Deborah Reynolds v Highfields Preparatory and Kindergarten School Ltd T/A Highfields
[2016] FWC 1187
•13 APRIL 2016
| [2016] FWC 1187 [Note: An appeal pursuant to s.604 (C2016/1026) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Deborah Reynolds
v
Highfields Preparatory and Kindergarten School Ltd T/A Highfields
(U2015/12354)
COMMISSIONER ROBERTS | SYDNEY, 13 APRIL 2016 |
Application for relief from unfair dismissal – alleged constructive dismissal - jurisdictional objection – no dismissal at the initiative of the respondent – objection upheld – application dismissed.
[1] This decision concerns an application lodged on 19 October 2015 by Mrs Reynolds pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of her employment by Highfields Preparatory and Kindergarten School Ltd T/A Highfields (the School).
[2] The School opposed the application arguing that there was no dismissal as Mrs Reynolds resigned. The matter was set down for jurisdiction and arbitration hearing in Sydney on 4 February 2016. This decision will deal with the jurisdictional objection as a threshold matter.
[3] Directions and amended directions were issued for the filing of written submissions, witness statements and any supporting documents. That process was completed on or about 20 January 2016.
[4] At the hearing Mr P King, of counsel, appeared by permission with Mr L Havenstein for Mrs Reynolds. Mr T O’Brien, of counsel, appeared by permission with Mr D Anthony for the School.
Background
[5] Mrs Reynolds commenced employment with the School as a teacher of Year 2 students on 30 January 2012. Her employment ended when she wrote to the school on 1 October 2015 to resign, with an effective date of 6 October 2015. Mrs Reynolds claims that it was a constructive dismissal in that it was the actions of the School that left her with no other options other than to resign. The School denies this. Mrs Reynolds seeks compensation but not reinstatement.
Legislative Framework
[6] Section 386(1) of the Act provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[7] The Explanatory Memorandum to the Fair Work Bill 2008 relevantly provides:
“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.”
Evidence
Mrs Reynolds
[8] Mrs Reynolds gave sworn evidence and adopted a primary witness statement 1, a statement in reply2 and a supplementary witness statement3.
[9] Mrs Reynolds’ main witness statement alleged that she was subjected to harassment and intimidation by a parent, Mr L, who was also a member of the School Board. A complaint from Mr L was made to the School concerning the treatment of his daughter during an incident on 28 April 2015. Mrs Reynolds said that she was verbally abused by Mr L and later told by the School’s Principal “that there had been complaints from another parent and I needed to reflect on my behaviour”. “I was so effected [sic] by Mr [L’s] behaviour and accusations that I took stress leave. I was unable to sleep, I was continuously crying and in total shock of his actions and the subsequent lack of support from the Principal.”
[10] She later made a formal complaint to the School’s Principal in accordance with the School’s dispute resolution policy. She then received an email from Mr L which “did not provide any comfort to me as it was insincere and did not represent to me an apology but only a forced acknowledgement of the incident. The email response caused me to contact the Principal to stipulate that the incident and apology breached the Respondent’s ‘Parent Code of Conduct’ and that as a Board member, Mr [L] had a higher standard to uphold the dignity of the teachers at the School.”
[11] The School subsequently informed her that her complaint had been dealt with but that the details of the School’s investigation would not be provided to her and she remains unaware “of any action by the Respondent to rectify the circumstances that I was subjected to …”
[12] Due to the frequent absences of the other teacher jointly responsible for her class [Ms S], she “was left to run the class by myself with casual teachers on occasions.”
[13] After the Mr L incident, she “was subjected to a parent survey known as the ‘Embedding Excellence Program’. As part of that program parents are invited to make anonymous comments about the teachers. Following the completion of the survey I was required to defend myself against unsubstantiated complaints by parents. This was a very difficult period for me in all the circumstances surrounding the incident with [Mr L] and the subsequent investigation.”
[14] On 13 August 2015, she was called to a meeting with the Principal which she attended with another teacher as a support person. At the meeting, the Principal said that she was an ‘outstanding teacher’ but the perception of her by parents was damaging the School. She was not provided with any further information about who had complained about her. Shortly after the meeting, Mrs Reynolds’ husband raised concerns with the School about her wellbeing and a perceived lack of support for her.
[15] On 27 August 2015 Mrs Reynolds received a letter from the Principal 4 outlining a number of alleged performance issues. “I verily believe that this letter was a response to my lodging a complaint against [Mr L], a member of the Respondent Board and my previous concerns about the lack of support and respect for teachers at the Respondent school. As well as the bullying and harassment of teachers of which I had complained.”
[16] Mrs Reynolds alleges that she was treated in a hostile manner by Ms Cook and not offered appropriate support by her. Remarks to that effect were also made by Mrs Reynolds’ support person. Mrs Reynolds then went on sick leave due to stress until the end of the school term.
[17] On 18 September 2015, her solicitor Mr Havenstein “wrote to the Principal detailing my complaints including that the Respondent was in breach of its own policies in addressing my position. During the course of the school holiday break my health continued to deteriorate and I felt that my complaints made in accordance with the Respondent’s policies continued to be thwarted both by the Principal and by the Board. I resigned with regret and feel that I did not voluntarily leave.”
[18] Mrs Reynolds’ statement goes on to set out ‘other incidents during employment’ on which she relies to ground her belief that she had been subjected to harassment and bullying. Due to the sensitive nature of some of that material, I have paid close regard to it but will not set it out here.
[19] “As a result of the conduct of the Principal of the Respondent in failing to provide proper support to me with respect to the incident on 29 April 2015, its subsequent investigation and thereafter a campaign to unfairly and unreasonably performance manage my role at school my health suffered badly. I suffered anxiety, became very depressed, was constantly tearful and suffered from a loss of confidence. I could not continue with my job and sought medical assistance.”
[20] “I have not felt well enough to seek to apply for another job. As my resignation occurred in third term I would not have received a position in the last term of the year. I am 56 years old and teaching is a young person’s industry. It will be difficult for me to find a full time job which pays a similar wage to what I received at the Respondent.”
[21] “I have however regrettably observed a culture within the school where the teachers are not supported by the Board or the Principal in which the concerns or opinions of the parents, rational or irrational, take precedence over the interests and well-being of the teachers.”
[22] “In addition, the following issues caused me to resign from my employment at the Respondent:
a. The failure of the Respondent to provide a safe system of work in that policies were not in place to protect teachers against unfair and unprovoked verbal attacks from parents;
b. The failure of the Respondent to have a proper governance in place to prevent board members from venting their personal views of teachers and the school to the broader teaching group and parents;
c. The failure of the Principal of the Respondent to provide proper support and adhere to a duty of care to support the teaching staff;
d. The failure of the Respondent to address a culture in the school whereby those who fund the school and those who control the school take precedence over the welfare and wellbeing of the staff and students.”
[23] Attached to Mrs Reynolds’ primary witness statement was a copy of her resignation. 5 The letter was addressed to Ms Cook and said:
“It is with deep regret that I tender my resignation as a teacher at Highfields Preparatory and Kindergarten School, effective from Tuesday 6th October, 2015.
I consider that my resignation has been forced upon me by the actions and omissions of the administration of the School, who have failed to support my continuation as a teacher at the school.”
[24] In her statement in reply, Mrs Reynolds said, in response to the evidence of Ms Cook, that:
“I say that notwithstanding the matters raised by Ms Cook about how my complaint was handled and subsequent changes to the system following the incident, the fact that I was denied any opportunity to understand the outcome of my complaint and subsequent performance management process initiated by Ms Cook, shows the lack of compassion and a total abrogation of the school’s obligation to provide me with a safe and secure place of work. I also say that the subsequent conduct was designed to simply force me out of my job.”
[25] In her supplementary statement, Mrs Reynolds responded to a report from the Association of Independent Schools of New South Wales Limited (AIS) dated 17 July 2015 which considered Mrs Reynolds’ complaint concerning the Mr L events. The report was supplied to her after she prepared her primary statement.
[26] Mrs Reynolds said that she was interviewed by the Investigator, Mr Pryde, for some 45 minutes and was promised a copy of the transcript of that interview but never received one. Mrs Reynolds said that Mr Pryde’s report is deficient in dealing with comments made by her and omits material relating to her emotional state. She went on to say: “In summary after reading the AIS report I feel disappointed and despondent in its accuracy and effectiveness.”
[27] “The findings also highlight the inconsistencies of Ms Cook and her handling of parental issues as well as the AIS not detailing all that I said in my statement.”
[28] “It also highlights that [Ms S] went to great length in her statement to praise my reaction and approach to the matter and then within four weeks Ms Cook claims that [Ms S] claims she was in fear of me.”
[29] “I feel Mr Pryde has undermined and undervalued the verbal assault by [Mr L] in his findings by saying it was not ‘unlawful’, particularly after three witnesses suggest otherwise.
[Mr L]’s behaviour was a psychological attack on me and it was undermining and damaging to my spirit as a teacher and a professional.”
[30] “The procedure was frustrating in that the timing of the incident and subsequent investigation was over a 3-month period and it felt that it was being smoothed over in the school. This was because I was being assured by Ms Cook that the school was following it up; however, nothing was forthcoming after weeks after the incident.”
[31] In cross-examination, Mrs Reynolds:
● Was asked: “Ms Cook, the principal, supported the actions you had taken the previous day in relation to [Mr L’s daughter], didn't she? She expressed her support?” and said “Yes.” 6
● Was asked: “She basically said that you'd done the right thing the day before, didn't she? She said that to [Mr L] and to [Mrs L]?” and said: “Yes.” 7
Agreed that the School directed Mr and Mrs L not to contact Mrs Reynolds directly again.
● Agreed that the School asked Mr L to apologise to her.
● Agreed that Ms Cook was supportive of her in making a complaint concerning Mr L.
● Said of Mr L’s apology that “It was very abrupt and short. It wasn’t actually an apology.” 8
● Agreed that Mr L stood down from the School Board and then resigned.
● Agreed that the School’s guidelines for parent meetings were changed at her insistence that “in the event of a parent’s behaviour becoming heightened, irrational and intimidating towards the staff that the meeting be immediately terminated.” 9
Agreed that the School paid for her to see a counsellor.
Agreed that the School “generally supported you through the [Mr L] incident”. 10
● Agreed that, at the 13 August 2015 meeting, Ms Cook acknowledged that Mrs Reynolds was a good teacher and highly experienced.
● Said: “In many of my conversations with Ms Cook I explained to her that this was a witch hunt and that I was desperate, as I said to her on 27 August, that I just can’t take it anymore.” 11
Agreed that: “The first time you indicated to the school you were going to resign was after you’d engaged lawyers…” 12
● Agreed that she took legal advice prior to her resignation which “outlined all my options” 13
Said that her doctor and counsellor advised her to seek legal advice to establish what her options were.
Was asked: “You didn't make the decision to resign until you’d received the lawyers advice, correct?” and said: “I was a broken woman and I thought, earlier on, that I would have to resign. I couldn’t live in that environment anymore.” 14
Agreed that she had not told Ms Cook that she was thinking of resigning.
Said that she had not looked for any other jobs since resigning from the School. “I haven’t been able to. I wanted to see this through to have my professional standing and my health better.” 15
[32] Nothing of significance to my decision making arose from re-examination.
Mr R Reynolds
[33] Mr Reynolds gave sworn evidence and adopted a witness statement 16. Mr Reynolds is the husband of the Applicant. His evidence was that his wife telephoned him on 13 August 2015 in some distress after her meeting with Ms Cook. On 20 August he telephoned Mr Hassall (Chairman of the School Board) raising “concerns about Deborah’s health and teacher well-being in the workplace in light of pressures she had been experiencing at school …” Mr Hassall advised him that he was not willing to meet with Mrs Reynolds or Mr Reynolds and suggested that any concerns be raised directly with Ms Cook.
[34] In cross-examination, Mr Reynolds said that he was not employed by the School and was not a member of the Board of Directors.
Mr J Kleinig
[35] Mr Kleinig gave sworn evidence and adopted a witness statement 17 and a supplementary statement18. Mr Kleinig is an Education Consultant.
[36] Mr Kleinig’s evidence per his primary witness statement set out the history of Mrs Reynolds’ problems at the School and his opinions about the pressures on teachers and specifically, the Mr L incident together with the parents survey which resulted in parental criticism of the Applicant.
[37] In relation to the circumstances surrounding Mrs Reynolds’ resignation, Mr Kleinig said: “On 1 October 2015 the applicant made the decision to resign even though she had planned to work for another 5 years, at which time she would retire. The applicant did not give the required period of notice and it is to the credit of the school that they waived this requirement. The applicant had been courteous and tried to comply with the wishes of the Principal in an attempt to lessen the pressure she, the applicant, was experiencing. She erroneously believed that the Principal and the school would support her, despite the warnings to the contrary by two other staff. However, the events that had occurred since 29 April 2015 made it clear in the applicant’s mind that she was not wanted at the school. She had been receiving medical treatment from her GP, … and the comments made by the doctor … provided a medical opinion of the applicant’s response to the events since 29 April 2015. The fact that the applicant had days of sick leave remaining indicates that the situation had become impossible for her and she felt she had no other choice but to resign. Most teachers have little or no knowledge of their legal rights, including the term ‘constructive dismissal’ and it would be reasonable to suggest that the applicant believed that the collegial approach she might have expected from the school meant that she would be both supported and protected. In my view, I believe that following the incident of 29 April 2015 and subsequent events where she received inadequate support, it became increasingly clear to her that she had no other option than to resign.”
[38] In his supplementary witness statement, Mr Kleinig said that he had reviewed the AIS Report. Mr Kleinig questioned the independence of the investigation but noted the criticism of Mr L and Mr L’s wife which was contained in that report. I have also paid regard to Mr Kleinig’s curriculum vitae, which is in evidence 19.
[39] In cross-examination, Mr Kleinig said that he had no prior relationship with any persons involved in this litigation and had been engaged to give an opinion. He had never worked at the School.
[40] Mr Kleinig went on to say that he had not considered the evidence of Ms Cook when he prepared his statement and that his evidence was based upon the statement of the Applicant and other material relied upon by her.
[41] Nothing of significance to my decision making arose from re-examination.
Ms D Cook
[42] Ms Cook gave sworn evidence and adopted a primary witness statement 20 and a supplementary witness statement21. Ms Cook has been the Principal of the School for 13 years and previously worked as a senior teacher at the School and the Scots College for some 12 years in total.
[43] Ms Cook said that: “It was always my view from observing Mrs Reynolds in the classroom that she was an experienced and competent teacher. However, as is outlined below, some parents expressed concerns in relation to Mrs Reynolds’ capability as a teacher. It was always my view that Mrs Reynolds simply needed to take some steps to address the parents’ expressed concerns. … once Mrs Reynolds was encouraged to take those steps, she resigned from her position with Highfields. As Principal of Highfields, it was always my desire for Mrs Reynolds to take some steps to alleviate the parents’ concerns, and continue teaching Year 2 at Highfields.”
[44] Ms Cook’s statement went on to deal with the Mr L incident. She said: “The manner in which he raised his concern was aggressive and was specifically directed to Mrs Reynolds, as [Mr L’s] daughter had been included in the group of misbehaving students the day before. During that meeting, I acknowledged that the way in which the matter had been handled by Mrs Reynolds was appropriate and in line with how matters of this kind were managed at Highfields, namely that the teacher and student/s discuss what has occurred, students involved accept responsibility for actions taken and seek to rectify the situation including but not limited to offering an apology.”
[45] The Sports teacher who was present on 28 April 2015, supported Mrs Reynolds’ version of events concerning Mr L’s daughter and “Mrs Reynolds thanked me for supporting her during the meeting and supporting the actions she had taken.”
[46] At a subsequent meeting with Mrs Reynolds, she advised her that Mr and Mrs L had raised other issues with her about Mrs Reynolds’ general attitude and told her that there was a “need to address this”. “Mrs Reynolds talked about her ‘professionalism being questioned’, the lack of respect from parents towards teachers and that the school needed to protect staff. At no time did Mrs Reynolds offer any suggestions as to how she might address this misperception as to her abilities.”
[47] When Mrs Reynolds told her that she wished a make a written complaint about Mr L, she told the Applicant that she understood why she wished to make such a complaint and that any complaint would be forwarded to the School’s Chairman.
[48] “I took the [L] incident and the complaint made by Mrs Reynolds against [Mr L] very seriously. The following steps were taken:
a. Immediately following the incident, on 29 April 2015, I contacted the Chairman of the School Council, Mr Jeremy Hassall, to express my concerns at the manner in which [Mr L] had expressed his concerns and the affect it had had on the staff present.
b. On 6 May 2015 I sent an email to all parents of the School community to remind parents of their responsibilities when speaking with teachers. 22
c. On or about 6 May 2015, I also updated the Staff Code of Conduct to include the following statement: ‘In a situation where a staff member feels unsafe, harassed and/or intimidated ie. in a meeting with parents or another staff member, the staff member can in their professional discretion, call a halt to the meeting. Then inform the Principal.’
d. On 25 May 2015, on receipt of Mrs Reynolds written complaint, I forwarded it to Mr Hassall. Soon after this, Mr Hassall engaged AIS to undertake an investigation into the matter.
e. After receiving the complaint Mr Hassall told [Mr L] to make no contact with Mrs Reynolds and this was repeated again to him at the end of the process. [Mr L] stood aside from his position on the School Board until he resigned shortly thereafter.
f. Following Mrs Reynolds’ complaint, on 28 May 2015, [Mr L] sent an apology to Mrs Reynolds, albeit that the apology could have been more fulsome in nature.”
[49] It appeared that Mrs Reynolds only took up the School’s offer to pay for counselling sessions on one occasion.
[50] In relation to the Embedding Excellence Survey, Ms Cook said that it was designed to identify areas in which the School was doing well and also those areas that required improvements. The results of the survey were given to her in summary form by AIS and did not attribute any remarks to particular parents.
[51] “As the Principal of Highfields, it was my view that Mrs Reynolds needed to consider how to address and alleviate the concerns which had been expressed by some of the parents. Those concerns, in and of themselves, did not give me any reason to believe that Mrs Reynolds was incapable of continuing to teach at Highfields. It was always my view, that she simply needed to take some steps to address the parents’ expressed concerns, even if she felt they were not substantiated.”
[52] Ms Cook’s statement continues with an analysis of two other complaints against Mrs Reynolds from parents. She had dealt with those complaints in a manner which was supportive of Mrs Reynolds but “remained concerned about the parents’ perception of Mrs Reynolds.” Mrs Reynolds rejected such concerns and repeated her view that her professionalism was being questioned and the complaints reflected a lack of respect for teachers on the part of parents. Mrs Reynolds made no suggestions as to how parent perception of her could be rectified.
[53] In relation to the 13 August 2015 meeting, Ms Cook said that she:
“a. expressed my views about Mrs Reynolds being an experienced and capable teacher;
b. explained to her the nature of my concerns in relation to her, including parental perception; and
c. asked her to consider how best to rectify the issues.”
[54] Mrs Reynolds subsequently produced an ‘action plan’ to address concerns about her performance but Ms Cook did not think “the action plan provided a complete answer to my concerns …” and she intended to meet again with Mrs Reynolds to continue developing a more complete plan to address Ms Cook’s concerns.
[55] A further meeting with Mrs Reynolds was held on 27 August 2015 at which she handed Mrs Reynolds a letter 23. That letter:
“a. Outlined the nature of my concerns about Mrs Reynolds performance;
b. Indicated the areas I believed she should focus on;
c. Indicated that I wished to meet with her on 10 September 2014 to develop and put in place a performance action plan for her, which was to provide her with performance goals;
d. Indicated that I would continue to provide her with support in our fortnightly meetings;
e. Indicated that arrangements had been made for her to Professional Development course run by AIS; and
f. Acknowledged the contribution she had made to the school and stated that my aim ‘in guiding you through this performance improvement process is to achieve a positive outcome that is in the interests of the School, and which will also provide growth for you in your role’.”
[56] Mrs Reynolds subsequently went on sick leave. Ms Cook commenced the performance management process in the hope “that the process would provide support to Mrs Reynolds in fulfilling her role as a Year 2 teacher. It was never my intention for Mrs Reynolds to resign. To the contrary, it was my intention that Mrs Reynolds, with my support, would simply take some steps to address the concerns outlined in my letter of 27 August 2015, such as devising and following a plan of action, and continue teaching Year 2 at Highfields.”
[57] On 18 September 2015, she received a letter from Mr Havenstein 24 which, in part, said:
“It is my client’s view that she has exhausted all avenues with you to resolve these matters and does not feel she can continue to work in this toxic environment. In all the circumstances my client proposes to tender her resignation, effective from the first day of the fourth term, being 6 October 2015. I have given my client advice as to her rights with respect to her employment and the effect of her resignation, particularly from a constructive dismissal aspect.”
[58] The 18 September letter from Mr Havenstein was followed on 1 October 2015 by a further letter from him enclosing Mrs Reynolds’ letter of resignation [see paragraph 23 above].
[59] A further letter was received from Mr Havenstein on 7 October 2015 in response to a letter sent to him by the School’s solicitors replying to the resignation letter. Mr Havenstein’s letter of 7 October 25 stated, in part:
“Your letter states that the work environment was not toxic and yet you have indicated that the school undertook a survey regarding my client’s performance and that another junior teacher was on extended leave because she was not safe due to a ‘fear’ of my client. I have concerns about the allegation levelled at my client regarding the junior teacher, especially when I understand that this same teacher has now made an immediate recovery and has been appointed by your client to work in my client’s former role. This in itself may be evidence of a toxic and perhaps conspiratorial workplace which my client has no problem in exposing to those many families that have given her great support during her time at the school.”
[60] Ms Cook’s supplementary witness statement was made in reply to the evidence of Mrs Reynolds. That statement repeats Ms Cook’s rejection of the allegations made by Mrs Reynolds against her and also deals with another four incidents of complaints by parents against Mrs Reynolds. I have paid regard to that further material but will not set it out in this decision. Ms Cook says that in each case she acted in a manner which was supportive of Mrs Reynolds.
[61] In cross-examination, the Mr L incident was explored at length and Ms Cook agreed that Mr L’s behaviour on 29 April 2015 “was abrupt and harassing” 26. Ms Cook denied disregarding the School’s complaints policy. She went on to say that she is not a member of the School Board and only attends meetings by invitation.
[62] Ms Cook agreed that Mrs Reynolds “was blameless” in relation to the incident concerning Mr L’s daughter on 28 April 2015. 27 She further agreed that Mr L had breached the School’s harassment policy. Ms Cook said: “I never had a question about how Mrs Reynolds had conducted herself. My concerns were around their perception of her generally and that remained a concern of mine all throughout this matter and beyond.”28
[63] Ms Cook denied being upset about Mr Reynolds’ telephone call to Mr Hassall. In relation to the performance review plan for Mrs Reynolds, Ms Cook said that: “what I wanted Mrs Reynolds to do as a teacher of many years’ experience is to reflect on the parents’ comments, their perceptions of her and to come up with some ideas personally that she could offer that might address those, for her sake as much as the school’s and my own sake.” 29
[64] Ms Cook said that she was aware that Mrs Reynolds was upset over complaints made against her and that she was receiving medical attention.
[65] In re-examination, Ms Cook said that Mrs Reynolds had not complained about any alleged failure to follow School policy in relation to the Mr L incident.
Submissions on behalf of Mrs Reynolds
[66] Written submissions were filed on behalf of Mrs Reynolds 30.
[67] The written submissions said:
“The Applicant’s dismissal resulted from her being placed in a position in the circumstances that her only real option was to leave the workplace, a consequence that was forced upon her by the actions and omissions of the administration of the Respondent and which through the Principal and Board failed to support her continuations as a full time teacher at the School. The Applicant’s contribution as a teacher was devalued and the bullying incident affected her long term ability to achieve. The withholding of information from her, the blaming of the Applicant for falling enrolments, and the spreading of rumours in the workplace about her added to the trauma and stress she was undergoing. Relevant School policies were either breached and governance not maintained, or did not cover the issues which was a failure in itself of good practice.”
[68] The submissions go on to deal with Mr L incident and subsequent events in some detail. As almost all of that material is dealt with earlier in this decision, I will not set it out further here but have paid regard to it. I have also paid regard to the case law cited in the submissions. The submissions close by saying:
“The initial workplace bullying, her complaints and the failure to redress them, then the placement of the Applicant on performance review without a formal process being engaged, the breaches of School policy, and the objective impression given by the Respondent of ‘managing her out’ of the employment, give rise to a justifiable and objective response that the employer at bottom intended to terminate the relationship, in spite of what it now says. Coupled with the vulnerable position in which the Applicant was placed and the medical consequences to her health of the ongoing employment constructive dismissal was almost inevitable and did occur.”
Submissions on behalf of the School
[69] Written submissions were filed on behalf of the School 31.
[70] The School argues that I should rely on the statement of Ms Cook. The submissions go on to deal with the factual background of Mrs Reynolds’ resignation and said that she “had many other viable alternatives to resigning and she was not ‘forced to resign’. Indeed, it is clear that the Principal of the School considered the Applicant to be an experienced and competent teacher during her period of employment, and wished for her simply to take some steps to address the parents’ concerns and to continue teaching at the School.”
[71] The submissions go on to deal with the questions of Mr L’s complaint, the School’s Survey and Ms S. As that material is dealt with earlier in this decision I will not set it out again here.
[72] The submissions cite various matters of case law and I have paid regard to that material.
[73] The School submits that there are seven reasons why Mrs Reynolds was not constructively dismissed. In summary, they are:
1. The Applicant could have participated in the performance management process and continued working at the School. If she required sick leave due to stress, she possessed a medical certificate stating that she was unfit to return to work until 27 October 2015.
2. The Applicant only resigned her employment after she had engaged solicitors.
3. The fact the School implemented a performance management process in respect of the Applicant does not mean she was forced to resign or that the School intended her to resign.
4. It is insufficient for the Applicant simply to demonstrate that she was unhappy with her employment, including the decisions that were made by the School.
5. The consistent view expressed by the Principal was that the Applicant was an experienced and competent teacher, but that she needed to address her performance issues.
6. The parents’ complaints do not constitute conduct of the employer.
7. The School did not effectively threaten Mrs Reynolds that unless she resigned, her employment would end by other means.
Oral submissions
[74] Both parties made oral submissions at the conclusion of the hearing. I have paid regard to those submissions but they were largely repetitive of other material contained earlier in this decision.
Conclusions and Findings
[75] Earlier in this decision I set out the statutory framework which is the basis of my decision making.
[76] Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. “Initiative” is relevantly defined in the New Shorter Oxford Dictionary as:
“initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.”
[77] This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd 32 (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, “… 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.”33
[78] In Mohazab, the Full Court also said:
“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.” 34
[79] A Full Bench of this Commission in Stubbs v Austar Entertainment Pty Ltd 35 (Stubbs) said, “We do not doubt that Mr Stubbs believed he had good reason to resign. However, the fact that an employee has good reason to resign does not of itself establish that the employment is not voluntarily left by the employee. To constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect . . .’ [Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].”36
[80] A Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit 37 (ABB)said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.” 38
[81] In Pawel v Australian Industrial Relations Commission 39 (Pawel) Dowsett J said:
“When an employee resigns, he or she has usually reached a decision, taking into account many factors. Some may be entirely personal and unrelated to any "misconduct" on the part of the employer. An employee may resign because he or she has been passed over for promotion, has not received a pay increase, has a more attractive job offer or, as in the present case, finds aspects of his or her work uncongenial or undesirable. There can be any number of reasons for an employee to feel dissatisfaction, and there is always the possibility that it will lead to resignation. That dissatisfaction will often have been arguably caused (in part or in whole) by a decision or decisions of the employer. If "initiative" implies only causation, it will usually be arguable that the employer has "initiated" the termination. Although it may be good managerial practice to offer job satisfaction, it cannot be guaranteed. Many dissatisfied employees resign. The process prescribed in Division 3, which depends on termination, is too cumbersome to have been intended to resolve issues of that kind. I do not accept that any employee whose decision to resign was, to some extent, motivated by action or inaction on the part of the employer, may initiate proceedings pursuant to subs 170CE(1). Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer.” 40
[82] In P O’Meara v Stanley Works Pty Ltd 41(O’Meara), a Full Bench of this Commission said:
“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 42 Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”43
[83] His Honour Senior Deputy President Richards in Hastie v Impress Australia Pty Ltd 44 (Hastie) said:
“The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.
If this were not the case, then it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignations which are the result of the conduct of the employer. This is because, for all practical purposes, most decisions by an employee to resign their employment arise from the conduct of the employer, in some manner or form. That is, employer conduct is causally responsible at some level for most resignations.” 45
[84] His Honour went on to say: “It would appear to me, then, that on an ordinary or natural reading of the term ‘forced’, an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonable probable response to the circumstances the employee faced at the time.” 46
[85] It now falls to me, on the balance of probabilities, to determine what actually occurred in the ending of the employment relationship between Mrs Reynolds and the School. I am guided by the Full Benches in Pawel, ABB, Stubbs and O’Meara.
[86] On the evidence and materials before me, I am unable to conclude that Mrs Reynolds was constructively dismissed by the School. In reaching this conclusion, I have formed the view that the evidence of Ms Cook is to be preferred over that of Mrs Reynolds where such evidence is in conflict. I do not impute any untruthfulness to Mrs Reynolds. I have paid neutral regard to the evidence of Mr Kleinig and Mr Reynolds. Their evidence does not assist me in deciding the jurisdictional issue. I am satisfied however that the evidence of both Mr Kleinig and Mr Reynolds was truthful as to their opinions.
[87] Mr and Mrs L were extremely annoyed by Mrs Reynolds chastising their young daughter for her behaviour during a sports activity. The sports teacher apparently observed the incident and supported Mrs Reynolds’ version of events. The subsequent behaviour of Mr L can only be described as appallingly crass, particularly as he was, at the time, a member of the School Board. Mrs Reynolds was entitled to be outraged by Mr L’s behaviour but there was never any suggestion from the School that Mrs Reynolds had behaved in any improper way. Any accusation that Ms Cook did not support Mrs Reynolds must be rejected. Ms Cook supported an independent investigation being conducted. The upshot of this unfortunate incident was that Mr L firstly stood down from the School Board and later resigned. Those two actions arose from Ms Cook’s support for Mrs Reynolds, as did the apology to Mrs Reynolds which was extracted from him.
[88] It is difficult to conceive what action against Mr L by the School would possibly have satisfied Mrs Reynolds. Mrs Reynolds rejected the apology as not being genuine or sufficiently contrite. Her view on this is extremely naive, Mr L was never going to be genuinely contrite. The apology he issued would have been sufficiently galling to him. He also lost his position on the Board of the school his daughter attended.
[89] Steps taken by the School, and in particular by Ms Cook, during and after the Mr L incident, appear to have been made with Mrs Reynolds’ best interests at heart. For example, the School changed, at Mrs Reynolds’ insistence, its guidelines for parent meetings after the Mr L incident to better protect teachers from intimidatory behaviour.
[90] Here, I wish to note the propriety of Mr Hassall’s actions in this matter. Mr Hassall was quite correct to leave the handling of the Mr L incident to Ms Cook.
[91] The AIS Report by Mr Pryde also requires some comment. Mr Pryde’s report dated 17 July 2015 made a number of ‘findings’ which severely criticise Mr L’s behaviour, including:
- There is corroboration in the evidence provided by Ms Reynolds, [Ms S] and Ms Deborah Cook, the Principal in relation to [Mr L’s] behaviour in the meeting [on 29 April 2015].
- There is corroboration in the witness descriptions in the manner in which he was speaking; ‘aggressive’, ‘very aggressive’ and ‘bordering on probably quite aggressive’.
- The Principal does support Ms Reynolds allegation that [Mr L] did not let her speak. The Principal stated ‘he kept cutting her off’.
- Both Ms Reynolds and [Ms S] describe [Mr L] speaking in a raised voice ‘loud’, ‘very loud’ and ‘shouting’. The Principal described it as ‘abrupt … really pointed, assertive’.
- [Ms S] stated that she felt emotionally threatened and entirely uncomfortable in the meeting.
- The Principal stated it made her feel uneasy and that it was intimidating.
- The investigator is of the view that [Mr L’s] behaviour in the meeting is not unlawful.
- However, when considering the corroboration in the accounts of the witnesses the investigator is of the view that the nature of [Mr L’s] behaviour caused distress to the complainant and to varying degrees [Ms S] and the Principal.
- The investigator is of the view that the manner in which [Mr L] conducted himself has breached some of the expectations of ‘The Parent, Caregiver and Community Member Code of Conduct …
- The decision maker may also wish to consider an additional Codes of Conduct which relate to [Mr L’s] role as a School Council Member.
[92] Mrs Reynolds has expressed dissatisfaction with Mr Pryde’s report. Two examples will suffice. She believes that the report is not comprehensive enough as to the views and comments she expressed to Mr Pryde and that Mr Pryde’s ‘finding’ that Mr L’s behaviour was ‘not unlawful’ was, at best, incorrect. As to the first objection, Mr Pryde’s report is meant to summarise events and to draw conclusions, I believe it did so quite adequately. Secondly, Mr Pryde’s ‘finding’ as to unlawfulness was an error on his part. Mrs Reynolds obviously would have preferred a finding that Mr L’s behaviour was unlawful. I take a totally different view. It was not open to Mr Pryde to make any ‘finding’ in relation to lawfulness, as to do so it would be to usurp a judicial role. He should not have made such a finding in either the positive or the negative.
[93] Ms Cook’s handling of other parent complaints, most of which seem to have arisen from responses to the Embedding Excellence Survey, was also appropriate. She was faced with a situation where an excellent, experienced teacher was being unfairly criticised by a number of parents. Her decision to implement a performance plan for Mrs Reynolds to address those ‘perceptions’ was not an attack on Mrs Reynolds but an action by Ms Cook which was the correct one in all the circumstances. Mrs Reynolds initially cooperated in this endeavour, but ultimately she was unable to deal with the further criticisms from anonymous parents after the Mr L incident. She also had problems with Ms S, who was the co-teacher of Year 2 students.
[94] The relationship between Mrs Reynolds and the School, in particular as represented by Ms Cook, was quite obviously an unhappy one during 2015 from Mrs Reynolds’ point of view. I accept that Mrs Reynolds was distressed by the Mr L incident and its aftermath but I have also concluded that the School took appropriate steps to deal with the Mr L problem and problems with other parents. It also took appropriate steps to support Mrs Reynolds.
[95] It is clear to me that Mrs Reynolds was greatly affected by events at the School, which events were not the result of any poor behaviour or lack of teaching skills on her part. She sought and received medical assistance, was offered counselling paid for by the School and also sought and received legal advice. After taking legal advice, Mrs Reynolds resigned from the School. This was not a knee-jerk reaction but a considered one. This is evidenced by her resignation letter being forwarded to the School by her solicitor.
[96] Mrs Reynolds’ resignation was a personal decision by her following a set of extremely difficult and emotionally distressing experiences. However, the School, or Ms Cook, did not engage in a course of conduct designed to force such a resignation or to make such a result inevitable by making her job impossible to perform.
[97] All in all, after considering all the evidence and materials before me, I find that Mrs Reynolds resigned her employment voluntarily and there was no constructive dismissal at the initiative of the School. Therefore the Commission has no jurisdiction to hear Mrs Reynolds’ substantive application for relief.
[98] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’ in these proceedings.
[99] Mrs Reynolds’ application for relief is dismissed. An order reflecting this decision is in PR577340.
COMMISSIONER
Appearances:
P King of counsel with L Havenstein for Deborah Reynolds.
T O’Brien of counsel with D Anthony for Highfields Preparatory and Kindergarten School Ltd
Hearing details:
2016.
Sydney:
February 4.
1 Exhibit A4.
2 Exhibit A5.
3 Exhibit A6.
4 See Attachment J to Exhibit A4.
5 See Attachment B to Exhibit A4.
6 Transcript PN265.
7 Transcript PN266.
8 Transcript PN289.
9 Transcript PN295.
10 Transcript PN324.
11 Transcript PN499.
12 Transcript PN502.
13 Transcript PN509.
14 Transcript PN527.
15 Transcript PN538.
16 Exhibit A17.
17 Exhibit A18.
18 Exhibit A19.
19 Exhibit A20.
20 Exhibit R3.
21 Exhibit R4.
22 See Attachment B to Exhibit R3.
23 See Attachment K to Exhibit R3.
24 See Attachment M to Exhibit R3.
25 See Attachment P to Exhibit R3.
26 Transcript PN737.
27 Transcript PN892.
28 Transcript PN932.
29 Transcript PN995.
30 Exhibit A1.
31 Exhibit R1.
32 62 IR 200 (1995).
33 Ibid at p205.
34 62 IR 200 at pp205-206.
35 Print Q0008, 9 April 1998.
36 Ibid at p12.
37 Print N6999, 9 December 1996.
38 Ibid at p13.
39 FCA 1660 (1999) at para 58.
40 Ibid at para 58.
41 PR973462, per Giudice P, Watson VP, Cribb C.
42 Mohazab at page 205.
43 PR973462 at para 23.
44 PR980573.
45 See Print N6999at PN58.
46 PR980573 at paras 46-50, 55-60.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR577339>
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