Belinda Iacono v Police Financial Services Limited T/A BankVic

[2017] FWC 465

[2017] FWC 465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda Iacono
v
Police Financial Services Limited T/A BankVic
(U2016/9864)

COMMISSIONER GREGORY MELBOURNE, 20 JANUARY 2017

Application for relief from unfair dismissal.

Introduction

[1] Ms Belinda Iacono was employed by Police Financial Services Ltd T/A BankVic (“BankVic”) in November 2015, and worked in the position of Marketing Specialist. However, she tendered a letter of resignation on 11 July last year and, after some discussion on that day, it was agreed she would leave her employment immediately without working out a notice period.

[2] However, on 28 July 2016 Ms Iacono lodged an unfair dismissal application with the Commission which stated in part, “I was forced to resign from my position on 11th of July at 10:30am.” 1 A jurisdictional objection was raised in response by BankVic, namely that Ms Iacono resigned from her employment, and was not dismissed. Therefore, in its submission there can be no question of unfair dismissal because she was not dismissed. This decision deals with that jurisdictional objection.

[3] Ms Iacono appeared on her own behalf. Ms Mari Ruiz, Chief People and Culture Officer, and Ms Bree Lucas, Head of People and Culture, appeared on behalf of BankVic. It is also noted that the parties provided only brief oral submissions in the hearing, and indicated that each relied on the written submissions, witness statements and other documents filed in accordance with the directions issued. It is also noted that the Commission has considered all of those materials, but has confined the references in this decision to those matters it considers directly relevant to the determination of the application.

The Issue to be Determined

[4] Section 385 of the Fair Work Act 2009 (Cth) (“the Act”) relevantly provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable;”
…

[5] Section 386(1) of the Act continues to deal with the meaning of “dismissed.” It relevantly 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.”
…

[6] Therefore, the issue to be determined at the outset is whether Ms Iacono “has been dismissed,” as required by s.385(a) having regard to the meaning of dismissed in s.386(1)(b). If it is found that she has not been dismissed by BankVic then the application must be dismissed. Conversely, if it is found that she has been dismissed then it remains to be determined whether her dismissal was “harsh, unjust or unreasonable.”

The Submissions and Evidence

[7] Ms Iacono was employed by BankVic in November 2015 and worked as a Marketing Specialist in the Marketing Department. However, her application and witness statement indicate she had a difficult time during the period of 8 months in which she was employed. It is evident that she had particular issues in terms of her relationship with the Marketing Manager, Ms Rachael Pugh, who was also her immediate Manager. She is apparently now no longer employed by BankVic. Ms Iacono also raised a range of concerns during the course of her employment, and claimed she was being excluded from involvement in the activities of the marketing team. She also submits she was required to attend what turned out to be performance review meetings without being provided with any prior notice of what the meetings were to be about.

[8] Ms Iacono was also provided with written warnings about her performance during the course of her employment. The first was dated 20 April 2016, and made reference to “lack of delivery on required work tasks” 2 and the “behaviour of placing blame on colleagues”.3 The second was dated 17 June 2016 and indicates it confirms the details of a discussion held with her on the previous day. It made reference to three specific areas where her performance needed to improve. Ms Iacono also submits she received a further written warning, although this was not confirmed by any of the documentation provided in conjunction with her submissions.

[9] Ms Iacono states that her treatment at work caused her to suffer from significant anxiety and provided correspondence from her General Practitioner about this situation. She was also off work on sick leave for a period from 17 June to 24 June 2016.

[10] Ms Iacono indicates in her witness statement, “I resigned to Mari in a one on one meeting on Monday 11 July 2016. I informed her that I could no longer tolerate the poor behaviour of Rachael Pugh, or the organization and I needed to leave as soon as possible.” 4 As indicated at the outset it was subsequently agreed in further discussions on that day that she could leave, with effect immediately. Ms Iacono also provided a copy of her hand written letter of resignation provided to Ms Ruiz. It states, “I would like to tender my resignation today as of the 11^th of July 2016 due to the treatment I have experienced at BankVic. I would like to thank you for your support and guidance. Kind regards”.5

[11] Ms Iacono also indicated in her oral submissions that she has now obtained further employment and believes she is performing at a high level in this new role. However, she also indicated that her experience at BankVic had a significant impact on her, and it has taken her some time to regain her confidence. She also stated that she did not believe Ms Pugh had her best interests at heart in the time she was employed by BankVic. She also indicated that if she had remained in employment at BankVic she was concerned she might be terminated at some point in the future, and did not want the fact of termination from employment to be part of her future employment record.

[12] BankVic submits, in response, that Ms Iacono was not dismissed, but instead resigned from her employment as a consequence of the handwritten letter of resignation provided to Ms Ruiz on 11 July 2016. It was subsequently agreed in further discussions with her on that day that she would not be required to work out any period of notice, and her resignation would take effect immediately. She was then provided with an additional payment equivalent to two weeks’ salary.

[13] BankVic submits this followed a period in which there had been a number of performance issues arising from Ms Iacono’s performance at work, and a series of meetings and discussions took place in order to try and deal with these issues. It also confirmed she was provided with written warnings on the dates indicated. It also submits that in the week prior to her resignation Ms Iacono had asked to be terminated.

[14] Ms Ruiz indicated that the resignation letter was given to her by Ms Iacono in a Monday morning meeting that had been organised following discussions about her work performance in the previous week. Ms Ruiz indicated that Ms Iacono “appeared to have thought through her decision and was comfortable to have made it. I asked her whether this was of her own volition and she stated it was for the best and that she wanted to find a role she would excel in.” 6

[15] Ms Ruiz also indicated in her oral submissions that she had considerable empathy for the way Ms Iacono felt about her time at BankVic and bore her no ill will, however, she believed Ms Iacono had resigned from her employment when she provided the letter of resignation to her, rather than being terminated at BankVic’s initiative.

Consideration

[16] Previous authorities have established that a forced resignation, or what is often described as a constructive dismissal, occurs when an employee is left with no real choice but to resign. In such cases the onus is generally on the employee to prove they did not resign, and it is necessary to establish that the employer took the particular action with the intent of bringing the employment relationship to an end, or at least with that likely result. At the same time in most other circumstances an employer is generally able to treat a clear and unambiguous expression of resignation at face value, being confirmation of the employee’s intention to resign from their employment.

[17] The decision of a Full Court of the Federal Court in Mohazab v Dick Smith Electronics Pty Ltd 7 (Mohazab) considered at some length what constitutes “termination at the initiative of the employer”. The Full Court held:

“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.” 8

[18] It continued to indicate:

“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.” 9

[19] The decision makes clear that in deciding what constitutes “termination at the initiative of the employer” it is important to determine whether the act of the employer results directly or consequentially in the termination of the employment, or conversely whether the employment relationship is left voluntarily by the employee.

[20] A Full Bench of the Australian Industrial Relations Commission also considered the meaning of the expression “termination at the initiative of the employer.” In O’Meara v Stanley Works Pty Ltd 10 (O’Meara) the Full Bench held:

“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 11

[21] The decision in Pawel v Advanced Precast Pty Ltd 12 (Pawel) also made reference to the need to consider and examine all of the circumstances involved in any particular matter, and not just the actions of the employer. It concluded at [13]:

“It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.” 13

Conclusion

[22] It is clearly evident from the submissions and evidence in this matter that Ms Iacono generally had a difficult and unhappy time during her relatively brief period of employment with BankVic. She clearly had a difficult relationship with her Manager, in particular, but also had various other concerns about the way she believed she was treated at work. For its part BankVic submits it was required to deal with a number of performance issues arising from her employment, and these were on-going at the time of her leaving.

[23] However, it is not necessary to dig deeper into these various circumstances at this point, or to come to any concluded view about what occurred, and who was responsible.

[24] I am satisfied that Ms Iacono’s experience at work during the time she was employed by BankVic, and the way in which she believed she was treated, finally led her to tender her written resignation on 11 July last year. However, as the decision in Pawel makes clear all the circumstances, and not just the actions of the employer, must be considered and taken into account. As the decision also makes clear Ms Iacono’s situation can be contrasted with one in which an employee is told to resign or else he/she will be terminated. I am not satisfied that Ms Iacono had been placed in this position at the time she tendered her letter of resignation. As she states she was concerned about the possibility of being terminated at some point in the future, and did not want the fact of termination of her employment to be a part of her future employment record. However, there is no evidence of her being placed in a position of resign or be terminated at the time she tendered her resignation. I am satisfied instead that if not for her decision to tender her resignation she could simply have remained in employment at BankVic, notwithstanding the ongoing performance review processes she was being required to participate in.

[25] However, she decided instead, after considering her position over the weekend, to resign from her employment and confirmed this by tendering her written resignation to Ms Ruiz on the following Monday morning. It is also noted that previous Commission decisions have determined that an employee who has resigned after being involved in a performance management process has not been forced to resign by their employer. I refer by way of example in this context to a decision of Commissioner Bissett in Ashton v Consumer Action Law Centre[2010] FWA 9356. In that matter the employee was placed under what were described as “additional supervisory arrangements” because of concerns about his performance. The Commissioner concluded at [48]:

“The existence of these processes, by themselves or together, is not enough to warrant a conclusion that the employer took action with the intent of bringing the employment relationship to an end.”

[26] In conclusion, I am not satisfied in all the circumstances that it can be said that Ms Iacono’s employment at BankVic was terminated on the employer’s initiative, or that she resigned from her employment but was forced to do so because of conduct, or a course of conduct, engaged in by her employer. It follows from this conclusion that she has not been “dismissed” in terms of the definition contained in s.386(1) of the Act. Therefore, she cannot have been unfairly dismissed. As indicated at the outset having come to this conclusion it follows that her application must also be dismissed.

COMMISSIONER

Appearances:

B Iacono on her own behalf.

M Ruiz and B Lucas for the Respondent.

Hearing details:

2017.

Melbourne:

January 19.

 1   Form F2 application, submitted 28 July 2016, at [1.2].

 2   Attachment to Applicant’s submissions, First Formal Written Warning, dated 20 April 2016.

 3   Ibid.

 4   Witness statement of Belinda Iacono, submitted 12 December 2016.

 5   Attachment to Applicant’s submissions, Letter of Resignation, dated 11 July 2016.

 6   Witness statement of Mari Ruiz, submitted 24 November 2016.

 7 (1995) 62 IR 200.

 8   Ibid at 204-5.

 9   Ibid at 205-6.

 10   PR973462.

 11   Ibid at 23.

 12   Dec 526/00 M Print S5904.

 13 Ibid at [13].

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