Catharina Ollett v Sureway Employment & Training
[2019] FWC 3160
•9 MAY 2019
| [2019] FWC 3160 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Catharina Ollett
v
Sureway Employment & Training
(U2019/896)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 9 MAY 2019 |
Application for an unfair dismissal remedy – managerial employee – performance management – resignation – whether forced resignation – section 386 FW Act – no dismissal – application dismissed
[1] Ms Catharina Ollett (Ms Ollett or the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her (alleged) dismissal by Sureway Employment and Training Pty Ltd (Sureway or ‘the employer’). She claims to have been unfairly dismissed on 10 January 2019 (effective from 25 January). She says her dismissal was a forced resignation. Her application sought orders for compensation.
[2] Sureway oppose the application and raise a jurisdictional issue. The employer says that Ms Ollett was not dismissed but resigned. In the alternative, it says that Ms Ollett was not unfairly dismissed because she failed to meet key performance indicators (KPI) and was being performance managed. It further says in the alternative, that if an unfair dismissal is found, reinstatement is inappropriate and compensation should be limited to no more than two weeks given the performance management underway.
[3] The application was filed within the statutorily required 21 days after the alleged dismissal. It was common ground that Ms Ollett was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. Her annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). Her employer was a “national system employer” within the meaning of section 14 of the FW Act.
[4] On 1 March 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to me for hearing and determination.
[5] I issued directions on 20 March 2019. In advance of the hearing, and consistent with my directions, I received witness statements, documents and materials from both Ms Ollett and the employer.
[6] I heard all matters (jurisdiction, merit and remedy) by determinative conference on 1 May 2019. I reserved my decision, which I now deliver.
[7] Both parties were self-represented. Ms Ollett was assisted by her daughter, Ms Melissa Huikeshoven. The employer’s case was presented by its General Manager of People and Culture, Ms Arwen Anderson.
[8] The evidence before me was oral and documentary. Ms Ollett gave evidence. Ms Huikeshoven gave evidence in support of her mother’s case, as did a former work colleague Ms Fiona Patterson. The employer called its Senior Human Resources Business Partner Ms Anne Love, and Ms Anderson.
[9] Although the volume of evidence before me is substantial the facts are largely not in dispute. All witnesses were co-operative in trying to piece together an accurate and agreed factual matrix. What is in dispute are the conclusions that should be drawn from those facts.
[10] All five witnesses gave evidence conscientiously and their evidence can be relied upon. Ms Ollett’s evidence was detailed though her recollection not always clear due in part to the effluxion of time as well as the emotional toll the workplace events and these proceedings have had on her. Ms Anderson was considered but cautious, at times overly so. Ms Love was clear and where her memory imprecise she defaulted to the documentary record, which generally supported her recall. Ms Patterson was straightforward and did not embellish her evidence to suit Ms Ollett. Ms Huikeshoven was not involved in events in the workplace, but interactions with her mother in the period leading to the resignation were relevant and direct.
[11] I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:
“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 1
[12] Some of the oral evidence and evidence in witness statements strayed into the field of irrelevant considerations, hearsay, opinion and assumption. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable.
[13] I make this decision based on all of the oral and documentary evidence before me.
The Facts
[14] Sureway is an employment services provider operating in New South Wales, Victoria and South Australia. It is headquartered in Wagga Wagga, New South Wales. Its core business is conducted via federal government contracts for placement into work of jobseekers and persons with disabilities. The relevant government department(s) monitor service provision under these contracts, including by publishing quarterly star ratings. Sureway’s next tender process for its jobseeker contract is mid-2019.
[15] Sureway holds itself out to government as having experience and capability in relation to the placement of persons in regional labour markets.
[16] In June 2015 Ms Ollett commenced with Sureway as a full time Area Manager for parts of the east and south-east of South Australia (Murraylands and South-east regions). From mid-2018 Ms Ollett became responsible for the Murraylands and Riverland regions. She was based in Murray Bridge, some 75km east of Adelaide.
[17] The Murraylands and Riverland regions have higher than average national and state unemployment rates. Job placement, particularly in the Murraylands became more difficult during 2018 due to two significant factors: drought (formally declared by the Government of South Australia in September 2018 2) and the closure in January 2018 (due to fire) of a significant private sector employer in Murray Bridge (a meat abattoir owned by Thomas Foods3).
[18] The Applicant was employed as a mature aged manager with prior experience in both related and unrelated fields of work.
[19] Until 2018 Ms Ollett enjoyed her job. She was enthusiastic, personable and well regarded by staff reporting to her (dotted throughout the two regions). She (and a number of other Area Managers) reported to Dean Clarke, a Regional Manager based in Broken Hill. He in turn reported to Operations Managers in Wagga Wagga and Sydney.
[20] Sureway issue monthly or bi-monthly Individual Performance Plans (IPPs) for each Area Manager. The IPPs assess an Area Manager’s performance against KPIs (predetermined by senior management having regard to contractual obligations under government contracts). On a monthly basis the Area Manager populates (on-line) the IPP against KPIs and the relevant Regional Manager populates responses. Typically (but not always) the Regional Manager and the Area Manager discuss the outcome.
[21] Sureway also conduct an Annual Performance Review of Area Managers. This too is conducted by the relevant Regional Manager.
[22] In 2018 Sureway adopted an internal motto ‘All Sites – All Targets – No Excuses’. Until mid-2018 regions under Ms Ollett’s responsibility met or exceeded relevant KPIs. 4 However, that position changed from July 2018.
[23] The Applicant’s Annual Performance Review (for the period 1 July 2017 to 30 June 2018) was completed by Mr Clarke on 3 August 2018. 5 It provided, for the first time, a mixed review of Ms Ollett’s performance. Overall, Ms Ollett was rated a “solid performer”. However Mr Clarke recorded:
“The overall performance is not as we would have liked, our results and standings on the leaderboard along with Star Rating measures over the past 12 months have not met our expectations and require a major turnaround in the next 6-12 months. Would agree there have been challenges across the Murray and SE area…I acknowledge your hard work and commitment to the job…I need you to get back to basics…”
[24] In reply, Ms Ollett recorded that she was a strong and solid performer, acknowledged that star ratings for Murray Bridge had fallen in the previous period, made reference to the closure of Thomas Foods, pointed to temporary loss of staff in the Riverland, made reference to her work with staff and the community, and expressed confidence that KPI targets for Murray Bridge would improve. 6
[25] The Applicant’s IPP for July and August (combined) was completed by Ms Ollett on 13 September and by Mr Clarke on 17 September. Performance against KPIs had deteriorated further. Ms Ollett acknowledged that “it certainly has been a difficult period” whilst referring to staff losses and rotations, and a marketing campaign she initiated to arrest the decline. Mr Clarke recorded:
“I agree it has been a difficult time on the back of the recent star rating results…I don’t believe you have pro-actively embraced the challenge to drive the area’s performance. The performance is well below where we need to be and the numbers speak for themselves. There are always distractions and problems for you rather than focussing on what we need to do…I understand there are challenges but all sites have them…This current performance can't continue and I have to draw a line in the sand, it will be up to you with my support to turn around.” 7
[26] In an attempt to improve declining performance against KPIs, Mr Clarke then directed Ms Ollett to not attend the Riverland office but to concentrate on Murray Bridge. Ms Ollett was concerned at this direction as she remained accountable for Riverland KPIs and considered that new staff in the Riverland office required training. She sought advice from Sureway corporate human resources (HR). A senior HR officer Ms Love agreed to facilitate a meeting between Ms Ollett and Mr Clarke. That meeting occurred face-to-face in Wagga Wagga on 27 September 2018.
[27] The meeting on 27 September was inconclusive. Ms Ollett expressed frustration at Mr Clarke’s lack of one-to-one in-person communication. She advanced explanations for the performance decline, pointed to matters beyond her control (Thomas Foods, drought, staff turnover), and referred to work being done that was not reflected in KPI data. Mr Clarke expanded on the employer’s expectations, explained temporary responses to staff turnover, contrasted responses from other Area Managers with regional problems, and emphasised the essential nature of compliance with KPIs in order to meet contractual obligations to government.
[28] The 27 September meeting ended on the basis that the employer decided to place Ms Ollett on formal performance management. 8 This involved Ms Ollett being provided a weekly Performance Improvement Plan (PIP), and discussion of the same on a weekly basis.
[29] PIPs were prepared and discussed with Ms Ollett on 16 October, 19 October, 26 October and 2 November. 9 These discussions occurred by telephone. Her regional manager (Mr Clarke) as well as more senior operations and HR managers participated. Ms Ollett did not inform her local staff that she was on a PIP. To maintain privacy, Ms Ollett attended weekly PIP discussions by phone from home. Ms Ollett considered the targets in the PIPs to be unrealistic, particularly when targets not achieved in one month were added to the target for the following month. She also believed that other Area Managers with lower star ratings were not on PIPs. Whilst participating in weekly PIP discussions, she refused to sign them.
[30] Following the 2 November 2018 PIP meeting, Sureway senior managers (including Ms Anderson) decided that Ms Ollett’s failure to reach acceptable regional outcomes since mid-year warranted a further escalation. The PIP process would become a PIP disciplinary process in which her employment would be at risk if improvement did not occur. A disciplinary performance meeting was scheduled for 19 November.
[31] On 15 November Ms Love sent Ms Ollett an electronic calendar invite for the 19 November meeting. At the same time, Ms Love sent Ms Ollett a separate confidential email dated 15 November 2018 which set out the company’s notification of and explanation for this further escalation.
[32] Ms Ollett electronically accepted the calendar invite mistakenly thinking it was simply the next PIP meeting. Through inadvertence on her part she did not open or read the 15 November email. Had she done so, she would have seen the following:
“Dear Kate,
Please be advised that Arwen Anderson (GM People & Culture), Mark Zaia (Jobactive Operations Manager) and I would like to meet with you on Monday 19th November 2018 at 12.30pm (SA time) via Skype call to discuss the following:
• Review your performance and the performance improvement plan (PIP) which is in place
• The latest Star Ratings for your area
We will discuss the above in detail with you and explain to you our concerns and give you an opportunity to respond.
Please note that this letter forms part of Sureway’s performance management process which will be undertaken in accordance with our Standard Operating Procedure – Discipline and Misconduct.
The meeting may take up to two (2) hours.
You may bring a support person to the meeting. Their role is to support you during the meeting, not to speak or advocate for you. The support person may be requested to leave if the meeting touches on issues involving information sensitive to Sureway.
If you invite a support person, please confirm their name by email as soon as possible to myself prior to the meeting.
We need to let you know that the concerns are of a serious nature and therefore disciplinary action including termination of employment could be a potential outcome from the meeting.
I remind you that matters relating to these discussions are confidential.
No outcome will be determined until you have had the opportunity to respond and your responses considered.
In order to prepare for that meeting we would like you to complete the weekly PIP documentation by midday tomorrow (Friday) and return to, Myself, Dean and Mark so that we have time to consider and review this before the meeting on Monday.
Please let me know if you have any questions. In the meantime, I remind you that you can access the Employee Assistance Program (EAP) if you require further support. I have included details below:
• Access EAP 1800 81 87 28
Regards
Anne Love”
[33] On 19 November the PIP disciplinary meeting commenced. Ms Ollett attended by skype. Meeting notes were taken by Ms Love. 10 The employer explained that star ratings for the region had deteriorated (Ms Ollett held a different view11). It considered the government contract for its employment services in the region to be under threat. It outlined steps it was taking in the region to adjust strategy and resources. The employer went on:
“We will be changing how we proceed with the management and structure of your PIP and also the area. The situation is extremely serious. A clear improvement is not negotiable and it needs to be swift…The contract in the area is currently at risk and we need to mitigate the risk of reallocation…we have established that your performance has not achieved the improvement since the commencement of the PIP process and your current performance is not acceptable. As a result we will be issuing a formal warning at this stage unless there are mitigating circumstances that arise from today’s discussion...we will be coming back to do another PIP evaluation and will consider our options but we don’t anticipate that this will extend over a long period of time. We expect this to run another two weeks. We would like you to consider what else might assist to get your performance over the line…” (emphasis added)
[34] At this point Ms Ollett became distressed and informed the meeting that she could not continue the discussion. She ended the call. The employer had foreshadowed but not issued a warning as the meeting had not concluded. Mitigating factors from Ms Ollett had not yet been advanced or considered due to her distress.
[35] That afternoon Ms Ollett went to her doctor and obtained a medical certificate (until 22 November) for personal leave on account of stress and anxiety.
[36] The following day (20 November) Ms Love contacted Ms Ollett to ascertain her wellbeing. Ms Ollett confirmed that she would be off work until the 22nd. Ms Love said that the PIP disciplinary meeting had been adjourned and would be recommenced soon after her return. Ms Love referred to the fact that Ms Ollett had been notified prior to the 19 November meeting that she could have a support person. Ms Ollett reacted with surprise. At this point Ms Love referred her to the 15 November email. It was at that moment Ms Ollett became aware that she had failed to read the 15 November email.
[37] The following day, 21 November, Ms Love confirmed the record of the events of 19 and 20 November in an email sent to Ms Ollett. It concluded: 12
“…please advise myself when you do have a certificate that clears you to return to work and I will arrange to schedule a meeting to continue where we left off on Monday. We do need to review your performance against the last PIP and set targets for the coming period...you are on personal leave and as such are required not to work during this time and in fact we instruct you not to work…”
[38] Ms Love questioned why Ms Ollett had removed a docking station from the office and taken it home. In subsequent communication 13, Ms Love was satisfied that Ms Ollett needed to have the docking station at home so she could communicate with the employer as to her wellbeing. Ms Love apologised to Ms Ollett for wrongly suggesting the docking station had been improperly removed.
[39] Ms Ollett remained on personal leave (with medical certificates) beyond 22 November.
[40] On 29 November 2018 Ms Love asked Ms Ollett to keep the business updated on when she was fit to return “so that we can schedule to continue the meeting”. 14 At 7.11am the following day (30 November) Ms Ollett advised (by email) that she would be returning to work, that her daughter (Ms Huikeshoven) would be her support person and that she would “appreciate advice on what would have come to light in my absence”. She also forwarded a letter of response to issues raised at the 15 November meeting. That letter said in part:15
“As a result of Sureway commencing disciplinary action against myself, I have sought legal advice regarding my rights under the Fair Work Act 2009…I have worked for Sureway for 3.5 years during which there has never previously been any concerns with my performance…Since November 2017 there have been a number of impacts that have affected results in this region that have been beyond my direct control…I was not officially aware of the formal email sent on the 15th November notifying me of impending disciplinary action nor was I aware that I was able to bring a support person. However, despite me not being aware of this I do acknowledge that management have fulfilled their legal obligations as an employer…Since receiving legal advice, I am able to highlight a number of areas where Sureway management have not supported me…[areas outlined]…Achieving KPIs is not a requirement listed in my contract of employment, nor is this a reasonable measure of performance without describing objectives for how to achieve KPIs…” (emphasis added)
[41] The legal advice sought and received by Ms Ollett came from her daughter Ms Huikeshoven. Ms Huikeshoven is not a lawyer. However, at the request of her mother she conducted legal research and made enquiries of friends with some knowledge of industrial matters. Ms Huikeshoven helped prepare the (30 November) letter of reply.
[42] Later that day (30 November 2.56pm) Ms Love advised Ms Ollett (by email 16) that the resumed meeting would occur (off site in a private room at the Murray Bridge Library) on Ms Ollett’s return on 3 December 2018. In this same email Ms Love advised and outlined (in response to Ms Ollett’s request) four further performance concerns that had come to light in her absence, which required discussion.
[43] Ms Ollett became distressed at reading these four further allegations. She again consulted her doctor who certified her unwell until at least 9 December.
[44] The 3 December meeting did not go ahead.
[45] On 3 December (at 12.09pm) Ms Anderson (in Ms Love’s absence) emailed Ms Ollett reiterating that “we anticipate conducting the meeting on the day you return to work (or as close as possible)”, that the employer had “not yet determined any outcomes as we must hear from you first. If the concerns are found to have merit, outcomes may include disciplinary action up to and including termination of employment” and wishing “the speediest of recoveries”. 17
[46] Ms Ollett continued to provide medical certificates for personal leave until 11 January 2019 and remained absent from work. She consulted both her regular doctor and temporary doctors. She remained highly anxious over this period. She was invited to but did not attend the staff Christmas break-up.
[47] In the first week of January 2019 Ms Ollett’s anxiety had not abated. She actively started thinking about whether she could return to work or would take another course such as resignation. She was fearful of returning to work, knowing that she would face an imminent disciplinary meeting. She didn’t wish to resign if she could return to her job with the disciplinary process set aside.
[48] Ms Ollett consulted her doctor. Her doctor diagnosed serious emotional stress arising from the workplace events and confirmed that her health and wellbeing was in decline. Her doctor informed Ms Ollett that he could provide a WorkCover (workers compensation) certificate to support a work-induced stress claim. Ms Ollett declined this course because she did not want a WorkCover process to prolong her anxiety.
[49] Ms Ollett also consulted her husband and daughter on her dilemma. Her daughter advised Ms Ollett to hold firm, to not resign and that if she was dismissed to then take legal action. Ms Ollett’s husband advised the alternate course. He advised Ms Ollett that her health and wellbeing was her priority and that she would be better off leaving the job.
[50] These considerations came to a head in Ms Ollett’s mind on Wednesday 9 January 2019, knowing that by Friday 11 January she would have to return to work or again be certified unwell. On the evening of 9 January Ms Ollett told her daughter and her husband that she planned to resign. She prepared a draft letter of resignation and sent it to her daughter for feedback. Ms Huikeshoven suggested some wording changes.
[51] Ms Ollett decided to sleep on the draft before finalising her decision. She thought about the matter further the next morning. She decided to proceed with her resignation. She did not want to work out any notice period. She again went to see her doctor and was given a sick certificate for the two week period of notice she proposed (11 January to 25 January).
[52] By email sent on the afternoon of Thursday 10 January 2019 Ms Ollett forwarded a letter of resignation to the employer effective 25 January 2019: 18
“Hi Arwen and Anne
Following my doctor’s appointment today please see my letter of resignation and sick certificate attached.
Regards
Kate Ollett”
[53] Ms Ollett’s letter of resignation read as follows: 19
“Resignation Letter
10/1/19
As a result of the process of disciplinary action being taken against me, it became evident to me that I will receive an unfair dismissal as soon as I return to work.
This conclusion is clear to me due to the following factors:
HR has been emailing and phoning me during my sick leave
A meeting was to be called on the 3rd December which was to continue discussions on disciplinary actions
I was instructed to not attend work at my usual time and go directly to the meeting
Another staff member from Adelaide was being invited to the meeting, which did not occur during previous meetings
I have been a loyal and hardworking employee for Sureway, and it is evident that the performance improvement process that was conducted with me was intended to lead to my dismissal, whilst any improvements in business outcomes that were observed have been disregarded (November & December picked up as I predicted). Despite the allegations against me (for which I have not been given the details of), I do not believe I have done anything wrong and there is no reason on my part for these allegations.
This unfair process has caused me an enormous amount of stress that is now having a negative impact on my physical health. Since the outcome of the proposed disciplinary meeting appears to be inevitable, with Doctors guidance I have decided to tender my resignation as my health is not up to being able to cope with Sureway’s cut throat processes. I am aware that none of this is personal against me, as I have witnessed the same thing happen to other colleagues (whilst I was in the acting Regional Manager position), however as a passionate and conscientious employee it is incredibly difficult not to feel devastated by having my work ethics over the 3 years of being a high performer dismissed in this way as things occurred in the labour market trends that were out of my control (as documented in previous discussions).
I would also like it to be noted that in the Riverland there were a lot of staff changes with very little support and guidance offered.
I will continue to be on sick leave until (and inclusive of) the 25th January and my resignation will be effective from this date.
Regards
Kate Ollett”
[54] The following day (11 January) the employer responded by email: 20
“Hi Kate
Thanks for your email. I will process your resignation per the dates outlined in your letter and process payments including any leave entitlements accordingly.
Whilst you have advised that you believe you would be returning to an unfair dismissal, we do maintain that we were in a formal process that had not come to any conclusion and there was no pre-determined outcome…
I do wish you well.
Regards
Anne Love”
[55] Ms Ollett filed these unfair dismissal proceedings on 30 January 2019.
Consideration
The Legal Principles
[56] Under the FW Act, a person can only be “unfairly dismissed” if they have been “dismissed” (section 385(a)).
[57] Section 386 of the FW Act provides that:
(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. 21
[58] Having raised the jurisdictional issue, Sureway bear the legal onus of establishing that Ms Ollett was not dismissed. In circumstances where an employee resigns but claims their resignation was, at law, a dismissal an evidentiary burden exists on the employee to establish that the termination fell within one or both of the limbs in section 386(1): termination at the initiative of the employer or resignation forced by the employer’s conduct. 22
[59] Principles governing the application of section 386(1) are well established. They were recently set out by a full bench of this Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli: 23
“There may be a dismissal within the first limb of the definition in section 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.
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 section 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 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.”
[60] The following observations by an earlier full bench, although decided under a former Act 24, are also relevant:25
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.
…there [needs] 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…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.”
Was Ms Ollett’s resignation a dismissal?
[61] Ms Ollett advanced her case on the basis of section 386(1)(b) of the FW Act: forced resignation.
[62] A resignation is only a forced resignation under section 386(1)(b) if an employee was forced to do so “because of conduct, or a course of conduct, engaged in by his or her employer”. This requires conduct or a course of conduct of the employer. It also requires a sufficient causal connection between that conduct and the resignation. The causal connection is not a loose one. In the words of the FW Act, the conduct has to be sufficient to have “forced” the resignation.
[63] The legislature has chosen to use the word “forced” as the basis for the causal connection, rather than looser or weaker formulations. The word is not defined in the FW Act. It is the past tense of the noun “force” and the verb “to force”. The noun and verb are defined in recognised English dictionaries to mean (in relevant contexts): 26
“force (noun): coercion or compulsion”
“to force (verb): to cause or produce by effort; to attain by strength of effort”.
[64] The word “forced” suggests the existence of conduct of such a character which compelled the outcome in the sense that the outcome was at least the probable consequence of the conduct such that free will was denied. In the words of the full bench in O’Meara v Stanley Works Pty Ltd adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli the test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.
[65] In support of this contention, Ms Ollett submits:
1. She would not have resigned but for the PIP disciplinary process imposed on her;
2. Until the PIP process, she enjoyed her job, was a hard and enthusiastic manager and delivered good outcomes for the business;
3. The employer’s decision to escalate regular IPP discussions into a PIP process and then further escalate to a disciplinary PIP process was unfair because factors beyond her control made achievement of KPIs unrealistic;
4. The employer failed to provide sufficient support to assist a turnaround in KPIs in regions she was responsible for, and in any event the region’s performance was likely to improve;
5. Knowing that the PIP disciplinary process caused her to become unwell and take personal leave, the employer refused to discontinue or de-escalate the process; and
6. Even whilst she was on personal leave, the employer maintained pressure on her to front a disciplinary meeting immediately upon her return to work.
[66] There is a factual basis for propositions 1, 2, 5 and 6. They carry some weight. Propositions 3 and 4 concern the reasonableness of the KPIs against which Ms Ollett was being assessed, and whether performance in her regions was in decline. These are matters in contention. I make certain observations about these matters later in this decision.
[67] Significant factors weigh against the contention advanced by Ms Ollett. These include:
1. Ms Ollett made the decision to resign because she decided not to return to work and face a PIP disciplinary process that was underway and incomplete;
2. During a seven week period 19 November 2018 to 10 January 2019 Ms Ollett was absent from work and able, in her own time, to consider her options;
3. During this period Ms Ollett sought her own counsel and took advice from her doctor and family members, including advice about her legal rights;
4. Before resigning Ms Ollett considered other options but ruled them out;
5. The employer had made no decision to terminate Ms Ollett’s employment as the PIP disciplinary process was incomplete and it was awaiting Ms Ollett’s explanation for the regional performance;
6. The employer placed no pressure on Ms Ollett during the seven week period of absence preceding the resignation other than informing her that upon her return the incomplete PIP process would be completed;
7. The decision to place Ms Ollett on a PIP and then a disciplinary PIP process was a management decision open to the employer and made for legitimate business reasons.
[68] There is a factual basis for propositions 1, 2, 3, 4, 5 and 6 advanced by the employer. Proposition 7 is in contention as it too relates to the fairness or unfairness of assessments made about Ms Ollett’s performance against KPIs.
[69] Taking into account all of the circumstances, including those that weigh in favour of a finding of forced resignation and those that weigh against it, I am not persuaded that Ms Ollett was forced to resign by the conduct, or a course of conduct, engaged in by Sureway. Although there is at times, as indicated by the full bench in ABB Engineering Construction Pty Ltd v Doumit, only a narrow line that distinguishes between conduct in the form of a resignation and a termination at the initiative of the employer, that line must be drawn; and it must be “closely drawn and rigorously observed” lest a remedy be too readily invoked where termination is at the discretion of a resigning employee.
[70] In this matter, I do not consider that line to be particularly narrow.
[71] I readily accept that Ms Ollett resigned under the burden of immense pressure. She felt she had to choose between leaving her job or risking her health by returning to her job and facing a disciplinary process that had already caused stress and anguish. In her own words, she “felt there was no way out”. 27 It was not a choice she wanted to make. Until 2018, she liked her job. The consequences of either choice were equally confronting – a loss of employment security versus a continued deterioration in health and loss of quality of life. She wanted both – but ultimately decided that if she could not have both then she would reluctantly forgo the job.
[72] Ms Ollett brought that situation to a head by resigning. She wrote a resignation letter at her own initiative on the evening of 9 January, took counsel from her family on it, slept on it, considered it again the next morning (10 January) and then sent it that afternoon. She did not retract it, or seek to retract it, even when Ms Anderson came to her home days after to collect the company car and other property.
[73] The objective facts do not support the proposition that Ms Ollett was “forced” to resign due to the employer’s conduct, at least not within the meaning of that term in section 386 of the FW Act. The employer’s conduct was:
• To place Ms Ollett on a PIP;
• To escalate the PIP process into a potential disciplinary outcome; and
• To not intrude on Ms Ollett’s absence on sick leave for a seven week period other than to direct her to focus on recovery, to direct her to not do work but to also reinforce that upon her return the PIP process would be completed.
[74] I accept that there was a course of conduct engaged in by the employer with respect to the PIP process: it escalated regular IPP discussions into a PIP process, then took that PIP process and further escalated it to a process with a potential disciplinary outcome, then upon the employee being absent on sick leave reaffirmed that on her return the PIP process would be completed. However, this course of conduct did not deny Ms Ollett an effective or real choice but to resign.
[75] Due to stress and anxiety Ms Ollett legitimately removed herself from the workplace for an extended period of time, sought and received familial and medical advice about her health and her rights over that period and considered but dismissed other options (such as making a workers compensation claim or returning to work and further presenting her side of the story). This was not a resignation made in the heat of the moment or made by a person who did not understand what she was doing or the difficult choices before her. Although deeply distressed and anxious by the events and the thought of returning to a disciplinary process, Ms Ollett was a mature and experienced person employed at a managerial level in the business who resigned for considered reasons. As Ms Ollett said in her witness statement: 28
“I made the decision to resign, in consultation with my doctor, under duress due to health issues that I developed as a direct result of my employment. The decision was based on my doctor’s advice that my health was not improving while I remained employed by Sureway. The other alternatives available to me were a) return to work, or b) apply for Workcover. I ruled both these options out as neither of these options would have been conductive to improving my health.”
[76] Ms Ollett’s resignation was clearly related to the disciplinary process in that she did not want to return to work to face the completion of that process and risk its outcome (which she feared would be dismissal). However, the mere fact that an employer has commenced a disciplinary process and is determined to complete it is not a basis to conclude that a resignation in the midst of that process is a forced resignation.
[77] Ms Ollett contends that the employer had decided to dismiss her and that, in practice, this was a case of ‘resign or you will be dismissed’.
[78] I do not agree. I accept Ms Ollett’s evidence that, at the time of resignation, she feared dismissal if she returned to work. However, the objective facts do not support her contention that the employer had made a decision to dismiss or that a return to work would inevitably have had that consequence. At its highest, the evidence is that Ms Anderson (a senior HR executive) had discussed and obtained approval from the company CEO to the decision to establish a PIP process and escalate the PIP process into a process with a potential disciplinary outcome which could include dismissal. However, Ms Anderson’s evidence (which on this point I accept) was that no decision on the outcome had been made, that the CEO would have been further consulted if her recommendation was to terminate an Area Manager and that options such as a warning or relocation remained in play, as well as termination. The surrounding circumstances support this evidence, as does the evidence of Ms Love. It is relevant that on multiple occasions from 15 November 2018 Ms Ollett was advised orally and in writing (by Ms Love and Ms Anderson) that no decision on disciplinary outcomes had been made. Whilst senior management concerns at Ms Ollett’s regional performance had become more accentuated from mid-2018, and in that sense stronger sanctions including termination were increasingly in play, no decision on the appropriate response had been made. A decision to dismiss was a possible outcome and increasingly so but was not an inevitable outcome of the disciplinary process yet to be completed.
[79] Ms Ollett places significant weight on her contention that the PIP process was unfair because KPIs against which she was being assessed were unrealistic and views the employer formed about her performance failed to take into account regional factors beyond her control.
[80] There is some force in this submission. There is some evidence to support the proposition that Sureway saw little or no distinction between Ms Ollett’s performance as an Area Manager and the overall performance of regions which she managed such that an unbalanced conclusion about her employment was a material risk. The apparent weight being given by the employer to KPIs, metrics and its ‘All Sites – All Targets – No Excuses’ motto was contributing to that material risk. Whether termination in those circumstances would have been unfair is a separate question and not one requiring decision because, as I have found, Ms Ollett was not dismissed within the meaning of the FW Act. That question would concern (amongst other matters) the contractual responsibilities of an Area Manager and the role that KPIs play in setting performance criteria and contractual obligations. It would also concern the application of KPIs and contractual obligations in circumstances where regional events beyond the control of a manager may impact on the capacity to meet unadjusted KPIs.
[81] I do not consider these issues to have “forced” Ms Ollett’s resignation. Whilst they are relevant in that they add weight to the reasonableness of Ms Ollett’s apprehension that she was not going to be given a fair go if she returned to the disciplinary process, the objective facts are that, at the time of her resignation, debate on these issues remained open at least in the sense that the ball had been placed in Ms Ollett’s court to respond to the views and conclusions advanced by the employer. Whilst Sureway was at material risk of drawing an unfair conclusion, that risk had not crystallised. It was not unreasonable for Sureway to seek accountability from its Area Manager for regional performance, and to discuss how that performance would or should impact that manager’s job security. Relevantly, as I have found, the nature of the sanction (if any) from the disciplinary process had not been determined by the employer.
[82] Ms Ollett resigned in the midst of a disciplinary process after taking her own counsel and that of her doctor and family. She made a difficult but considered choice. The facts, objectively considered, lead me to conclude that termination of the Applicant’s employment was not the probable result of the employer’s conduct such that Ms Ollett had no effective or real choice but to resign. It was not a forced resignation.
[83] Not being a forced resignation, it was not a dismissal.
[84] Not being a dismissal, I have no jurisdiction to consider whether it was an unfair dismissal or consider remedy.
Conclusion
[85] Ms Ollett’s application is dismissed. An Order to this effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
C. Ollett and M. Huikeshoven, for the Applicant
A. Anderson, for the Respondent
Hearing details:
2019.
Adelaide.
1 May.
Printed by authority of the Commonwealth Government Printer
<PR708082>
1 Pearse v Viva Energy Refining Pty Ltd[2017] FWCFB 4701 at [14]
2 A6 Extract SA Country Hour 28 September 2018
3 A5
4 See for example IPP for February 2018 A3 and R1
5 A4
6 A4 pages 2/4 and 3/4
7 A8 and R5 page 5 of 5
8 A11 Summary of Meeting
9 R9, R10, R11, R12
10 As set out in email of 21 November (R16)
11 A12
12 R16
13 A14
14 Email 29 November 2018 1.06pm (A15)
15 A16
16 A17
17 A18
18 R20
19 Attachment to R20
20 R21
21 Sections 386(2) and (3) of the FW Act do not apply to this matter
22 Australian Hearing v Peary (2009) 185 IR 359 at [30]
23 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941
24 Workplace Relations Act 1996
25 ABB Engineering Construction Pty Ltd v Doumit cited in O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [23]
26 Australian Concise Oxford Dictionary (2nd edition)
27 Audio transcript 1 May 2019 1.53pm
28 A24 paragraph 34
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