Evangelina Kealey v Diamond Valley Community Support Inc
[2023] FWC 2778
•22 NOVEMBER 2023
| [2023] FWC 2778 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Evangelina Kealey
v
Diamond Valley Community Support Inc
(U2023/5462)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 22 NOVEMBER 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – whether the applicant was dismissed – “heat of the moment” – applicant dismissed.
On 19 June 2023, Ms Evangelina Kealey (applicant) applied to the Commission for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Ms Kealey alleges that she has been unfairly dismissed from her employment with Diamond Valley Community Support Inc (respondent).
The respondent contends that Ms Kealey was not dismissed but rather resigned from her employment. Accordingly, the matter proceeded to a jurisdictional hearing before me to determine whether Ms Kealey was dismissed by the respondent within the meaning of s 386(1) of the Act.
For the reasons that follow, I find that Ms Kealey has been dismissed within the meaning of s 386(1)(a) of the Act. Accordingly, the respondent’s jurisdictional objection is dismissed.
Background
The respondent is a not-for-profit charitable organisation which serves the Diamond Valley community. It is comprised of more than 100 volunteers and approximately seven employees. The respondent is managed by a voluntary committee of management.[1]
Ms Kealey commenced employment with the respondent between 5 and 8 April 2016 as a bookkeeper.[2] From April 2022, she held the position of Finance and Administration Coordinator.[3] Ms Kealey was employed on a permanent part-time basis and worked on Monday, Wednesday and Friday each week.[4] Her direct supervisor was the respondent’s Treasurer, Mr Bob Tully,[5] who describes himself as responsible for Ms Kealey within the organisation.[6]
Ms Kerri Wellington is employed by the respondent and is currently performing the role of Operations Manager on an interim basis. Ms Wellington said that since in or about March 2023 and the departure of a former executive officer, the division of labour between employees and members of the committee of management had not been “clear cut.” Ms Wellington said that there were occasions where “members of the committee stepped in and took on operations roles.”[7] Ms Wellington provided as an example Mr Tully granting leave to employees that “bypassed” Ms Wellington’s role. Ms Wellington referred to this as “slippage”[8] between the committee and operational staff and said that it was “not very clear-cut” in terms of “who was supposed to be doing the HR and employment side of things.”[9]
The respondent’s committee of management comprises of the President, Vice President, Treasurer, Secretary, ordinary members, two ex-officio members and two co-opted members. The role of the respondent’s committee of management involves responsibility “for the employment and dismissal of all staff – both paid and unpaid” as well as responsibility for providing efficient day to day running of the agency.[10] Notwithstanding Ms Wellington’s evidence as to the delineation of labour between employees and members of the respondent’s committee of management, I am satisfied that Mr Tully and other members of the committee of management held overall responsibility for the management of Ms Kealey in her employment.
The respondent alleges that on 5 June 2023 Ms Kealey “disclosed private and confidential information” in relation to staff rostering and wages with a team member who was not her supervisor or a committee member. It also alleges that Ms Kealey defamed a staff member on at least three occasions, including on 5 June 2023.[11]
On 6 June 2023, Ms Wellington telephoned Ms Kealey (who was on her day off), and told her that she had been overheard speaking about staff wages.[12] As these matters are not directly relevant to the jurisdictional matter I have to determine in this decision and witnesses were not called to provide evidence on these points, I make no finding as to the content of the discussion.
On 7 June 2023, Ms Kealey was called into a meeting with the respondent’s Acting President, Mrs Lesley Daniels-King and Ms Wellington.[13] It is not in dispute that Ms Kealey was given a verbal warning at that meeting in relation to her conduct.[14] However the evidence and submissions of the parties diverges as to whether Ms Kealey resigned during the course of the meeting, and if that purported resignation was effective.
Meeting on 7 June 2023
Sometime between approximately 3:45pm and 3:50pm on 7 June 2023,[15] Ms Kealey was called into a meeting with Mrs Daniels-King and Ms Wellington. Ms Kealey says that Mrs Daniels-King told her that she was being warned in relation to a disclosure of privacy and confidentiality on 5 June 2023. Ms Kealey says that she was shocked by this and denied any wrongdoing.[16] Ms Kealey says that she requested to call the other person that was involved in the 5 June 2023 discussion. It is not in dispute that Ms Kealey was advised by Mrs Daniels-King that this was not appropriate.[17]
Ms Kealey said that the “conversation became so heated that I could feel my body start to shake.”[18] She says that she asked Mrs Daniels-King, “do you want me to quit?” to which Mrs Daniels-King said, “No” but confirmed that the warning was still in place.[19] Ms Wellington gave evidence that she also personally responded “No. We don’t want you to quit” in response to Ms Kealey’s question.[20] Thereafter Mrs Daniels-King stated words to the effect of, “we don’t want you to quit, but we can’t stop you if you want to.”[21]
Ms Wellington says that Mrs Daniels-King handed Ms Kealey a copy of the warning letter[22] to which Ms Kealey responded, “No. I don’t agree with the warning. I quit. I’m going to go and get my keys.”[23] Mrs Daniels-King also said that Ms Kealey refused to take the warning letter, said she did not accept it and said, “I quit.”[24]
Ms Wellington’s evidence (supported by the evidence of Ms Lynne Murray of the respondent)[25] is that Ms Kealey then left the meeting room and:[26]
“…went to her office, brought back her keys and threw them on the desk. She didn’t throw them at anyone. She threw them on the desk and said, ‘I quit’…Mrs Daniels-King grabbed her hand and said ‘Thank you very much.’ Ms Kealey said ‘Good luck doing the banking’ and walked out of the office and then had her bag with her and walked out of the foyer of the main office and said, ‘Goodbye, everyone. I’ll not be coming back’ in a very loud voice because we could hear it from where our office was and then walked out.”
Ms Kealey says that she was so “distraught…because [it was] two against me”[27] and that she was not given an opportunity to explain her version of events and defend herself. Ms Kealey says that she started to have heart palpitations and developed a headache.[28] Ms Kealey says that she was “so upset” about being accused of something she did not do[29] that she said, “here is the key, I quit and you can do anything you want.”[30] I note that in Ms Kealey’s written material filed with the Commission, Ms Kealey denied having said that she resigned or quit during this meeting, but I accept that Ms Kealey corrected this position while under oath and concedes that she made a statement to this effect.[31]
Ms Kealey says that she then handed back the key (to the filing cabinet where her laptop was stored) by placing the key on the table and walking out of the meeting room. Ms Kealey said that Mrs Daniels-King “grabbed the keys and touched my fingers and said, thank you very much.”[32] Mrs Daniels-King said that in doing so she was trying to convey the message that Ms Kealey had not been asked to resign and that this was “silly” and had “gone totally over the top.”[33]
Ms Kealey says that she collected her handbag from her office and left the office with the “bank debit card, office door keys, and bank tokens in [her] possession.”[34] She then left the building and said, “I won’t be back” because she was so upset.[35] Ms Kealey explained that she meant that she would not be back “for a certain period” until the “issue was resolved.”[36] She then said that she sat in her car in the car park for “15, 20 minutes” to calm down before driving because she was so upset and shaken by the event.[37]
Events of 8 June 2023
On 8 June 2023 (which was not a usual working day for Ms Kealey) at 2:26pm, Ms Kealey sent a text message to her supervisor, Mr Tully, advising him that she was not well and attaching a medical certificate that provided that she would be unfit for work until 15 June 2023.[38] Mr Tully gave evidence that he approved five days of personal leave for Ms Kealey.[39] At 2:47pm, Mr Tully attempted to telephone Ms Kealey and left her a voicemail. Ms Kealey’s evidence is that the content of that voicemail is reflected in the text message sent by Mr Tully to her at 3:12pm.[40] That text message says:[41]
“Vangie, I am sorry to hear that you are not well. I understand from Kerrie/Lesley that you have resigned as from yesterday. I wish you had spoken to me first but now I am not in a position to help you. If you want to talk I am available but it is almost out of my hands entirely.”
On 8 June 2023 at 3:18pm, the respondent sent an email to Ms Kealey with the subject line “Acknowledgement of resignation.”[42] The email attached a letter that states, in part, “The purpose of this letter is to formally acknowledge your resignation from your employment with Diamond Valley Community Support, given of (sic) the 7th June 2023, as effective immediately.”[43] Ms Kealey was further advised in that letter that, in addition to the payment of outstanding wages and accrued entitlements, she would receive two weeks of severance pay in lieu of notice. Ms Kealey was advised to contact Mrs Daniels-King if she wished to “discuss this matter further, or address the issues aforementioned.”[44] Ms Kealey was also provided with a copy of the warning letter that had been referred to in the meeting on 7 June 2023.[45]
At 3:19pm Ms Kealey sent a text message in response to Mr Tully, which stated as follows:[46]
“I was treated like a criminal, please talk to Carmel [phone number redacted] so that you know the truth, I have not handed my resignation because I am thinking of lodging the incident to fairwork.”
At 3:23pm, Mr Tully responded:[47]
“You do what you must, if you believe you have a case. Bob”
Events of 12 June 2023
On 12 June 2023 at 5:00pm, Ms Kealey sent an email to the President of the respondent, Ms Sonia Gilderdale and to Mr Tully. That email forwarded the 8 June 2023 email from the respondent referred to at [19] above, and said:[48]
“Dear Sonia and Bob,
On Wednesday 7th June 2023 at approximately 4.00 pm Lesley asked me to come to Kerri's office. When I got there Kerri was waiting for us. Lesley then said they wanted to discuss what had been happening over the past few weeks. At this point I had no idea what or why.
Lesley asked how long I worked with DVCS, and then said 'This is your first warning' for breaching confidentiality and privacy. I was shocked and asked who was lodging the warning- she confirmed it was from her and Kerri.
Kerri then told me about a conversation between me and Carmel (Macleod shop) was overheard by a staff member relating to our DVCS market losing money, wages and staff hours.
I did speak with Carmel on Monday 5th of June where we discussed the KPI report and the Macleod Traders. The only time losing money was mentioned was in relation to Macleod traders and they wanted the market to move back to the park from the school. Since it moved the traders say it does not bring people to their street to shop. We then talked about the current KPI report and Carmel saw on my desk a request for DVCS hours owed to Ruth (This was on my desk as I was working on the payroll). Carmel asked why we would be paying overtime and I just told her the claims related to the extra work for the current move of Latrobe market. At no time was wages or salary mentioned.
I have requested to contact Carmel to confirm what was said and discussed but Lesley said it is not appropriate. I don’t know why? I feel I was not given the opportunity to put my case forward and asked, - Do you want me to quit? Lesley said no and confirmed that the warning is still in place.
Please note that at no time did I agree with their version of events. I gave them the keys to my desk drawer and laptop and said YOU CAN DO WHAT YOU WANT and left the room. As I left the office later, I passed Lynne and Margaret and said goodbye, I may not be back.
Then on the 8th of June 2023 I received an email from Kerri acknowledging my resignation and by express post mail a hard copy of the same letter (Attached is the copy of the letter). At no time have I offer my resignation or given an official Notice of Resignation.
It appears that the information from the staff member is not accurate and should be investigated.
I have sent the medical certificate to Bob until Thursday next week as I am unwell. And please note that I have not resigned from DVCS.
Hoping for your understanding and wish that this matter to be resolved as soon as possible.
Thanking you for your time.
Vangie”
(emphasis in original)
Ms Kealey then sent a text message to Mr Tully at 1:29pm to advise him that she had sent “an email regarding the incident with Lesley and kerri (sic).”[49] The text message also said, “I thought I was over it, but I’m still having health issues.”
On 12 June 2023 at 5:47 pm, the respondent’s President sent an email in response to Ms Kealey (and copied in Mr Tully). The email said:[50]
“Dear Vangie
As you know I am currently overseas and not in a position to comment on events of last week, but I hope this matter can be sorted out.
Generally speaking if someone wants to resign from their position then written notification would be required. So if you provided this then it would have been an official document. If no written notice was given then it would seem that you had not resigned.
Whether or not inappropriate discussions were held is again not something I can comment on as I am not on duty. Clearly sometimes we all make mistakes in this regard, in which case we apologise and try to avoid doing it again.
As you have provided long and valuable service to DVCS I hope that this matter can be resolved speedily to everyone’s satisfaction.
Kind Regards
Sonia”
Events of 13 June 2023
On 13 June 2023 at 12:36pm, Ms Kealey sent an email in response to the respondent’s 8 June 2023 email acknowledging her resignation. Ms Kealey said:[51]
“Please note that I have not formally resigned from DVCS. I do not know how you can acknowledge my resignation when I have not submitted or signed the official Notice of Resignation. I cannot accept the attached letter.”
(emphasis in original)
At 4:11pm, Mr Tully sent a text message in reply to Ms Kealey in which he said:[52]
“Vangie, I have a meeting with Lesley and Kerrie in the morning. I will see what can be done. I do not want to lose you but I am only one voice. I will update you afterwards. Bob.”
Events of 14 June 2023
On 14 June 2023, the respondent’s President sent a response to Ms Kealey’s 12 June email and said:[53]
“Dear Vangie
I am extremely concerned for your well-being after the events of last week, but as I am at the other side of the world until June 27 there is not a lot I can do.
I suggest you talk to a trusted member of the COM regarding all these issues, maybe Gemma or Val.
All the very best
Sonia”
It is not in dispute that the reference to “COM” in this, and subsequent emails, refers to the respondent’s committee of management.
On 14 June 2023, Ms Kealey says that Mr Tully telephoned her and “confirmed that they have declared that I have resigned.”[54] At 3:11pm that day, Mr Tully sent an email to Ms Kealey that said:[55]
“Vangie, Today I met with Lesley and Kerrie to discuss your current position and, despite your subsequent denials, it appears, and this was witnessed by several DVCS employees, that you were heard to say you had resigned and would not be returning. That is also evidenced by you leaving your access etc keys on Kerrie’s desk.
The declaration of resignation happened before you notified anyone of you becoming medically unfit to work.
Whilst we are sympathetic to your current medical condition and, given that we are left without a bookkeeper to continue daily operational requirements we have had to make alternative arrangements to cover your absence whether that be short-term or permanent.
The matter has not been raised with DVCS COM and, accordingly we are offering you, without prejudice, a further two days paid sick leave to cover both Friday this week and Monday next week.
On Monday COM will be appraised of your position and a final decision will be made.
On Monday evening I will call you and confirm the COM resolution.
I trust that your health is improving.
Kindest Regards
Bob”
At 5:18pm, Mr Tully sent an email to the respondent’s President (copying Ms Wellington and Mrs Daniels-King) that said:[56]
“Dear Sonia,
I acknowledge that this matter has become very messy but, in my opinion, it is as a result of Vangie’s attitude. She clearly intended to resign, even if only as a bluff in the moment, but has now regretted it because Kerrie, in consultation with Lesley and myself accepted it.
Vangie’s position has become untenable and the damage to the DVCS brand is more than we need. She has committed a serious breach of privacy, her attitude towards Kerrie’s authority is inexcusable and despite many “friendly” pieces of advice from me on a personal basis she has continued to claim malfeasance practices from other staff members eg Ruth, Caitlin etc. The “witchhunt” she has been on has escalated to the point where it can no longer be defended and is causing serious disruption and angst to other staff .
As you may be aware, I have been a defender of Vangie’s past accusations and claims, but have cautioned her against pursuing them. I can no longer justify doing that because it continues unabated and is now malicious and toxic.
The person most affected by Vangie leaving is me of course, as I have a responsibility to ensure financial stability in governance and reporting, with year end etc approaching. While I am prepared to cover Vangie’s absence through this period I am not proficient in Payroll and would require external assistance in that field. We are looking at assistance to cover the immediate situation and I will advise in due course.
At this point I have offered Vangie 2 days extra sick leave until after the COM meeting Monday when a resolution needs to be considered as to how we proceed. I have confidence that we are acting appropriately (Kerrie is in constant consultation with Fairwork and has sought legal advice).
I shall advise you after Monday Com meeting of the outcome but, personally , I support the motion to accept what we believe is a legitimate resignation. At all times we will treat Vangie with respect and gratitude for past service but frankly, the time has come to stop the continual culture3 [sic] breakdown.
…”
Other matters
The parties gave evidence of other matters however were unclear as to on what dates they occurred.
Firstly, at some point between approximately 13 June and 21 June 2023, both parties visited the respondent’s banking institution. Ms Kealey says that she returned her bank tokens and removed herself as a signatory so as to protect herself from being accused of improperly accessing the respondent’s bank accounts. The respondent’s evidence supports that Ms Kealey returned the bank tokens before any action was taken by it to remove Ms Kealey’s access to the accounts.[57]
Secondly, approximately two weeks after the 7 June 2023 meeting, Ms Kealey’s support person attended the office and collected Ms Kealey’s personal belongings on her request.[58] These included a name plate, a thermos, tea bags and other food and a mobile phone charger.
Thirdly, Ms Wellington’s evidence was that Ms Kealey had previously “threatened” to resign. On that occasion, Ms Kealey had “never handed in her keys, handed over her laptop or told other staff/employees that she was leaving and wouldn’t be back.”[59] Ms Kealey rejects the contention that she had threatened to resign on any prior occasion. Ms Kealey refers to an instance wherein she applied for an alternative role with another entity, which she withdrew when Mr Tully agreed to promote her from the role of Bookkeeper to Finance and Administration Co-ordinator.[60]
Statutory framework
The circumstances in which a person has been unfairly dismissed is set out in s 385 of the Act as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The circumstances in which a person is taken to be “dismissed” is set out in s 386 of the Act, which relevantly provides as follows:
“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.
…”
Consideration
In order for an employee to have been unfairly dismissed under the Act, it must first be established that the person has been dismissed within the meaning of s 386(1) of the Act.[61] The term “dismissed” is defined in s 12 of the Act by reference to s 386.
I discern from Ms Kealey’s arguments that she contends that she was dismissed within the meaning of the first limb of s 386(1); that is, that her resignation was not legally effective because it was expressed in the heat of the moment.
The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (Bupa)[62] considered the authorities in relation to a resignation in the context of s 386(1)(a) and concluded as follows:
“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.”
(emphasis added)
Generally, where an employee uses unambiguous words to communicate their resignation, the employer is entitled to treat this as an effective resignation.[63] However, where there are “special circumstances”[64] such as words of resignation being spoken or actions expressed “in temper or in the heat of the moment or under extreme pressure,” it may be unreasonable for an employer to assume a resignation and accept it. If circumstances arise which put the employer on notice that a further enquiry is desirable to see whether the resignation was “really intended and can properly be assumed,” then such inquiries should be made.[65]
An objective view of the actions of the parties is required. If it can be said that the employee could not reasonably be considered to have conveyed a real intention to resign, then there may be a termination on the employer’s initiative if the employer treats the resignation as effective. The conclusion must be that objectively, no such intention was evident, not simply that it is fair to allow the employee an opportunity to rethink the matter.[66]
In this case it is not in dispute, and I find that (a) Ms Kealey said words to the effect of “I quit” during the meeting on 7 June 2023 on at least one occasion, (b) Ms Kealey returned a set of keys to Ms Wellington and Mrs Daniels-King, and (c) Ms Kealey thereafter left the workplace in an upset state saying words to the effect that she would not be back. I am satisfied that this amounts to an “ostensible communication of resignation” as that term is used by the Full Bench in Bupa.
Further, I am satisfied that the words of resignation were spoken, and Ms Kealey’s actions expressed, at a time during which Ms Kealey was in a heightened emotional state. I accept Ms Kealey’s evidence that she had heart palpitations during this meeting, developed a headache and felt “distraught.” However, the mere fact that Ms Kealey resigned in circumstances of heightened tension or strong emotions will not turn a rash or imprudent decision into a dismissal at the initiative of the employer. The objective test referred to by the Full Bench in Bupa must be applied.
An objective assessment of the relevant circumstances following the 7 June 2023 meeting demonstrates as follows:
The day following the 7 June 2023 meeting, Ms Kealey requested a period of personal leave from her supervisor, Mr Tully, which was granted. I consider a request to take personal leave to be at odds with a conclusion that Ms Kealey resigned.
Also on 8 June 2023, Ms Kealey unambiguously informed Mr Tully that she had not resigned from her employment on 7 June 2023.
The respondent issued an “acknowledgement of resignation” letter to Ms Kealey on 8 June 2023 but had not taken steps to communicate with Ms Kealey following the 7 June 2023 meeting.[67]
The following Monday, 12 June 2023, Ms Kealey sent a lengthy email to Mr Tully and the respondent’s President advising that at “no time” had she offered her resignation, and confirmed that she had not resigned on 7 June 2023.
On 13 June 2023, Ms Kealey sent an email to Mrs Daniels-King and Ms Wellington advising that she had not “formally resigned” from her employment, and no official notice of resignation had been produced by her.
The respondent’s President relevantly advised Ms Kealey that in the absence of a written notice “it would seem that you had not resigned.” Mr Tully advised Ms Kealey that he would meet with Mrs Daniels-King and Ms Wellington about the matter.
On 14 June 2023, Mr Tully relevantly advised Ms Kealey that the respondent’s committee of management would be “appraised” of Ms Kealey’s position and “a final decision” would be made.
I find that Ms Kealey’s correspondence to various representatives of the respondent in the days following the 7 June 2023 meeting objectively demonstrates that there were “special circumstances” requiring clarification. The respondent, via Ms Kealey’s supervisor Mr Tully, was on notice of these special circumstances the day following Ms Kealey’s ostensible resignation when he was informed by Ms Kealey that she had not resigned.
Following receipt by Ms Kealey of the respondent’s “acknowledgement of resignation letter” on 8 June 2023, Ms Kealey communicated with the respondent’s President, Mr Tully and thereafter, Mrs Daniels-King and Ms Wellington. Ms Kealey’s unambiguous position was that she had not resigned from her employment. I am satisfied that Ms Kealey’s correspondence between 8 June and 13 June 2023 demonstrates that she took repeated steps to correct the respondent’s conclusion that she had resigned upon becoming aware of the respondent’s view.
With the exception of the view initially expressed by the respondent’s President that “it would seem that [Ms Kealey] had not resigned,” the respondent did not take any steps to meet with Ms Kealey and understand her attempts to clarify her position. Although I acknowledge the respondent sought advice before sending Ms Kealey the “acknowledgement of resignation” letter, the respondent failed to seek input from Ms Kealey herself. Mr Tully’s 8 June 2023 text message provides an initial indication that the respondent had accepted Ms Kealey’s resignation, stating “I am not in a position to help you…it is almost out my hands entirely.” Consistent with this, I accept Mr Tully’s evidence that after the events of the meeting on 7 June 2023, the respondent was forward-looking and putting in place mitigation strategies based on the fact that Ms Kealey had resigned.[68]
The respondent’s inquiry thereafter did not seek input from Ms Kealey as to her intention to resign from her employment on 7 June 2023, or the basis for her correspondence since that time. Rather, as Mr Tully’s 14 June 2023 email to Ms Kealey demonstrates, the respondent’s inquiry focused upon what had been “witnessed by several DVCS” employees despite Ms Kealey’s “subsequent denials.” Ms Kealey was informed that her position would be assessed by the committee of management and a “final decision” would be made.
The respondent’s internal correspondence on 14 June 2023 did not focus upon the question of whether Ms Kealey had unambiguously resigned on 7 June 2023. Rather, the focus of the respondent’s inquiry turned to Ms Kealey’s conduct generally including her “serious breach of privacy,” her “attitude” towards Ms Wellington, and the “malfeasance practices” alleged by Ms Kealey against other employees of the respondent. Mr Tully described Ms Kealey’s conduct as a “witch hunt,” which was causing “serious disruption and angst to other staff.” Mr Tully supported a motion to accept Ms Kealey’s “legitimate resignation” to stop the “culture breakdown.”
It is objectively apparent from Mr Tully’s 14 June 2023 email that the respondent focussed its considerations upon whether it would be in its overall best interests to accept Ms Kealey’s resignation to bring to an end what it regarded to be a breakdown in workplace culture. However, these considerations were not relevant to the question of whether there were special circumstances such that Ms Kealey could not reasonably be understood to have conveyed a real intention to resign on 7 June 2023. I am satisfied on the evidence that the respondent did not take steps to clarify or confirm with Ms Kealey that she had genuinely intended to resign, notwithstanding (a) Ms Kealey’s repeated and emphatic statements to the contrary, and (b) Mr Tully’s view that the resignation may have been intended only as a “bluff” in the moment.”
I am satisfied and I find that despite Ms Kealey’s repeated and emphatic correspondence to various representatives of the respondent that she had not intended to resign, the respondent elected not to meaningfully engage with Ms Kealey about this matter. In these circumstances, I do not regard Ms Kealey’s ostensible communication of resignation, which was expressed in a state of emotional stress in the “heat of the moment” to be legally effective. I find, on an objective view of the evidence before the Commission, that the respondent’s acceptance of Ms Kealey’s purported resignation in the absence of suitable inquiries with Ms Kealey, to be a termination at the initiative of the respondent pursuant to s 386(1)(a) of the Act.
In reaching this conclusion, I have taken into account that Ms Kealey attended the respondent’s banking institution and relinquished the tokens and debit card that she held on the respondent’s behalf. I do not consider that this action of itself, in the context of the other steps taken by Ms Kealey as set out in this decision, supports a conclusion that Ms Kealey’s resignation was legally effective. I accept Ms Kealey’s submission that she took this step to protect herself from being accused of improperly accessing the respondent’s bank accounts.
I have also taken into account the respondent’s evidence that Ms Kealey had “threatened” to resign previously, and that she behaved differently on this occasion. The respondent contends that it was therefore reasonable for it to assume that Ms Kealey resigned. While Ms Kealey refutes this evidence, resolution of this factual contest is not necessary in the determination of the application before me. Having regard to the matters at [40] of this decision, I do not accept that it was objectively reasonable for the respondent to assume a resignation in circumstances where the respondent was on notice that a further enquiry was desirable but elected not to meaningfully engage about such matters with Ms Kealey. This matter therefore does not affect my conclusion.
Conclusion and disposition
As I am satisfied that Ms Kealey has been dismissed within the meaning of s 386(1)(a) of the Act, it follows that I dismiss the respondent’s jurisdictional objection.
Directions will issue for the further programming of Ms Kealey’s application for an unfair dismissal remedy in the Commission.
DEPUTY PRESIDENT
Appearances:
Ms E. Kealey, on her own behalf
Ms K. Wellington with Mrs L. Daniels-King for the respondent
Hearing details:
2023.
Melbourne:
30 August.
[1] Exhibit 1, Court Book (CB) 27
[2] CB 5, CB 74, CB 162
[3] CB 19, CB 95, CB 165
[4] CB 90, CB 95
[5] CB 167
[6] CB 205 at [1], CB 208 at [1]
[7] Transcript of proceedings dated 30 August 2023 (Transcript) PN121
[8] Transcript PN123
[9] Transcript PN121
[10] CB 33
[11] CB 8
[12] CB 194, CB 95, CB 165, CB 194, CB 235
[13] CB 6, CB 95, CB 196
[14] CB 254, CB 95
[15] CB 71, CB 167, CB 196
[16] CB 6, CB 71, CB 95, CB 185, CB 196, CB 233, CB 237
[17] Transcript PN246, CB 71
[18] CB 71, CB 96, CB 113
[19] CB 6, CB 71, CB 96, CB 113
[20] CB 185, CB 197, Transcript PN84
[21] Transcript PN84, PN 247, CB 168
[22] CB 8, CB 137, CB 271
[23] Transcript PN84
[24] Transcript PN246, cf CB 254
[25] Transcript PN319, CB 257
[26] Transcript PN84, cf CB 168, CB 185-186, CB 255
[27] Transcript PN468
[28] CB 71, CB 95, CB 113
[29] Transcript PN476, PN478, CB 71
[30] CB 6, Transcript PN468
[31] Transcript PN468-PN469, PN472-PN478
[32] CB 71, CB 96, CB 113
[33] Transcript PN252
[34] CB 71, CB 96, CB 113
[35] Transcript PN488, cf CB 71, CB 96
[36] Transcript PN491-PN492
[37] Transcript PN497, CB 71, CB 113
[38] CB 140
[39] CB 256
[40] Transcript PN523
[41] CB 141
[42] CB 61, CB 96
[43] CB 9, CB 17, CB 204
[44] CB 9
[45] CB 137, CB 271
[46] CB 141
[47] CB 141-142
[48] CB 60, CB 129-130
[49] CB 142
[50] CB 131
[51] CB 62, CB 168, CB 186, CB 234, CB 263
[52] CB 142
[53] CB 129
[54] CB 96
[55] CB 280
[56] CB 280-281, cf Transcript PN361
[57] CB 168, CB 186, CB 206 at [6], CB 209 at [6], CB 234
[58] Transcript PN494
[59] CB 234
[60] CB 116
[61] Fair Work Act 2009 (Cth), s 385(a)
[62] [2017] FWCFB 3941 (Bupa) at [47]
[63] Bupa at [35]
[64] Kwik-Fit (G.B.) Ltd v Lineham [1992] ICR 183 at 188 per Wood J, cited in Bupa at [37]
[65] Ibid
[66] See Jack Lipari v Ypa Estate Agents Pty Ltd[2019] FWC 3546 at [30]
[67] Transcript PN91, PN142-143
[68] Transcript PN354
Printed by authority of the Commonwealth Government Printer
<PR767542>
0