Dawes v Presbyterian Care

[2014] FWC 4067

[2014] FWC 4067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pamela Dawes
v
Presbyterian Care Tasmania
(U2014/4709)

DEPUTY PRESIDENT WELLS HOBART, 20 JUNE 2014

Application for relief from unfair dismissal – alleged constructive dismissal – resignation – existence of employer course of conduct – jurisdictional objection – whether termination at the initiative of employer.

Introduction

[1] Ms Pamela Dawes was employed by Presbyterian Care Tasmania (PCT), an aged care provider, from 7 March 2011 until 28 January 2014. Ms Dawes claimed that she had been unfairly dismissed as she was forced to resign her employment because of conduct engaged in by PCT.

[2] PCT objected to Ms Dawes application on the grounds that Ms Dawes had terminated her own employment in a letter of resignation dated 28 January 2014.

The Meaning of Dismissed

[3] The meaning of dismissed is found at s.386(1) of the Fair Work Act2009 (the Act) and states:

“(i) 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.”

[4] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) said in respect of now s.386(1) that:

“Clause 386 – Meaning of dismissed

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

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

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

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

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

The Applicant’s evidence

[5] Ms Pamela Dawes gave evidence in support of her case both by written statement 1 and oral evidence. Ms Dawes was an Extended Care Assistant working at Presbyterian Care at Warrane in Tasmania having commenced employment with PCT in March 2011.

[6] In her witness statement Ms Dawes discussed a workplace incident that took place prior to Christmas 2013 involving conflict between residents which had occurred when an employee, Ms Kelly Vanderlaan, had left the area without telling Ms Dawes. Ms Dawes became angry with Ms Vanderlaan, but later apologised for becoming angry. It was after this incident Mr Dawes said she became aware of rumours about her circulating among other staff in the facility.

[7] As a result of hearing about this gossip, Ms Dawes telephoned Ms Felicity Weeding, the Facility Manager at PCT on 28 January 2014 at 9am. Ms Dawes told Ms Weeding of her concerns and indicated she should speak with Ms Vicki Hinds. It was said that Ms Weeding replied with “right, leave it with me”. 2 Ms Dawes heard nothing further and commenced her shift at 4pm that day.

[8] Ms Dawes stated that at about 5.30pm Ms Tuffin, Nurse Manager, asked to see her. They went to see Ms Weeding in her office. It was Ms Dawes’ evidence that the meeting took between 30 and 45 minutes and that from the outset of the meeting both Ms Weeding and Ms Tuffin were standing up, speaking quickly and in an emotional state. Ms Weeding told Ms Dawes that Ms Vanderlaan had written a statement saying that Ms Dawes had hit a resident and had also spoken badly about certain residents.

[9] Ms Dawes stated that she said “I don’t remember hitting anyone”.

[10] Ms Dawes said that she advised Ms Weeding of her past conversations with Ms Vanderlaan and that she had stated “I hate men who hit women”. 3 Ms Dawes said this was in response to Ms Vanderlaan confiding in her about a domestic violence situation. She said that Ms Weeding and Ms Tuffin were discussing during the meeting with her that if staff cannot cope in ADARDS then they ought to try Riverview Lodge. On cross-examination, Ms Dawes denied that she had misrepresented this and other parts of the discussions during the meeting or misrepresented the demeanour or actions of Ms Weeding or Ms Tuffin.

[11] It was Ms Dawes’ evidence that Ms Weeding then put to her that she could resign or they would be calling the Police in. Ms Dawes said that the impression Ms Weeding gave was that she would have to wait in the office until the police arrived. She also stated that she was aware there were no union delegates rostered on shift that day.

[12] Ms Dawes confirmed under cross-examination that she did ask during the meeting what her options were.

[13] Ms Dawes said the allegations shocked her and that she had heard about Police escorting other employees from the premises previously. Ms Dawes said she was worried about facing a police investigation and that it would be shameful and embarrassing and that she didn’t want to be in that situation. Ms Dawes stated that she told Ms Weeding that she would deal with the matter tomorrow and that is when Ms Weeding said “You can do it now” and handed her a pad and pen. She said with the threat of the police being called she wrote out her resignation.

[14] Under cross-examination Ms Dawes stated that she had never witnessed employees being removed from the workplace by police, but had heard other staff talking about it having happened.

[15] Ms Dawes stated that she had no intention to resign her position that day and only did so because of pressure from her employer. Ms Dawes said that at no time did Ms Weeding or Ms Tuffin indicate that she was being stood down on full pay while the matter was to be investigated.

[16] Ms Dawes said she then left the office with Ms Tuffin; that Ms Tuffin got Ms Dawes’ personal belongings and she then left the workplace.

[17] It was the evidence of Ms Dawes that she had no opportunity to provide a reasoned response to the allegations and no opportunity of seeking advice from her Union. Ms Dawes states that at no stage have the police made any contact with her about her work at PCT.

PCT Inc’s evidence

[18] Ms Felicity Weeding, the Care and Services Manager – South at PCT’s care facility at Warrane gave evidence both written 4 and oral.

[19] Ms Jenny Tuffin, Nurse Manager – South and Clinical Nurse Consultant at PCT’s care facility at Warrane also gave evidence both written 5 and oral in support of PCT’s case.

[20] After Ms Dawes phone call, Ms Weeding discussed the matter with Ms Tuffin. Ms Tuffin stated that on 28 January 2014, at about 2pm, she made enquiries of another employee, Ms Vicki Hinds. That conversation elicited information that Ms Vanderlaan was saying that Ms Dawes had struck a resident.

[21] Whilst Ms Weeding’s written statement indicated it was Ms Tuffin who had spoken with Ms Hinds, Ms Weeding’s oral evidence was that she herself had spoken with Ms Hinds. On cross-examination on this point, Ms Weeding stated she thought she might have spoken with Ms Hinds on the phone.

[22] It was confirmed by Ms Tuffin that she was aware there had been some friction between Ms Dawes and Ms Vanderlaan arising from the previous workplace matter.

[23] As a result of the discussions between Ms Tuffin and Ms Hinds, a meeting was arranged between Ms Weeding, Ms Tuffin and Ms Vanderlaan on 28 January 2014, which took place at around 4.15pm. During the course of this interview Ms Vanderlaan alleged Ms Dawes, on 8 January 2014, had slapped a resident and had spoken inappropriately to other residents. Ms Weeding obtained a written statement from Ms Vanderlaan which contained information in dot point form. Ms Vanderlaan signed and dated that complaint. Both Ms Weeding and Ms Tuffin said that Ms Vanderlaan received counselling for not having reported the alleged incident earlier than she did.

[24] Under cross-examination there was a conflict between the evidence of Ms Tuffin and Ms Weeding as to what occurred in the meeting with Ms Vanderlaan as to whether they had tested the veracity of the allegations made by Ms Vanderlaan.

[25] It was said by both Ms Weeding and Ms Tuffin that Ms Vanderlaan had given her excuse for non-reporting as being that Ms Tuffin was on annual leave at the time and she did not want to talk to anyone else about the matter. Further Ms Vanderlaan had said that the previous friction with Ms Dawes in the workplace had also been a consideration for her not reporting it earlier.

[26] The evidence of Ms Tuffin and Ms Weeding was that Ms Weeding rang the CEO of PCT, Mr John Brooks; after the written allegation was obtained from Ms Vanderlaan and that he had advised them to suspend Ms Dawes on full pay and investigate the matter.

[27] It was Ms Weeding’s evidence that PCT does not have a dedicated Human Resource (HR) Department; that everything must go through the CEO and that HR matters are usually outsourced to James O’Neil and Associates. Ms Weeding also advised she was not aware of a policy in relation to suspension or stand down, but that those types of matters were always a decision for the CEO.

[28] Ms Tuffin and Ms Weeding’s evidence was that at about 5pm on 28 January 2014 they met with Ms Dawes. Both stated that the meeting took about 15 minutes, was opened with advice that they had been investigating Ms Dawes complaint from that morning, that they were seated during the meeting and their demeanour was calm. Ms Weeding then advised Ms Dawes that in the course of those enquiries a serious allegation had been raised against her and that she was to be suspended on full pay.

[29] Both Ms Weeding and Ms Tuffin stated that the allegation was read to Ms Dawes and that she was offered a copy but she declined to take it. The allegation contained, inter alia, that Ms Dawes had tussled with and slapped a female resident and that she had said to two other residents with a raised voice “I hate violent men”.

[30] Ms Weeding said at paragraph 6 of her witness statement that Ms Dawes declined to look at the statement and that “Pamela had a very resigned look on her face and a flat affect and stated ‘I don’t remember hitting anyone’”.Ms Tuffin’s statement said, at paragraph 8, the same.

[31] Ms Weeding said she outlined to Ms Dawes the process to be followed which was to involve “…suspension on full pay, an investigation and report to the Police.” 6Ms Weeding confirmed a number of times on cross examination that she had advised Ms Dawes that the matter would be reported to the Police.

[32] It was Ms Tuffin’s oral evidence that Ms Weeding had told Ms Dawes that the Police were “usually” involved. When taken to her written statement that said “Felicity outlined process to Pamela that was to be followed i.e. suspension on full pay, an investigation and report to the Police”, Ms Tuffin said her written statement should have included the word “usually” and that Ms Weeding has used that word in the meeting with Ms Dawes.

[33] There was conflict between the evidence of Ms Tuffin and Ms Weeding in relation to whether the meeting discussions included anything about the comment “I hate men who hit women”. Ms Tuffin denied that there was any conversation about men hitting women. Ms Weeding’s oral evidence was that there had been some talk of it in the meeting but not to the level of detail provided by Ms Dawes.

[34] It was the evidence of both Ms Weeding and Ms Tuffin that it was at this point in the meeting that Ms Dawes asked what her options were. Both Ms Weeding and Ms Tuffin said that she was advised by Ms Weeding that she could participate in the investigation process or resign. Ms Weeding and Ms Tuffin said that Ms Dawes said she wanted to resign.

[35] Ms Weeding and Ms Tuffin both confirmed that Ms Dawes said “...she would go away and put her resignation in writing” 7 and that Ms Weeding told Ms Dawes should could “...do it now and provided her with pad and pen”8. Ms Weeding’s evidence was that she did not want Ms Dawes going into other areas of the facility as she had been suspended.

[36] Ms Weeding said she believed she would have told Ms Dawes that the meeting was not a disciplinary meeting as this was her usual process.

[37] Ms Weeding and Ms Tuffin both stated that after Ms Dawes wrote out her resignation, she gave it to Ms Weeding and was escorted from the workplace by Ms Tuffin.

[38] Both Ms Weeding and Ms Tuffin confirmed under cross-examination that they did not suggest to Ms Dawes that she might like to get some advice before resigning.

[39] Ms Tuffin and Ms Weeding said it was an unexpected turn of events when Ms Dawes offered to resign. It was refuted by both Ms Weeding and Ms Tuffin that the meeting was designed to elicit a resignation from Ms Dawes and that they never told Ms Dawes that if she resigned then the Police wouldn’t be called.

[40] Ms Tuffin and Ms Weeding confirmed that the matter was never reported to Police Ms Tuffin said that as some 20 days had elapsed since the alleged assault and the report, there was no physical evidence available to sustain an investigation. Ms Weeding’s view was that as Ms Dawes had resigned any possible risk had been eliminated.

[41] Under cross-examination Ms Tuffin confirmed her knowledge of an approved aged care provider’s obligations under the Aged Care Act 1997 to “…take reasonable measures to ensure staff members report any suspicions or allegations of reportable assaults to the approved provider (or other authorised person), to the Police or the Department…” 9

[42] When questioned about the mandatory reporting requirements of aged care facilities, both Ms Weeding and Ms Tuffin conceded that they were aware of the requirements to report any allegations of assault of residents.

[43] It was put to Ms Weeding under cross-examination that the reason for the meeting with Ms Dawes on 28 January 2014 was to elicit a resignation from her so they would not have to investigate the matter or make a report to the Police or the relevant Commonwealth Department. Ms Weeding denied this.

Submissions

[44] It was submitted by Mr Eddington for the applicant that the circumstances of this case were similar to those in Mohazab v Dick Smith Electronics Pty Ltd 10(Mohazab)and that s.386(1)(a) is the relevant section of the Act applying in this matter.

[45] To that end it was said that most of the submissions made by the respondent relating to Bruce v Fingal Glen Pty Ltd 11 (Bruce) were premised on the wrong section of the Act, that being s.386(1)(b).

[46] Mr Eddington advocated that under the Act the previous provision relating to termination at the instigation of the employer, (namely s.642(4) of the Workplace Relations Act 1996), had been broken into two parts, section 386(1)(a) and (b).

[47] Whilst the Mohazab case was conducted under section 170EA(1) of the Industrial Relations Act 1988, the predecessor to the Workplace Relations Act 1996, Mr Eddington submitted that the Fair Work Bill 2008 Explanatory Memorandum specifically mentioned Mohazab as an example of the type of case law to be captured by s386(1)(a) of the Act. Mr Cameron representing PCT disputed this point, instead submitting that the Explanatory Memorandum (paragraph 1528) made no mention of Mohazab applying to a termination under s.386(1)(a).

[48] Mr Eddington submitted that the employer had given Ms Dawes no time to consider her position, instead giving her pen and paper to write out her resignation. This, it was said, together with the threat of calling in the Police, was action to obtain a resignation from Ms Dawes and therefore the termination was similar to Mohazab and was at the initiative of the employer. Further, that the lack of a report to the Police or the Department after the resignation was obtained should be taken as the motivation for the employer’s actions.

[49] Referring to the Bruce case, an appeal which upheld a single member decision which found the employee (Bruce) had not been dismissed by her employer, Mr Eddington stated that this case involved an entirely different set of circumstances which involved a course of conduct by the employer over a considerable period of time and that it only considered s.386(1)(b). Therefore, it was not relevant to the circumstances of this matter. Mr Eddington said that unlike Bruce, Ms Dawes had no real choice but to resign, so therefore both tests in (a) and (b) of s386(1) had been met. Upon obtaining the resignation, no report was made to Police and the matter was not reported to anyone, as PCT are required to do under legislation. 12

[50] It was further submitted that an investigation of elder abuse stains the reputation of an aged care worker, even when innocent, and can do irreparable damage to a career and this was what Ms Dawes wished to avoid.

[51] The applicant’s submissions addressed the principle in Briginshaw v Briginshaw 13 (Briginshaw) stating that a decision maker should proceed cautiously where a serious allegation has been made and that if the decision is likely to produce grave consequences, the evidence should be of high probative value. Mr Eddington submitted that as the matter was not investigated the Briginshaw principle has not been adhered to.

[52] It was submitted by Mr Cameron, for PCT, that on reading the original application filed with the Commission, Ms Dawes was claiming relief under s386(1)(b) and that is what should be considered in this matter.

[53] Mr Cameron stated that the principle of Briginshaw does not apply in this case. In support of this submission, the respondent referred to Hassan & Abejaron v Nestle Dairy Products. 14

[54] It was Mr Cameron’s submission that for s.386(1)(b) to apply in this case, Ms Dawes had to be put in a position where she had no other option but to resign, and that the evidence provided that she did have the option of participating in the investigation of the allegations. Mr Cameron referred the Commission to Victorian Association for the Teaching of English Inc v Debra de Laps 15 and Bruce, as cases dealing with whether a ‘reasonable choice’ was available to the employee.

[55] Mr Cameron said that the statements of the respondent’s witnesses were not a blow by blow description of what occurred in the meeting with Ms Dawes, but they were united in their evidence that no duress was applied and it was Ms Dawes who had requested to know what her options were.

[56] It was submitted that the respondent provided Ms Dawes with the options of participating in the investigation or she could resign and that this did not amount to duress.

[57] Mr Cameron submitted that the delay in reporting the allegations was explained by the respondent’s witnesses as being due to Ms Tuffin being on leave from the workplace and that the CEO had made the decision not to report the matter to Police.

In-reply Submissions

[58] It was submitted by Mr Eddington that the respondent’s submissions as to the CEO, Mr Brooks, being the decision maker relating to non-reporting of the matter to Police was problematic for them as Mr Brooks was not called to give evidence. Mr Eddington submitted that an inference could be drawn from the Jones v Dunkel 16rule, that is, I should infer that the evidence that could have been provided by Mr Brooks would not have been of assistance to PCT’s case, had it been before the Commission.

Consideration

[59] In order for there to be access to a remedy to unfair dismissal, the employee must have been dismissed in accordance with s.386 of the Act. Accordingly, I am required to determine on the evidence whether Ms Dawes was dismissed at the initiative of PCT or whether she was forced to resign due to the conduct engaged in by PCT.

[60] In order to amount to a termination at the initiative of the employer the applicant must have been forced to resign by a course of conduct engaged in by PCT.

[61] I deal firstly with the conflict in the evidence.

[62] Both respondents’ witness statements are remarkably similar in nature with very specific phrases being identical. Ms Tuffin advised that she had formulated notes after the meeting of 28 January 2014 and sent those to Ms Weeding. It was said these notes formed the basis of both witness statements. I note that whilst this is not an optimum practice for producing witness statements, I am satisfied that the drafting approach of PCT’s witnesses was not one of collusion and it did not affect their independent recollection of events, which was born out in the oral evidence.

[63] There was considerable contradiction between the evidence of Ms Dawes and PCT’s witnesses as to the proceedings of the meeting of 28 January 2014. Conflict of evidence is not unusual in a case such as this. Due to the conflicting nature of much of the evidence, I have relied on those evidentiary matters which are common to the parties. Where I have preferred the evidence of one party over another, I have indicated why that is so.

[64] It is common ground that PCT did not advise Ms Dawes that her employment was terminated. The argument advanced by Mr Eddington for the applicant, that Ms Dawes was dismissed pursuant to s.386(1)(a) is a curious one. I am unable to accept his submissions that the reference to Mohazab at paragraph 1528 of the Fair Work Bill 2008 Explanatory Memorandum provides that the circumstances applicable in Mohazab would be a termination pursuant to s.386(1)(a) of the Fair Work Act 2009. It is clear, in my view, that separating the provisions of s386(1) was to allow for a termination that is clearly and unambiguously made by the employer, whilst also providing for a termination, such as in Mohazab, where an employee resigns through a course of conduct embarked on by the employer.

[65] Mohazab was found to be a termination at the initiative of the employer, under legislation which, at the time, was not separated into two distinct part, as we currently see with s.386(1). Should Mohazab have been conducted under the current legislation, it is my view it would be a termination pursuant to s.386(1)(b). Accordingly, Ms Dawes’ argument that she was terminated pursuant to s.386(1)(a) must fail.

[66] I turn now to whether Ms Dawes’ resignation was effected pursuant to s.386(1)(b) of the Act, as the applicant’s representative submitted that Ms Dawes’ resignation also fitted that test under the Act.

[67] The evidence and submissions put on behalf of Ms Dawes were directed at a finding that PCT had engaged in conduct which amounted to forcing a resignation from Ms Dawes. In this respect Ms Dawes relied on the following:

● the allegations were not tested for veracity before being put to her;

● an ultimatum was made to her to resign or the Police would be called in;

● obtaining a resignation would obviate PCT’s responsibility to investigate the matter;

● obtaining a resignation would obviate PCT reporting the allegations to the resident’s family; and

● obtaining a resignation would obviate PCT reporting the allegations to the relevant Commonwealth Department.

[68] I am satisfied on the evidence provided by all three witnesses, that Ms Dawes was advised of the allegations made against her and that the matter would require investigation and reporting to the Police.

[69] Ms Dawes confirmed in her testimony that she did, during the meeting of 28 January 2014, ask Ms Weeding what options were available to her. This indicates, in my view, Ms Dawes was presented with a set of circumstances and wished to consider what was best for her in the situation.

[70] Ms Dawes indicated to Ms Weeding she would take some time to complete her written resignation. I conclude, therefore, that Ms Dawes was aware she could go away and complete her resignation, however she chose to write out her resignation then and there when given that option.

[71] Whilst there were some contradictions in the evidence of both Ms Weeding and Ms Tuffin, they were not of sufficient moment. Whilst their evidence was corroborative on those matters of substance required to be considered when dealing with the question of constructive dismissal, I have preferred that corroborated evidence to the evidence of Ms Dawes.

[72] In Mohazab, the Full Federal Court said:

“On the findings of the fact that the respondent directed the appellant to resign or have the police ‘called in’, it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee…

On the facts as found by the registrar the threat to call in the police was intended to induce a reluctant resignation in circumstances where the respondent had not completed its inquiries and had not resolved to report the matter to the police. It appears to have been accepted by the registrar as a finding that the appellant believed that a report to the police would place a stain on his character and inhibit his prospects of other employment in the future, irrespective of the outcome of a police investigation.

The proper conclusion from the facts as found by the registrar and presented to his Honour was that the respondent wanted the appellant’s resignation because it desired to terminate the appellant’s employment. There was no other reason for it to do so. It sought to do so in that way to avoid any consequences that might flow from summary dismissal of the appellant. It is apparent that on the findings of the registrar as to what occurred at the interview the respondent made it clear through its representatives that it no longer desired to employ the appellant.

In our opinion, the ‘critical action’ here, to use the expression of the Chief Justice in David Graphics was, the threat of the respondent that unless the appellant resigned the respondent would ask the police to charge him with an offence. The termination of the appellant’s employment was not at his initiative. It was a resignation obtained by the respondent by an ultimatum designed to achieve that objective. That conclusion is reinforced by the peremptory conduct of the respondent in escorting the appellant out of the respondent’s premises, leaving him to stand in a carpark to await a letter of resignation to be prepared by the respondent and brought to him to sign. That conduct by the respondent suggested summary termination of the appellant’s services by the respondent rather than voluntary resignation by the appellant.”

[73] I am of the view there is considerable divergence of the circumstances in Mohazab and this case. I accept the evidence of the respondent’s witnesses that they never indicated to Ms Dawes that they no longer desired to employ Ms Dawes. I note Ms Dawes never stated this was the case. Whilst Ms Dawes was advised that the Police would be involved, she was not told by Ms Weeding or Ms Tuffin that unless she resigned the Police would be asked to charge her with an offence. Further, the resignation was not provided to Ms Dawes for her to sign. Ms Dawes wrote out her own resignation after considering whether she would take some time before doing so.

[74] Ms Dawes also indicated in evidence that she was aware that the union delegate was not on shift on 28 January 2014. I conclude from this evidence that Ms Dawes was aware that union advice was a relevant consideration for her. However, she still wrote out and tendered her written resignation.

[75] The Full Bench decision in P. O’Meara v Stanley Works Pty Ltd 17 contains a useful summary of the principle authorities on constructive dismissal under the legislation at that time, which includes Mohazab:

“[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 of has the probable result in bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequently 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 probably result or that the appellant had no effective or real choice but to resign.”

[76] In the earlier Full Bench decision of ABB Engineering 18 mentioned above, the Bench also stressed the importance of examining the employer’s conduct to ascertain whether it supported a conclusion that the employee in question had been constructively dismissed:

“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.” (emphasis added)

[77] I accept the submissions of Mr Eddington in relation to the Bruce decision and note the circumstances of that case involved a long period of conduct and as such that case has little precedent value, with the cases mentioned above being more relevant.

[78] I have accepted the evidence of PCT’s witnesses, due to its corroborating nature, that the employer did intend to call the Police as part of any investigation and that subsequent to the resignation of Ms Dawes, there was no need to conduct the investigation as the person whom the allegations had been made against was no longer in the workplace. This is not an uncommon position for an employer to take. It is however noted that PCT may have breached their obligations under the Aged Care Act 1997 by not reporting the allegation in accordance with s63.1AA. 19

[79] I also accept the corroborated evidence of Ms Weeding and Ms Tuffin that they did not resolve to obtain a resignation from Ms Dawes and that they were surprised when Ms Dawes asked how she could resign.

[80] I am satisfied that on an objective analysis of all the matters set out above and taken together, they do not amount to a course of conduct taken by PCT which gave Ms Dawes no reasonable choice but to resignation. It was open to Ms Dawes to participate in the investigation that was to commence. The investigation, had it been completed, may have found that there was no substance to the allegations made by Ms Vanderlaan. Therefore I am unable to find that Ms Dawes was forced to provide her resignation because of conduct engaged in by PCT.

[81] Mr Eddington submitted that the principle in Briginshaw had not been fulfilled in this matter. I accept the argument advanced by Mr Cameron in this matter that Briginshaw does not apply in this case as “The standard of proof required of a party who bears the onus in civil litigation is proof on the balance of probabilities, even where the matter to be proved involves criminal conduct.” 20

[82] It was also submitted by Mr Eddington that I should draw adverse conclusions concerning PCT’s failure to call Mr Brooks as a witness. The pertinent facts were set out in the evidence of PCT and I have not been required to rely on that particular submission made by Mr Cameron. As such I do not draw any adverse conclusions from the failure of PCT to call additional witness evidence.

Conclusion

[83] I find that there was no termination of Ms Dawes’ employment pursuant to s.386(1)(a) or (b). As a consequence, there has been no dismissal for the purposes of s.385 of the Act and the application for relief pursuant to s394 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J Eddington, Health Services Union No. 1 Tasmanian Branch, for the Applicant.

Mr A Cameron, James O’Neil and Associates,for the Respondent.

Hearing details:

Hobart

2014:

6 June.

 1   Exhibit A1 – Witness statement of Pamela Dawes.

 2   Exhibit A1 - paragraph 10.

 3   Exhibit A1 - paragraph 12.

 4   Exhibit R2 – Witness Statement of Felicity Weeding.

 5   Exhibit R1 – Witness Statement of Jenny Tuffin.

 6   Paragraph 7 of Ms Felicity Weeding’s statement.

 7   Exhibits R1 and R2.

 8   Ibid.

 9   Exhibit A2 - Compulsory Reporting Guidelines For Approved Providers of Residential Aged Care, Office of Aged Care Quality and Compliance, June 2008, Department of Health and Ageing, page 3.

 10 (1995) 62 IR 200.

 11   Bruce v Fingal Glen Pty Ltd[2013] FWCFB 5279 PR539675 per Boulton J, Gooley DP and Hampton C.

 12   Aged Care Act 1997, section 63.1AA(1) and (2).

 13 [1938] HCA 34.

 14   [AIRC] Dec577/00 M Print S6338.

 15   [2014] FWCFB 613 PR547139 per Acton SDP, Hamilton DP and Blair C.

 16 (1959) 101 CLR 298 at 312.

 17   (2006) PR973462 at [23] per Giudice J, Watson VP, Cribb C).

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

 19   Exhibit A3.

 20   Hassan & Abejaron v Nestle Dairy Products [AIRC] Dec577/00 M Print S6338 per Watson SDP, Acton SDP and Hingley C, were at paragraph [14].

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