Christine Hanna v Aboriginal Medical Service Western Sydney Coop Ltd

[2013] FWC 1517

[2013] FWC 1517

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christine Hanna
v
Aboriginal Medical Service Western Sydney Coop Ltd
(U2012/12299)

DEPUTY PRESIDENT BOOTH SYDNEY, 18 MARCH 2013

Termination of employment - unfair dismissal - whether termination at the initiative of the employer.

[1] In this matter the applicant, Ms Christine Hanna, asks the Fair Work Commission (FWC) to exercise its discretion under s.394 of the Fair Work Act2009 (the Act) to grant a remedy for unfair dismissal from her employment with the Aboriginal Medical Service Western Sydney Co-op Ltd (the Medical Service).

[2] The application was made on 9 August 2012 and the Medical Service provided its response to the application on 28 August 2012. A telephone conciliation was conducted on 29 August 2012. The matter was not resolved at conciliation and was listed for hearing for three days on 10-12 December 2012, later adjourned to 14-16 January 2012 and again to 4-6 February 2012 then reduced to one day, on 4 February 2012 when the matter was heard by me. The matter was heard by Jones C for programming on 25 October 2012 and Ms Hanna made it clear that she wanted to proceed by way of a hearing, a desire that was reiterated before me. Submissions and witness statements were received pursuant to directions issued by Fair Work Australia (as it then was).

[3] The Medical Service contended that Ms Hanna was never dismissed but rather abandoned her employment.

[4] It was agreed between the parties that submissions in relation to whether Ms Hanna was a person protected from unfair dismissal would be addressed contemporaneously with submissions in relation to her claim of unfair dismissal. However, my decision will address this question as a threshold issue as if I find that Ms Hanna was not a person protected from unfair dismissal it will be incumbent upon me to dismiss her application.

[5] Ms Hanna was self-represented and permission was granted for the Medical Service to be represented by Ms Bicknell, solicitor.

[6] Ms Hanna gave evidence on her own behalf and Mr Vincent, CEO of the Medical Service was a witness for the respondent.

[7] Some of the material submitted by Ms Hanna was the subject of objection by Ms Bicknell on the grounds it was irrelevant, did not arise out of the evidence or was defamatory. Ms Bicknell indicated that the respondent was content for me to place the appropriate weight on the evidence. The material is dense and much of the relevant and irrelevant content is comingled making it difficult to separate. I have considered all the material provided along with submissions and witness evidence and will weigh its relevance as proposed by the respondent.

Background

[8] The Medical Service is a large multi-disciplinary medical and allied health practice located in Mt Druitt to serve the health needs of the aboriginal community. It employs 90 staff comprising, inter alia, doctors, dentists, psychiatrists, nurses and other allied health professionals.

[9] In relation to Ms Hanna it was uncontested that:

• Ms Hanna commenced employment with the Medical Service as a Clinical Practice Manager on 19 April 2011 however soon after she joined the Medical Service her duties were amended and confined to those of an administrative nature;



• She was counselled about leaving a confidential patient file on her desk;



• The Medical Service has a policy about the use of social media only between 12 noon and 2pm and Ms Hanna was asked to turn off her Facebook page during the afternoon on 16 July 2012;



• She left work at 5pm on 16 July 2012 and never returned to the workplace;



• She authored an email at 8.31pm on 16 July 2012 sent to a large number of recipients with the subject matter heading “Re: Please issue execution warrants to the management at the Aboriginal Medical Service Western Sydney Mt. Druitt”;



• She had a photo of a person being hanged on her Facebook;



• She authored emails sent to the Medical Service on 17 July and 22, July, 2012 indicating that she was ill and would not be at work;



• Staff of the Medical Service replied to these emails acknowledging receipt on 18 July and 23 July, 2012 respectively;



• Staff of the Medical Service called the police about Ms Hanna;



• Ms Hanna authored emails to the Medical Service on 20, 21 23,24 and 25 July concerning the attendance of the police at her home;



• Mr Vincent authored an email sent to her on 25 July asking her to refrain from sending emails to the Medical Service or anyone else and amongst other things, saying “To that end I will be happy to meet with you on your return to duties”;



• Ms Hanna authored an email sent on 26 July 2012 described at the hearing as the “forced resignation” email;



• She lodged a complaint of discrimination with the Australian Human Rights Commission (AHRC) on 2 August 2012;



• She made an unfair dismissal application to Fair Work Australia (FWA), now the Fair Work Commission (the Commission) on 9 August 2012.

Disputed facts and findings

Beyond this there were many contentions put forward by Ms Hanna that were repudiated by the Medical Service and a number of the contentions of the Medical Service were likewise rejected by Ms Hanna. In particular:

• Ms Hanna gave evidence that she had made many complaints about harassment that were not addressed and Mr Vincent gave evidence that Ms Hanna had never complained of harassment. Ms Hanna explained that she did not use the complaints process because it was only for Aboriginal staff, a characterisation that is rejected by Mr Vincent;



• The Medical Service contended that it became apparent within a week of Ms Hanna’s engagement that she was not able to fully perform the role to which she had been appointed and further training, guidance and ultimately a role change were required. She was appointed to an administration role. Ms Hanna agreed that she was appointed to an administration role, but contended that this was an unwarranted demotion that caused her to be “demoralised”. She stated, “I don’t have any problems with skills or attention or ability or intelligence”. 1 There is no evidence that she contested this at the time, however, in evidence she stated, “[t]he actual service that I was supposed to do was review management systems required by the medical health tribunal and it is what I was doing and consistently doing”2 but later, in line with the Medical Service’s submissions, “because they didn’t want me to do these roles. They just cancelled the entire duties. They just said they didn’t want these duties provided. They were no longer going to provide these medical systems and it was no longer necessary. It had nothing to do with my skills”;3



• The Medical Service contended that she left a confidential patient file on her desk overnight and that warranted an investigation and counselling. Ms Hanna says that someone else left the file on her desk and the investigation and counselling were unwarranted and constituted harassment;



• Ms Hanna gave evidence that the photo of a person being hanged on her Facebook page was from a news story and of no concern to the Medical Service. Mr Vincent gave evidence that the image along with the email referring to an “execution warrant” concerned him and that after consulting with a staff psychiatric nurse a staff member called the police in the interest of the safety of Ms Hanna and the staff of the Medical Service;



• Ms Hanna gave evidence that the Medical Service called the police to her home four or five times in a matter of three days (“three cars, 20 police”). 4 Mr Vincent gave evidence that after consulting a psychiatric nurse at the Medical Service and in consideration of Ms Hanna’s health and wellbeing the police and mental health authorities were contacted once by the staff of the Medical Service;



• Ms Hanna says that the email authored by Mr Vincent sent to her on 25 July asking her to refrain from sending emails to the Medical Service or anyone else and amongst other things, saying “To that end I will be happy to meet with you on your return to duties” was inauthentic and designed to create the impression that he expected her to return to work when he did not. Ms Hanna says that emails were not sent and received in the sequence they appeared in from the material submitted. However, the emails were date and time marked and I have no reason to conclude that these dates and times were incorrect. In any event there was no suggestion that the relevant emails – the one from Mr Vincent and the “forced resign” email were not sent one day after the other and Mr Vincent’s evidence that he thought Ms Hanna was on sick leave when he received her “forced resign” email was convincing;



• Ms Hanna gave evidence that she was forced to resign because if she went back to work she would be assaulted. Notwithstanding her assertions of the existence of NATO surveillance videos and “recording surveillance” she did not supply any evidence of these nor evidence that she had been assaulted or that she was at risk of being assaulted;



• Ms Hanna believes that the Medical Service were undermining her status as a psychologist and she would “lose my medical registration and then nobody - and that’s a lot of money. That’s got to be, like, four or five million dollars in university training that I have paid”. 5 The evidence was that she was not employed as a psychologist and there was no evidence that the Medical Service were seeking to undermine her qualification;



• Ms Hanna contends that the staff of the Medical Centre are largely of Aboriginal descent, (she said 90%), some are related to one another and cover up for one another, are often absent from the workplace and perform little work, indulge in meals at the expense of government funding and have surveillance cameras in the workplace which are being monitored by NATO. The Medical Service repudiates these contentions. In respect to the employment composition of the Medical Service it is Mr Vincent’s evidence that 40% of the employees are of Aboriginal descent. I accept this evidence. There was no evidence other than the oral evidence from Ms Hanna to justify any of her claims and they are largely irrelevant to the question I am required to decide.

The relevant statutory framework

[10] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 Unfair Dismissal of the Act. In this matter there is a threshold issue concerning whether Ms Hanna is a person who is protected from unfair dismissal pursuant to s.382 of the Act and I must first consider s.385 and 386 of the Act which read as follows:

“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; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[11] In O’Meara v Stanley Works Pty Ltd 6 a Full Bench of the Australian Industrial Relations Commission (AIRC), a predecessor to the Commission, helpfully summarised the law in relation to termination of employment at the initiative of the employee in circumstances where the employee claims to have been forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[12] The Full Bench at paragraphs 19 - 23 said:

“[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [11] (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“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. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” [12]“

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited [13] (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“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.” [14]

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd [15] (Pawel) a Full Bench said:

“[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. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.” [16]

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit [17] (ABB Engineering) it was said:

“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. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.” [18]

[23] 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.” [19] 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.”

[13] It is clear that the test is an objective one. It is not a question of what the applicant perceived to be the conduct engaged in by the respondent but whether that conduct could, in the terms expressed in O’Meara v Stanley Work Pty Ltd, be reasonably considered to be 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 follows that I must first make a finding as the whether the conduct complained of actually happened and if so whether it is conduct of the character described in O’Meara.

Consideration

[14] Ms Hanna contends that s.386(1)(b) of the Act applies to her situation in 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.

[15] Her evidence is that she advised the Medical Service that she considered she had been dismissed by email. An email contained in her evidence dated 26 July 2012 sent at 01:41:23 to many recipients including Mr Vincent is said to be the “forced resignation” email.

[16] While Ms Hanna does not believe that the date or time of sending of the email as recorded in her or the respondent’s computer is accurate she did not give evidence as to her belief concerning the date and time that she sent the email.

[17] There is no contest that she authored the email and her oral evidence was entirely consistent with the contents of the email which is reproduced below in the form of its despatch.

“EXCUSE ME, THERE HAVE BEEN A SERIES OF RACIST THREATS MADE BY THIS [Person X] AND THEN A SERIES OF TARGETD ACTS OF VIOENCE THEN THIS SERIOUS ABUSE SHE HAS BEEN TARGETING AT ME AND ALL STAFF IN ADMIN. THIS WOMAN IS SUFFERING FROM SCHIZOPHRENIA IS SUSPECTED TO BE ON HEAVY MEDICATION AND IS DELLUSIONAL AND FAR TOO CRIMINALLY UNSTABLE FOR IT TO BE SAFE TO WORK THERE AND IT IS YOUR LEGAL OBLIGATION DUE TO OH&S POLICIES THAT YOU GET HER TO APPRORIATE MEDICAL ASSISTANCE RATHER THEN LEAVE HER TO TARGET THIS ASSAULT AT EVERYONE LIKE THAT. IN RETURN I HAVE HAD TO ENDURE HER THREATS, NO MANAGEMENT MADE ANY RESPOSE, IN RESPONSE YOU PUT ME UNDER HER SUPERVISION AS A JOKE, THEN YOU TRIPLED THE WORKLOAD, THEN YOU IGNORED HER RECCENT THREATS AND IN NOW HER VIOLENT ACTS OF CRIME SHE HAVE HAD POLICE RAID MY HOUSE TWICE IN 3 DAYS TO IMPRISION ME FOR HER ASSAULT, AND IN RETURN TO MY COMPLAINT TO MANAGEMENT SHE HAS TRIED TO HAVE ME INSTITUTIONLISED. DO I NEED TO REMIND YOU THAT I AM THE REGISTERD PSYCHOLOGIST WHO PROVIDES THIS RECOMMENDATOIN AND NOT [Person X]? YOUR BEING SUED FOR SERIOUS ACTS OF STALKING AND MURDER TARGETS AND DEFORMATION I HAVE REPORTED YOU TO EVERY MILITARY LEADER OVER EVERY INCIDENT OVER THE LAST YEAR (PENTAGON, GERMANY, RUSSIAN, SWISS, BELGIUM, UK, AUSTRALIA, WHO ARE NOT IN SUPPORT OF YOU IN ANY GIVEN WAY) BECAUSE YOU ARE RACIALLY MAD, ARE TARGETING SERIOUS THREATS, ARE IGNORING MY COMPLAINTS AS A JOKE, THEN YOU ARE PLEADING TOTAL IGNORNCE TO THE SITUATION AND YOUR CRIMES, THEN YOU ARE PUNISHING ME. YOU ARE PLAYING DUMB AND KEEP SAYING YOU DONT KNOW BUT THESE ARMY LEADERS HAVE BEEN RUNNING SATELLITE VIDEO FOOTAGE OVER THE SITUATION AND WILL PRODUCE THEM TO AUSTRALIAN COURTS AND POLICE TO HAVE YOU CRIMINALLYCHARGED. ACCORDING TO ME YOU AND YOUR STAFF AT THE AMSWS ARE INVOLVED IN VERY SERIOUS CRIME ELSEWHERE THAT IS EFFECTING ALL THE STAFF AND MAKING IT VERY DIFFICULT TO DO ANY WORK FOR YOU. YOU ARE SUSPECTED TO BE ON THE RUN FROM THE LAW REGARDING VERY SERIOUS CRIME AND ARE TARGETING DEATH THREATS AT STAFF TO HAND OVER INVESTMENT SECTORS TO PAY YOUR COURT FINES. THAT YOU AND NAMELY THAT [Person X] HAVE MADE IT FAR TOO SERIOUS A CRIMINAL SITUATION TO BE THERE AND FORCED MY TERMINATION THERE IS EXACTLY THE SAME AS WRONGFUL DISSMISSAL, WE ARE NOT DUMB. YOU HAVE NOT PROCESED MY PAY I WOULD LIKE YOU TO DO THIS NOW AS I HAVE TO MAKE MY FINAL INSTALLMENT ON MY HOLIDAY BY THIS AFTERNOON ELSE I WILL LOOSE $3000 IN PAYMENTS. AS IT IS YOU ARE A DANGER TO ME, THE SAFETY AND WELFARE OF THE COMMUNITY AND TO THE ABORIGINAL RACE AND THEY HAVE BEEN GIVEN COPIES OF THIS ENTIRE CASE REGARDING YOUR GAMES WHICH LOOK LIKE ORCESTRATED MURDER CRIMES WITH POLICE TO ME, AND IS PROVED BY [Person X’s] ACTS OVER THE LAST WEEK AND WILL BE INVESTIGATED, ANY FURTHER THREATS WILL BE REPORTED STRAIGHT TO THEM AND WE WILL ACT UPON IT ACCORDINGLY AS AN ENTIRE COMMUNITY. PROCESS MY PAY, MY HOLIDAY PAY AND MY LEAVING CERTIFICATE BY THIS AFTERNOON PLEASE.”

[18] I think that Ms Hanna believes the assertions made in this email and repeated in her oral evidence. They are denied by the Medical Service. I prefer the evidence of Mr Vincent over Ms Hanna. Ms Hanna’s evidence was emotionally charged, at times incoherent and described circumstances that are at best improbable and may be described as fanciful. Ms Hanna provides no corroborating evidence for these assertions notwithstanding repeatedly stating that NATO surveillance images and audio are available to do so. Mr Vincent gave evidence in a calm manner and his evidence was corroborated by documentary evidence, much of which was in the form of emails submitted by both Ms Hanna and the Medical Service.

[19] Ms Hanna has a mistaken belief that her workplace was hostile and that she could not return to it for fear of assault. Sadly, she misunderstood efforts by her manager and co-workers to intervene in her own best interests by alerting the authorities to her state of mind and this may have given rise to her fear of returning to the workplace. Ms Hanna stated, “There will be criminal charges by NATO because I have a case. There is a six-month case with them. I rang them this morning. They’re actually going to provide surveillance over the entire year and I will ring them when I leave. I will discuss with them what the criminal charges need to be regarding their blatant lies, blatant lies.” 7

[20] The circumstances of Ms Hanna’s employment are not of the kind Moore J described in Rheinberger v Huxley Marketing Pty Ltd (referred to in the passage quoted from O’Meara v Stanley Works Pty Ltd above). There was no action on the part of the employer intended to bring the employment to an end or action which would, on any reasonable view, probably have that effect.

[21] Mr Vincent’s evidence that in his mind Ms Hanna was on sick leave and was never dismissed is credible and undermines Ms Hanna’s assertion that she was forced to resign from her employment.

[22] Ms Bicknell urged me to dismiss Ms Hanna’s application because she was not dismissed and because the application is frivolous and vexatious and has no reasonable prospects of success. It is not necessary to consider the latter submission as I find that Ms Hanna resigned from her employment but was not forced to do so because of conduct, or a course of conduct, engaged in by her employer. This disposes of Ms Hanna’s application.

[23] I think that she is sincere in her beliefs about the behaviour of her employer and its staff but they are mistaken beliefs. Accordingly, she has not been dismissed within the meaning of the Act, so is not protected from unfair dismissal. Therefore, I do not need to consider whether her dismissal was harsh, unjust or unreasonable. Her application is dismissed.

Application pursuant to section 594 of the Act

[24] During her evidence Ms Hanna made a number of remarks about employees of the Medical Service that were unfounded, insulting, inflammatory and liable to cause distress to the individuals concerned and their families. The targets of the assertions were not witnesses in the case and consequently these remarks, if remaining in transcript, would stand on the public record with no opportunity for the individuals to correct them. Ms Bicknell for the Medical Service made application pursuant to section 594 of the Act for portions of the transcript of this matter, including the names of certain individuals, to be suppressed. I determined that I would accede to that submission with the precise portions of the transcript sought to be suppressed to be indicated to by Chambers in due course. On 13 February 2013, Ms Bicknell wrote to my Associate with a copy to Ms Hanna, setting out the portions of the transcript she sought to be redacted.

[25] I have formed the view that not only should portions of the transcript be redacted but portions of my decision as well. This is because it is necessary to quote from Ms Hanna’s emails to the Medical Service to explain my reasoning for my decision. In those emails some of the unfounded, insulting and inflammatory remarks made when giving evidence are repeated and it would be inconsistent to address their appearance in transcript and yet leave them in my decision.

[26] On 5 March 2013 my Associate contacted Ms Hanna and Ms Bicknell by email to provide them with the opportunity of commenting upon the portions of the transcript I proposed to suppress and the proposal to apply this principle to my decision as well. I have considered the submissions of Ms Hanna and Ms Bicknell and I order certain redactions.

[27] An order dismissing the application will issue with this decision.

DEPUTY PRESIDENT

Appearances:

C Hanna, the Applicant

J Bicknell, solicitor, for Aboriginal Medical Service Western Sydney Coop Ltd

Hearing details:

2013.

Sydney:

February 4.

 1   Transcript PN 250

 2   Ibid

 3   Ibid

 4   Transcript PN 214

 5   Transcript PN 218

 6   [1996] AIRCFB 496

 7   Transcript PN 409

Printed by authority of the Commonwealth Government Printer

<Price code C, PR534706>