Christine Sandra Becker v Greater Bank Limited

[2021] FWC 5063

[2021] FWC 5063

The attached document replaces the document previously issued with the above code on 16 August 2021.

The original headnote was included in error. This version of the decision includes the corrected headnote.

Associate to Deputy President Lake

17 August 2021

[2021] FWC 5063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Christine Sandra Becker
v
Greater Bank Limited
(U2021/5464)

DEPUTY PRESIDENT LAKE BRISBANE, 16 AUGUST 2021

Application for an unfair dismissal remedy – whether the applicant resigned – the Applicant resigned – jurisdictional objection upheld – application dismissed

[1] Ms Christine Becker (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 Greater Bank Limited (the Respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] The Applicant commenced employment with the Respondent on 28 April 2008 as a customer service office. Her employment came to an end on 1 June 2021. The Respondent raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed, but rather voluntarily resigned on 1 June 2021.

[3] The parties requested that the jurisdictional objection be dealt with on the papers prior to the filing of material in the substantive application. Directions were issued accordingly, and material was filed by each party. I have considered all the material filed by each party.

JURISDICTIONAL EVIDENCE AND SUBMISSIONS

Respondent’s material

[4] The Respondent submits that the Applicant voluntarily resigned from her employment on 1 June 2021, as evidenced by the resignation letter of the same date.

[5] The Respondent asserts that the Applicant’s resignation came during a performance management process, which arose because the Applicant had repeated and continuing performance issues and breaches of the Respondent’s procedures which created an ongoing risk to customers and the Respondent generally. Two formal warnings had been issued in October 2020 and January 2021 in relation to cash and deposit discrepancies respectively.

[6] Having become aware of other performance issues, the Respondent provided notice to the Applicant 6 May 2021 that a third performance meeting would be arranged. The meeting did not occur until 1 June 2021 because the Applicant had taken leave for personal reasons. The Respondent submits that the formal warnings letters that the Applicant had previously received had included termination as a possibility and the fact that the Applicant came with a resignation letter indicated that she was aware of the seriousness of the meeting.

[7] That formal performance meeting took place on 1 June 2021 with the Applicant, Ms Kate Russell, an internal Human Resources representative and Mr Scott McCluskey, a Regional Sales Manager. The Applicant’s husband attended as her support person. At that meeting, Mr McCluskey discussed the following performance concerns:

•  “On 6 April 2021, $30.40 coin was left unattended in branch;

•  On 7 April 2021, failure to follow floor safe maximum limit as per the Random Cash Drawer and Floor Safe Checks Procedure resulting in $1,555.00 over your drop safe;

•  On 8 April 2021, a risk incident was lodged due to failure to complete an alteration on a business account in line with process;

•  On 28 April 2021, $10.00 outage where you have not been able to locate the amount;

•  On 28 April 2021, failure to follow the cheque deposit procedure; and

•  On 7 May 2021, $4,500.00 error as a result of failing to process a customer withdrawal correctly as per the Processing Cash Withdrawals Procedure.”

[8] During this meeting, the Respondent submits, the Applicant was provided an opportunity to take 48 hours to consider and show cause as to why her employment should not be terminated. At that point, the meeting notes record the Applicant saying, “If that is the case I will hand in my resignation” and providing a sealed envelope containing her resignation. Mr McCluskey asked her why and explained that she could take 48 hours to respond to the allegations. The Respondent’s evidence is that the Applicant responded, “I think it would be best if I resign now, I have had enough.”

[9] In light of this exchange, the Respondent asserts the Applicant resigned and did so before it had a chance to obtain or consider any written response from her.

[10] The Respondent denies the Applicant’s allegation that “the Employee was accordingly of the view that there were no circumstances under which the Employer was prepared to obtain and consider the Employee’s response to the allegations properly and fairly”. Further, the Respondent submits that the meeting notes clearly indicate that the Applicant was allowed 48 hours to provide the Respondent with a written response but instead, the Applicant elected to resign, effective immediately.

[11] Having provided the letter of resignation, the Applicant also handed over a written document detailing concerns about her Branch Manager. The Applicant’s husband had noted at the beginning of the meeting that the Applicant would submit a formal complaint of bullying and harassment. He was told that could be raised as part of the process. The Respondent submits that it would have, as per the usual process, considered this information, prior to making any final determination. It did not have that opportunity because the Applicant had already resigned.

[12] The Respondent submits that the Applicant resigned voluntarily on 1 June 2021 to avoid the potential of her employment being terminated by the Respondent as part of the ongoing performance management process. Despite the Applicant’s assertions that she had no other option but to resign, the Respondent contends the Applicant could have instead raised her concerns regarding her branch manager as part of the show cause process to be investigated by the Respondent, raised a formal grievance in line with the Respondent’s Workplace Grievance Management Statement to be managed and investigated, or applied to the Commission for a stop bullying order if she felt bullied by her Branch Manager. Had the Applicant not resigned, the Respondent submits that its usual show cause process would have continued whereby the Applicant’s response would have been considered by senior human resources and operational leaders who had not been involved in the meeting.

[13] Further, the Respondent denies that the Applicant did not have an opportunity to improve her performance. The Respondent states that the Applicant had ample warnings, support and opportunities to improve but simply had not done so. The Respondent submits the Applicant was provided with procedural fairness and offered an opportunity to respond and provide further information in support of her continuing employment, had she wished to do so. In short, the Respondent denies that the Applicant was forced to resign under duress or had been left with no option but to resign.

[14] The Respondent relies on the statement provided by Ms Russell, which stated that as part of the Respondent’s normal exit process, she contacted the Applicant in the week following her resignation to discuss confirmation of resignation, final pay and provision of meeting notes. During these discussions, the Applicant did not indicate that her decision to resign on 1 June 2021 was in any way a spontaneous decision. The Respondent submits that this, and the fact the Applicant arrived at the meeting on 1 June 2021 with a pre-prepared resignation letter, indicates that her decision was well considered and not made in the heat of the moment.

[15] As to the bullying and harassment claims raised by the Applicant, the Respondent submits that:

•  it takes the reporting of grievances, inappropriate conduct, bullying or harassment very seriously;

•  the grievances raised by the Applicant in October 2019 regarding her branch manager were managed at the time in accordance with the Respondent’s Workplace Grievance Management Statement and appropriate action was taken. Efforts were made to confirm and ensure the Applicant was satisfied and comfortable with the outcome;

•  it never received a note or complaint, dated 9 July 2020, from the Applicant setting out issues regarding her branch manager;

•  over the last 18 months, the Applicant had numerous interactions with the Regional Sales Manager, Human Resources representatives and a Safety, Health and Wellbeing Officer in the absence of her branch manager during which she could have, but did not, raise any concerns;

•  the Applicant had ample opportunity to raise her grievances prior to the meeting on 1 June 2021; and

•  the Respondent could not properly consider any mitigating factors in relation to the show cause notice and meeting, because the Applicant resigned before they had an opportunity to do so.

Applicant’s material

[16] The Applicant submits she was dismissed within the meaning of s.386 of the Act on 1 June 2021, either on the basis that the Respondent terminated the Applicant’s employment or, alternatively, the Applicant resigned, but was forced to do so because of the Respondent’s conduct.

[17] The Applicant confirms that she attended the meeting on 1 June 2021 with Mr McCluskey and Ms Russell. However, she disputes parts of the record of meeting provided by the Respondent. The Applicant’s evidence is that following a break in the meeting Mr McCluskey said words to the effect of, “we have decided to terminate your employment.” The Applicant asserts this statement was made unconditionally and before Mr McCluskey referred to the Applicant being invited to respond to the allegations. Further, her evidence is that Mr McCluskey only invited the Applicant to provide a response to the allegation after having advised that her employment was terminated, and after the Applicant said she would resign instead. The Applicant submits that her employment was thus terminated by the Respondent.

[18] Alternatively, the Applicant submits she was forced to resign because of the Respondent’s conduct. She says her case can be distinguished from decisions where the employee “jumped before they were pushed” 1 given that the Respondent here had no intention to consider her responses, and that termination was a foregone conclusion. She states that the Respondent’s offer for her to respond to the show cause letter was simply a façade.

[19] The Applicant’s evidence was that during the meeting on 1 June 2021, she was questioned in relation to performance issues and their causes. She asserts that on at least 10 occasions during that meeting, she said she was experiencing problems with the branch manager, including but not limited to, intimidation, isolation and not feeling supported. The Applicant and her husband advised they had prepared written notes for the Respondent to consider in relation to the conduct of the branch manager, but mostly when the Applicant raised these issues, the Respondent did not respond. The Applicant’s responses to the Respondent’s questions consistently stated that her performance had declined, and was not improving, due to the branch manager’s treatment of her. She says the meeting record evidences the Respondent’s repeated failure and/or refusal to acknowledge her responses to the Respondent’s questions, despite her clearly and consistently articulating a pertinent cause for her performance issues.

[20] The Applicant submits that the Respondent’s conduct in the June meeting was a failure to act, which constitutes conduct for the purposes of s.386 of the Act. Further, she submits the Respondent’s failure or refusal to consider the branch manager’s conduct as a reasonable, curable explanation for the Applicant’s performance issues, led the Applicant to consider there was no possible alternate outcome other than termination of her employment.

[21] She submits that similar to in Mohazab v Dick Smith Electronics (No 2), 2 had the Respondent not engaged in that conduct – i.e. the failure or refusal to recognise the impact of the branch manager on the Applicant – and shown a genuine willingness to engage with the Applicant’s responses, she would have remained in her employment and provided a response to the Respondent’s concerns and understood that any such response would be considered. The Applicant had demonstrated her willingness to participate in performance meetings previously and, in the June meeting, accepted that her performance had declined. However, she submits that her explanations for poor performance were not acknowledged or responded to by the Respondent. So whilst the Respondent asserts that the Applicant had an opportunity to respond, this was not a real or substantive opportunity considered in the context of the whole of the Respondent’s conduct which evidences that the Respondent had no interest whatsoever in legitimate responses the Applicant had already raised. She felt she was not afforded procedural fairness and thus felt compelled to resign. On that basis, the Applicant asserts that resignation was not simply a last resort attempt by the Applicant to avoid a reasonable performance process, but rather the only outcome available to her in circumstances where she was entirely denied any guarantee of procedural fairness.

[22] The Applicant submits that the circumstances in which the Applicant resigned are similar to those in Boulic v Robot Building Supplies where the Respondent’s behaviour was such that the Applicant could not be reasonably expected to have put up with it. Particularly, in circumstances where the Respondent engaged in conduct calculated or likely to destroy or seriously damage the relationship of confidence and trust between an employer and employee.

[23] The Applicant contends that the Respondent’s only intention in conducting the June meeting was to ‘go through the motions’ of bringing her employment to an end. It was not a genuine attempt to investigate the cause of the Applicant’s poor performance, or offer her an opportunity to address any cause so as to improve. Rather, the Applicant says, the Respondent was determined to dismiss her regardless of her responses.

[24] As to the pre-prepared resignation letter, the Applicant claims that this is not evidence that the Applicant intended to or did voluntarily resign. She says, if that was in fact the Applicant’s intention, she would have done so without sitting through the June meeting. The Applicant’s evidence is that she prepared a resignation letter before the meeting not because she wanted to resign, but in case there was no other option provided to her other than termination. The Applicant submits that throughout the meeting it became obvious there was no alternative course other than the termination and that only then did she provide the Respondent with a letter of resignation, without legal advice, in a desperate attempt to salvage any employment record for the purposes of future employment prospects. When asked whether the Applicant would still be able to resign after providing a show cause response, the Applicant was provided with no support or encouragement to await the outcome of the process. In providing the resignation the Applicant stated, “I have had enough”. For the reasons set out above, the Applicant submits that the Respondent’s jurisdictional objection should be dismissed.

Legislative Framework

[25] Section 386 of the Act relevantly provides:

“Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[26] Section 386 of the Act has created two clear grounds on which a claim could potentially proceed. 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.”

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

“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.”

[28] 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 in the following terms:

“[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 as follows:

“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.”

[29] 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. 3 In Pacific National (NSW) Ltd v Bell, Mr Bell resigned prior to the conclusion of a formal determination regarding his false signing of timesheets.4 He stated 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.” 5 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.

[30] Similarly, Sherman v Sunrise Health Service Aboriginal Corporation demonstrates that during an investigation, if the employer has not yet concluded to terminate the employee, the process of investigating certain conduct will not be considered to ‘force’ a resignation. 6

[31] As I have previously stated in Jodie Moore v Woolworths Group Limited T/A Big W, “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.”  7 The usual purpose of an investigation is not, of itself, to bring about termination. Rather, the intention is to ascertain, with a degree of certainty, what event – or series of events – transpired and, if relevant, their cause. Once that information is gathered and conclusions drawn, the employer can decide what action is appropriate.

Consideration

[32] I have had regard to the submissions and evidence given by both parties.

[33] I accept that the Applicant did not arrive at the meeting on 1 June 2021 with the immediate intention to resign, notwithstanding that she had prepared the resignation letter. The existence of that letter simply demonstrates that resigning was, at the commencement of the meeting, one of a number of possible outcomes envisaged by the Applicant.

[34] I am satisfied that the Respondent was undertaking a typical disciplinary process whereby an individual is presented with the allegations made against them and asked to respond. I accept the Respondent’s evidence that the Applicant was then offered 48 hours to go away, consider her answers more fully and respond in writing.

[35] It seems that when the Applicant raised the branch manager’s conduct as being causative to her poor performance, the Respondent did not have a fulsome response. Indeed, the Respondent’s representatives likely expected that, having been raised by the Applicant, those matters would be subject of investigation prior to any decision being made regarding termination. Arguably, it would have been improper for either Mr McCluskey or Ms Russell to respond in any substantial way to the alleged impact that the branch manager had on the Applicant’s performance given the allegations had not been put to the branch manager or otherwise investigated.

[36] That said, it seems that at some point during the meeting, the Applicant came to the view that her employment was at risk. She had been confronted by numerous new allegations regarding her poor performance and reminded of the two previous occasions when similar concerns had been raised. Faced with these mounting matters, it seems that the Applicant made the decision to resign from her employment, perhaps – rightly or wrongly – in anticipation of the potential termination of her employment. I do not, however, accept that was the only opportunity available to her. Had she not resigned, but instead responded to the show cause notice and allowed an investigation to be conducted into the branch manager’s conduct (as the Respondent had done in 2019), her employment may not have been terminated. Or it may have. Either way, resigning was not the only option available to the Applicant at the meeting on 1 June 2021. Nor, on any reasonable view, did the Respondent’s conduct force the Applicant to resign.

[37] I am therefore satisfied, based on the evidence before me, that the Applicant voluntarily resigned during the meeting on 1 June 2020.

[38] Accordingly, I order that the jurisdictional objection be upheld. The Applicant’s application is thus dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR732880>

 1   For example, Wilson v Westpac Banking Corporation[2021] FWC 763.

 2 (1995) 62 IR 200.

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

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

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

 6   Sherman v Sunrise Health Service Aboriginal Corporation[2016] FWC 8903.

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