Elizabeth Price v Coles Supermarkets T/A Coles
[2017] FWC 3102
•29 JUNE 2017
| [2017] FWC 3102 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Elizabeth Price
v
Coles Supermarkets T/A Coles
(U2016/12619)
DEPUTY PRESIDENT ANDERSON | MELBOURNE, 29 JUNE 2017 |
Application for relief from unfair dismissal
1. Background
[1] Elizabeth Price (Ms Price) has made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her (alleged) dismissal by Coles Supermarkets (Australia) Pty Ltd (Coles) on 15th September 2016.
[2] Ms Price is 45 years of age. She had been employed by Coles as a permanent part time Service Assistant at its Port Melbourne supermarket for 20 years. Prior to that, she worked for Coles as a casual employee for 5 years. Working for Coles has been her only employment since leaving school. She did not complete VCE, nor undertake independent vocational training.
[3] Coles is one of Australia’s largest private sector employers, and operates retail supermarkets on a national basis.
[4] Ms Price’s application was lodged 11 days outside the requisite 21 day time limit after the dismissal took effect. On 17th January 2017 the Commission granted Ms Price an extension of time for lodgement. 1
[5] Ms Price seeks a finding that her (alleged) dismissal was an unfair dismissal within the meaning of the FW Act, and an order for reinstatement accompanied by ancillary orders for the payment of back pay and recognition of continuing employment.
[6] Coles raises a jurisdictional issue. It contends that Ms Price was not dismissed but resigned from her employment, and accordingly could not have been unfairly dismissed within the meaning of the FW Act.
[7] Conciliation by the Commission on 22nd November 2016 did not resolve the matter, nor did member assisted conciliation conducted at my request immediately prior to the hearing.
[8] A hearing of the jurisdictional matter and the merits was jointly conducted on 23rd and 24th May 2017.
[9] Both parties were represented by counsel. At the outset, I granted permission under s. 596 of the FW Act for each party to be legally represented. In doing so, I had regard to the factors set out in s. 596(2) and in particular the complexity of the matter and the likely impact of counsel on the efficient conduct of the hearing. 2
[10] The hearing occupied two days. Aside from written statements and oral evidence from witnesses, written and oral submissions on the jurisdictional matter and the merits (as well as remedy) were presented by counsel. At the hearing’s conclusion, I reserved my decision.
[11] Three issues arise for decision: first, was Ms Price dismissed within the meaning of the FW Act; second, if so, was the dismissal unfair within the meaning of the FW Act (that is, was it “harsh, unjust or unreasonable” having regard to the factors in s. 387); and third, if so, what is the appropriate remedy.
[12] It was common ground between the parties that Ms Price was a person protected from unfair dismissal under the FW Act (s. 382). The (alleged) dismissal was not governed by the Small Business Fair Dismissal Code (s. 385(c)) nor was the termination a case of genuine redundancy (s. 385(d)).
2. The requirement to have been dismissed
[13] Under the FW Act, a person can only be “unfairly dismissed” if they have been “dismissed” (s. 385(a)).
[14] Section 386 of the FW Act provides that:
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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
[15] The provisions of s. 386(2) and (3) do not apply in this matter. The jurisdictional issue falls to be determined by answering this question arising from the application of s. 386(1)(b): in resigning from her employment on 15th September 2016 was Ms Price “forced to do so” because of the conduct, or a course of conduct, engaged in by Coles.
3. The witnesses
[16] Five witnesses were called, two by counsel for Ms Price (Ms Price herself, and her mother Robyn Price) and three by counsel for Coles (Store Manager Toni Maltez, Store Support Manager Cody Cameron and Customer Service Manager Stavros Aivaliotis).
[17] All witnesses were conscientious and I find each to be a witness of credit. However the relevant events occurred at least eight months prior to the hearing, and the recall of each witness was not exact, leading to some vagaries and differences in evidence.
[18] Ms Price (the applicant) is softly spoken and somewhat timorous in demeanour. Her counsel claimed she has cognitive difficulties and that those difficulties are relevant to findings I was encouraged to make. I deal with those matters in the body of this decision.
[19] The applicant’s mother Mrs Robyn Price gave evidence confined to her witness statement. She was not cross examined. She was not a participant in the events at the store on the relevant days. Her evidence is limited to a post termination telephone discussion with the union support person, and certain matters of context concerning the well-being and conduct of her daughter, and the impact on her daughter of her employment having ceased.
[20] The store manager, Mr Maltez, was straightforward in his evidence with a generally strong recall of the events on the relevant days. So was the Store Support Manager, Mr Cameron. The evidence of each is supported by documentary evidence produced at the hearing. Mr Maltez, as the Store Manager, was the decision maker (or potential decision maker). Whilst defensive in cross examination, his evidence was (with one exception discussed later) corroborated by Mr Cameron, who was present with Mr Maltez at all relevant times on 15th September.
[21] Where there is a difference of recollection, I prefer the evidence of Mr Maltez and Mr Cameron over Ms Price.
[22] The evidence of Mr Aivaliotis was clear and supported by documentation made by him or other supervisors and managers with whom he worked. His evidence concerned dealings with Ms Price and her customer service record in the period he worked at the Port Melbourne store from October 2013 until September 2015. He was not involved in the events of September 2016.
[23] A union organiser whose responsibilities included the Coles Port Melbourne store, Ms Vanessa Jayasinghe of the Shop Distributive and Allied Employees Association (SDA) was involved in the events leading to the termination of Ms Price’s employment but was not called to give evidence. She was Ms Price’s support person on 15th September, but was not called by the applicant. At the request of the respondent, on 24th April 2017 the Commission issued an order under s. 590(2)(a) of the FWA requiring Ms Jayasinghe to attend the hearing. She attended the proceedings (with counsel) but despite the ability to do so, neither counsel called her or sought to file a witness statement from her.
[24] Counsel for both the applicant and the respondent invited me to draw adverse inferences (of the Jones v Dunkel 3 kind) against each other by virtue of the fact that neither took the opportunity to call Ms Jayasinghe. I decline to do so. Insofar as her role is relevant, there is direct evidence before me, including the evidence Ms Price, Mr Maltez, Mr Cameron and Mrs Robyn Price about conversations they had or witnessed with Ms Jayasinghe for me to determine this matter without drawing such inferences.
3. The evidence
[25] It is common ground that on 15th September 2016, in the course of a disciplinary meeting (which involved a series of sub meetings), Ms Price wrote a letter of resignation in her handwriting and handed it to the store manager Mr Maltez. The resignation was immediately accepted by Mr Maltez and, after collecting her belongings, she left the store.
[26] The letter of resignation read:
“I Elizabeth Price as of 15/09/2016 am [sic] resign from Coles Port Melbourne. ELIZABETH PRICE (signed) 15/9/2016”
[27] The events of 14th and 15th September are relevant to determining whether this letter of resignation was forced upon Ms Price by the conduct, or a course of conduct, engaged in by Coles.
[28] On 14th September Mr Maltez decided that he would, the following day, conduct a formal disciplinary meeting with Ms Price. This followed Mr Maltez dealing with a customer complaint against Ms Price on 8th September and his earlier review of her personnel file (in May 2016) which disclosed a record of formal and informal counselling and warnings (some said to be final) between 2013 and 2016 about alleged poor customer service, as well as retraining and coaching. A formal warning had been issued by a Store Support Manager on 27th May 2016 and a (further) final warning by the same manager on 2nd August 2016.
[29] Having made the decision to meet, Mr Maltez did two things. He contacted Coles ‘HR (Human Resources) Advisory’ and requested a formal ‘Discussion Record’ be prepared. He also personally informed Ms Price that he “wanted her to attend a meeting regarding her customer service and interaction with customers”. 4 He did not specifically tell her that it was to be a disciplinary meeting.5 However he told her that she should attend with a union representative, team member or friend.6 He had prior experience dealing with a union organiser for Coles Port Melbourne (Ms Vanessa Jayasinghe of the SDA) and considered her to be an effective support person for employees.7 He had her contact cards on hand and gave her card to Ms Price with the suggestion that she contact the union organiser in advance of the meeting. Mr Maltez telephoned the union organiser and advised her that she may receive a call from Ms Price for the purposes of a meeting the following day.8 Independently, Ms Price telephoned the union organiser, and requested her assistance.9
[30] The Discussion Record prepared prior to the disciplinary meeting was a joint endeavour between Coles HR Advisory and Mr Maltez. It included (in section 2) pro forma content from HR Advisory supplemented by some specific material (including the customer complaint of 8th September and mention of past coaching, counselling and warnings) from Ms Price’s personnel file which Mr Maltez had sourced. 10
[31] The meeting on 15th September was attended by Mr Maltez and Mr Cameron for the employer, and Ms Price with the union organiser Ms Jayasinghe as her support person. From start to finish, it occupied around 90 minutes.
[32] In reality, the meeting was a series of multiple contiguous meetings:
- Meeting 1: Price, Jayasinghe, Maltez and Cameron (store manager’s office); then
- Meetings 2 and 3: Price and Jayasinghe (training room) and Maltez, Cameron and Coles HR (store manager’s office); then
- Meeting 4: Price, Jayasinghe, Maltez and Cameron (store manager’s office); then
- Meeting 5 and 6: Price and Jayasinghe (training room); and Maltez, Cameron and Coles HR (store manager’s office); then
- Meeting 7: Jayasinghe and Maltez witnessed by Cameron (store manager’s office)
- Meeting 8 and 9: Maltez, Cameron and Coles HR (store manager’s office); and Price and Jayasinghe (training room); then
- Meeting 10: Jayasinghe and Maltez witnessed by Cameron (store manager’s office)
- Meeting 11: Price, Jayasinghe, Maltez and Cameron (store manager’s office).
[33] Meeting 1 involved Mr Maltez putting to Ms Price the most recent incident of alleged poor customer service and reciting the background of counselling, warnings and coaching as set out in section 2 of the Discussion Record. After 15 minutes the meeting was adjourned for Ms Price to consider her response, assisted by her support person.
[34] Meeting 2 involved Ms Price discussing the customer complaint and the company assertions with her union support person Ms Jayasinghe in the adjoining training room. Ms Price’s evidence is that Ms Jayasinghe questioned her about the complaints. 11
[35] At the same time as Meeting 2, Mr Maltez and Mr Cameron phoned Coles HR (Meeting 3). They discussed the disciplinary options which they collectively considered to be either dismissal or a further final warning with coaching. No decision was made.
[36] Meeting 4 involved all parties reconvening in the manager’s office to receive Ms Price’s response to the complaint. The evidence of Mr Maltez and Mr Cameron was that Ms Price acknowledged that she had been rude to the customer, that she should not have done so and apologised. Under cross examination, Ms Price accepted that this had been her response. Her union support person Ms Jayasinghe then asked if Ms Price could be moved into a different department in the store. Mr Maltez rejected that proposal on the basis that each department required an acceptable level of customer service. 12 The meeting was adjourned for Coles to consider the form of disciplinary action.
[37] Meeting 5 involved Ms Price and her union support person Ms Jayasinghe alone in the training room awaiting the decision of management. It is not clear from the evidence what was said between Ms Price and Ms Jayasinghe at this meeting.
[38] Meeting 6 occurred at the same time as Meeting 5. It involved Mr Maltez and Mr Cameron in the store manager’s office discussing the options for disciplinary action and preparing to again speak to Coles HR. However, the meeting was interrupted by the union support person Ms Jayasinghe knocking on the door.
[39] Meeting 7 involved the union support person Ms Jayasinghe and Mr Maltez in the store manager’s office. Mr Cameron was present and heard the exchange, but did not participate. Ms Price remained in the training room. The evidence of Mr Maltez 13 is that the conversation was as follows:
Jayasinghe: What does it look like?
Maltez: I need to ring HR advisory to provide advice to me before I make a decision, but you have been around a long time, I guess there are only a couple of options.
Jayasinghe: Would you accept her resignation?
Maltez: Yes, but if there is talk of a resignation then I need you to understand that I need to hear it from Lizzie and only Lizzie because it is a serious thing to do.
[40] Mr Cameron’s evidence about this conversation was consistent with the evidence of Mr Maltez.
[41] Meeting 8 involved Mr Maltez and Mr Cameron making phone calls to a number of people from Coles HR to update them and to seek their further advice. The evidence of Mr Maltez is that Coles HR did not have a common view on what should occur. His evidence was that two of the persons contacted recommended dismissal but one person recommended a further final warning. 14 Mr Maltez gave evidence that he had still not made a decision at the conclusion of this meeting.15 Mr Cameron gave evidence that Mr Maltez had made a decision but did not communicate it.16 I prefer the evidence of Mr Maltez on this point, as he was the decision maker and was assured in the way he presented this evidence. With the issue of resignation having been raised moments before by the union support person, it is plausible that he was waiting until the last moment to make his decision, especially since Coles HR was divided in its view. There is no evidence that any decision (even if made by Mr Maltez) had been communicated by Mr Maltez to Mr Cameron, let alone to Ms Price or Ms Jayasinghe.
[42] Meeting 9 occurred at the same time as meeting 8 and involved Ms Price and the union support person Ms Jayasinghe again alone in the training room awaiting the decision of management. Ms Price’s evidence of this meeting is that Ms Jayasinghe came into the room (from her meeting with Mr Maltez) and said that “if I didn’t resign I’d be dismissed”. 17 She goes on to say:
“I was extremely upset. I did not understand what was happening. I never wanted to resign and never had any intention to do so but Ms Jayasinghe was telling me what to do so I followed her instructions. Ms Jayasinghe told me to tell Mr Maltez and Mr Cameron that I was going to resign.” 18
[43] Mr Maltez gave evidence that around this time Ms Jayasinghe returned to the manager’s office, again alone (Meeting 10):
“we discussed Ms Jayasinghe’s suggestion that Lizzie resign her employment. I said to Ms Jayasinghe words to the effect of “I don’t want you to prompt anything it has to be her decision”. 19
[44] Meeting 11 was the meeting which brought Ms Price’s employment with Coles to an end. It involved all parties again reconvening in the manager’s office. There is very little difference in the evidence as to what occurred at this meeting. Where there are differences, I prefer the evidence of Mr Maltez, for reasons previously mentioned.
Maltez: Is there anything you need to say before a decision is made?
Price: I am going to resign
Maltez: Are you sure where you are going with this? Do you understand that the effect will be that you are no longer working at the Port Melbourne store?
Price: Yes
Maltez: Do you want me to get a piece of paper and pen?
Price: Yes
[45] The evidence of Mr Maltez 20, supported by the evidence of Mr Cameron was that he (Maltez) then asked Ms Price five times whether she was sure that she wished to resign. She said yes. She then wrote a letter of resignation with the help of her union support person Ms Jayasinghe. While the resignation letter was being written Mr Maltez and Mr Cameron remained in the room.
[46] Ms Price handed the letter to Mr Maltez. She hugged him. She expressed concern at what her mother would think. 21 The meeting concluded. Over the next 30 minutes Ms Price collected her belongings and left the store.
[47] The evidence of Ms Price’s mother, Robyn Price, is that on returning home her daughter said words to the effect “I’ve been got rid of by Coles” and that Mrs Robyn Price was shocked. 22
[48] Mrs Robyn Price says that she (Robyn Price) then telephoned the union support person Ms Jayasinghe. According to Mrs Robyn Price, Ms Jayasinghe “went on to say that it was a pity she hadn’t been involved in the preceding disciplinary meetings. She also told me she had advised Lizzie to resign as she had four warnings. She told me nothing could be done to reverse the resignation.” 23
[49] Although, in that telephone conversation with the union support person, Ms Price’s mother protested the view that her daughter had resigned, neither Ms Price nor her mother nor the union support person Ms Jayasinghe nor any other person on her behalf took action in the hours or days following the letter of resignation to inform Mr Maltez or another officer of Coles that the resignation was involuntary or that Ms Price was seeking to withdraw it.
4. Was Price dismissed?
[50] Whether a resignation is, at law, a dismissal requires consideration of the conduct of the employer for the purpose of assessing whether that conduct, or a course of conduct, is what forced the employee to resign. 24
[51] The approach to be taken was formulated under statutory provisions existing prior to the FW Act, but has continued to apply since 25:
“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 the line be closely drawn and rigorously observed…
…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 employee had no effective or real choice but to resign.” 26
[52] The task requires an objective analysis of the facts, and in particular of the employer’s conduct. In O’Meara v Stanley Works Pty Ltd 27 a Full Bench of this Commission said:
“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.”
[53] In conducting an objective analysis, the findings I make concerning the disciplinary process established by Coles are as follows:
- Coles decided on 14th September to convene a formal disciplinary meeting with Ms Price following a customer complaint concerning service standards;
- Coles had conducted disciplinary and counselling meetings and coaching and retraining sessions with Ms Price in the preceding three years. Ms Price was, at the relevant time, on a final warning concerning customer service standards;
- When Coles orally informed Ms Price that a meeting would take place to discuss a customer complaint, it suggested she be accompanied by a support person. Coles did not, at that time, outline the specific customer complaint that had been made;
- Coles left the choice of support person to Ms Price but recommended the SDA union organiser for the region covering the relevant store (Ms Jayasinghe). Coles provided those contact details to Ms Price;
- Coles contacted the SDA organiser to foreshadow that Ms Price may seek her support;
- Coles store management engaged the assistance of Coles corporate HR and sought to follow protocols set by HR for disciplinary meetings, including the preparation of a formal Discussion Record;
- Coles convened the 15th September meeting in private (store manager’s office) and an adjoining area (training room) was used for private discussion between Ms Price and her support person;
- The Coles decision maker remained, at all relevant times the store manager (Mr Maltez);
- Coles provided Ms Price an opportunity to respond to the most recent customer complaint and explain her version of the incident and her awareness of customer service expectations and past counselling;
- Coles provided opportunities during the meeting for Ms Price to take private counsel from her support person. That opportunity was utilised;
- Coles gave consideration to matters raised by Ms Price and by her support person;
- The Coles disciplinary process was deliberative and structured;
- When dealing with both the issue of Ms Price’s alleged failure to adhere to service standards, as well as the issue of resignation (once it was raised by the union support person), Coles sought to ensure that Ms Price and her support person understood what was happening during the meeting (and meeting sub-sets) and of the consequences or potential consequences of action (or potential action) by the company or herself.
[54] The issue of resignation did not arise between Coles and Ms Price until her support person, Ms Jayasinghe, sought a private discussion with Mr Maltez (Meeting 7) after Ms Jayasinghe had met privately with Ms Price. It was Ms Jayasinghe who asked Mr Maltez “would you accept her resignation” after Mr Maltez told her “there are only a couple of options”.
[55] In that exchange, and in subsequent discussions, Mr Maltez informed Ms Jayasinghe that if Ms Price was to resign then it (the resignation) needed to be her (Ms Price’s) decision. During the final (resignation) meeting attended by both Ms Price and Ms Jayasinghe, he repeatedly asked Ms Price if she understood that resignation would end her employment. When Ms Price affirmed her intention and understanding he then (but only then) gave her a piece of paper to write her resignation. Although neither Mr Maltez nor Mr Cameron left the room, the words used in the resignation letter were the combined work of Ms Price and her support person.
[56] The resignation was made in the context of a formal disciplinary meeting by an employee with a record of performance counselling and warnings. It was a meeting that had the potential to result in Ms Price’s dismissal.
[57] The decision to resign was made at an advanced point of that meeting (and its sub-sets). However, it was not made in response to Coles having decided to dismiss Ms Price or (if it had) communicating that to Ms Price. At the time of resignation, Mr Maltez communicated no such thing to Ms Price, or Ms Jayasinghe. For reasons mentioned, I accept the evidence of Mr Maltez that he was still considering which of a further final warning or dismissal would apply. 28 This is consistent with the fact that he had just received differing views from Coles HR specialists, and that the decision had been left to him. Mr Cameron says a decision had been made by Mr Maltez but even on his evidence no decision had been communicated to Ms Price. On either version, Mr Maltez was holding his fire. This was not inappropriate given that Ms Jayasinghe had raised the prospect of resignation and was discussing that privately with Ms Price.
[58] The evidence of Ms Price is that she resigned because Ms Jayasinghe, her support person, told her that if she did not do so then she would be dismissed. 29 With Ms Jayasinghe not having been called to give evidence, it is not possible to corroborate this claim. It is plausible that Ms Jayasinghe advised Ms Price to resign because of the mention by Mr Maltez in their earlier private discussion that there were “only a couple of options”. While Ms Jayasinghe may have interpreted this as meaning dismissal or resignation, Mr Maltez’s evidence is that he meant further final warning or dismissal. Mr Maltez was not asked by Ms Jayasinghe or Ms Price in any of the subsequent meetings or discussions on that day to clarify what he had meant.
[59] To the extent that Ms Price was operating on the understanding that she would or would likely be dismissed if she did not resign, it was Ms Jayasinghe, her union support person, who communicated that understanding to her. Alternatively it was Ms Jayasinghe who formed an independent view that it was in Ms Price’s best interests to resign, and advised Ms Price accordingly. On either scenario, it was not conduct of Coles which advised or compelled resignation.
[60] Although not intending to mislead, the words used by Mr Maltez to Ms Jayasinghe that there were “only a couple of options” were ambiguous and open to misinterpretation. In AAB Engineering, a Full Bench of this Commission said:
“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.” 30
[61] From their differing perspectives it is possible to see how the words used could convey different meanings. Mr Maltez meant the options of further final warning or dismissal. Ms Jayasinghe may have understood it to mean dismissal or resignation, and may have communicated that impression to Ms Price. Ms Price’s evidence suggests that was the case. 31 The words were said to a union support person and Mr Maltez had not (at that stage at least on any version of evidence) made a decision to dismiss nor communicated such a decision. Even applying considerable caution, in those circumstances, and having regard to what followed, the words used fall short of conduct by the employer that forced Ms Price’s resignation to be involuntary.
[62] Could it be said that the advice given to Ms Price by her support person was the product of the conduct of Coles, and thereby (in some indirect form) a resignation forced by Coles? Such a conclusion would not be consistent with the direct evidence of Mr Maltez and Mr Cameron that once Ms Jayasinghe raised the prospect of resignation, Coles managers were at pains to ensure that any resignation would be the employee’s decision. That they proceeded with their own independent decision making with their HR advisers indicates that they did not consider a resignation to be a fait accompli. Nor is there any sense in which Ms Jayasinghe was a mouthpiece for the employer or doing anything other than exercising an independent support role.
5. Price’s understanding of events
[63] Counsel for the applicant contended that Ms Price has cognitive difficulties and did not fully appreciate the significance of resignation, particularly in the environment of a formal and advanced disciplinary process. I was invited to find that she is a “vulnerable” person and, as a result, more likely than not to be forced into resignation.
[64] Mrs Robyn Price (the applicant’s mother) gave evidence that her daughter “has cognitive difficulties which mean that she does not cope well in stressful situations…She will often do what people in stronger positions suggest without understanding what she is doing.” 32
[65] In cross examination, Mr Maltez considered that Ms Price was “immature”. 33
[66] No evidence was called to explain whether Ms Price suffers from a medical or behavioural condition that impairs her cognitive abilities. There was no information supplied to Coles by Ms Price (or those on her behalf) that such a condition existed or impacted her employment or capacity to perform her duties.
[67] Although timorous in demeanour, I found Ms Price to be capable of comprehension in the witness box which is, no doubt, a stressful and foreign environment. Whilst softly spoken, she was able to hold her ground when she saw fit under cross examination. On some matters her recall was vague, or refreshed only by documentary evidence. That is not unusual and, with the effluxion of time, not surprising.
[68] I have no expert material before me to find that Ms Price has cognitive difficulties or whether the nature of such difficulties impedes her understanding of events or capacity to deal with stressful environments. Being timorous and softly spoken she is potentially a vulnerable and somewhat impressionable employee. Coles facilitated her being accompanied by a support person, and she took that opportunity. Although Ms Price had only met Ms Jayasinghe on the day of the final disciplinary meeting, 34 her evidence was that she was comfortable discussing matters on that day with her support person.35 While the disciplinary meeting of 15th September was lengthy, it was punctuated with breaks and opportunities for Ms Price to speak privately with her support person and take her counsel.
[69] When advised by Ms Price that she wished to resign, Mr Maltez asked Ms Price on multiple occasions and in the presence of her support person whether she understood what she was doing. She replied in the affirmative. No demur was expressed by the support person.
[70] While it would have been a stressful environment, I am satisfied that Ms Price, notwithstanding her vulnerabilities, understood the consequences of resigning and was able to take independent advice from her support person on whether that was an appropriate course. On her evidence, and on an objective view of the evidence as a whole, she was not forced by Coles to resign.
5. Conclusion and orders
[71] I am not satisfied that Coles engaged in conduct or a course of conduct that forced Ms Price to resign her employment.
[72] As Ms Price was not dismissed within the meaning of s. 385 of the FW Act, there is no jurisdiction to deal with her claim that the alleged dismissal was harsh, unjust or unreasonable.
[73] I dismiss the application. An order to this end is being issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Mr J Tracey of counsel for the Applicant.
Mr A Pollock of counsel for the Respondent.
Hearing details:
2017.
Melbourne:
23, 24 May.
1 [2017] FWC 326
2 Transcript at PN 11
3 (1959) 101 CLR 298
4 Exhibit R2 at paragraph 28 and Exhibit R3 at paragraph 6.
5 Transcript at PN 677
6 Exhibit R3 at paragraph 6
7 Transcript at PN 645, PN 1029
8 Ibid at PN 650-660
9 Exhibit A2 at paragraph 7
10 Exhibit R2 at Attachment TM 20 and transcript at PN 678-714
11 Exhibit A2 at paragraph 10
12 Exhibit R2 at paragraph 34
13 Ibid at paragraph 36
14 Transcript at PN 1052-1054
15 Exhibit R2 at paragraph 37 and transcript at PN 1051-1054
16 Transcript at PN 1266
17 Exhibit A2 at paragraph 10
18 Ibid at paragraph 11
19 Exhibit R2 at paragraph 38
20 Exhibit R3 at paragraph 13
21 Exhibit R4 at paragraph 38
22 Exhibit A1 at paragraph 7
23 Ibid at paragraph 9
24 Section 386(1)(b) of the Fair Work Act 2009 (Cth)
25 Bruce v Fingal Glen Pty Ltd[2013] FWCFB 5279
26 ABB Engineering Construction Pty Ltd v Doumit Print N6999, 9th December 1996. See also Pawell v Advanced Precast Pty Ltd [2000] Print S5904 applying the Full Court of the Federal Court in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
27 PR973462.
28 Exhibit R3 at paragraph 12
29 Exhibit A2 at paragraph 10 and transcript at PN 410
30 N6999
31 Transcript at PN 408-410
32 Exhibit A1 at paragraph 3
33 Transcript at PN 1003
34 Transcript at PN 1017
35 Transcript at PN 404
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