Debbi Bermingham v Global Constructions Australia Pty Ltd

[2014] FWC 7266

[2014] FWC 7266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Debbi Bermingham
v
Global Constructions Australia Pty Ltd
(U2013/12512)

DEPUTY PRESIDENT MCCARTHY PERTH, 20 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Ms Debbi Birmingham (the Applicant) lodged an application for an unfair dismissal remedy claiming that she was unfairly dismissed from her employment with Global Constructions Australia Pty Ltd (the Respondent). The Respondent asserts that the Applicant was not dismissed but rather resigned. The Respondent also asserts that notwithstanding what they assert was a resignation by the Applicant that they nevertheless dismissed her a fortnight after she had resigned.

[2] There were differing accounts of the facts relating to the cessation of the Applicant’s employment. The disputed facts related to both whether the Applicant was dismissed and if she was whether the dismissal was unfair or not. I therefore held a hearing to deal with the evidence for all matters that may need to be decided.

Background and Agreed Facts

[3] The parties provided a Statement of Agreed Facts. Amongst the facts agreed were the following:

● The Applicant’s responsibilities included day-to-day accounting administration. She was directly answerable to Mr Darrel Herbert (Director of the Company) on a day to day basis.

● On 16 July 2013, the Applicant sent a text message to Mr Herbert regarding terminating Ms Mikaela Ryan-Howell’s (Mikaela’s) employment. Mr Herbert directed that she first obtain the approval of Director, Mr Chris Parke (Director of the Company).

● At 4:43pm (on 16 July 2013), the Applicant then telephoned Mr Parke and spoke with him for approximately 2 minutes. The Applicant then telephoned Mikaela on her mobile and in a phone call that lasted approximately 45 seconds, she told her that her employment was terminated and she did not need to attend work the following day.
● On the morning of 17 July 2013, the Applicant and Mr Parke had a discussion regarding Mikaela’s ongoing employment. Following this conversation Mr Parke reinstated Mikaela so that she would return to work the following day with no break in service.

● On the afternoon of 17 July 2013, the Applicant was collected by Mr Kevin Bermingham (her husband) and left the office taking with her a personal item or items and leaving the company owned Kia Sorrento vehicle and the car keys at work.

[4] Whilst some facts are agreed there are different versions of the sequence of events and of the content of discussions that occurred.

The dismissal of Mikaela

[5] Central to this matter was the Applicant’s dealings with another staff member Mikaela. Mikaela commenced employment with the Respondent in May 2013. Mikaela was described by the Applicant’s representative as being “about 19 years old and possibly her first real job”.

[6] The Applicant was responsible for Mikaela’s training and supervision. The Applicant evidenced that concerns arose over Mikaela’s performance almost within the first month of Mikaela’s employment.

[7] The Applicant carried out what she described as a performance review with Mikaela in May and brought concerns to Mikaela’s attention. The Applicant says that Mikaela’s performance improved but by July 2013 concerns again arose regarding Mikaela’s performance. The Applicant conducted another performance review with Mikaela after she had returned from a month’s annual leave. The Applicant stated that Mikaela did not improve her performance following that discussion. The Applicant gave the following evidence:

“So I came back on 17 June. I think it would have been about a week later when I reviewed her. I said that Haley was very keen for her to be reviewed. I said, “I can’t reviewed her. I haven’t really worked with her.” We worked with her for a bit. Haley then sat in on that review because she had been the one working with her. We addressed various issues, yes, ranging from dress to attitude to phone manner. She had done a phone course while I’d been away at my suggestion. We tried to address the areas that needed addressing and over the next week or so she lifted her game substantially. I thought, “Great, we’re getting somewhere.” Then all of a sudden we just went backwards. We went backwards in every area that had been addressed and I reviewed her again. And I said, “I don’t like to have to do another review now. It’s not time to do another review but we need to because for some reason you have just changed.” And she agreed with me that there had been a change. She said she was going through personal stuff and she apologised and she apologised for sitting out in the car park crying. I’d given her money on some days to go to the shops and buy tights. So don’t think I wasn’t helping her.

I had asked her to do receipts. I had asked her to do work which she was not doing. She was doing shopping on the Internet. She was using Facebook. I said, “Miki, I need you to pull some work out and do it.” And she said, “It’s a tomorrow job.” And I said, “No, we still have time today. You need to do it today.” And she leant down and got the receipts out of the bag and she lifted her hand in the air and she dropped those receipts to the floor in front of me.”

[8] The Applicant says that on 16 July 2013 she canvassed with Mr Herbert and Mr Parke the dismissal of Mikaela. The Applicant stated that the sequence of events in this respect involved a discussion with Mr Herbert where it was agreed that Mikaela should be dismissed but that the Applicant should first discuss it with Mr Parke.

[9] The Applicant’s witness statement stated that:

“On 16 July 2013 I had a discussion with Mr Herbert about Mikaela. It was agreed that the issues with her could not be resolved and as she was still in her probationary period that her employment would be terminated. Mr Herbert directed me to have a conversation with Chris Parke about his [sic] prior to terminating her employment. I called Chris Parke as instructed and he agreed the best option was to let Mikaela go.”

[10] The Applicant under cross examination says that: “I had had communication with Darrel [Mr Herbert]. Then I’d spoken to Chris Parke”. The Applicant also states that she said to Mr Parke “I’ve spoken to Darrel [Mr Herbert] about Mikaela”.

[11] Mr Herbert’s evidence was that he did not recall a discussion with the Applicant on 16 July 2013 but did recall text message exchanges. Regardless of the form of communication it is not in dispute that the Applicant was advised by Mr Herbert to get Mr Parke’s approval before dismissing Mikaela. The Applicant’s phone records do not disclose any phone call to Mr Herbert. However this may be because Mr Herbert phoned her which was what the Applicant stated in her evidence.

[12] The Applicant says she then discussed it with Mr Parke and he agreed to the dismissal. The Applicant stated that Mr Parke asked “Is she doing her work?” and “If she’s not doing her work, yes, well, she goes” or “Well, if she’s not doing her work then yes, get rid of her”.

[13] Mr Parke has a different account of what transpired. He evidenced that:

“On the evening of 16 July 2013 I received a telephone call from Ms Bermingham [the Applicant] who informed me that having communicated with Mr Herbert she had rang up Miss Ryan-Howell [Mikaela] and terminated her employment. I informed Ms Bermingham [the Applicant] that I was not happy with this decision and that ‘I would sort it out in the morning”.

[14] The Applicant says that following her discussion with Mr Parke that she then proceeded to phone Mikaela. The conversation with Mikaela was brief and described by the Applicant in the following terms:

“We won’t be requiring your services anymore. I’ve spoken to the directors. Darrel [Mr Hebert] has offered you a week’s pay upfront even though you’re on probation which we don’t have to do this.” That was it basically. She said, “Okay.” She actually was fine. She said, “Okay, thank you.” The call was finished.”

[15] There are two apparent conflicts in the evidence about the Applicant’s phone call to Mr Parke that arise from the versions of the conversation in that phone call. Firstly the Applicant states that the phone call to Mr Parke’s preceded her phone call to Mikaela. Phone records produced by the Applicant support her contention in that regard. Her records show that she phoned Mr Parke at 4:43pm on 16 July 2013 and the call lasted for just over two minutes. The printout produced also shows that a call was made to Mikaela at 4:46pm which lasted 45 seconds.

[16] The second and more important conflict is that the Applicant says she gained permission to dismiss Mikaela. Mr Parke says that the Applicant “contacted me and advised that she’d already terminated her [Mikaela].” Mr Parke also stated that “she [the Applicant] rang me [Mr Parke] up and said, “I’ve got rid of her [Mikaela]” or “I spoke to Darrel [Mr Herbert]. I’ve got rid of her. I can’t stand her anymore. I don’t want anything to do with her” and then we had a discussion about that and then I told her that I would sort it out in the morning”.

[17] Thus clearly either Mr Parke or the Applicant has a wrong account and recollection of the conversation. Either the Applicant stated to Mr Parke that she had dismissed Mikaela when in fact she had not, or the Applicant sought Mr Parke’s permission to dismiss Mikaela and understood she had permission to do so.

[18] If one relied on the phone records alone the more likely account would be that of the Applicant as it fits the sequence of events she evidenced. If one relied on those records alone then it appears more probable that the Applicant sought permission from Mr Parke to dismiss Mikaela, believed she had that permission and authority to dismiss Mikaela and proceeded to do so. Moreover she proceeded to do so within minutes of getting that authority.

[19] However the phone records cannot give any account of what transpired in the phone conversation between the Applicant and Mr Parke nor the background to that conversation.

[20] The Respondent produced evidence of text messages between the Applicant and Mr Herbert beginning from just after about 4:00pm on 16 July 2013. The context of those text messages lends weight to Mr Parke’s version of the discussion. The relevant part of the messages from the Applicant to Mr Herbert include the following:

• “we either tell her to go tomorrow morning or i will call her now”



• “this our call, not chris’s”



• “I am happy to tell chris”



• “i need to make the call on who works in the office”

[21] The texts also include a request by the Applicant that Mr Herbert “back me [the Applicant] up if Chris [Mr Parke] intervenes” to which Mr Herbert responded “U better tell him”.

[22] The Applicant then texted Mr Herbert and informed him she was about to call Mr Parke and after she had apparently completed that call she “told him. He ok. Calling her now”. A further text from the Applicant to Mr Herbert states “Done Told her i had just discussed with u and chris [Mr Parke] and we no longer need her as things r not working out ...”.

[23] These texts are indicative that not only was the Applicant determined to dismiss Mikaela but that in her view it was not for Mr Parke to interfere with her intentions. The words used by the Applicant are couched in terms of “telling” Mr Parke and that “it was not Mr Parke’s call” on who works in the office and that they should not allow him to “intervene”. Furthermore, after the conversation with Mr Parke the Applicant described it as she “told him”.

[24] The context of the texts between the Applicant and Mr Herbert are consistent with a likelihood that the Applicant “told [Mr Parke] that I’ve [the Applicant] got rid of her [Mikaela]”. The text messages are strongly indicative of the intentions of the Applicant and her determination to dismiss Mikaela and that she would tell Mr Parke not ask him or discuss it with him.

[25] In my view the background and lead up to the conversation between the Applicant and Mr Parke are much more informative and reliable about the more likely content of that discussion than the phone records which can only inform the sequence of conversations and not the content. Furthermore the evidence of Mr Parke about the discussion with the Applicant the following day are entirely consistent with his actions on the following day with his version of the conversation and that he “would sort it out in the morning”.

[26] Indeed the Applicant’s reaction to Mr Parke’s decision to reinstate Mikaela is more rational if Mr Parke’s version is accurate than if the Applicant’s was. If the Applicant’s version was the correct one then it would be Mr Parke’s who changed his mind and not the Applicant. That would not be an undermining of the Applicant’s authority especially as the Applicant evidenced herself that she did not have the authority to hire and dismiss employees. If she did not have the authority to dismiss then a decision could not have been hers in the first place so a reinstatement should have been less concern to her and should not have undermined her.

[27] In my view Mr Parke’s version of that discussion is the more likely version and it is the version that I prefer.

[28] I have canvassed the above in some detail as it gives context to the events that followed including which evidence I prefer and why I prefer it.

The Reinstatement of Mikaela

[29] The Applicant says she was approached by Mr Parke on the 17 July 2013 and informed that Mikaela needed to be reinstated. Mr Parke’s evidence was consistent with that of the Applicant on this point although the length of the discussion was disputed. This is consistent with Mr Parke’s evidence that he said to the Applicant on 17 July 2013:

“... I spoke with Ms Bermingham [the Applicant] regarding her terminating Miss Ryan-Howell’s [Mikaela’s] employment. I informed Ms Bermingham [the Applicant] that her action in terminating Miss Ryan-Howell’s [Mikaela’s] employment was wrong and that she needed to call her up and reinstate her. She refused, so I made the call to Miss Ryan-Howell [Mikaela].”

[30] The Applicant stated that she regarded the decision to reinstate Mikaela as an undermining of her authority. The Applicant considered she would be placed in a position of being responsible for the supervision of Mikaela but without any real authority over her.

[31] The Applicant also evidenced that an argument, or at least a discussion involving raised voices, occurred between Mr Parke and his son on the morning of 17 July 2013 and inferred that the argument was in part about the dismissal of Mikaela. A meeting followed involving Mr Parke and the Applicant. It was at that meeting the Applicant was informed that Mikaela was to be reinstated.

[32] The imputation by the Applicant regarding the discussion between Mr Parke and his son appeared to be that Mr Parke’s son had influenced Mr Parke which caused a change of decision by Mr Parke. The Applicant tried to paint a picture of a friendship between Mr Parke’s son and Mikaela that caused a change of mind by Mr Parke. Mr Parke stated that the argument he had with his son immediately prior to the meeting with the Applicant did not canvass Mikaela’s dismissal at all. He evidenced that: “The discussion I had with my son Hayden Parke was of a personal nature totally unrelated [to the Applicant nor Mikaela]. Mr Parke’s evidenced that the Applicant’s name was not even mentioned. The Applicant’s account of that conversation appears to me to be not much more than supposition.

[33] The meeting between the Applicant and Mr Parke was said by the Applicant to have taken about 10 minutes. Mr Parke said it took about an hour. It was not in dispute that the discussion was not heated and that it canvassed a range of issues concerning the management and affairs of the Respondent. It was also not disputed that the discussion about Mikaela and her reinstatement was brief. Neither was it disputed that the meeting ended civilly and without any apparent angst.

[34] In my view the Applicant was evasive and pedantic in her evidence under cross examination about what transpired during the meeting with Mr Parke. In contrast Mr Parke gave a quite comprehensive and rational account of the conversation.

[35] For example the cross examination of Mr Parke included this interchange:

“Well, you had a discussion with her that day though, didn’t you?---Yes, we had quite a lengthy discussion.

And she made it clear she wasn’t happy about it?---She did say she wasn’t happy about it but as I said to Debbi [the Applicant], you know, Mikaela’s a 19-year old girl. Debbi’s [the Applicant’s] a mature woman, experienced, you know. She was the business manager. She was running those things and in my opinion, you know, as I said to Debbi [the Applicant], I said, “You know, you have to be able to manage a young person like that which” - “an unskilled person. If you can’t manage someone that’s 19, how do you manage someone that’s 40?”

[36] Mr Parke also gave a rational and reasonable account of his reasoning why he decided to reinstate Mikaela. He stated under cross examination that:

“She [Mikaela] was only there to answer the telephone. I, you know, she’s a pleasant member of the staff. I didn’t have any problems with her. She carried out any instructions that she was asked. I know that there were - there was some - you know, for want of a better word, bitching going on about her and some, you know, fairly harsh things being said, and fairly unfair things being said. And I just wasn’t convinced that she’d done anything wrong. I had spoken to her myself on - a couple of days before.”

[37] I prefer Mr Parke’s account of the conversation with the Applicant on the morning of 17 July 2013. In my view Mr Parke informed the Applicant that Mikaela was being reinstated, he explained the reasons for his decision to the Applicant and he requested the Applicant inform Mikaela and she refused to do so.

After the decision to reinstate Mikaela

[38] The Applicant states that she resumed her normal duties after the discussion with Mr Parke.

[39] Mr Herbert later had a discussion with the Applicant which the Applicant says lasted about 15 minutes. The Applicant stated that Mr Herbert entered her office and encouraged her not to resign. The Applicant states that Mr Herbert raised that topic of resignation.

[40] I note at this point that I have some concerns about the reliability of Mr Herbert’s evidence arising from an inconsistency in his evidence. In his witness statement Mr Herbert stated that: “On 17 July 2013 Mr Parke and I discussed the reinstatement of Miss Ryan-Howell [Mikaela]. I did not object to her reinstatement.” Yet when being cross examined the following question and answer was given: “Were you involved in the reinstatement of Mikaela?---No.” There was no explanation about that inconsistency.

[41] The Applicant says that Mr Herbert raised the prospect of the Applicant resigning by imploring her not to. Given the nature of the text interchanges between the Applicant and Mr Herbert the previous day I do not consider Mr Herbert raising that prospect as unusual, indeed neither did the Applicant.

[42] Mr Herbert was not questioned about the meeting.

[43] After the conversation with Mr Herbert the Applicant stated that she got quite emotional. She says that later she contacted her husband sometime between 12:00noon and 1:00pm and requested that he come in and pick her up.

[44] The Applicant stated that: “I told Darrel [Mr Herbert] I just needed to go home and I sent him a text message that night”.

[45] Mr Herbert evidenced that after his discussion with the Applicant:

“Later that day Ms Bermingham [the Applicant] informed me that she was leaving and that she would be in touch. Ms Bermingham [the Applicant] cleared out all of her personal belongings from her office, left the company car in the car park and the car keys on the desk. Based on these actions I assumed that she had resigned. As such I moved back into the office which I had previously vacated in.”

[46] Mr Herbert under cross examination stated that what occurred was:

“You were aware that she hadn’t resigned though?---Well, I was aware that she left her keys on the desk, her husband come to pick her up and she walked out.”

and

“My understanding was when she left the office, cleaned out her desk and left the keys on the desk, in my mind she finished and I moved back into that office there and then.”

[47] Mr Herbert also stated under cross examination that he believed that the Applicant had resigned and that the only factors he took into account were that the Applicant cleaned out her desk, left the keys on the desk and that she was upset.

[48] Mr Herbert was not asked directly whether the Applicant had informed him that she was leavingand whether if she did say that whether he considered she meant leaving for the day or leaving permanently and not coming back. The Applicant’s version was that she had said she told Mr Herbert that she “just needed to go home”.

[49] In my view Mr Herbert believed that the Applicant was leaving that day and not coming back. Indeed he almost immediately moved into the office that the Applicant had occupied. Mr Herbert spoke to the Applicant after she had spoken to Mr Parke and also spoke to her before she left. He evidenced that she said she was going and clearly he had good grounds to believe she was not returning. It seems clear enough to me that by her actions the Applicant was leaving her employment for good and she was doing so that day.

[50] The Respondent also argued that it was clear that the Applicant had no intention of returning to work. They argued that the Applicant cleaned out her desk, took her personal belongings and left the keys to the company car that she drove on her desk. The Applicant argued that she had no real personal belongings at work and she left the keys to the car as she was not in a fit state to drive. The Applicant stated that:

“I didn’t really have any personal property to remove. I always took a cardigan or a jacket to work. I’m not quite sure what personal property I removed apart from my handbag and my normal things that I would take home at the end of the day. I’m not one for keeping personal property at work.

My husband put the keys on the desk because the car was parked out on the verge. If they didn’t have the key the car would have been left on the verge for the night. They wouldn’t have been able to put it into the yard

I took the mug which I often used to take home to put in the dishwasher.”

[51] The explanation by the Applicant that the reason the car keys were put on the desk was because “the car was parked out on the verge. If they didn’t have the key the car would have been left on the verge for the night. They wouldn’t have been able to put it into the yard” is unconvincing.

[52] I consider the actions of the Applicant in respect of cleaning up her desk, her belongings and leaving the car keys are indicative of her intent to leave and not return. Furthermore, it is more likely that the Applicant did say or convey to Mr Herbert by her words and by her actions that she had decided to leave, not just for the day but permanently.

[53] It is not contested that the Applicant’s husband drove to the Respondent’s premises and picked up the Applicant this is another indicator of her intentions. The Applicant explained the reason for this was that “He [Mr Birmingham] didn’t want me in an environment that obviously I was feeling threatened in and he didn’t think I was in a position to be driving”.

[54] The Applicant had a conversation with Mr Parke, it ended civilly, there was no evidence of any threats made by Mr Parke, and she later had a conversation with Mr Herbert. There was nothing suggested in Mr Herbert’s evidence that there was anything threatening. The Applicant may well have been very upset, but the upset in her own evidence came after Mr Herbert’s initial discussion with her on that day and there is nothing to suggest that conversation involved anything that could be considered threatening.

[55] The Applicant’s husband gave evidence that the Applicant was distressed. There is no direct evidence of how he came to that view. There is evidence that the Applicant contacted him by text message only so it could only have been by that message or messages that he came to that view. Those messages had informed him of the decision to reinstate Mikaela and that “I don’t really feel too good about it”. The Applicant stated that: “He picked me up because he knew that I was distressed. He didn’t want me in an environment that obviously I was feeling threatened in and he didn’t think I was in a position to be driving.”

[56] The Applicant’s husband messaged back to the Applicant that “I’m coming to get you. You don’t deserve to be treated like this”. The Applicant’s husband may have come to this view of the Applicant being distressed and not in a fit state to drive partly because of a small medical procedure she had the day before. However, that did not prevent the Applicant driving to work on that day.

[57] I consider the explanations by the Applicant and the Applicant’s husband about why they left the car keys on her desk to be unconvincing.

[58] The Applicant acknowledged that other staff members were crying when she left. She asserts that this was a reaction to the way she had been treated. This is also unconvincing.

[59] The evidence from Mr Parke left no doubt about what he believed occurred on 17 July 2013 and what the Applicant’s intentions were. Mr Parke’s evidence included the following:

“She left her car. She walked out the door without saying anything to anybody. Her husband told Darrel [Mr Herbert], “After all she’s done for you, how could you do this?” Her desk was completely cleaned out. There wasn’t anything on that desk at all. Darrel [Mr Herbert] was moving into the office five minutes after she walked out the door. There was the text message from Haley the next day which to me confirmed that she wasn’t coming back. I mean, she’s basically saying, “Well, you get out too while I have” - or “like I have “ or “They’re going broke”. And, I mean, you know, that to me - you know, to be honest with you, that’s just a - you know, trying to cause damage to us, you know?”

and

“I believe she quit, yes. Walked out.”

and

“I believe she quit. That’s my - that’s what my belief was at that time. That she quit and walked out.”

and

“She didn’t say anything to me. No, that’s all. I didn’t ask anybody else if they - she spoke to anybody else at the time. All I know is that she was gone. If she had have come and spoke to me I would have said to her, “Please don’t leave”. That’s what I would have said to her, you know, “Don’t be silly”.”

and

“I believe she just walked out and I believed that that was because I had reinstated Mikaela.”

[60] It was eventually succinctly put to Mr Parke “Is it your position that she abandoned her employment on 17 July 2013?” to which he answered “---For want of a better word, yes”.

[61] An aspect of the Applicant’s evidence in respect of the text messages the following day inclined me to prefer Mr Parke’s evidence more generally. The Applicant gave a series of responses that she could not recall whether she sent text messages to another person in the office (Haley) on the 18 July 2013 and if she did what the content was. However the following question and answer were put and given in cross examination:

“And that that text message said something along the lines of, “Get out like I’ve done. The company is going under.” So that was you giving advice to Haley. Do you remember sending that or something like that?---Yes, because on the day when I’d been going home, she said, “Hopefully your bookkeeping business grows one day and you can employ me.”

Conclusions

[62] The first question to answer here is whether the Applicant was dismissed. I find that she was not dismissed. I find that the Applicant by her actions on 17 July 2013 abandoned her employment. The evidence and my observations and findings from that evidence all points to the Applicant deciding that she would depart on the afternoon of 17 July 2013 and not return. The evidence establishes to my satisfaction that her intention was to leave and not return.

[63] It is unnecessary that I canvas the evidence of later events and actions given my findings above. The actions later in the evening of 17 July 2013 I consider to be actions subsequent to the abandonment of the Applicant’s employment. Those actions do not alter my finding of the fact of what occurred on that afternoon viz; that the Applicant abandoned her employment. I also consider the later actions by the Respondent as unnecessary consolidations of the termination by the Applicant through her abandoning of her employment. Those actions also do not alter the fact of the events of the afternoon of 17 July 2013.

[64] I therefore find that the Applicant was not dismissed from her employment. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

T Petherick of Petherick Cottrell Lawyers for the Applicant.

M Saraceni of Counsel for the Respondent.

Hearing details:

2014.

Perth:

April 1, 29.

Final written submissions:

Applicant, 16 May 2014.

Respondent, 16 May 2014.

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