Belinda Wilson v Westpac Banking Corporation

[2021] FWC 763

[2021] FWC 763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda Wilson
v
Westpac Banking Corporation
(U2020/1621)

DEPUTY PRESIDENT LAKE BRISBANE, 14 FEBRUARY 2021

Application for an unfair dismissal remedy – jurisdictional objection – applicant resigned – show cause process – no final outcome – not forced to resign by the Respondent - application dismissed.

[1] Ms Belinda Wilson (the Applicant) has made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) alleging that the way in which her employment ended with Westpac Banking Corporation (Westpac, or the Respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] The Applicant commenced employment with the Respondent on around 11 November 2007 and her employment came to an end on 23 January 2020. The Respondent raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed, submitting that she voluntarily resigned on 23 January 2020.

[3] It is not in dispute that the application was made within time (s.396(a)); the person was protected from unfair dismissal (s.396(b)); the Small Business Fair Dismissal Code does not apply (s.396(c)); and the dismissal did not involve a genuine redundancy (s.396(d)). These matters were not raised by the parties and I find that these issues are not a point of contention.

[4] The pertinent question is whether the Applicant was dismissed within the meaning of the Act, in circumstances that constituted constructive dismissal. The Applicant also raised in their submissions, arguments which go to the merits of the dismissal – these were not considered for the purpose of this Decision, given its jurisdictional scope.

[5] Directions were set for the filing of material and the matter was dealt with by way of hearing on 7 October 2020. Both parties sought permission to be represented by lawyers at the hearing and permission was granted on the basis that I was satisfied that it would allow the matter to be dealt with more efficiently having regard to its complexity.

[6] Granting permission to be represented under s 596 requires the satisfaction of two elements.    1 The first pre-requisite: the presence of one of the criteria under s 596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3 In this matter, I am satisfied of the above and permission was granted to both parties.

Relevant Facts

[7] The Applicant was employed by the Respondent for roughly 13 years. Prior to the termination of her employment relationship, she held the position of Lending Manager and reported to Warren Lane, Regional Lending Executive.

[8] On 2 December 2019, the Ms Wilson was notified by a third-party investigator, Mr McMohan, that there had been allegations of misconduct against her and that there would be a subsequent investigation into those allegations.

[9] The following day, the Applicant was made aware of the allegations at an investigation meeting conducted by Mr McMohan and directed to provide a response.

[10] The allegations relied upon by the Respondent relate to the issue of the Applicant referring customers – who were denied credit and services by the Respondent, having not met the Respondent’s lending criteria – to a 3rd party broker who could assist these persons with obtaining credit and loans. The Applicant selected a broker with whom she had a previous working relationship and who provided the Applicant with financial benefit in exchange for these referrals.

[11] On 17 December 2019, the preliminary findings were put to the Applicant and responses were provided.

[12] On 18 December 2019, the Applicant inquired to Mr Lane as to whether she could resign in order to protect her reputation, given the impact an unfavourable outcome would have on her future employment prospects in the banking industry, who share information between companies to enhance awareness of fraudulent conduct.

[13] On 20 December 2019, the Respondent provided the Applicant with the relevant Fact Sheet – “Fact Sheet for Respondent Under Investigation”.

[14] On 15 January 2020, the Applicant attended a show cause meeting with Mr Lane, where she was notified the allegations were substantiated. The Applicant was provided written notification and was given 48 hours to provide a show cause response.

[15] On 17 January 2020, the Applicant provided her response.

[16] On 22 January 2020, the Applicant was instructed by Mr Lane to attend an outcome meeting on 23 January 2020. There is some contest of fact as to what was said during this call.

[17] On 23 January the Applicant resigned from her employment.

Legislation and Case Law

Meaning of dismissed

[18] Section 386 of the Act states:

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.

[19] Section 386 of the Act has created a clear “bifurcation in the definition of “dismissal” and has created two clear grounds on which a claim could potentially proceed. 4 The Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan provided clarity as to these two distinct grounds:5

[9] The distinction between a dismissal falling under s.386(1)(a) and one falling under s.386(1)(b) is sought to be explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:

“Clause 386 – Meaning of dismissed

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

•  where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

•  where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

[10] It seems clear from the above that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:

“. . . 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.’’

[12] Importantly, in Mohazab the Court did not decide that the termination of employment in that case was at the initiative of the employer because there had been a constructive dismissal. Indeed, the Court expressly observed that it was “. . . unnecessary to consider whether the facts fall within or without the notion of constructive dismissal.”

[13] As s.386(1)(b) is intended to capture or reflect the common law concept of constructive dismissal and as the Commissioner concluded that “the applicant was constructively dismissed” because she had accepted the Appellant’s repudiation of the contract of employment and thereby brought the contract and the employment under it to an end, we consider that when read in its entirety the Commissioner concluded that the Respondent had been dismissed within the meaning of s.386(1)(b) of the Act.

[20] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench expanded on the content of the two limbs:

[47]Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

(emphasis added)

[21] The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 is foundational, considering what is classified as a ‘forced resignation’. There it was stated: 6

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.

(emphasis added)

[22] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench helpfully expounded on Mohazab:

[31] The approach taken in Mohazab that a termination of employment at the initiative of the employer could be constituted by a “forced” resignation was followed in numerous decisions made in respect of the various iterations of the termination of employment scheme in the Workplace Relations Act 1996. These decisions most notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to Mohazab and said:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”

[32] In the latter decision a Full Bench of the Australian Industrial Relations Commission said:

“[23] ... 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.”

[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill…

(emphasis added)

[23] The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred. 7 Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”8

[24] Further, it has been found that where an employee is subject to disciplinary procedures, this is not in itself sufficient to demonstrate that a resignation was forced by actions of the employer. 9 In Pacific National (NSW) Ltd v Bell, Mr Bell resigned prior to the conclusion of a formal determination regarding his false signing of timesheets. 10 He contented in his resignation letter that his resignation was “due to circumstances beyond his control”. Further, there was reliable evidence that the employer stated that “it’s serious business and [Mr Bell’s] employment may be terminated.” The Full bench concluded that “this was no more than mere fact, acknowledged by Mr Bell on his own appreciation of the position.”11 A statement that an employee may be terminated as a result of an investigative process is not, on its own, determinative of whether a constructive dismissal has occurred.

Construction of ‘forced’

[25] The decision of Senior Deputy President Richards in Megna v No 1 Riverside Quay (SEQ) Pty Ltd provides instruction on how to interpret “forced”: 12

[14] It seems that the term “forced” is the past tense of the verb form “to force”, and as such, an understanding of the plain meaning of the term “force” is relevant to applying s.642(4).

[15] Relevantly, the Macquarie Dictionary defines “force” as:

… strength or power exerted upon an object; physical coercions; violence … power to influence, affect or control; power to convince … to compel; constrain or oblige (oneself or someone) to do something … to bring about or effect by force; bring about of necessity or as a necessary result … to put or impose (something) forcibly on or upon a person … to press, urge or exert to violent effort or to the utmost …

[16] The term “force” appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purpose. In either case, there is an important element of compulsion present.

[17] In the contextual circumstances now before the Commission, the issue is whether the Applicant herself is able to demonstrate:

•  That she did not voluntarily resign her position or employment;

•  But that her employer, because of its actual conduct, forced her to do so, such that there was an element of compulsion present.

(emphasis added)

No effective or real choice but to resign

[26] In determining whether the Applicant was left with “no effective or real choice but to resign”, there are numerous case law examples from which to draw. In Boulic v Robot Building Supplies, it is held: 13

[16] From the many authorities on this subject it appears that there must be a “critical action” or “critical actions” of the employer which was intended to bring the “employment relationship” to an end and perhaps action which would on any reasonable view probably have that effect. In identifying both the critical action of the employer and its intent “it is a matter of objectively looking at the employer’s conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.” The examination of the employer’s conduct must also take into account that the employer is under an implied obligation that it “will not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

[27] In Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera, Senior Deputy President O’Callaghan stated that there must be consideration of all alternative options available to the employee: 14

[28] Whilst in absolutely no way condoning Fingal Glen’s behaviour, I have concluded that the resignation decision was based on Ms Bruce’s perception and a perfectly understandable and subjective response. That resignation decision was not, as of 10 January 2013, the only option open to Ms Bruce.

[28] In Ashton v Consumer Action Law Centre, Commissioner Bisset considered whether an employee was forced to resign due to supervisory requirements placed on the employee, which he claimed were so onerous that it made his job impossible to do. However, it was stated in that decision that even where an employee believes supervisory requirements to be harsh, it does not mean they are so. Further, it was determined:  15

[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.

[60] That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.

[61] In this matter, viewed objectively, the actions of the employer in investigating Mr Ashton’s grievance and/or in instigating higher level supervisory requirements and/or in providing him with a letter outlining specific areas of concern with his performance were not designed to force Ashton to resign.

[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.

(emphasis added)

[29] In the context of an investigation, consideration should be given to the actions and motives of the Respondent during the investigation process: 16

[35] The evidence about Sunrise Health Service’s actions and motives includes that it had received and acted upon complaints of bullying and harassment by Ms Sherman against other employees of the Corporation. The evidence shows that it properly received the complaints and decided to investigate them through the appointment of an arms-length investigator. The report provided by the investigator shows her work to have been undertaken in a measured and methodical manner, having regard not only to the complaints that were made, as well as to principles of natural justice and procedural fairness. The report provided to Sunrise Health Service by Ms Ellison shows that she spoke with numerous witnesses and took into account the matters each had to say. She sought a response from Ms Sherman and appeared open to the matters that Ms Sherman wished to address. While Ms Ellison made findings of fact and expressed opinions about the matters she had found, and recommended her findings be considered by Sunrise Health Service for disciplinary action, she did not recommend specific action.

[36] I have accepted that Mr Hopp’s evidence is that the purpose of the meeting, had a resignation not been offered at the start, would have been for the Corporation to have Ms Sherman “show cause” about the investigation outcomes and why her employment should not be terminated. Despite that disclosure, there is no evidence that either Mr Hopp or Mr Dean had already settled on dismissal as being the only available course of action.

[37] I therefore consider it more likely than not that, at the time Ms Sherman resigned, Sunrise Health Service had not decided on dismissal as being the only available sanction.

[38] I do not consider that Sunrise Health Service’s actions in investigating the bullying and harassment allegations against Ms Sherman, or in inviting her to a meeting to discuss the results of the investigation, or in disclosing to Ms Doyle the findings of the investigation, were done with the intention of bringing Ms Sherman’s employment to an end. Nor do I consider that those actions would, on any reasonable view, probably have that effect. Each of the actions by Sunrise Health Service in these regards were proper and in accord with its obligations to receive and investigate allegations of bullying and harassment.

[39] Likewise, I am unable to find there was, at the relevant time, evidence of any subjective intention of forcing Ms Sherman to resign. The actions of Sunrise Health Service, while no doubt headed in a direction with serious consequences for Ms Sherman were not such as to cause an involuntary departure from employment.

[30] Sherman indicates a general position: during an investigation, if the employer has not yet concluded to terminate the employee, then the process of investigating certain conduct will not be considered to ‘force’ a resignation.

[31] As I have previously stated in Moore, “it would be a perverse outcome to consider an objectively fair investigation and show cause process as imposing forcibly upon the Applicant that they must resign.” 17 Where an employer conducts an investigation, highlighting the conduct of an employee, and as a result they resign, it may be that the employee “did not voluntarily leave his or her employment”. Had the conduct in question not been highlighted, the employee may have continued in their employment. However, as highlighted in Mohazeb, this is insufficient to amount to constructive dismissal. What must be shown is that the conduct of the employer was “intended to bring the employment to an end.” The usual purpose of an investigation is not to bring about termination; the intention is to ascertain, with a degree of certainty, what event – or series of events – transpired. Once that information is gathered, then the employer may decide what action is appropriate. If in conducting an investigation, serious and deplorable conduct is uncovered, then the employer may elect to terminate the employee. In that situation, it is the conduct of the employee which leads to their termination – had no conduct been uncovered, no termination would have occurred. The investigation would have no effect.

Consideration

[32] The Applicant asserted that Mr Lane had been aware of the practices engaged and had condoned and encouraged them. 18 In cross examination, the Applicant stated she had no reason to believe this information was conveyed in any conversation other than the one of 18 September 2019.19 I am satisfied this is the date the conversation that Ms Wilson references took place.

[33] Mr Lane asserts a more restricted account of the meeting of 18 September 2019. His evidence was that he summarised the correct process and the following day raised the conduct with his manager, Mr Thompson. This position is supported by documentary evidence, including a diary note of 18 September 2019 and an email sent to Mr Thompson on 19 September. The email states: 20

Hi Gavan, I am requesting further investigation please of Belinda Wilson and her relationship with [a broker]. It has come to my attention that this relationship may breach the banks (sic) Code of Conduct in relation to ordering of valuations and referrals. I am happy to discuss my concerns in further detail with a member of the Secured Lending Taskforce.

[34] I favour the evidence of Mr Lane that upon being made aware of the Applicant’s conduct he reported it. Mr Lane’s evidence is supported by a contemporaneous diary note and an email, which supports his statement. 21 Counsel for the Respondent summarised this in closing submissions:22

The applicant agreed with me that these emails show that Mr Lane had escalated the issue of the disclosure the day previously by Ms Wilson, that he had concerns about that conduct and that it may be in breach of policy. So, far from endorsing the conduct, supporting it, or, in some way, encouraging it, quite to the contrary, not only did Mr Lane immediately tell Ms Wilson the proper process, but he subsequently escalated the matter for potential investigation.

[35] I have no reason to question the voracity of the diary note; given that it is cotemporaneous and more detailed than the recollection of the Applicant, I find it to be more reliable.

[36] As to the allegation that Mr Lane was aware of the conduct of Ms Wilson, the scope of that knowledge is limited, on the evidence. Ms Wilson stated in cross examination that if she believed there was an issue, it would be raised by Mr Lane. The email of 19 September 2019 clearly indicates that the content of what was relayed to Mr Lane the previous day was of some concern – this does not present as the action of someone being told something that they were already aware of.

[37] As to the level of the disclosure, the Applicant made it clear it did not include any reference to the kickback arrangement, or to the disclosure of sensitive personal information. 23 This is crucial, given this conduct is the most serious and formed a central focus of the investigation.

[38] Ms Wilson also asserted she took issue with the involvement of Mr Lane in the investigation, given her assertion he was aware of the Applicant’s conduct prior to the investigation. Had the Applicant had a genuine grievance with the involvement of Mr Lane during the investigation, there were other alternate pathways that were capable of being pursued. This was highlighted during cross examination of the Applicant: 24

MS BULUT: You don’t raise in this response any concerns or issues you had with Mr Lane being the decision-maker; correct? Who was I supposed to raise that with?

Well, you don’t raise it in this email is what I’m putting to you? Yes, but who was I supposed to raise it with?

In this email to Mr Lane? I had no dealings with anybody else, there was no one - Westpac didn’t put forward anyone from HR. His support person - Warren Lane - was Jolene Farrow. That was his lender and was his LA, and who else was there for me to express my concerns with? I’ve got the person who I trusted and he trained me and I reported to and he was at the forefront of this investigation. He was then making the decision. He told me it was HR, but he actually was HR. There was no one from HR that contacted me. I didn’t I had - I didn’t know (audio malfunction) - - -

Ms Wilson, I have to interrupt you and try and get you to be more responsive to my questions.

MR PARARAJASINGHAM: Deputy President, the question that counsel asked was, ‘Why didn’t you raise it?’ and Ms Wilson is explaining why she didn’t.

THE DEPUTY PRESIDENT: (Audio malfunction) your question.

MS BULUT: Yes, it wasn’t a ‘Why?’ question at all, it was a closed question, that is, ‘In this email, you do not raise - as a matter of fact, in this email, you don’t raise any issues with Mr Lane being the decision-maker, do you?’

THE DEPUTY PRESIDENT: Ms Wilson? No.

MS BULUT: In relation to your more elaborate response about who you were supposed to raise issues with, can I take you to, in your bundle, that is in the applicant court book, can I take you to page 48, please? Yes.

This is the document that you were provided by Mr Lane, you say for the first time, being the fact sheet for respondents to investigations, so you had this document during the investigation, you say belatedly, but it was certainly provided to you in December; correct? Correct.

If you go to the bottom of page 48, there’s a question there - for me it’s in blue - which says: ‘Where can I get more information about the protocol?’ It says there: ‘If you have any questions, ask your investigator.’ The investigator was Mr McMahon; correct? Yes.

‘Or people leader.’ That’s Mr Lane; correct? Correct.

‘You can also contact’, it says at the first dot point, ‘HR service centre.’ Do you see that? Yes.

And there’s a phone number here provided for you; correct? Correct.

There is also an email address provided here for you; correct? Yes.

There is also a reference to a portal on the intranet; correct? Yes, I didn’t have access to the intranet, correct.

But you certainly had access to a phone and to your email; correct? Yes.

So you were provided with contact details from HR and you didn’t make any contact to raise any concerns with HR at this stage or at any stage; correct? Correct.

[39] Given that the Applicant failed to notify Mr Lane of the most serious conduct she took part in, it is difficult to make out the argument that he was aware and complicit. Had the kickbacks been disclosed and then condoned by Mr Lane, his involvement in the investigation would be far more concerning.

[40] The gravamen of the Respondent’s argument can be found in their closing submissions: 25

So the critical matter and the misconduct findings against the applicant were centrally based around the kickbacks arrangement she’d entered into with the broker, that she had not only obtained kickbacks from the broker but had also concealed those kickbacks by having them deposited in her wife’s account and has been dishonest about that fact on at least three occasions with the investigator. Certainly on 3 December and also on 17 December she initially denied it.

When it was put to her that the amounts were deposited in her wife’s account she denied knowing who her wife was, and being involved in the process at all. So the level of dishonesty during the investigation process is palpable, that it was the dishonesty coupled with the kickbacks which were in clear breach of the policies and within the applicant’s knowledge were in clear breach of those policies. That was the central reason for the trouble that the applicant found herself in, and that is her evidence today. She understood that, she knew that, and the comment she had made to the investigator at the conclusion of that second interview about her being ‘fucked’, to use her language, was in relation to the fact that the kickbacks had just been revealed and that she had admitted that conduct.

So, Mr Lane, was never implicated in any of that on any view of the evidence, and so his continued involvement we say wasn’t an issue at all. If the applicant, at any stage, felt uncomfortable about Mr Lane’s involvement then she certainly took no steps to make that discomfort known. She didn’t say anything to the investigator, she didn’t say anything to Mr Lane about that discomfort, she didn’t raise any issues with HR, she didn’t raise it in her show cause response, she didn’t raise it in her resignation. Indeed in her resignation she thanks Mr Lane for being such a supportive manager.

So we say that on the documentary evidence before the Commission what is clear is this notion about the impropriety of Mr Lane’s involvement is a construct, is a post-resignation construct in order to shoe-horn this case into a constructive dismissal case.

[41] The Applicant contends that during the meeting of 3 December 2019, that Mr Lane was implicated and that this creates, at least, an apprehended conflict of interest. 26 Counsel contends that this conflict impacts the ability of Mr Lane to manage the investigation and determine its outcome.27

[42] The difficulty faced with this argument is the manner and veracity with which the conflict is raised. It could not be, at the time of the investigation, classed as an objection.

[43] Ultimately, the concern that the Applicant raised regarding Mr Lane’s knowledge of the practices lacks merit. There is no evidence that points to Mr Lane’s knowledge beyond that relayed in the 18 September 2019 meeting. While the Respondent may have sought to quarantine Mr Lane’s involvement and properly investigate this claim, his presence did clearly not derail the entirety of the Respondent’s investigation and show cause process. The process was, first and foremost, conducted by an independent investigator, Mr McMohan. Mr Lane was responsible for the final decision, but this is distinct from conducting the investigation.

[44] It is also pertinent that the Applicant did not, through any formal means, raise an issue with the presence of Mr Lane. Informing the investigator of Mr Lane’s knowledge of certain practices is a statement that seeks to validate, or mitigate ,her conduct. It does not seem intended to raise issue with the procedural fairness of the investigation itself. To label this statement as anything more is a post termination recharacterisation. This view is bolstered by the fact that the Applicant did not, despite the numerous steps preceding the final outcome meeting, raise a clear or substantive objection to Mr Lane’s involvement. The Respondent addresses this in their closing submissions: 28

So, let’s go to the substance of that so-called implication. It was, and I quote ‘she advised her regional executive Warren Lane of this situation/frustration.’ Now, what’s said there is that she has advised, she has told Mr Lane about this frustration and situation. It’s not said that Mr Lane accepted it, agreed to it, condoned it, enforced it, encouraged it, supported it; none of that. There was actually no wrongdoing disclosed, or there was no implication of wrongdoing in that disclosure.

It was the mere fact that she had advised Mr Lane of this. Now, that’s not in dispute. She did in fact advise Mr Lane of this. That’s Mr Lane’s evidence. On 18 September, he kept a diary note of it, he sent an email the very next day. She advised him - yes. There can’t be any wrongdoing on Mr Lane’s part by the mere act of the applicant saying certain words to Mr Lane. The wrongdoing can only be by Mr Lane then doing or not doing something with that information.

Here in this case we know exactly what Mr Lane does with that information. It shows no wrongdoing on his part at all. So, nothing arises; no allegation of wrongdoing arises from that disclosure by the applicant. She doesn’t explain away her conduct; she doesn’t excuse the conduct by that. She simply notes that in answer to the allegation, along with a number of other matters…

[45] Counsel for the Applicant stated that Ms Wilson raised the potential conflict as early as 3 December 2020. 29 It does not seem believable that someone who genuinely believed that an investigation was defunct from this early stage would willingly participate for a further 7 weeks. Had there been an issue at this early juncture, which the Applicant felt continued to infect the investigation, then it is more logical that she would have raised the issue with anyone but Mr Lane in some formal way. To say that HR was not a viable contact point is a fallacy: the fact sheet presented on 20 December 2019 clearly indicated the contrary. The lack of involvement from HR is due to the Applicant’s decision to not exercise her choice in contacting them. At an early stage in the investigation this information was presented to the Applicant and she neglected to act upon it.

[46] I am not satisfied that the Applicant raised a sufficient objection that would have warranted the action of the Respondent. Further, on the evidence before me, I am not satisfied that Mr Lane had any knowledge that would have required his extrication from the investigation – he gave clear evidence he was not aware of the monetary incentives being received. It is important to make clear that Mr Lane did not conduct the investigation; his involvement would not have changed how the information was collected by the independent investigator, Mr McMahon. He was however the decision maker and, as a matter of best practice, Mr Lane’s involvement could have been curtailed, but his presence is not in my mind deleterious to the otherwise thorough investigation conducted by the Respondent.

Indication of termination prior to final meeting

[47] The Applicant contends that Mr Lane, on 22 January 2021, allude that her employment was due to be terminated at the scheduled outcome meeting on 23 January 2020. From this, the Applicant “determined that any decision to terminate her employment was made without upholding the principles of natural justice and procedural fairness.” 30

[48] Even if this argument was taken at its highest, it is not simply the case that some prior indication of termination will immediately render an investigation and show cause process procedurally unfair. 31 The Respondent took a period of almost 8 weeks to properly ascertain the facts and the Applicant had provided their response to the show cause letter on 17 January 2020. It is unclear from the Applicant’s case what material difference there would be between the Respondent making a preliminary determination that termination was justified a day later.

[49] It is important to observe on the facts before me that the purported allusion of Mr Lane was not determinative or final. While it is unlikely the Applicant had any further information to present at the meeting of 23 January 2020, she had the possibility to raise anything up until termination. Prior to the meeting of 23 January 2020, it may have been the case that Mr Lane was of the mind termination was likely; it is naïve to think that the Respondent would not have an idea, after almost 8 weeks, of whether the Applicant was likely to be terminated or not. However, this is not the same as a final decision to terminate. It is not possible to know what new information may have been presented and what the Respondent would have done in response, but a mere indication that termination is likely is not sufficient to render the process outlined above procedurally unfair and barren of natural justice.

[50] What would be required is some clear indication that the assertions and arguments put forward were not genuinely being, or likely to be, considered. Had Mr Lane given this “heads up” prior to the show cause process being undertaken, then there would be more merit in the allegation. On the case before me, informing the Applicant mere hours prior that there is a chance they will be terminated falls short of procedural unfairness.

[51] Further, the above consideration is prefaced on accepting the Applicant’s evidence that there was in fact some prior indication that she was to be terminated. This allegation is at odds with the evidence of Mr Lane. Mr Lane presented credibly throughout the proceedings and I favour his evidence to that of the Applicant.

Conclusion

[52] The most fatal point to the Applicant’s argument is that due to the lack of an objectively fair process, she was left no other choice but to resign. The Applicant addressed in closing that waiting for resignation and then filing an unfair dismissal is not a “reasonable choice”, to use the language of the Explanatory Memorandum. While this may not be a reasonable choice, it was far from the only choice open to the Applicant. It would have been wholly reasonable for the Applicant to raise her concerns regarding the investigation, clearly and in writing to either the investigator, or to HR. This might have been done as part of the show cause process, or as an entirely separate step. Either way, had there been a genuine concern, a genuine step to raise that concern should have been taken. I am not satisfied considering all the evidence put forward, that the Applicant pursued this reasonable choice. Stating that Mr Lane was aware of certain practices is not akin to indicating that his presence as the final decision maker has corrupted the entire investigation. It does not follow that Ms Wilson’s resignation was the probable result of Mr Lane’s involvement.

[53] Taking into account all of the circumstances and the totality of the evidence in this matter, I am not satisfied that the Respondent’s actions left the Applicant no option but to resign. Ms Wilson was not forced to resign because of conduct or a course of conduct engaged in by the Respondent. The Applicant was entirely capable of seeing out the process, but of her own volition decided to ‘jump before she was pushed.’ 32 It is evident that the Respondent was considering resignation throughout the process, expressing an intention to resign on numerous occasions.33 There was clear benefit in the Applicant doing so: she gained the ability to state that she resigned from her employment. However, in doing so she has foregone the right to pursue a claim that she was unfairly dismissed, as she was not in fact dismissed at all.

[54] I find that there was not a dismissal pursuant to s.386(1)(b) of the Act.

[55] The application is therefore dismissed. I Order accordingly.

DEPUTY PRESIDENT

Appearances:

Mr Haren Pararajasingham, Counsel for the Applicant

Ms Priyanka Eruvatt of Gorval Lynch, Solicitor for the Applicant

Ms Vanja Bulut, Counsel for the Respondent

Mr Ed Slattery of King & Wood Mallesons, Solicitor for the Respondent

Hearing details:

7 October 2021, by Microsoft Teams

Printed by authority of the Commonwealth Government Printer

<PR726947>

 1   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.

 2   Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19(3)].

 3   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].

 4   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, [47].

 5   City of Sydney RSL & Community Club Ltd v Balgowan[2018] FWCFB 5, [9]-[13] (Balgowan).

 6   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200, 205-206 (Mohazab).

 7   Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].

 8   Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 9   Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.

 10   Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.

 11   Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, [38].

 12   PR 973462, 11 August 2006.

 13   Boulic v Robot Building Supplies [2010] FWA 6905, [16].

 14   Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera [2013] FWC 3941, [28].

 15   Ashton v Consumer Action Law Centre[2010] FWA 9356, [59] – [62].

 16   Sherman v Sunrise Health Service Aboriginal Corporation [2016] FWC 8903, [35] – [39] (Wilson C).

 17   Jodie Moore v Woolworths Group Limited T/A Big W[2020] FWC 963, [29].

 18   Witness Statement of Belinda Wilson, dated 1 May 2020, [5] – [8]; Applicant’s submissions, [28].

 19   Transcript, PN 439 (Belinda Wilson).

 20   Respondent’s Court Book, 38.

 21   Respondent’s Court Book, 189.

 22   Transcript, PN 1035.

 23   Transcript, PN 813-815 (Belinda Wilson).

 24   Transcript, PN 824 – 843.

 25   Transcript, PN 1052 – 1055.

 26   Transcript, PN 1065.

 27   Ibid.

 28   Transcript, PN 1150 – 1152.

 29   Transcript, PN 1088, 1100.

 30   Witness Statement of Belinda Wilson, [42].

 31   See Sherman and Bell above.

 32   Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.

 33   Respondent’s Submissions, [27].