Antoinette Harrison v The Trustee for the Trimatic Management Services Unit Trust T/A TSA Group

[2020] FWC 2486

[2020] FWC 2486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Antoinette Harrison
v
The Trustee for The Trimatic Management Services Unit Trust T/A TSA Group
(U2019/14477)

COMMISSIONER WILLIAMS PERTH, 2 JUNE 2020

Termination of employment - jurisdiction - resignation.

[1] This decision concerns an application made by Ms Antoinette Harrison (Ms Harrison or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 21 December 2019. The Respondent is The Trustee for The Trimatic Management Services Unit Trust T/A TSA Group (TMS or the Respondent).

[2] Ms Harrison resigned from her employment. She gave notice to TMS on 18 November 2019 that her last day would be 29 November 2019 and she worked through until this date.

[3] TMS objects to the application on the ground that Ms Harrison resigned and was not dismissed. Ms Harrison however asserts she was forced to resign.

[4] This decision deals only with TMS’ jurisdictional objection.

[5] The question to be determined is whether Ms Harrison was forced to resign because of conduct or a course of conduct engaged in by TMS and so, within the meaning of s.386(1)(b) of the Act, was dismissed.

Factual findings

[6] TMS provides contact centre services to clients from their contact centre in Western Australia.

[7] Ms Harrison was first employed in March 2018 as a Customer Experience and Sales Agent for one of TMS’ clients. This role entailed receiving inbound calls from potential customers to assist with customer queries and promote that client’s services.

[8] TMS has contractual obligations with the client to ensure their employees at all times engage with customers in a compliant manner consistent with relevant legal and regulatory requirements. In July 2019 this particular client’s industry underwent major compliance and regulatory changes that affected the way TMS’ team, including Ms Harrison, conducted their phone calls.

[9] TMS trained all affected employees on these changes and introduced a compliance framework for their employees to utilise whilst on calls with customers.

[10] Notwithstanding this training Ms Harrison, the Respondent asserts, failed to adhere to the compliance requirements on multiple occasions. Consequently, consistent with TMS’ performance counselling guidelines Ms Harrison’s manager held a formal meeting with her on 22 October 2019 to address the breach of the compliance requirements.

[11] Ms Harrison sought to tender as evidence an audio recording she had made of the 22 October 2019 meeting. TMS initially objected to this but subsequently agreed for the recording to be provided as evidence before the Commission.

[12] The Surveillance Devices Act 1998 (WA) (the Surveillance Act) is based on the principle that with a few limited exceptions private conversations should not be recorded by one party without the other party’s consent. In this case Ms Harrison advised she did not have the consent of her manager to record the meeting.

[13] In fact, the recording demonstrates that in the early stages of this meeting, TMS’ manager says,

“…it is not permitted to record the meeting, can I confirm – I know this sounds silly – can I confirm you’re not recording the meeting?”

Ms Harrison then replies,

“Yep.”

The manager then says,

“Thank you for not, if it is found you’re recording without TMS’s consent you may be subject to disciplinary action including termination.”

[14] Plainly Ms Harrison lied to her manager and he did not consent to her recording their private conversation during the meeting.

[15] It is not apparent that Ms Harrison’s action in recording this private conversation falls within any of the exceptions in the Surveillance Act. In my view Ms Harrison recorded this meeting contrary to the Surveillance Act, and so unlawfully.

[16] Notwithstanding this the Commission, not being a Court and not being bound by the rules of evidence, has the discretion to admit evidence that may have been obtained unlawfully. 1

[17] In this instance, somewhat unusually, what appears to have been an unlawfully obtained recording is not unfairly prejudicial to the other party and the other party no longer objects to the Commission admitting the recording as evidence and accordingly the Commission will allow the audio recording of this meeting to form part of the evidence. 2

[18] In summary the recorded meeting involves the manager raising with Ms Harrison that in three separate telephone calls she has in his view breached TMS’ requirements in terms of the specific detail of what she said to these three customers. Part of this is apparently an absolute requirement that certain scripts are read word for word to customers. Failure to do so is viewed as a breach. Each of the phone calls was replayed to Ms Harrison, the manager then pointed out what he viewed as her deficiency and this was then discussed.

[19] It was quite clear during the meeting that this was a performance management discussion which may have disciplinary consequences for Ms Harrison. The manager went to considerable lengths to explain to Ms Harrison that TMS wanted to help her improve to become fully compliant. Ms Harrison was told that nothing had been predetermined and she was given the opportunity to provide a written response and was told this would be taken into consideration.

[20] The manager told Ms Harrison that they would just do a letter of warning and that they were not going to terminate her.

[21] She was told at points throughout the meeting they would sit with her and do more compliance with her and develop an action plan and they wanted to assist her and give her the tools to succeed.

[22] Towards the end of the meeting Ms Harrison tells the manager that she is tired and exhausted, and she will have to resign and that she has got this on her email.

[23] The manager tells her that he does not want her to resign. He tells her they are not going to terminate her today.

[24] There was some discussion about Ms Harrison’s needing some leave and her health.

[25] The manager tells her to hold her resignation and that the boss is compassionate.

[26] He repeats that the team must be compliant.

[27] He tells her to go home for the balance of the day and rest, and that they will be providing her with a letter of warning. The manager tells her to please hold off on her resignation.

[28] The above is a summary only and not in a strictly sequential order but captures the tone and central features of the meeting. The outcome of the meeting was that Ms Harrison was issued a letter of warning.

[29] Ms Harrison raises a series of other historical issues the occurred during her employment the facts of which are set out below.

[30] Ms Harrison had a heart attack in the beginning of 2019. On the day this occurred she was only able to phone her manager around 12 noon when all the tests were completed by the hospital. She says the manager told her that by phoning in late was a breach that she was supposed to phone him half an hour before her shift start at 8:00 a.m.

[31] As a consequence of the heart event, six months later in October 2019 she needed to be absent on occasions to attend necessary check-ups.

[32] Ms Harrison provided a series of emails which in summary demonstrate the following.

[33] On 23 May 2019 Ms Harrison applied for four weeks annual leave to be taken between 2 December 2019 and 12 January 2020. The same day she received a reply advising that her application will be entered into the leave tracker and she will be kept updated on its progress.

[34] On 20 June 2019 Ms Harrison sent an email regarding her computer.

[35] On 24 June 2019 she sent two emails regarding concerns she had with her workstation.

[36] Ms Harrison says that around this time in June 2019 the business made changes to the seating plan and she was allocated a desk which had no working computer and had to take any desk that was available day-by-day but she was, after some correspondence, allocated a desk in another department but felt quite isolated however after more than a month an employee left and she got to be seated back in the department.

[37] Ms Harrison also felt there was an additional workload after July 2019.

[38] On 17 September 2019 Ms Harrison sent an email asking to arrange annual leave between 30 September 2019 through to 6 October 2019. She followed this up again on 24 September 2019 and on 26 September 2019 wherein she referred to a discussion about her leave applications for October and December 2019 and advised it was important for her to have a decision in writing as soon as possible.

[39] On 26 September 2019 Ms Harrison was advised by email that as per a previous conversation the manager cannot approve her annual leave because as a centre they did not have the leave capacity. In regards to leave in December 2019 the email says as previously discussed as soon as the manager opens up discussions for leave she will be informed of the availability.

[40] On 27 September 2019 Ms Harrison advised that she was going to have to take time off for medical appointments and advised the first one was on 9 October 2019.

[41] On 1 October 2019 she advised a need for a further three appointments with the respective dates and times.

[42] On 24 October 2019 by email Ms Harrison requested paperwork from the 22 October 2019 meeting.

[43] On 24 October 2019 by email Ms Harrison was advised that they were awaiting a response from HR.

[44] On 11 November 2019 Ms Harrison received an email referring to a conversation regarding what appears to have been her requests for paperwork from the 22 October 2019 meeting. This email however lists the main points that would normally be covered and then refers to her letter of warning which apparently outlines the specifics of that meeting.

[45] Ms Harrison then sent TMS an email on 18 November 2019 which is entitled “Resignation” which simply stated,

“Hi,

FYI

My last day will be 29/11/2019.

Thank you
Antoinette”

[46] Ms Harrison worked through the notice period she had given and her employment ended on 29 November 2019.

[47] Ms Harrison says she had a number of conversations with her manager about her requests for annual leave and her requests for leave to attend medical appointments.

[48] Ms Harrison agrees she did attend each of the medical appointments she needed to. Ms Harrison was paid sick leave for this time.

[49] Ms Harrison was aware she could approach the HR team and they were located 20 metres from where she worked.

[50] Ms Harrison did not raise any formal grievance through HR during her employment.

[51] Ms Harrison did not approach the senior manager Mr Maclean with any grievances.

[52] Ms Harrison agrees she did not resign in the heat of the moment, she says she felt she had no other way.

[53] Ms Harrison says she has previously managed a call centre.

Submissions

The Respondent

[54] The Respondent submits that forced resignation is when an employee has no real choice but to resign.

[55] The Respondent is of the view that if the Applicant had concerns or reservations about her employment or resignation, she had ample opportunity to voice these concerns to any of the below leaders and support services available to them whom she was in regular contact with:

•  Jared Tilley, Customer Experience and Sales Manager (Alinta Department)

•  Michael Mclean ,Senior Operations Manager (Alinta Department)

•  Alexis Sideris, HR Advisor (HR Department)

•  Jessica Foo, Group People & Talent Manager (HR Department)

[56] Each of the aforementioned individuals were accessible and available to the Applicant throughout her employment. Despite this, the Applicant did not raise any concerns or grievances. Similarly, the Applicant had full access to TMS’ intranet, which included all of the Respondent’s policies and procedures such as their Internal Complaint Handling Process as well as their Issue Escalation Pathways. The Applicant also had the opportunity to raise feedback in a discrete and electronic manner via TMS’ HR service desk.

[57] For a resignation to be deemed a dismissal the employer must take action with the intent to bring the relationship to an end or that has that probable result. The Applicant references a formal meeting in the submissions however provides no date. The Respondent can confirm that a formal meeting took place with the Applicant on 22 October 2019. This meeting took place approximately four weeks prior to the Applicant’s resignation. TMS firmly refutes any claim that this meeting, or any other alleged conduct taken by the Respondent could be construed as the main contributing factor leading to the Applicant’s resignation. The Respondent never took action outside of the standard operating procedures and the outcome was in line with TMS’ performance counselling guidelines.

[58] The Respondent views the Applicant’s resignation as clear and unambiguous stating a clear last date of employment and indicating an intention to work her notice period, which she did.

[59] The Respondent contends that the Applicant has not been able to provide any evidence to enable the Commission to determine that the Applicant had no other option but to resign.

[60] The Applicant’s credibility has been compromised based on the non-consensual recording of the 22 October 2019 meeting held between the Applicant and the Respondent.

[61] The Respondent’s jurisdictional objection to the application should be upheld, and the application should be dismissed.

The Applicant

[62] The Applicant submits that TMS were aware that she was unhappy as she had explained to her manager that she was exhausted and stressed and needed some leave as she did not feel comfortable or confident that she could stay compliant dealing with the calls due to exhaustion and stress.

[63] With respect to the meeting on 22 October 2019 Ms Harrison says for a range of reasons she was apprehensive that the meeting was a ploy to dismiss her.

[64] She says that after listening to her manager and the snippets of the alleged breaches not the whole phone call she was very certain that the company was seeking a dismissal.

[65] She submits that she was not happy with the meeting and she felt there were no real breaches.

[66] Ms Harrison’s written submission is that the situation or alleged breaches did not warrant a formal meeting, a warning nor dismissal. She submits that in her opinion TMS was just trying to dismiss her.

[67] Ms Harrison submits that in the end she saw no other way but to resign as she was heading towards another heart attack or a dismissal.

[68] In her oral submissions at the hearing Ms Harrison stated that she did not feel raising any grievances would make any difference.

[69] Ms Harrison repeated her complaints that management had not approved any leave and no reason was given other than no leave for anybody was to be approved.

[70] She explained she was stressed and tired and needed some leave and this fatigue and exhaustion is what results in mistakes.

[71] Regarding the leave request for four weeks off in December 2019 Ms Harrison explained she needed to book a ticket because she wanted to visit her daughter in England. She says that from May 2019, when she originally applied, through to the end of October 2019 TMS had not replied as to whether she could have that leave or not.

[72] Ms Harrison submits these are the reason she was forced to resign.

Consideration

[73] Only employees who have been dismissed are able to make an application for an unfair remedy application.

[74] Section 386 of the Act explains that a person has been dismissed if their employment has been terminated on the employers initiative or,

“…the person has resigned from his or her employment, but was forced to do so because of the conduct, or a course of conduct, engaged in by his or her employer.”

[75] There is no dispute in this case that Ms Harrison resigned from her employment.

[76] The question to be determined by the Commission is whether Ms Harrison was forced to resign because of the conduct or a course of conduct engaged in by TMS.

[77] The onus is on Ms Harrison to prove that she did not resign voluntarily.

[78] Ms Harrison complains about a history of difficulties during her time with TMS. These are detailed above and it is unnecessary to repeat them here.

[79] The principles from the applicable case law are as follows:

•  A forced resignation is when an employee has no real choice but to resign. 3

•  The onus is on the employee to prove that they did not resign voluntarily. 4

•  The employee must prove that the employer forced their resignation. 5

•  The employer must take action with the intent to bring the relationship to an end or that has that probable result. 6

[80] Clearly Ms Harrison was dissatisfied with her experience at TMS throughout 2019 for a number of reasons.

[81] Importantly Ms Harrison did not accept that the letter of warning issued to her in early November 2019 was well-founded. Reasonable minds will often differ on such matters. However, there is no evidence the Respondent’s actions were intended to bring the relationship to an end. Indeed, during the 22 October 2019 meeting the manager expressly asked Ms Harrison to hold off on resigning and the outcome was a letter of warning, not termination of her employment.

[82] Also, unsurprisingly Ms Harrison was very dissatisfied that her requested four weeks annual leave in December 2019 had not, by mid-November 2019, been approved. As she explained she needed to buy a ticket to visit her daughter in England and clearly time was running out.

[83] On 18 November 2019 Ms Harrison advised the Respondent in writing that she was resigning and what her last working day would be and continued to attend for work through that period of notice.

[84] In my view Ms Harrison made a considered decision to resign when she did. That was entirely her choice and I do not accept she had no other option, she was not forced to resign when she did so.

[85] There is no evidence that TMS took any action with the intent to bring the employment relationship to an end. Many employees receive letters of warning and many continue on to have lengthy and successful further periods of employment. Similarly, many employees are dissatisfied on a day-to-day basis with their employer and choose to either remain or not in that employment.

[86] I do not accept that the history of unhappiness from Ms Harrison’s perspective demonstrates that TMS had engaged in conduct or a course of conduct that forced her to resign. There is no evidence of any intention to bring the relationship to an end in fact the evidence is to the contrary.

[87] As Commissioner Bissett noted in Neil Ashton v Consumer Action Law Centre 7

“[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.”

[88] Such is the case in this matter.

[89] My decision is that Ms Harrison resigned voluntarily and was not forced to do so by the conduct of TMS.

[90] Consequently, I uphold the Respondent’s jurisdictional objection.

[91] This application will consequently be dismissed and an order [PR719310] to that effect will now be issued.

Appearances:

A. Harrison on her own behalf.
Z. Peggs and A. Sideris on behalf of the Respondent.

Hearing details:

Perth.
2020:
May 1.

Printed by authority of the Commonwealth Government Printer

<PR719309>

 1   [2019] FWCFB 4258.

 2   Exhibit A1.

 3   Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645, [(1995) 62 IR 200 at p. 206].

 4   Australian Hearing v Peary [2009] AIRCFB 680 at para. 30, [(2009) 185 IR 359].

 5   Ibid.

 6   O'Meara v Stanley Works Pty Ltd, PR973462 at para. 23, [(2006) 58 AILR 100].

 7   [2010] FWA 9356.