consider the ordinary meaning of the expression ‘termination at the initiative of the employer’ in context in the Convention having regard to its object and purpose. The word ‘initiative’ is relevantly defined in the New Shorter Oxford Dictionary in the following way:

‘initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.’

And in the Concise Macquarie Dictionary in the following way:

‘initiative 1. an introductory act or step; leading action; to take the initiative. 2. Readiness and ability in initiating action; enterprise: to lack initiative.’

These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination’ in the Act, read in conjunction with Art 3 of the Convention which speaks of ‘termination . . . at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

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.’[footnotes omitted]’

[74] A Full Bench of the Australian Industrial Relations Commission (AIRC) in ABB Engineering Construction Pty Limited v Doumit [Print N6999, 9 December 1996] said:

‘Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.’

[75] As to whether the employer’s intention is a relevant consideration in a constructive dismissal context, a Full Bench of Fair Work Australia (FWA as it then was) in Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 380 348 t/a Commonwealth Financial Planning [2011] FWAFB 4038 said:

‘It is adequate for us to indicate that we accept that when considering whether an employer has repudiated the contract the test is not the employer’s actual intention, judged subjectively, but whether the conduct of the employer, judged objectively by reference to the effect on a reasonable person evinced an intention to no longer be bound by the contract.’

[76] This proposition is consistent with an earlier Full Bench decision of the AIRC in Australian Hearing v L Peary [2009] AIRCFB 680, where at paras [29]-[30], the Bench said:

‘[29] The first ground of appeal is that the Commissioner did not give proper effect to s.642(4) of the Act. It was submitted that the use of the word “forced” indicates a legislative intention that in cases of resignation there will be no termination at the initiative of the employer unless the resignation was an intended consequence of conduct or a course of conduct engaged in by the employer. On that basis, the Commissioner’s finding that the resignation resulted from the employer’s conduct is not sufficient to attract the operation of the section. The element of intention is missing. It was further submitted that there was no evidence of such an intention in any event.

[30] We cannot accept this construction of the section. The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer’s intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied.’

[77] In this case, the respondent characterised the termination of employment as the applicant ‘summarily terminating’ her own employment. While the expression ‘summarily terminating’ is usually associated with a deliberate action of the employer, I think the better characterisation of what the respondent really meant, was that the applicant either resigned her employment, without notice, or abandoned her employment and did not return.

[78] Commissioner Asbury (as she then was) in Sharpe v MCG Group Pty Ltd[2010] FWA 2357, considered, in some detail, the term ‘abandonment of employment’. At paras [29]-[46], Her Honour said:

‘[29] The concept of abandonment of employment is not new to employment law. It is a term that is often loosely used, or used without consideration of the effect of the abandonment upon the employment relationship or the contract of employment. Generally, abandonment arises in circumstances where an employee is absent from the workplace without reasonable excuse, or has failed to communicate with the employer to provide an excuse for being absent. There are cases where it has been held that the conduct of the employee in abandoning his or her employment has brought the employment to an end so that there has been no termination at the initiative of the employer. In contrast, there are cases where it has been held that abandonment on the part of an employee constitutes repudiation of the employment contract, and that the election of the employer to accept the repudiation is the action which brought about the termination of employment. There are also cases where the focus has been on whether or not conduct on the part of an employee constituted abandonment of employment, and because of the findings in relation to this point, there was no requirement to consider whether the abandonment per se brought about the termination of the employment.

[30] As Professor Stewart has observed:

“It also appears that a contract may be terminated by abandonment. This occurs where an employee walks off the job or fails to return from a period of authorised leave, in circumstances that make it reasonably apparent they no longer intend to be employed. This might well be analysed as repudiation by the employee, so that the contract is actually terminated by the employer when accepting that the employment has ended. But there are decisions to the effect that termination by abandonment does not constitute a ‘dismissal’ or ‘termination’ by the employer.”

[31] At common law it is well established that the concepts of termination of employment and the discharge of a contract of employment are different, and that it does not follow that because a wrongful dismissal is effective to bring the employment relationship to an end, it also discharges the contract of employment. There is also authority for the proposition abandonment of employment is conduct that constitutes repudiation of the contract of employment, and that acceptance by an employer of the repudiation brings the employment relationship to an end, rather than the abandonment itself.

[32] In Visscher v The Honourable President Justice Giudice (Visscher) the High Court was considering the effect of repudiation on the contract of employment. The majority noted the practical difficulties inherent in an employee refusing to accept repudiation of an employment contract but maintained that:

“In principle however, it remains the case that an unaccepted repudiation does not terminate a contract.”

[33] Among the authorities cited by the majority in Visscher in support of this proposition, was the following passage from the judgement of Lord Oliver of Aylmerton in Rigby v Ferodo which touches on issues relevant to abandonment of employment:

“Whatever may the position under a contract of service where repudiation takes the form either of a walk-out by the employee or a refusal by the employer any longer to regard the employee as his servant, I know of no principle of law that any breach which the innocent party is entitled to treat as repudiatory of the other party’s obligations brings the contract to an end automatically. No authority has been cited for so broad a proposition and indeed [counsel for the appellant] has not contended for it. What he has submitted is that where there is a combination of three factors, that is to say, (a) a breach of contract going to an essential term, (b) a desire in the party in breach either not to continue the contract or to continue it in a different form and (c) no practical option in the other party but to accept the breach, then the contract is automatically brought to an end. My Lords, for my part, I have found unable either to accept this formulation as a matter of law or to see why it should be so. I entirely fail to see how the continuance of the primary contractual obligation can be made to depend on the subjective desire of the contract-breaker and I do not understand what is meant by the injured party having no alternative but to accept the breach. If this means that, if the contract-breaker persists, the injured party may have to put up with the fact that he will not be able to enforce the primary obligation of performance, that is, of course, true of every contract which is not susceptible of a decree of specific performance. If it means that he has no alternative to accepting the breach as a repudiation and thus terminating the contract, it begs the question. For my part, I can see no reason in law or logic why, leaving aside for the moment the extreme case of outright dismissal or walk-out, a contract of employment should be on any different footing from any other contract as regards the principle that ‘an unaccepted repudiation is a thing writ in water and of no value to anybody’.”

[34] In Ellis v Conaust Ltd Murphy JR dealt with the case of an employee who failed to comply with the provisions of an industrial instrument in relation to taking sick leave, and refused to attend a medical practitioner as requested by his employer or to return to work. The employer in that case took the view that the employee had abandoned his employment and that this had brought about the termination. Murphy JR said:

“The concept of abandonment of employment is only a species of conduct which can be characterised as repudiation of the employment contract. The issue here is to ascertain whether what happened is a termination of the employment at the initiative of the employer. Such an exercise requires an analysis of what happened to ascertain what was the real causal event which gave rise to the termination of employment...It follows from what I find was the unreasonable refusal of the Applicant to respond to Respondent’s requests in February that these actions constituted a repudiation of his contract of employment. The repudiatory actions were accepted by the Respondent in the letter of 23 February where it characterised them as abandonment of the contract. The Respondent has in my view wrongly labelled what it did; the legal effect is the same however. I find that the actions of the Respondent in accepting the repudiation of the contract by the Applicant was the operative cause of the termination of the Applicant’s employment.”

[35] There are two decisions of Full Benches of the AIRC dealing with abandonment of employment, which refer to this issue.

[36] In Searle v Moly Mines Limited (Searle)a Full Bench of the AIRC considered whether employment was terminated at the initiative of the employer, in circumstances where the employer contended that termination had occurred by virtue of the applicant’s abandonment of her employment. In that case there was a provision in a written contract of employment setting out circumstances that constituted abandonment of employment. The Full Bench stated that the statutory test then posited by s.643 of the Workplace Relations Act 1996 relates to termination of the employment relationship not termination of the contract of employment and cited authorities to the effect that although a wrongful dismissal terminates the employment relationship, the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal. In Searle it was held that the employee had not in fact abandoned her employment and that a breach of the contractual term dealing with abandonment, would not necessarily result in the termination of her employment.

[37] The Full Bench in Searle also made a number of observations which are relevant to the present case. Relevantly, the Full Bench noted that determining whether employment is terminated at the initiative of the employer does not involve the merits of a case and that:

“It is therefore not relevant to ask whether particular conduct was justified, reasonable or appropriate except to the extent that the answer may shed light on the issue of whether the appellant’s employment was terminated at the respondent’s initiative.”

[38] The Full Bench also noted that:

“Where questions of jurisdiction are involved it is the facts which are relevant, not the parties’ subjective beliefs, or the reasonableness of their conduct.”

[39] Further, the Full Bench said:

“We have already indicated that the statutory test relates to the termination of the employment relationship. The application of common law principles relating to termination of the contract of employment may not yield the correct answer in any given case.”

[40] A similar comment was made in GlaxoSmithKline Australia Pty Ltd v Gauci (GlaxoSmithKline). That case involved an alleged abandonment of employment in circumstances where there was an industrial instrument which dealt with this matter. The Full Bench found in that case that the employee had not abandoned employment. It was also contended for the employee that even if the employee had abandoned his employment, that would not constitute termination, but rather repudiation of the employment contract, and that because the employer had elected to treat the repudiation as terminating the contract the employment was terminated at the employer’s initiative. In relation to this argument the Full Bench said:

“This argument raises an issue of potential significance in any case involving conduct by an employee which constitutes repudiation of the contract of employment. It is not necessary to decide the issue in this case, however, because we have not disturbed the finding that there was no abandonment and therefore the question of repudiation does not arise. But we observe that the argument may blur the distinction between termination of employment and termination of the contract of employment. The question posed by the statute is whether the employment was terminated at the initiative of the employer. An analysis based on contractual notions of repudiation and acceptance may not always correspond with the statutory concept.”

[41] It is also the case that contractual notions of repudiation and acceptance may not always correspond with the provisions of industrial instruments dealing with abandonment of employment. Abandonment of employment is variously dealt with in a range of industrial instruments. A number of examples serve to illustrate that an issue may arise as to whether termination of employment is brought about by the operation of the provisions of an industrial instrument or whether the act that terminates employment is the acceptance by the employer of the repudiation of the employment contract, constituted by the abandonment.

Example 1
[42] The Manufacturing and Associated Industries and Occupations Award 2010, provides as follows at clause 21:

21. Abandonment of employment

21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.

21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.

21.3 Termination of employment by abandonment in accordance with clause 21-Abandonment of employment operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.

Example 2
[43] In GlaxoSmithKline the relevant industrial instrument contained the following provision:

“The absence of the employee from work for a continuous period and exceeding three working days without the consent of the employer and without notification to management shall be prima facie evidence that the employee has abandoned his or her employment. Termination of employment by abandonment in accordance with this sub clause shall operate from the date of the last attendance at work in accordance with the considerations at clause 8(f)(iii).”

Example 3
[44] In Searle the employee’s contract of employment provided that:

“Failure to report for work and failure to notify MOL for three (3) consecutive working days shall constitute abandonment of employment. If you abandon your employment you will be terminating your contract of employment without notice.

[45] In Georgievski v Caroma Industries Limited Simmonds C considered an award provision in virtually identical terms to that in Example 1 above, and said that such a clause was a “deeming” provision. Notwithstanding the common law position with regard to repudiation of the employment contract such provisions may operate, so that employment is terminated automatically, regardless of whether the employer accepts the repudiation. If, on an objective view of the facts in cases involving such provisions, the employee is found to have abandoned employment, then it may also be found that termination of employment was not initiated by the employer.

[46] However, clauses of the kind set out in Examples 2 and 3 above do not in my view, operate automatically. In a case where it is contended that an employee has abandoned employment pursuant to a provision of the type in Examples 2 and 3 above, it is necessary to objectively examine all of the facts in order to determine whether employment was terminated at the initiative of the employer. [footnotes omitted]’

[79] I turn now to consider the facts and circumstances of this case in the context of the aforementioned principles relative to constructive dismissal.

[80] Plainly, in this case, there was no letter of resignation or dismissal. No words were spoken on 4 September 2013 which expressly used the word ‘resigning’, ‘dismissed’ or ‘terminated’. The critical variances of the conversation are that the applicant claims she said: ‘Under the circumstances, I can’t be here!’ Mr Marshall said that when he asked ‘You’re not really happy here, are you Anne?’ she had replied, ‘No I’m not and I’m going now! I won’t be back, I’m getting out of this dirt.’

[81] On either version of the conversation, whether the meaning of the words used evinced an intention that the applicant was forced to resign, is really not the determinative factor in this case. It seems to me that three questions necessarily arise from the evidence adduced in this matter. Firstly, had the applicant intended to resign because she was unhappy with the new location? Secondly, did Mr Marshall’s conduct on 4 September 2013 amount to conduct which forced the applicant to leave the depot on 4 September 2013 and not return? Thirdly, did any conduct of the applicant or the employer, post 4 September 2013, corroborate an intention that the employer no longer wanted to employ the applicant or that the applicant no longer felt bound to the employment relationship? I will deal with these questions in turn.

Had the applicant intended to resign because she was unhappy with the new location?

[82] There is no doubt that the applicant was unhappy with the new work location. On her own evidence, she said she felt isolated and separated from other human interaction. She believed it was unreasonable that she was in an office which did not contain all of the relevant office files and supplies necessary for her to fulfil her duties. I find the applicant’s unhappiness and disdain for her new work location to be rather overstated and exaggerated. It was not as if she was kilometres away from the depot or totally isolated from any other human interaction. It was agreed that the two offices were no more than 25 metres apart. There was no reason why she could not walk the short distance, at any time, to retrieve documents or speak to others. Management had not directed that she remain in her office at all times.

[83] That an employer is entitled to organise its worksite as it sees fit, is a right recognised by the concept of ‘management prerogative’; See: Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) (1984) 295 CAR 188; Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117; and Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited[2011] FWA 8288. So long as the worksite is not unsafe, unreasonably burdensome or intolerably unpleasant for an employee, then an employee is in no position to demand any change, nor would this Commission interfere with the employer’s decision to relocate its offices. Criticising the respondent for not offering evidence as to why it relocated its premises is misplaced. Whatever the reason, it could not be seriously suggested that the employer would go to all that trouble just to cause the applicant such grief that she would be forced to resign. Putting the best possible light on the applicant’s unhappiness with the work location is best summed up by an observation that people generally don’t like change, particularly after many years of working in a different environment.

[84] That said, I do not cavil with the applicant’s genuineness as to her beliefs and unhappiness with the work location. But that is not the test. I do not accept that a reasonable person would consider such a work location to be unreasonable; See: Tavella v Canterbury Hurlstone Park RSL Club Limited[2014] FWC 556. In addition, there was no evidence that the new location adversely impacted on the respondent’s efficiency and profitability. In any event, that was not a matter that concerned the applicant. At best, she alone experienced some small inconvenience. Nor was there any evidence of what occupational health and safety code or procedure had been breached by the respondent. I think that Mr Betts was drawing a very long bow my making that submission.

[85] The question is whether the applicant was so unhappy with her work location that she intended to leave if nothing changed. It is in the context of answering this question that Mr Peacock’s evidence is particularly illuminating. I found Mr Peacock to be a truthful witness, whose evidence was convincing. It had that telltale ‘ring of truth’ about it. He had no ‘axe to grind’ and no reason to colour his evidence to favour one side over the other. It was not contested that he was a business colleague of Mr Marshall and regarded him as a friend. On the other hand, he had known the applicant and had dealt with her professionally for over eight years. He was concerned at finding her unhappy on 22 August 2013 and inquired as to why. This was a perfectly understandable reaction. There was no evidence that their relationship was hostile, uncaring or unfriendly; indeed, it would appear to be quite the opposite.

[86] It was entirely plausible that Mr Peacock would recall a conversation with someone he had known for eight years on finding her to appear so unhappy. I make nothing of whether Mr Peacock recalled whether the applicant said she was giving the respondent four weeks or thirty days. The relevant piece of the conversation, which I accept, is that the applicant told him ‘... I’m not staying.’

[87] Given my acceptance of Mr Peacock as a witness of credit, I consider that the applicant, not only had a motivation for leaving her job, but she intended to carry it out soon after having spoken to Mr Peacock. The incident on 4 September 2013 was a sufficient basis to fortify her decision to leave Mr Marshall’s employment.

Did Mr Marshall’s conduct on 4 September 2013 amount to conduct which forced the applicant to leave the depot and not return?

[88] I have no doubt that there was a tense atmosphere during the incident on 4 September 2013. However, I am not convinced that Mr Marshall acted in a bullying or intimidatory manner. I accept Mr Marshall’s evidence that the applicant’s habit was to give non-verbal responses such as tapping and pointing, which would have aggravated him. In my judgement, he was entitled to be aggravated by such communication. I accept he also ‘tapped’ the desk. However, even on the applicant’s evidence, one could hardly ‘thump’ the desk with one finger, let alone do so in an intimidating or bullying fashion. Criticism was made of the omissions in Mr Marshall’s statement of parts of the conversation. Yet the applicant did not dispute that he had said: ‘My name is Ray’, meaning that she should address him by name - not by non-verbal actions. He also told her that the depot was cleaner than her backyard.

[89] These admissions of Mr Marshall were against his interests. He gave his evidence without looking at notes or his statement. While Mr Marshall omitted from his statement a number of pieces of the conversation which, he freely admitted and saw nothing wrong with, I do not find these omissions to be indicative of a person not telling the truth. Mr Marshall is an old school employer. He is tough, upfront and forthright. While he says what he thinks in less than subtle terms, I do not consider him to be a bully or intimidator. His evidence was unshaken by sustained cross examination and he was not deflected from his version of events. He was straightforward, confident, expansive when necessary and consistent. He did not hesitate or equivocate and spoke without recourse to notes or his statement. For these reasons, I am inclined to accept Mr Marshall’s version of the conversation and, in particular, that he asked the applicant, three times, if she was returning to work and she replied, ‘No’. I found him to be a witness of credit and where his evidence conflicts with that of the applicant, it is his evidence that I prefer.

[90] Moreover, as I said earlier, Mr Marshall had good reason to be aggravated and annoyed. He was ignored by the applicant. His evidence was that for two years, this was how the applicant always conducted her dealings with him. However, he did not care so long as she did her job, which he readily conceded she did ‘100%’. Mr Marshall did not disparage the applicant. Rather, he said he trusted her completely, particularly when it came to computer literacy. His praise of the applicant is hardly indicative of an employer wishing to get rid of a difficult or under-performing employee. It is illogical that Mr Marshall would wish for, or engineer the termination of an employee, so critical to the smooth running of his business.

[91] Given that the applicant dealt directly with Mr Marshall in a small office for over eight years, and he relied on her to a large extent, it is instructive that there was no evidence of any intimidatory or bullying behaviour by him against the applicant, or anyone else, over that entire period. In this context, Mr Marshall was cross-examined about the relationship with his son. Considering that they worked together, I hardly think the occasional father/son heated disagreement demonstrated a pattern of inappropriate behaviour by Mr Marshall. As to the events of 4 September 2013, I am comfortably satisfied that this was a ‘one off’ unfortunate incident in which things were said, and done by both parties, that they probably now regret. Later exchanges of emails confirm that the applicant and Mr Marshall agreed that the termination was ‘emotionally affected’. But could the situation be retrieved and the employment relationship restored?

Did the conduct of the applicant or the employer post-4 September 2013 corroborate an intention that the employer no longer wanted to employ the applicant or that the applicant no longer felt bound to the employment relationship?

[92] Before coming to the post 4 September 2013 events, I would make some brief comments on Mr Rifai’s evidence. Mr Rifai was an argumentative and unhelpful witness. I accept, of course, that he was both a witness and an advocate for the respondent. While acknowledging he is not legally trained, the lines between these two roles were frequently crossed, when Mr Rifai sought to give evidence from the bar table and then give speeches in the witness box. Mr Rifai was enthusiastic and excitable. He even said he was enjoying the experience because he was studying Human Resources. In any event, very little turns on Mr Rifai’s evidence as it neither corroborates what was said by the applicant and Mr Marshall on 4 September 2013 (as he was not present), nor was it relevant to the determination of the issue before the Commission. Whether Mr Rifai phoned the applicant on 5 September, or that he could not have done so because he had not even met Mr Marshall until 11 or 12 September, does not assist in answering the question of whether the applicant had been constructively dismissed. It follows that it is unnecessary for me to make findings about this evidentiary conflict.

[93] There is no doubt that the respondent had offered the applicant her job back in the email to her on 16 September 2013. What I find difficult to understand is that the applicant did not respond until 1 October 2013, which by then, was too late. I find it difficult to accept the applicant’s evidence that she did not see the 16 September email until very much later and could give no explanation why this was the case. As I understand it, if an email is not received almost instantaneously, it does not suddenly materialise many days later unless, of course, the recipient is not checking their emails. There was no evidence, for example, that the relevant email had been rerouted to the applicant’s junk mail folder or that she had no physical access to her email during the relevant period.

[94] Given the applicant was communicating with the respondent by email about retrieving her personal belongings, I find it implausible that she was not aware of the 16 September email shortly after it was sent. This finding begs the question, why did she wait so long to respond? In my view, the applicant had never intended to accept her job back. She had received advice from the Commission to lodge an unfair dismissal application and she had done so on 13 September 2013. Her conduct in replying on 1 October, when she knew the deadline for reply was 23 September, satisfied me that she was not genuinely attempting to negotiate a return to work.

[95] In my opinion, the respondent cannot be criticised for the timing of its offer of reinstatement, after it knew the applicant had filed an unfair dismissal claim. After all, this is precisely the type of engagement between the parties which is encouraged by the Act and the Commission’s own processes. In addition, the fact that the respondent made an offer of reinstatement is hardly the action of an employer who had set about on a course of conduct designed to secure the applicant’s resignation or abandonment of her employment. Obviously, the offer of reinstatement could not be open-ended or indefinite. The respondent was entitled to seek a permanent replacement and regard the applicant’s termination of employment as final by 23 September 2013. Its decision was strengthened by the fact that the applicant had returned to the depot and collected all of her personal belongings on 12 September 2013.

[96] There was some further criticism of the respondent for withholding her statutory entitlements, including payment in lieu of notice. Firstly, it is not at all uncommon where an employee had left in the circumstances as is evident here, for the employer to withhold final termination payments, for a short period, to establish whether the abandonment of employment or resignation is final. Secondly, the respondent, having taken advice, withheld notice payments (and continues to do so) based on the applicant having left her employment, without any notice. Being of that view from the outset, it seems a logical decision for the respondent to have taken and maintained.

[97] As to the applicant’s conduct post 4 September 2013, it is clear that:

● on 5 September she spoke to the Commission and received advice that she could file an unfair dismissal application;
● she lodged an unfair dismissal application on 13 September 2013;
● she arranged to collect her personal belongings on 12 September 2013; and
● she did not respond to the 16 September email until 1 October 2013.

[98] For some three weeks, the applicant made no attempt to contact the respondent and engage with Mr Marshall about a return to work, notwithstanding she claimed to be willing to do so on 1 October 2013. While it might be said that it was up to the respondent to have initiated reinstatement some time earlier than it did, the reality was that it did so on 16 September. Mr Marshall had even expressed the view that perhaps the termination was ‘emotionally affected’ and even offered joint counselling. Moreover, it was not disputed that the respondent had made four unsuccessful attempts to telephone the applicant and have her call back during this period.

[99] In any event, all of the criticisms, whether real or imagined, of the respondent’s conduct surrounding the applicant’s termination and Mr Marshall’s approach to these proceedings do not, in my opinion, alter the essential underpinning finding in this case. That is, I am not satisfied that the respondent had engaged in conduct or a course of conduct which forced the applicant to leave her employment and not return.

[100] It follows that I find the applicant was not dismissed. She ended her employment of her own volition. Accordingly, there is no jurisdiction for the Commission to consider the applicant’s unfair dismissal claim any further and it must be dismissed. An order to that effect will be published simultaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr C Bolger of Counsel with Mr R Betts, Solicitor for the applicant.

Mr D Rifai for the respondent.

Hearing details:

2014,

Sydney:

11, 12 March.

Printed by authority of the Commonwealth Government Printer

Anne Crowther v Ray Marshall Transport Pty Ltd

[2014] FWCFB 4007

1 APRIL 2014

DECISION