Ashleigh Gregor v Kabillion Pty Ltd T/A the Firm

[2021] FWC 1238

[2021] FWC 1238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ashleigh Gregor
v
Kabillion Pty Ltd T/A The Firm; David Eggleton; Graeme Brown
(C2020/7057)

DEPUTY PRESIDENT CROSS SYDNEY, 8 MARCH 2021

Application to deal with contraventions involving dismissal.

[1] This decision arises from an application made by Ms Ashleigh Gregor (the Applicant) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) for relief in respect of an alleged dismissal in contravention of the general protections provisions of the Act by Kabillion Pty Ltd t/a The Firm (the First Respondent), Mr David Eggleton (the Second Respondent) and Mr Graham Brown (the Third Respondent). In her Form F8 General Protections application involving dismissal (the Form F8), the Applicant stated that she was notified of her dismissal, and that the dismissal took effect, on 27 August 2020. The Applicant had commenced employment with First Respondent on 21 January 2013, as an Accountant.

[2] The Respondents raised the jurisdictional issue that there was no dismissal of the Applicant, and as a result the Applicant was precluded from advancing her claim pursuant to s.365 of the Act. This decision determines that jurisdictional issue.

[3] On 2 November 2020, directions were issued to program the manner in which the jurisdictional issue was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 9 November 2020, the Applicant filed an Outline of Submissions, and indicated that it would be seeking to rely on the Form F8 as the Applicant’s evidence in the matter;

(b) On 16 November 2020, the Respondent filed an Outline of Submissions, and a statement of Mr Brown, the Third Respondent and a Director of the First Respondent;

(c) On 23 November 2020, the Applicant a Submission in Reply.

[4] The hearing of the matter occurred on 7 December 2020, and each of the Applicant and Mr Brown were cross-examined. Thereafter the parties filed the following written submissions:

(a) The Applicant’s Written Submissions dated 21 December 2020 (the Applicant’s Submission);

(b) The Respondent’s Written Submissions dated 15 January 2021 (the Respondent’s Submission); and

(c) The Applicant’s Submissions in Reply dated 22 January 2021 (the Applicant’s Reply).

The Evidence

(a) The Applicant

[5] The Applicant noted that the First Respondent operates an accountancy business, and the Second and Third Respondents are owners and managers of the First Respondent. In January 2013 the Applicant commenced employment with the First Respondent as an accountant. At that time the Applicant was 23 years old.

[6] The Applicant and Second Respondent worked closely together, and in November 2014, the Applicant and the Second Respondent commenced a relationship. The Applicant and the Second Respondent concealed their relationship.

[7] In around May or June 2019 the Applicant decided she wished to end her relationship with the Second Respondent. Thereafter the Second Respondent continued to send the Applicant electronic communications which the Applicant regarded as inappropriate. The Applicant claimed the Second Respondent also engaged in conduct that she regarded as bullying and harassment.

[8] The Applicant made two verbal complaints to the Third Respondent in relation to her employment with the First Respondent and her treatment by the Second Respondent. The first complaint was on 20 February 2020 and the second complaint was on 10 March 2020. Both complaints related to two concerns in relation to the Second Respondent’s conduct. The first concern was the Second Respondent’s conduct of a sexual nature towards her that was unwelcome and that she regarded it as sexual harassment. The second concern was alleged bullying and harassment that the Applicant was being subjected to by the Second Respondent.

[9] In response to the Applicant’s complaint, in March 2020, the First Respondent engaged a law firm to undertake an investigation of the Applicant’s complaints about the Second Respondent.

[10] An investigation report (the Report) was provided to the First Respondent in May 2020. Copies of the Report were also provided to the Applicant and the Second Respondent in June 2020. The Applicant claimed that, in summary, the Report found that while the events alleged by the Applicant in her complaints generally occurred, they did not constitute unlawful sexual harassment or unlawful bullying as they did not meet all the elements of sexual harassment as defined in the Sex Discrimination Act 1984 (Cth), or that of bullying as defined in the Act.

[11] The Applicant claimed the Report contained recommendations that the First Respondent establish sexual harassment policies, that its staff undergo sexual harassment training in the immediate future, that the Second Respondent undertake counselling sessions in relation to workplace behavior and boundaries, and that the First Respondent pay for twelve sessions of psychological counselling for the Applicant. As at the Applicant’s termination date, she stated that none of the recommendations had been implemented.

[12] In the months after the Report was produced, the Applicant claimed the Second Respondent increased his intimidation, victimisation and bullying of the Applicant. The Applicant stated that the conduct by the Second Respondent caused her to suffer increased anxiety and distress in her employment with the First Respondent. As a result, in July and August 2020 the Applicant made further complaints to the Third Respondent about the Second Respondent’s conduct towards her in the time since the Report was produced, and claimed that the First Respondent was failing in its duty to provide a healthy and safe work environment for her. The Applicant claimed the Third Respondent advised her that he was aware of the Second Respondent’s conduct following the Report being produced.

[13] Despite her further complaints to the First Respondent and Third Respondent, the Applicant claimed the Second Respondent continued his victimisation of the Applicant.

[14] On 25 August 2020, with what the Applicant described as her levels of distress increasing, the Applicant held a discussion with the Third Respondent where she advised him that they should negotiate a mutually agreed separation, otherwise she would have to commence proceedings against the First and Second Respondents for unlawful victimisation as a result of her original complaint. The Third Respondent told the Applicant that he would talk to the First Respondent’s lawyers and get back to her.

[15] On 27 August 2020, the Applicant attended her doctor and was provided with a medical certificate which advised that she was unfit for work for the period of 26 August to 4 September 2020, due to her medical condition. At 2:17pm on 27 August 2020, the Applicant emailed a copy of the medical certificate to the Third Respondent. The Applicant then tried to login to her work email account and discovered that her access had been cancelled. The Applicant then tried to call the Third Respondent about her email access being blocked/cancelled and left a message on his mobile phone.

[16] At 3:47pm on 27 August 2020, the Applicant received an email addressed to her personal email account from the Third Respondent (the 27 August Email). That email, which was sent at 3.16pm, was as follows:

“Hi Ash,

I understand this completely.

In practical terms, because you’ve said that you’re leaving I’ve taken our meeting on Tuesday afternoon to be the commencement of your four week notice period.

We’re going to use this period to have the solicitor come up with the Deed of Release that you suggested. We’re working through those details at the moment.

Given the circumstances, we’ve done what we do for everyone and started the process of removing access to stuff. It’s not personal – just standard practice.

Obviously we’re really disappointed with everything and it sucks for all involved but we understand why you’ve made this choice and as we’ve said to you, looking after your mental health has to be a high priority for you. Given what you’ve said about your mental health, we don’t require you to work the notice period. Happy to chat if you

need to.

Regards

Graeme

P.S. Just noticed a missed call from you… will call you back very shortly!”

[17] After receiving the above email the Applicant contacted a colleague at the First Respondent and was informed that the Third Respondent had emailed the First Respondent’s staff and advised them that the Applicant had resigned from her employment with the First Respondent. That email, which was sent at 3.26pm on 27 August 2020 (the All Staff Email), was as follows:

“Hi All,

We’ve got some sad news.

Ash came to see me on Tuesday afternoon. The outcome of the meeting was that she has decided to end her employment with us.

She’s currently on leave but I’m not expecting her to back in the office.

This obviously creates a few challenges for us. We’ll sort through the practicalities of this as we go.

If anyone has any concerns, feel free to let me know.

Regards

Graeme”

[18] At 11.40am on 28 August 2020, the Applicant sent an email to the Third Respondent (the 28 August Email). That email was as follows:

“Hi Graeme

It is patently untrue that I resigned. This is clear from the fact that you cannot name any termination date nominated by me, which would be the case if I had resigned (which I clearly have not). Furthermore, why would I provide you with a medical certificate if I had resigned?

All I said to you on Tuesday was that we need to come to some agreed terms to part ways given what has taken place (and still is) and the Firm’s failure to protect me in the workplace.

I've spoken to my lawyer, Will Ward, and I've been informed that what I said cannot in anyway be regarded as a resignation and that the Firm’s conduct constitutes an unfair dismissal.

I have been advised that unfair dismissal is not the only claim that I can bring and that I can bring any of the following types of claims:

1. As you terminated my employment within hours of me providing you with a medical certificate I can commence an adverse action claim against the Firm and you personally due to your involvement. In such claims, in addition to compensation I can seek penalties of up to $63,000 be imposed on the Firm and $12,600 personally on you. These fines shall be payable to me. This general protections claim will also be

in relation to my exercising of workplaces right when I made my original complaint of sexual harassment against David and also my more recent further complaints about David’s treatment of me.

2. A sexual harassment claim against the Firm and David for the unlawful sexual harassment I have been subjected to. A new further aspect of this claim is that I can now seek further damages from the Firm and David due to the unlawful victimisation I have been subjected to by David since making my original complaint and now from you by unlawfully terminating my employment.

With all the above causes of action in mind, the deed of release that you give me will need to offer substantial monetary compensation (i.e. 6 - 12 month range) before I would consider accepting any terms, and not take further action .

Ash”

[19] The Applicant noted that no deed of release had been subsequently provided to her by the any of the Respondents.

[20] The Applicant did not provide any evidence in response to the evidence of Mr Brown.

(b) Mr Brown

[21] Mr Brown described the Applicant as a diligent worker, a good accountant, and a good person. He stated that he, clients and staff and all enjoyed dealing with her. He noted the Applicant’s role required her to work closely with the Second Respondent.

[22] Mr Brown stated he became aware of the relationship that had existed between the Applicant and the Second Respondent on 20 February 2020, and that the Applicant made further bullying and harassment allegations against the Second Respondent in March 2020.

[23] Mr Brown noted the First Respondent commissioned a Barrister to investigate the Applicant’s allegations. In May 2020, the Barrister provided the Report, and a copy of the Report was given to both the Applicant and the Respondent. Mr Brown stated that the Report found none of the allegations made by the Applicant to be substantiated. He stated the Report also made a number of best practice recommendations, including office location and work allocation that were implemented.

[24] Mr Brown stated that on Thursday 20 August 2020, he received three emails from the Applicant (the 20 August Emails). Those emails contained detailed complaints regarding the Second Respondent’s behaviour, including:

(a) Referring to her as "Ashleigh" rather than "Ash";

(b) Inviting a client of the Firm (the Client)to play golf, when she claimed the Second Respondent should have nothing to do with the Client; and

(c) Repeatedly walking past her office.

[25] On Friday 21 August 2020, Mr Brown discussed the Applicant’s complaints with the third Director of the First Respondent, Mr Paul Glass. It was noted that similar complaints regarding client access were made by the Second Respondent. Mr Brown noted that the First Respondent took every complaint extremely seriously and did its best to accommodate each concern in a fair way, so as to preserve harmonious workplace relationships (as best they could) and the commercial interests of the Firm.

[26] Mr Brown notes that the First Respondent is a small business with 15 staff. It had three directors in the firm, three administrative staff members and two bookkeepers. All remaining staff members were accountants, and it did not have a dedicated human resource manager.

[27] Mr Brown stated that on Tuesday 25 August 2020, the Applicant came to his office around 3:30 pm, and they had a discussion to the following effect:

Applicant said:	"I have seen emails from David to [the client]. This is my client and he won't want to deal with David. I want David to have nothing to do with this client."
Mr Brown said:	"I can't ask David to have nothing to do with him. It was a referral from one of David's networks. Besides, this is bookkeeping work, Ash. You are far more qualified than that. We have a bookkeeper who wants to do an extra day a week who can do this work at a lower charge out rate. "
"Ash, we have tried our best to accommodate your concerns. There have been competing requests from both you and David about various issues. Sometimes we're able to give you want and other times it's in the best interests of everyone for David to have his requests grant ed. We're making the best decisions we can as each of you makes a request."

Mr Brown stated at that point of the conversation the Applicant looked angry and disappointed.

Mr Brown then said:	“What do you need the outcome of this to be?"
The Applicant said:	"I want David to lose his job."
Mr Brown said:	"We can't do that when there is an independent report that says the allegations you made are not substantiated. We just need to find a way forward."
Applicant said:	"I want to end this. I am not resigning but I want to end my employment. We need to come to some kind of agreement to part ways."
Mr Brown said:	"What does that mean?"
Applicant said:	"There are two options. You can either give me a Deed of Release or I'll make a complaint to the Human Rights Commission."
Mr Brown said:	"What is a Deed of Release?"
Applicant said:	"That would involve the Firm paying me out and me leaving my employment here."
Mr Brown said:	"Ok. I'm sure we can work something out. I will need to check with our lawyers about preparing that."

[28] Mr Brown stated neither Mr Glass nor he wanted the Applicant to leave the First Respondent. Over the years, the Applicant had been a great resource, clients liked her and staff liked her. After the conversation referred to above, Mr Brown said he expected that the Applicant would return to work out her notice period, within which time a Deed of Release could have been negotiated.

[29] On 26 August 2020, the Applicant called in the morning and advised that she was sick. The next day, on 27 August 2020, the First Respondent had not heard from the Applicant by early afternoon. She had not come into work that day, and had not called in sick.

[30] Mr Brown stated he reflected on his conversation with the Applicant on 25 August 2020. When the Applicant hadn’t arrived by 2.00pm on 27 August 2020, Mr Brown said he had a conversation with Mr Glass as follows:

Mr Brown said:	"I'm not sure what to do here. I now don't think she is coming back to work from what we discussed the other day and she still has access to all our systems."
Mr Glass said:	"I think we need to suspend access at least for the time being to protect ourselves. She shouldn't be accessing the systems remotely if she is sick anyway. We can reinstate access if she returns. What are we going to tell the staff?"
Mr Brown said:	"I think we will need to be honest and let them know that Ash is currently on leave but we are not expecting her back based on what she said."

[31] Towards the end of the discussion referred to above, the Applicant emailed through a medical certificate that covered her absence until 4 September 2020. Mr Brown responded to that email 59 minutes later by sending the 27 August Email. Ten minutes after the 27 August Email, Mr Brown sent the All Staff Email.

[32] Shortly after sending the All Staff Email, Mr Brown stated he noticed he had a missed call from the Applicant. He returned her call and a conversation to the following effect took place:

The Applicant said:	"Why can't I get into things?"
Mr Brown said:	"You said you were leaving, Ash. It is standard practice to start shutting down access when an employee leaves. Neither Paul nor I wants you to leave but we understand. We want you to make a decision that you think is best for you. We will work out the details of a Deed of Release. We are still friends after all."
The Applicant said:	"I'm afraid we won't be friends after what is going to happen from now."

[33] On 28 August 2020 at 11:40am, the Applicant sent the 28 August Email. The Applicant did not return to the office after 25 August 2020, and Mr Brown stated that approximately a week or so after 25 August 2020, another employee of the First Respondent who was a close friend of the Applicant asked for his permission to collect the Applicant’s personal belongings.

[34] Mr Brown stated that following the 28 August Email, the First Respondent was unsure of how to treat the Applicant’s absence from work, and therefore continued to pay her on the assumption that she may wish to return to work or otherwise seek to amicably resolve the situation.

[35] The First Respondent did not receive any further correspondence from the Applicant until 17 September 2020, when it received an email from the Applicant (the 17 September Email), which was as follows:

“Graeme,

I note that despite saying that you would, you have not provided me with any proposed deed of release in order to resolve matters between us.

In the absence of receiving any deed of release from you, I have now commenced proceedings in relation to your unlawful termination of my employment.

For completeness, I wish to advise you that I have accepted your conduct on 27 August 2020 as a repudiation of my contract of employment.

Ash”

[36] In response to the 17 September Email, the First Respondent’s solicitors sent an email in the following terms:

“Dear Mr Ward

We refer to the above matter.

Our client today received correspondence from your client threatening proceedings in this matter and alleging a repudiation of her contract of employment.

We are instructed that your client has been on paid leave since 26 August 2020, contrary to the above allegation.

Please anticipate a substantive response from us in this matter by close of business on 21 September 2020. We request that your client does not take any adverse steps against our client until you have considered our clients position.

Kind regards”

[37] At 4:49pm 17 September 2020, the First Respondent received a notification from the Fair Work Commission that the Applicant had lodged a general protections claim.

[38] On 21 September 2020, the First Respondent’s Solicitor wrote to the Applicant’s Solicitor and, among other things, confirmed the Applicant was still employed by the First Respondent, invited the Applicant to advise how she wished to have her absence treated, and requested her return date to work. No response to that communication was received.

[39] Mr Brown stated that on 23 October 2020, he attended a conciliation before the Fair Work Commission regarding this claim. After the Conciliation, he and Mr Glass formed the view that the Applicant had no intention to return to work and so the First Respondent ceased making any further payments to the Applicant.

[40] In the hearing, Mr Brown gave the following evidence regarding why the First Respondent continued to pay the Applicant: 1

“Why did you keep paying her when you knew what her situation - how she regarded the situation?---Because we felt that she was still employed in the absence of a deed of release.

So you knew she was still waiting for a deed of release. Correct?---Yes.”

Submissions

(a) The Applicant

[41] The Applicant submitted that there had been a dismissal at the employer’s initiative. It submitted that the evidence provided by the Mr Brown, in his witness statement and in cross examination during the hearing, supported the Applicant’s position that her employment was terminated at the Respondents’ initiative, thereby constituting a dismissal pursuant to s.386(1)(a) of the Act.

[42] The Applicant submitted that Mr Brown’s evidence established:

(a) The Applicant did not resign;

(b) Mr Brown knew the Applicant wanted to negotiate a separation;

(c) Mr Brown knew that the Applicant would not resign until a separation agreement (a deed of release) was reached between the parties;

(d) It was Mr Brown’s decision to commence the notice period in relation to the termination of the Applicant’s employment;

(e) Mr Brown directed the Applicant to not attend work during the notice period; and

(f) Mr Brown knew that the Applicant was waiting to receive a draft deed of release during the notice period.

[43] The Applicant referred to the decision of Deputy President Ashbury in Sharp v MCG Group Pty Ltd, 2 where the Deputy President found:

“Essentially, termination at the initiative of the employer involves an important feature, that the act of the employer results directly or consequentially in the termination of the employment, so that the employee does not voluntarily leave the employee relationship. That is, had the employer not taken the action, the employee would have remained in the employment relationship.

The term “initiative” should not be given a narrow meaning. Even where an employee does some act which is the first in a chain of circumstances that leads to termination, the focus should be on the step or steps that effectively terminated the employment, or the critical action or actions.”

[44] The Applicant submitted the Respondents clearly understood that the Applicant was not resigning and had not resigned. Despite that, on 27 August 2020, the Respondents advised the Applicant that they had decided to commence her four week notice period. Such a decision was a unilateral action/decision at the employer’s initiative. Consequently, it was the employer’s actions in advising the Applicant that her four week notice period had commenced that constituted a termination at the employer’s initiative.

[45] Additionally, and regarding repudiation, the Applicant submitted that the Respondents’ actions and conduct on 27 August 2020 was inimical to the employment relationship continuing and constituted repudiatory conduct by her Employer. This repudiation was accepted by the Applicant in the 17 September Email.

[46] The repudiation by the First Respondent was submitted to comprise of two components. The first component was the Respondents’ deliberate misleading representations to staff and clients that the Applicant had resigned (the All Staff Email) when the First and Third Respondents clearly were aware that the Applicant had not resigned. The Applicant had instead provided a medical certificate, and she was officially taking a period of sick leave. The second component was that the Respondents’ unlawful conduct towards the Applicant in blocking her emails. The Applicant relied on Section 20 of the Workplace Privacy Act 2011 (ACT) (the Workplace Privacy Act) states:

“Offence—restrictions on blocking electronic communication and internet access

(1) An employer commits an offence if the employer stops the delivery of an electronic communication sent to or by a worker, or stops a worker's access to a website.

Maximum penalty: 5 penalty units.”

[47] The Applicant submitted it was entirely appropriate for an employee such as her to regard her employment as at an end due to repudiation by her employer as her employer had flagrantly engaged in unlawful conduct towards her.

[48] In the alternative, the Applicant submitted that her employment came to an end at the conclusion of the notice period, which was commenced by the Respondents. That would raise a further issue regarding the timing of the filing of the Application. As the Applicant regarded her employment as having been repudiated on 27 August 2020, she lodged her General Protections application on 17 September 2020 in order to comply with the 21 day time limit in section 366 of the FW Act. That date was one week before her notice period ended, and so the Application may have been lodged with the Commission one week before the dismissal took effect.

[49] The issue of early lodgement before a dismissal takes effect had been addressed by the Full Bench of the Commission in Mihajlovic v Lifeline Macarthur, 3 (Mihajlovic) where an application was lodged one month before the dismissal took effect. The Full Bench held that the premature lodgement constitutes an “irregularity” that is capable of being waived by the Commission under section 586(b) of the FW Act.

[50] As to the Respondent’s submission that the Applicant’s employment ended by way of abandonment, the Applicant submitted that 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.

[51] The Applicant submitted she had a perfectly valid reason for not being present, being that she regarded her employment as having being terminated by her employer, and she was directed by the Third Respondent to not attend work during the notice period.

(b) The Respondents

[52] The Respondents disputed that the Applicant was dismissed and therefore sought to have the matter dismissed by the Commission for lack of jurisdiction under the Act.

[53] The Respondents submitted that the termination was initiated by the Applicant. The 27 August Email relied upon by the Applicant included the following:

“In practical terms, because you’ve said you’re leaving I’ve taken our meeting on Tuesday afternoon to be the commencement of your notice period. We are going to use this period to have the solicitors come up with the Deed of Release that you suggested.”

[emphasis added]

[54] The Respondents submitted that in the meeting on 25 August 2020, that the Applicant initiated, the Applicant indicated that she was ending her employment. The Applicant reiterated in the 28 August Email that in the meeting on 25 August 2020, she indicated a wish to “part ways” and she acknowledged in cross-examination that she understood a Deed of Release to be something negotiated when one is leaving their employment.

[55] The Respondents submitted that in determining whether the Applicant’s employment was brought to an end at the initiative of the employer, the statutory test relates to the termination of the employment relationship, not the contract of employment. In indicating that she wished to “part ways,” the Applicant in effect brought an end to the employment relationship, with only the terms of her exit to be finalised pursuant to a Deed of Release.

[56] The Respondents were confronted with a situation where an employee had indicated that she wished to “part ways” or was otherwise “ending her employment.” The Applicant did not attend work thereafter (beyond the period for which she had a medical certificate) and took steps to have all her private belongings collected from the workplace. Once the Applicant indicated that she was “ending her employment” or was otherwise parting ways, the First Respondent believed that the Applicant had commenced her notice period and that her employment would therefore come to an end at the conclusion of the notice period, and the First Respondent would be able to finalise the Deed of Release requested by the Applicant within the notice period. If the First Respondent’s belief or the understanding was incorrect, the Applicant had the opportunity to correct any misunderstanding or advise the First Respondent that she wished to continue working in her role.

[57] Regarding the allegation that the First Respondent repudiated the Applicant’s contract of employment, the Respondents submitted that repudiation of a contract requires there to be a renunciation of the contract as a whole or the fundamental obligations under the contract. By the Third Respondent simply setting out his understanding of what transpired at the meeting on 25 August 2020, the First Respondent cannot be considered to have effected a renunciation of the contract or the fundamental obligations under the contract. In fact, the 27 August Email states that the Respondents “don’t require [the Applicant] to work the notice period,” given what she had said about her mental health. That was said to demonstrate that the Respondents intended to be bound by the contract of employment and pay out the Applicant’s notice period, on the understanding that the Applicant wished to end her employment at the conclusion of the notice period.

[58] The All Staff Email could not be considered a renunciation of the contract or the fundamental obligations under the contract, and it did not state that the Applicant had resigned, or that her employment had been terminated. The Staff Notification Email stated that the Applicant had decided to “end her employment,” consistent with the First and the Third Respondent’s understanding of what transpired at the meeting on 25 August 2020 and the Applicant’s admission that she wished to “part ways” stated that the Applicant was on leave, although the Third Respondent did not expect her to return given their conversation on 25 August 2020. The All Staff Email would not have prevented the Applicant from returning to her role if she otherwise wished to retain her employment.

[59] The Respondents noted that the First Respondent continued to pay the Applicant following the 28 August Email, further indicating that the First Respondent had no intention to terminate or dismiss the Applicant against her wishes to end her employment.

[60] Regarding s.20 of the Workplace Privacy Act, the Respondents submitted it was beyond the jurisdiction of the Commission to determine any alleged offence committed in contravention of the Workplace Privacy Act. Nonetheless, the Respondents submitted that no such allegation could be established on the facts of the current proceeding. Section 6 of the Workplace Privacy Act identifies that its object is “to regulate the collection and use of workplace surveillance information”. Further, in circumstances where the Applicant had indicated to the First Respondent that she was ending her employment (or otherwise parting ways), it was a reasonable and lawful course of action for the First Respondent to protect its commercial interests by restricting the Applicant’s access to its systems and confidential client information.

[61] Regarding the alternative argument of the dismissal occurring at the end of the notice period on 22 September 2020, four weeks from 25 August 2020, the Respondents submitted that the early lodgement of the Application was not an “irregularity” remedied by the Commission under section 586 of the Act. The Respondents noted the Applicant relied on Mihajlovic, but observed thatin Mihajlovic, there was “no doubt that Mr Mihajlovic is a “person who has been dismissed.” 4 In this matter, however, the key contested issue was whether or not the Applicant was dismissed, which could not be overcome under section 586 of the FW Act.

[62] The Respondents submitted that the Applicant’s employment was brought to an end at the initiative of the Applicant either:

(a) On 25 August 2020, when the Applicant expressed that she was “ending her employment” or was otherwise parting ways; or

(b) On 17 September 2020, when the Applicant incorrectly purported to accept the repudiatory conduct of the First Respondent.

[63] During this meeting on 25 August 2020, it was the Applicant who suggested a Deed of Release be prepared and otherwise purported to end the employment relationship. The Respondents referred to the judgment of the Full Court of the Industrial Relations Court of Australia, in Mohazab v Dick Smith Electronics Pty Ltd,  5wherein considering the meaning of “at the initiative of the employer,” the Court observed that:

“It is clear that the Full Court, following Siagian v Sanel, regarded termination of employment as referring to the actual termination of the employment relationship, so that a “termination at relationship had terminated and the action of the employer was the principal contributing factor in bringing that about.”

[64] The Respondents referred to the recent decision of Joseph Cacciola v Hazelton Property Group Pty Ltd, 6 which examined in detail the nature of the employer’s conduct that was found to have resulted in a dismissal. In doing so, it referred to the decision of Moore J in Grout v Gunnedah Shire Council, 7(Grout) as an example of a complex set of facts, which were found to have resulted in a dismissal. The Commission stated that:

“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.”

[65] The Respondents submitted that Grout illustrated that giving notice or otherwise commencing the notice period may not in itself bring about a termination of employment, and the fact that the employer refused to allow the employee to withdraw the notice was critical. In contrast, the First Respondent was ready and willing to allow the Applicant to return to her employment if she wished to do so. The First Respondent continued to pay the Applicant until 15 October 2020 and notified the Applicant on 17 September 2020 and 21 September 2020 that it considered the Applicant to be still employed by the First Respondent. It was therefore the Applicant’s decision not to return to her employment and to continue with the current proceedings.

(c) The Applicant’s Reply

[66] The Applicant submitted that the Respondents’ Submissions assert a position that, if an employee informs their employer that they are unhappy in their employment, and want to negotiate terms for leaving their employment, that the employer can regard this as the employee terminating their employment. If that submission was accepted by the Commission, it would mean an employee cannot inform their employer that they are unhappy in their employment and want to negotiate a leaving of their employment without terminating their employment as soon as they inform their employer of their desire to so leave. Fundamentally, an employee saying that they want to leave their employment is not the same as the employee tendering their resignation.

[67] Regarding the Workplace Privacy Act, the Applicant noted the exemption in section 20(2) of that Act for workplace policies, but asserted that exemption did not apply as the Respondents had failed to prove the existence of such a policy. The Applicant submitted the Respondents’ blocking of the Applicant’s email was in breach of the Workplace Privacy Act.

[68] In reply to the Respondents’ Submission asserting that any repudiation of the Applicant’s employment did not take place until 17 September 2020, the Applicant submitted the Applicant conveyed her acceptance of the repudiation to the Respondents on a number of prior occasions. The first such occasion was when the Applicant sent the Third Respondent the 28 August Email. The second occasion was when she arranged for a colleague to collect her personal belongings from the First Respondent’s offices the following week.

Consideration

[69] The Applicant submitted that the Applicant was dismissed at the Respondent’s initiative as provided at s 386(1)(a) of the Act. S.386(1) of the Act provides:

“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.”

[70] The Respondents’ case is that in the meeting on 25 August 2020, the Applicant indicated that she was ending her employment. The Applicant, on the other hand claimed the Respondents clearly understood that the Applicant was not resigning and had not resigned, however the Respondents nonetheless sent the 27 August Email and the All Staff Email.

(a) 25 August 2020

[71] The exchanges that occurred in the 25 August Meeting are relevant to the determination of the issue of dismissal. A determination of whether a resignation or other termination by the Applicant occurred involves consideration of what in fact was said in the relevant meeting, not the parties subjective intentions. As Justice Rares of the Federal Court found in Koutalis v Pollett : 8

“[43] The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at 179 [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:

This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) [2004] HCA 35; 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]].

[original emphasis]

[44] In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116 ...”

[further emphasis added]

[72] Mr Brown gave detailed evidence about what was said in the 25 August Meeting, and that evidence was not put in issue by the filing of any reply evidence or any cross-examination. I accept that evidence is an accurate recollection of what occurred at that meeting. Regarding the issue of the Applicant’s continuing employment, the exchange was as follows:

Applicant said:	"I want to end this. I am not resigning but I want to end my employment. We need to come to some kind of agreement to part ways."
Mr Brown said:	"What does that mean?"
Applicant said:	"There are two options. You can either give me a Deed of Release or I'll make a complaint to the Human Rights Commission."
Mr Brown said:	"What is a Deed of Release?"
Applicant said:	"That would involve the Firm paying me out and me leaving my employment here."
Mr Brown said:	"Ok. I'm sure we can work something out. I will need to check with our lawyers about preparing that."

[73] It is abundantly clear that in the 25 August Meeting, the Applicant:

(a) Stated unambiguously that she was not resigning; and

(b) Stated that she wished to part ways in the future but that it would be the subject of an agreement/deed of release.

A reasonable person in the position of the parties would have understood at the conclusion of the 25 August Meeting that the Applicant had not resigned or otherwise ended her employment, but merely indicated a willingness to agree to terms upon which her employment would cease.

[74] The clarity of the above outlined propositions was emphasised by Mr Brown in his evidence before the Commission. His evidence, while subjective, accorded with what the above identified reasonable person would have understood to be the position arising from the 25 August Meeting. That evidence included the following: 9

When you say she announced she was ending her employment you knew that that was all subject to an agreement being reached, didn't you?---Yes.

Yes. So she wasn't leaving until an agreement was done, correct?---Yes.

So you triggered the notice period before a deal was done?---Yes.

And at which stage you knew she had not resigned?---Yes.

And:

How can you say she has decided to leave?---I said that she had decided to end her employment.

But you knew she was not going until a deal had been done. Correct?---I knew that she would remain employed until a deed of release was negotiated.

[75] I reject the Respondents’ submission that the Applicant resigned or otherwise ended her employment on 25 August 2020. On that day the Applicant did not more than indicate that she was willing to end her employment subject to an agreement being reached.

[76] If, contrary to my conclusions above, I did find that the Applicant had resigned or otherwise ended her employment in the 25 August Meeting, I would have considered that, without further clarification being sought by the First Respondent of the Applicant as to whether the resignation/cessation was truly intended, that the circumstances would nonetheless constitute a termination at the initiative of the employer due to the factual background of the matter, including:

(a) The Applicant’s complaints of 20 February and 10 March 2020, regarding the Second Respondent’s conduct;

(b) The Report;

(c) The further complaints of intimidation, victimisation and bullying of the Applicant in July and August 2020;

(d) The 20 August Emails; and

(e) The Applicant’s “levels of distress increasing” around 25 August 2020.

[77] In Bupa v Tavassoli, 10 the Full Bench found:

“Additional but not unrelated to the concept of “forced” resignation is a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative. Where the resignation is ineffective, purported acceptance of the resignation by the employer forthwith, without clarifying with the employee whether resignation was truly intended, will constitute a termination of employment at the initiative of the employer. The usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment. However an expression of resignation which cannot reasonably be regarded as voluntary may not operate as an effective resignation capable of acceptance by the employer.”

[Emphasis added]

(b) 27 August 2020

[78] Having found that the Applicant did not resign or otherwise end her employment, I must consider next whether the Applicant’s employment was terminated at the First Respondent’s initiative on 27 August 2020. The Applicant’s position has been consistent throughout since filing the Form F2 on 17 September 2020. The Applicant asserts her employment was terminated by the First Respondent on 27 August 2020.

[79] In Mohazab v Dick Smith Electronics Pty Ltd, 11 the Full Court of the Industrial Relations Court of Australia held:

“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. …”

[80] I consider there were three separate acts that collectively (though each, were they the only act, could have individually) resulted in the termination of the Applicant at the First Respondent’s initiative, and on any reasonable view, would probably have the effect of such termination. Those acts were:

(1) Around midday on 27 August 2020, blocking the Applicant’s access to the First Respondent’s email system;

(2) Deciding to commence the four week termination notice period and sending the 27 August Email advising of that decision; and

(3) Sending the All Staff Email, also on 27 August 2020.

[81] Again, the focus is not upon subjective intentions, but what a reasonable person would consider the result of the First Respondent’s actions. As noted above, a reasonable person, and Mr Brown, as at 25 and 27 August 2020, would have understood that the Applicant had stated unambiguously that she was not resigning, and indicated a willingness to negotiate a cessation of employment in the future on terms. By the First Respondent’s actions it intended to, and did, bring the Applicant’s employment to an end. The dismissal occurred on that day.

[82] The Respondent’s submission that it was was ready and willing to allow the Applicant to return to her employment if she wished to do so is inconsistent with their actions. In the 27 August Email, regarding email access, the First Respondent advised the Applicant “Given the circumstances, we’ve done what we do for everyone and started the process of removing access to stuff. It’s not personal – just standard practice.” The First Respondent did not suggest the access could be reinstated. Further, in the All Staff Email, the Third Respondent advised “She’s [the Applicant] currently on leave but I’m not expecting her to back in the office.” The Third Respondent would not have been expecting the Applicant to return because 10 minutes earlier, in the 27 August Email, he had written to the Applicant “Given what you’ve said about your mental health, we don’t require you to work the notice period.”

[83] The First Respondent’s communication to the Applicant that she was not required to work out her notice period resulted in the dismissal taking effect on 27 August 2020. The Applicant did not perform any further work for the First Respondent, and a friend collected her personal belongings a week later. Accordingly this is not a matter where the Form 8 was filed before the dismissal took effect, and the principles outlined in Mihajlovic have no application.

[84] Having found termination at the initiative occurring on 27 August 2020, it is unnecessary to consider the parties arguments regarding subsequent repudiation.

Conclusion

[85] The Applicant was dismissed by the First Respondent on 27 August 2020, with that dismissal taking effect the same day. As the Applicant is a person who has been dismissed the Applicant is a person who may make an application regarding contraventions involving dismissal (s.365(a) of the Act). The Respondent’s jurisdictional objection is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727576>

 1   Transcript PN 480 and 481.

 2   [2010] FWC 2357, at [24] and [25].

 3   [2014] FWCFB 1070.

 4   [2014] FWCFB 1070, at [21].

 5 (1995) 62 IR 200.

 6   [2020] FWC 5622 at [52].

 7 (1994) 1 IRCR 143.

 8 (2015) 235 FCR 370, at [43] and [44].

 9   Transcript PN 436 to 439, and 452 to 453.

 10   [2017] FWCFB 3941, at [35].

 11 (1995) 62 IR 200, at