Deborah Martin v Impact Bottles Pty Ltd

[2013] FWC 7803

[2013] FWC 7803

FAIR WORK COMMISSION

DECISION

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

Deborah Martin
v
Impact Bottles Pty Ltd
(U2013/7594)

DEPUTY PRESIDENT SAMS SYDNEY, 8 OCTOBER 2013

Termination of employment - jurisdiction of the Commission - resignation or dismissal - whether resignation can be withdrawn - employee’s disruptive behaviour - warnings - resignation clearly understood - resignation cannot be withdrawn without consent - Commission has no jurisdiction to consider application - application dismissed.

STATUTORY FRAMEWORK APPLICABLE TO THIS APPLICATION

[1] Under the Fair Work Act 2009 (‘the Act’), a person can only claim to have been unfairly dismissed if a number of mandatory prerequisites are met. These are set out at s 385 of the Act as follows:

‘(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.’

[2] By the express use of the conjunction ‘and’ connecting each of the above prerequisites, it is plain that all four of them must be satisfied for a person to have been unfairly dismissed. In addition, before deciding the merits of an application for a remedy for unfair dismissal, the Fair Work Commission (‘the Commission’) must decide the following matters under s 396 of the Act:

‘(a) whether the application was made within the period required in subsection 394(2); (21 days)

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

[3] The issue to be determined by this decision is fundamental to the Commission’s unfair dismissal jurisdiction. That issue is whether or not the applicant, Mrs Deborah Martin, was actually dismissed by Impact Bottles Pty Ltd (the ‘respondent’). Shortly stated, the respondent maintains that the applicant resigned her employment and, as there was no dismissal, the applicant is not a person protected from unfair dismissal. The applicant denies resigning from her employment and claims she was unfairly dismissed. She seeks compensation as a remedy for her alleged unfair dismissal.

[4] The meaning of ‘dismissal’ is expressly set out at s 386 of the Act as follows:

‘(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.’

[5] In most cases, the question of whether a person has been terminated at the initiative of the employer will be obvious; the employer’s intention will be absolutely plain and uncontested. However, as is the case here, the circumstances surrounding the applicant’s termination of employment are less clear cut and may give rise to issues relating to constructive dismissal. Another issue also relevant to this matter is whether a resignation, voluntarily given by an employee, can be later withdrawn without the consent of the employer. As I understand the applicant’s case, it is not suggested she was forced to resign (s 386(1)(b)); rather, she had not fully understood the ramifications of a written agreement she had made with the respondent on 7 February 2013 and that it should not be taken into account. I will return to this matter later.

[6] In Birrell v Australian National Airlines Commission (1984) 9 IR 101, Gray J discussed the concept of the unilateral withdrawal of notice. At page 109 His Honour said:

‘The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice. It is clear that such a notice could be withdrawn by the consent of both parties to the contract; it seems unnecessary to determine whether, the case of withdrawal of a notice by consent, the existing contract continues or a new contract comes into being. A question does arise, however, whether unilateral withdrawal of a notice is possible.’

[7] After considering a number of authorities on this question, His Honour concluded at page 110:

‘These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and the parties could be held to their contract by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. This conclusion is consistent with authority to the effect that unilateral withdrawal by a landlord of notice to quit is not possible: see Tayleur v. Wildin (1868) L.R. 3 Exch. 303.’

Principles of constructive dismissal

[8] The central issue in this case is whether the applicant’s employment was terminated at the employer’s initiative or whether she had voluntarily resigned, albeit without a definite end date.

[9] The definition of ‘termination at the employer’s initiative’ was considered by a Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205. This case has often been referred to by industrial tribunals, in a line of consistent authority since 1995. I cite the following extract:

‘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 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.

...

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.”’

THE PROCEEDING

[10] On 18 March 2013, the applicant filed an application for an unfair dismissal remedy, pursuant to s 394 of the Act. The matter was could not be resolved by conciliation and was subsequently allocated to me for arbitration.

[11] Both parties were unrepresented. Written statements were provided by the applicant and Mr Phil and Mrs Odette Springer (General Manager and Director respectively) and Mr Schulz, Factory Manager. The respondent’s three witnesses were questioned by the applicant, but very little emerged in their cross examination which had not been dealt with in their statements.

[12] I am satisfied that the applicant was provided with every opportunity to put whatever she wished in questioning the respondent’s witnesses and in her submissions supporting her claim that she had not resigned; See: Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1. This was notwithstanding her cross examination was more a case of her making statements, rather than asking relevant questions This is not to be critical of the applicant, but merely to observe the difficulties unrepresented litigants have in prosecuting their own case. There could be no suggestion of any disadvantage to the applicant, particularly as the respondent was in the same unrepresented position.

EVIDENTIARY SUMMARY

Circumstances surrounding the termination of employment

[13] In order to understand the nature of the controversy as to whether the applicant resigned, a short narrative of the circumstances at the time is necessary. It is based on the evidence in the proceeding.

[14] The respondent is a small business having only 4 employees. The applicant was employed as a permanent factory hand on 17 January 2013 having been earlier engaged as a casual and as a part time employee.

[15] The applicant claimed she had been in dispute with Mr Phil Stringer, the respondent’s General Manager, over a number of workplace issues in early February 2013. However, Mr Stringer believed she was the cause of the problems in that she was aggressive and abusive towards other staff and management. On 5 February 2013, the applicant was reprimanded for yelling and screaming at other staff. The applicant acknowledged that when Mr Schulz, the Factory Manager called her a ‘whinger’, she told him he was ‘a two faced bastard and to mind his own business’. The applicant said Mr Schulz then said if she came to work the next day, he would not. She requested the next day off to allow the situation to cool down. This was refused and when she came to work the next day, Mr Stringer had a meeting with her about the incident the day before. The applicant claimed she had apologised to Mr Schulz.

[16] Mr Stringer deposed that the applicant told him she had had enough of the job and intended to resign. It was agreed that the applicant would work a couple of weeks so she could sort out her next move and Mr Stringer agreed to waive any notice periods if she found a new job in the meantime. He believed the atmosphere was one of relief on the part of both parties - it was candid and friendly. Mr Stringer said there was no discussion about moving the business to Melbourne or New South Wales. There was to be a move in January 2014, but only within the Gold Coast area as his existing lease was due to expire.

[17] Mr Schulz gave evidence that the applicant had told him she had resigned and was relieved that she was moving on. He was not challenged as to this conversation.

[18] A letter was prepared by Mrs Stringer, a director of the respondent, which was signed by the applicant. The letter was expressed in these terms:

‘7/2/13

Dear Debbie

This letter is to acknowledge your meeting with Phil Stringer today.

During this meeting several issues were raised regarding the incident the previous way with management, and you expressed your grievances. I confirm your advice that you are resigning from your position at Impact Bottles and will be seeking alternate employment.

As a gesture of goodwill we will continue your employment for a short period of time whilst you seek employment.

Should you be offered alternate employment I confirm that Impact Bottles will waive notice periods.

I propose that we meet again on or before the 28th February 2013 to review your progress if you have not been otherwise employed.

If you wish to respond to this letter please do so by replying in writing to [email protected].

Yours sincerely,

(signed)

Please sign the attached copy as acknowledgement of receipt of this letter.

(signed)

DEBBIE MARTIN’

[19] Later that day, the applicant sought clarification of the letter’s reference to 28 February 2013. Mr Stringer told her that the resignation could not be open ended and there needed to be a final date discussed if she had not found alternative employment by 28 February 2013. He believed that the applicant clearly understood the position.

[20] However the next day, the respondent received the following email:

‘I Deborah Martin on the 7/2/2013 signed an agreement between myself and Impact Bottles.

However I am now requesting a retraction of this agreement on the grounds of not understanding it’s consequences and implications.’

The respondent replied as follows:

‘Dear Debbie

I note your receipt of your email/letter of retraction receiving on the 8/2/13. Unfortunately we are unable to accept your retraction.

I note that on 7/2/13 you were handed a letter acknowledging the discussion with Phil earlier in the day. You were asked to read the letter and sign the attached copy to confirm receipt of same.

At 4pm you came to Phil’s office, where I was present and asked for clarification. He explained that if you found another job we would waive leave notice so you could start your new job immediately without penalty.

You asked what the date of the 28th meant. Phil & I explained that it was a review date to see how you were going in finding alternate employment. You then came into my office and confirmed you understood and then signed the letter.

On the morning of the 8th February 2013, I received your letter of retraction. I asked you what you didn’t understand in the letter I provided. You responded “I don’t know, that is what Sarah told me to write this morning”.

As previously advised we accept your resignation.

I propose that we meet again on the 28th February 2013 to review your progress and your resignation will be formalized. Your notice period of 14 days will commence from this date with an end date of 14th March 2013. I confirm that if you wish to leave or have found employment elsewhere prior to his date, we will waive any notice to leave requirements.

If you wish to respond to this letter please do so by contacting me on 55252622 or by replying in writing to [email protected].’

[21] The respondent claimed the applicant’s aggressive behaviour recommenced. She would badger the Director and make derogatory remarks about other staff and was threatening legal action. I note Mr Schulz gave uncontested evidence that the applicant’s moods and behaviour were unpredictable, making the work place a very awkward environment.

[22] On the 11 February 2013, the applicant was handed a first warning letter which said, inter alia:

‘1. Negative behaviour/attitude was not acceptable, for example;

• Being negative towards staff members and making negative comments;



• Pouncing on staff members the moment they make a mistake rather than discussing the issue and providing a solution. Or alternatively, referring the matter to management;



• Creating issues over matters that are not your business, for example... another staff member wearing headphones;



• Intentionally ignoring issues that you see need attention, “because no one else has done it, so why should you”



• Often, you are completely unapproachable & other staff members are afraid to speak to you. When displayed, this behaviour has been intimidating and has made other staff members feel uncomfortable to the point that they have resigned.

2. Brad Schulz is the manager and you are expected to follow his directive’s/instructions. I note your advice that you called him a ‘two faced bastard’. This is considered abusive and will not be tolerated in the future.

3. You left your work station at peak time. It was necessary for Phil to step in and complete your job to meet the deadline.

4. You did not attend a 4pm meeting with Phil that you had requested.’

[23] Despite the applicant’s denials, Mrs Stringer emphasised that she had resigned. The applicant was invited to respond to the warning letter, but did not do so. On 19 February 2013, the applicant sent an email in the following terms:

‘Dear Odette,

After receiving independent advice I am sending this email.

There seems to be a lot of confusion about my looking for another job. I want to make it very clear I did not resign, I merely informed you I was looking for other employment. I will give my resignation in writing with 3 weeks notice, as required by the National Employment Standards.

I am again confirming that I have not resigned.

Mrs Stringer responded on 21 February as follows:

‘Dear Debbie

I note your receipt of your email 19/2/2013. Impact bottles has acknowledged both verbally and in writing your resignation and confirm our previous advice that we cannot change this decision and are therefore unable to accept your retraction.

In light of your advice, management has already made adjustments for this change to take place smoothly. I reject your claim that you did not understand the contents of our acknowledgement letter, as both myself & Phil spoke to you about it before you signed, and you signed without hesitation.

It concerns me that you keep changing your mind.

● Firstly you resigned verbally & then signed confirmation;
● You then retracted your resignation;
● Then you denied that you resigned at all;
● Now you say that you are looking for other employment and will give us 3 week’s notice.

In my previous correspondence I proposed that we meet again on the 28th February 2013 to review your progress and your resignation be formalised. However after receiving advice and speaking with the Fair Work Ombudsman, I note that the notice you are required to give is 21 days from the date of resignation. I therefore note that you resigned on the 7th February 2013 so your notice period expires on the 28th February, 2013. We will honor our previous offer and extend your employment until the 14th March 2013 if this is of assistance to you. Please confirm prior to the 26th February 2013 if you would to take advantage of this offer.

If we can assist you in seeking employment please do not hesitate to ask. I can provide you with a contact number for a local employment agency, and you are welcome to use our computer to access online employment sites.

I confirm our previous advice that if you wish to leave or have found employment elsewhere prior to this date, we will waive any notice to leave requirements.

I note that you failed to advise us that would not be at work on the 20/2/2013. I confirm your advice today that you sent a text message which we have not received as the number used is no longer in operation. It is company policy that you call if you cannot come in. Please comply with this policy in the future.

Whilst working at Impact Bottles we ask that you work within the Impact Bottles policy and behaviour is to the highest standard as not to effect production and other staff members. If you wish to respond to this letter please do so by contacting me on 55252622 or by replying in writing to [email protected].’

The applicant responded as follows:

‘Dear Odette,

In response to your email dated 21/02/2013.

Under the circumstances I would prefer if we stay with the original arrangement 11/2/13 and your notice to leave on 14/03/2013.

Yours faithfully

Debbie Martin’

This arrangement was accepted by the respondent.

[24] However, on 28 February 2013, there were further verbal exchanges between the applicant and Mrs Stringer. The applicant now asked questions about redundancy and Mrs Stringer told her to put her questions in writing. Mrs Stringer claimed the applicant was spiteful, aggressive and threatened legal action. There was further argument about resignation and Mrs Springer said the applicant replied ‘Yes I resigned but with no end date and that’s what I want’. Mrs Stringer told the applicant to put all further communications in writing. The applicant said she decided to seek legal advice as it was clear Mr and Mrs Stringer were unwilling to resolve the matter and had made inappropriate and spiteful comments to her.

[25] There was a final confrontation between Mrs Stringer and the applicant on 4 March 2013. The applicant told her she wanted answers to her questions. Mrs Stringer said the applicant persisted to claim she was threatened with redundancy. Mrs Stringer said that she tried to walk away, as the applicant was shouting at her. The applicant said she had asked Mrs Stringer for the company policies and Mrs Stringer said she would get back to her. The applicant did not mention that Mr Stringer had intervened and said ‘no more conversation’. Mrs Stringer said the applicant demanded to know who had complained about her. Mrs Stringer (on advice) refused to do so and told her to stop speaking to other staff about her dispute as they had expressed being uncomfortable. Nevertheless, she continued to approach other staff. After contacting her lawyers, Mrs Stringer decided to pay the applicant, in lieu, up to the 14 March 2013. In her letter that day, Mrs Stringer said:

‘Dear Debbie

RE: RESIGNATION

After careful consideration I have made the decision to implement your resignation immediately.

We will pay you up to and including the 14th March 2013, which will equate to 5 weeks from your original resignation date of the 7th February 2013. Your final pay will be processed accordingly.

Please note that your services are no longer required at Impact Bottles and you are not authorized to be on the premises of 1 Ryecroft Street, Carrara, for any reason.

I confirm that you have been verbally advised of this decision at approximately 6.11pm on Monday 4th March 2013.’

[26] Subsequent to this date, the applicant made further claims questioning her wages and leave loading. After Mrs Stringer’s inquiries to the Fair Work Ombudsman (FWO), the applicant was advised all the respondent’s calculations were correct. Mrs Stringer believed that the applicant was engaged in a ‘money grab’ as she asked for something else after each request was rejected.

[27] The applicant claimed that she had suffered an injury to her shoulder arising from her work with the respondent. However, she took no time off and sought no treatment. She decided to undertake treatment after leaving work. At the same time she was actively seeking alternative work. Both Mr and Mrs Stringer denied any knowledge of the applicant’s injury until reading about it in her statement (I note there was no medical evidence of any consultations or treatments for the alleged injury).

[28] The applicant described her financial circumstances. She remained unemployed. Her rent was $530 per fortnight, her Centrelink income was $593.60 per fortnight and her other expenses were paid by family and a credit card for claiming against her involuntary unemployment insurance.

CONSIDERATION

The employment relationship

[29] While it is strictly irrelevant to the jurisdictional question to be determined in this case, the applicant’s general conduct and behaviour in the workplace - which she herself acknowledged - was hardly of an acceptable standard. The fact she apologised to the Factory Manager for her outburst on 6 February 2013 demonstrated she is a person of quick temper and prone to outbursts of anger, without thinking. Her own evidence made it clear she was argumentative and disrespectful to her employer on numerous occasions. I also accept Mr and Mrs Stringer’s evidence in this regard. I note that Mrs Springer’s evidence that the applicant would talk over her, was corroborated by her conduct in the proceeding. At one point, I pointed out she was talking over me.

[30] It is within the context of a continuing deterioration in the employment relationship, that I am required to determine the applicant’s intention when she signed the letter of 7 February 2013.

[31] While I readily acknowledge the applicant had sought to retract her resignation the very next day and consistently insisted that she had never resigned, there were nevertheless some confusing and contradictory aspects of her evidence in this regard. The applicant claimed that she had neither ‘instigated the chat’ on 7 February or composed the letter of agreement. Therefore, she did not feel it should be accepted, in any way, as a decision to resign.

[32] While I also accept the applicant later regretted the letter she had willingly signed, that is not the test of whether the applicant had voluntarily resigned. It is instructive to point out that the applicant did not deny that she had told Mr and Mrs Stringer she intended to resign and had told Mr Schulz she had resigned and was relieved to be able to move on. This is telling evidence that she knew exactly what was intended by the letter of agreement and that at the time, she had calmly, and without pressure, had decided to resign.

[33] As earlier mentioned, the authorities make clear that in the absence of an agreement from the employer to accept the retraction of a resignation, the employee cannot unilaterally reverse it; See: Birrell, supra above. Put simply, it was too late; See: Townsend v Longwarry Food Park Pty Ltd [2011] FWA 1888.

[34] That said, I do not consider this resignation was given the in the ‘heat of the moment’; See: Kwik-Fit (GB) Ltd v Lineham (1992) ICR 183 or that there was conduct, or a course of conduct, engaged in by the employer to force her to resign. Indeed it is clear the respondent had understandably for a small business, tolerated her poor behaviour.

[35] In any event, while the wording of the letter could have been more direct and precise, I am satisfied that the words do not result in any ambiguity or uncertainty. It accords with the understanding that the applicant reached with Mr Springer that:

a) she would be resigning from her position and would be seeking alternative employment;

b) her employment would continue as a gesture of good-will while the applicant looked for other employment;

c) in the event the applicant found another job, she would not be bound to give notice of resignation; and

d) if no employment was found by 28 February 2013, they would meet to ‘review your progress’.

[36] While the only issue requiring some clarification was what the 28 February meeting would be about, the applicant sought this clarification and was told it was to set an end date for her resignation. She seemingly did not cavil with this explanation until the next day. Even so, there can be no doubt as to what the earlier preeminent sentence of the agreement recorded; that the applicant would be resigning.

[37] In Sovereign House Security Services Ltd v Savage [1989] IRLR 115, May LJ said:

‘In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise...

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.”

[38] In my view, the applicant was very much aware of her rights. The meaning of what she had told three people and what she had acknowledged by signing the 7 February 2013 letter was plain and straightforward.

[39] In further argument, the applicant challenged her alleged resignation in that it had no end date. Of course, it would have been preferable to have a definite end date specified in the letter. On the other hand, it must be appreciated that the employer is a small business with no sophisticated industrial relations expertise. During Mr Springer’s cross examination he acknowledged that ‘in hindsight, Debbie, I should have accepted your resignation on the spot and you should have finished up that morning because of what’s happened so far’. Nevertheless, I consider the respondent was actually intending to do ‘the right thing’ by giving the applicant a period to look for other work and, if she found work, it would waive any notice requirements.

[40] Given the context of a further deterioration in the relationship between the applicant and the respondent, it is hardly surprising that it intended to review the position if she had not found work before 28 February 2013. Nor is it surprising or unreasonable that the respondent insisted on all communications being in writing, the applicant boldly told Mr and Mrs Springer she was seeking legal advice on her situation.

[41] In my judgment, the 7 February 2013 agreement was a real resignation untainted by ambiguity or uncertainty. It could not be unilaterally withdrawn.

[42] Even if I am wrong about the jurisdictional issue in this case, I am satisfied that the applicant’s unacceptable conduct and disruptive behaviour in such a small workplace, was such that it was more than likely her employment would have been terminated in any event, in early March 2013.

[43] The applicant had been given a formal warning letter about her conduct. Nevertheless, the relationship between the applicant and Mr and Mrs Springer continued to deteriorate to a point where a dismissal on notice in accordance with the Small Business Fair Dismissal Code (the ‘Code’) was inevitable. The Code states, inter alia:

‘Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.


The employee must be warned beforehand. This warning can be given verbally or preferably in writing. It must be clear when giving the warning that the employee risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning. The employer must also give the employee a reasonable chance to fix the problem. Fixing the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.’

[44] Putting aside the resignation agreement, the applicant received at least 5 weeks’ notice and was paid in lieu from 4 March 2013 to 14 March 2013. I am satisfied that the applicant received a ‘fair go all round’ (see s 181(2) of the Act).

[45] Finally, two other matters were raised by the applicant. Firstly, that she may have been entitled to redundancy payments and secondly, she had suffered a workplace injury while employed by the respondent.

[46] As to redundancy, I do not accept that there was any discussion about the applicant’s redundancy; let alone that she was entitled to redundancy payments. Mr Springer’s evidence was that he would need to find new leased premises in 2014, around the same area. However, no decision had been made to relocate in early 2013. Nor was there any discussion of moving to Melbourne or New South Wales. I believe the applicant was attempting to twist the respondent’s circumstances for her own benefit, or at the very least, misunderstood the reality of the situation.

[47] Secondly, as earlier mentioned there was no evidence that the applicant had consulted a doctor or received treatment for her alleged workplace injury. She did not identify how, or when the injury occurred, and had not informed her employer of any injury. I accept that the first time the respondent heard of such injury, was when it received the applicant’s statement for this proceeding. Notwithstanding the claim of a workplace injury is irrelevant to this case, it seems to me that there may have been an undisclosed collateral purpose in the applicant raising such a matter for the first time in this case, such as to apply pressure on the respondent to agree to her claims.

[48] For all the abovementioned reasons, I am satisfied that the applicant voluntarily resigned on 7 February 2013. Accordingly, the applicant was not dismissed for the purposes of s 385 of the Act and there is no jurisdiction for the Commission to consider her claim for a remedy for unfair dismissal. Her application in this matter must be dismissed. An order to that effect will be issued separately to this decision.

DEPUTY PRESIDENT

Appearances:

Applicant in person

Ms O Stringer for the respondent

Hearing details:

2013.

Brisbane:

22 August 2013

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