Imelda Oakes v The Arnhem Land Progress Aboriginal Corporation (ALPA)
[2024] FWC 1014
•29 APRIL 2024
| [2024] FWC 1014 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Imelda Oakes
v
The Arnhem Land Progress Aboriginal Corporation (ALPA)
(U2024/278)
| COMMISSIONER RIORDAN | SYDNEY, 29 APRIL 2024 |
Application for an unfair dismissal remedy – Jurisdictional objection on the basis of ‘no dismissal’ – application dismissed.
On 8 January 2024, Ms Imelda Oakes (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant claims that she was dismissed by The Arnhem Land Progress Aboriginal Corporation (ALPA) (the Respondent) on 20 December 2023.
In its Form F3 – Employer response to unfair dismissal application, the Respondent raised a jurisdictional objection on the ground that the Applicant was not dismissed. The Respondent claims that the employment relationship was brought to an end at the initiative of the Applicant on 20 December 2023 by way of written resignation signed by the Applicant. The Respondent attached a copy of the Applicant’s resignation letter to its Form F3. The handwritten letter stated:
“20/12/2023
I hereby give notice of my resignation as of 26th December 2023.
Imelda Oakes”
The matter was listed for Jurisdictional Hearing by Microsoft Teams on 11 April 2024. The Applicant appeared and gave evidence on her own behalf at the Hearing. Mr Shannon Magi, the Applicant’s husband and former employee of the Respondent, also gave evidence for the Applicant.
The Respondent was represented at the Hearing by Mr Simon Bradstock, Safety and Compliance Advisor. Mr Christopher Quince, Area Manager, gave evidence for the Respondent.
This Decision determines the jurisdictional objection only.
Was there a ‘Dismissal’ for the purposes of the FW Act?
Section 385 of the FW Act provides:
“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.”
Section 386 defines ‘dismissed’ as:
“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.”
Relevantly, in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli,[1] the Full Bench explained the two limbs in s.386(1) 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.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”[2]
Submissions
The Applicant acknowledged that she provided a written notice of her resignation to the Respondent by way of a handwritten letter on 20 December 2023. However, the Applicant submitted that her resignation was forced by the conduct, or course of conduct, of the Respondent, rendering it a dismissal under s.386 of the FW Act.
The Applicant submitted that the following factors support a finding that she had no real choice but to resign:
“a. The conversation regarding the applicant’s resignation was unilaterally initiated by the respondent, and the applicant had made no prior representations to the respondent about any intention to resign;
b. The respondent told the applicant that if she resigned, she would be put on a plane about 48 hours later, which placed significant pressure on the applicant to make a decision on the spot;
c. The respondent refused the applicant’s repeated requests for time to consider her options, which placed significant pressure on the applicant to make a decision on the spot;
d. The respondent dictated the contents of a resignation letter to the applicant, and required her to sign it immediately.”
The Applicant submitted that the pressure placed by the Respondent on her to resign on the spot amounted to conduct that forced her to resign.
Further, the Applicant submitted that where an employee has resigned in certain circumstances, such as where the resignation is given in the heat of the moment or under pressure, the employer may have a duty to clarify the resignation.[3]
The Applicant submitted that the circumstances of her resignation gave rise to this duty, as:
“a. The respondent placed significant pressure on the applicant to make an immediate decision;
b. It was clear to the respondent that the applicant did not wish to make a decision immediately, as she made repeated requests for time to consider;
c. The respondent was aware that at the time of the conversation the applicant was on stress leave, as she had provided a medical certificate.”
The Applicant submitted that the Respondent failed to make the necessary inquiries with her after the conversation as to whether she intended to resign.
The Applicant accepted that she did not advise the Respondent that she wanted to withdraw her resignation, however, she submitted that the unique circumstances of her employment should be considered when determining whether she had a real opportunity to withdraw her resignation.
The Applicant relevantly submitted that she was working in the remote Community of Gunbalanya in the Northern Territory and her accommodation was tied to her employment with the Respondent. The Applicant submitted that at the time of her resignation, the road out of the Community was flooded and the only way out of the Community was by plane. The Applicant submitted that she and her husband were told during the conversation on Wednesday 20 December 2023 that they would be put on a flight to Darwin on Friday 22 December 2023.
The Applicant submitted that the Respondent is the provider of accommodation and transport (in and out of the Community) to its employees, therefore the power dynamic between the Respondent and applicant was greater than that of a regular urban employer and employee where accommodation and transport are not provided. The Applicant submitted that her failure to notify the Respondent of a desire to withdraw her resignation should be balanced against the context of her imminent departure from the Community arranged by the Respondent, and that, in the Applicant’s submission, there was no real opportunity to withdraw the resignation.
The Respondent maintained that there was no dismissal at the initiative of the employer, and that the Applicant freely resigned from her employment.
The Respondent submitted that on 20 December 2023, Mr Quince organised and attended a meeting with the Applicant’s husband, Mr Magi, concerning allegations of misconduct. The Respondent submitted that during this meeting:
“(a) Mr Quince advised the Husband that his employment with the Respondent had been terminated (this termination was later changed to a resignation);
(b) Mr Quince advised the Applicant that "you still have a job with ALPA, you can remain in Community";
(c) the Applicant, in response, said words to the effect of “I am not fucking staying here without Shannon" and "what are my options?"
(d) Mr Quince explained to the Applicant that she was welcome to remain in her employment with the Respondent, or she was welcome to resign from her employment if she wished to leave with her Husband;
(e) Mr Quince said to the Applicant that the decision was her "choice" and he did not exert any undue pressure on the Applicant to make a decision either way;
(f) the Applicant elected to resign from her employment and queried how this needed to be effected, to which Mr Quince assisted the Applicant with the wording of her handwritten resignation letter.”
The Respondent submitted that Mr Quince followed a prepared script for the purposes of the 20 December 2023 conversation.
The Respondent submitted that after the meeting, the Applicant and her husband continued to liaise with the Respondent to organise their vacation from the employer accommodation and their departure flights from the Community.
The Respondent submitted that on 21 December 2023, it wrote to the Applicant via letter titled ‘Your Resignation’, confirming and accepting the Applicant’s resignation with effect from 20 December 2023.
The Respondent submitted that the Applicant did not respond to the letter confirming her resignation, nor did she make any further contact with the Respondent after she left the Community.
The Respondent maintained and submitted that the Applicant’s ‘termination of employment’ was clearly a case of voluntary resignation because:
“(a) she raised that she wished to resign from her employment with the Respondent during the meeting on 20 December 2023, and the Applicant requested Mr Quince's assistance in preparing the letter of resignation;
(b) Mr Quince did not require the Applicant to participate in the discussion concerning her ongoing employment on 20 December 2023, the Applicant made clear to Mr Quince that she wanted to discuss the matter at that time;
(c) Mr Quince ensured the Applicant was aware during the meeting that her Husband's employment was being terminated by the Respondent, not hers;
(d) Mr Quince explained that the Applicant was welcome to remain in her employment (notwithstanding her Husband's dismissal) and the matter was "her choice";
(e) the Applicant was aware that the Respondent was already in the process of sourcing separate accommodation arrangements for the Applicant at the time of the meeting on 20 December 2023 to better suit her needs;
(f) Mr Quince further explained, however, that if the Applicant did wish to resign from her employment, and leave the community with her husband, she would need to advise the Respondent so flights could be arranged; and
(g) Mr Quince did not exert any pressure on the Applicant to make a decision and did not force the Applicant to resign from her position.”
The Respondent submitted that the onus is on the Applicant to prove that she was forced by the Respondent to resign.
In relying on relevant authorities, the Respondent submitted that the Applicant’s resignation was clear and unambiguous.[4] The Respondent submitted that the Applicant advised during the meeting of 20 December 2023 that she wished to resign and sought Mr Quince’s assistance in drafting the letter giving effect to her wishes.
The Respondent denied that the Applicant’s resignation was given “in the heat of the moment”, or that it was given in such a state of emotional stress or mental confusion such that the Applicant could not reasonably be understood to be conveying a real intention to resign. The Respondent relied here on a recent decision of Linday Watson v Idameneo (No 123) Pty Ltd (Idameneo),[5] in which the Commission considered, in reaching its conclusion that the employee was not forced to resign, that:
“At no time during this period did the Applicant indicate that her resignation had been provided in the heat of the moment and after having resigned, she continued to interact with employees of the Respondent who worked within HR but did not seek to retract her resignation.”[6]
Further to the above submissions, the Respondent noted that the Applicant remained in the Community for two days after her resignation, and at no time during that period or the days following did she indicate that her resignation had been given in the heat of the moment or that she sought to retract it.
CONSIDERATION
I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.
I do not accept the proposition that the Applicant may have stayed in the Community without her husband. The Community is clearly a violent society. The windows of the house where the Applicant was living had been smashed on numerous occasions. The Applicant claimed that a machete had been thrown through her bedroom window on the Saturday night prior to the meeting. The violence in the Community was not the responsibility of the Respondent. I accept that the Respondent was attempting to source alternate accommodation for the Applicant and her husband. I have taken this into account.
I have taken into account the submission by the Applicant that her resignation was in the heat of the moment on 20 December 2023. However, there is no evidence that the Applicant attempted to rescind her resignation. No phone calls, emails or text messages were sent by the Applicant to the Respondent. The Applicant claims that she attempted to call the Respondent on 27 December 2023. No phone records were produced to identify any call history of the Applicant. I note that this is 7 days after the Applicant had resigned. I have taken this into account.
I accept the evidence of Mr Quince that he followed a prepared script in undertaking the meeting and that he had no predetermined intention of seeking the Applicant’s termination during the meeting. I find that Mr Quince was a witness of credit. I accept his evidence that he dictated the Applicant’s resignation at her request. I have taken this into account.
In her verbal submissions, the Applicant remonstrated that the Respondent had made no contact with her following her resignation. The Applicant believed that she was simply being “palmed off” by the Respondent. I do not accept that it was the Respondent’s responsibility to contact the Applicant following her resignation. I’m confident that the ALPA would have accepted the logic of the Applicant travelling back to Darwin with her husband. It makes sense. The Applicant had no historical or family ties in the Community. There was no reason for her to stay in an isolated location away from her husband. I have taken this into account.
I have taken into account the health situation outlined by the Applicant. I accept that the location and environment of the Applicant’s employment provided a fairly unique and stressful scenario. Whilst I have a degree of sympathy for the Applicant’s submission that the Respondent should have looked at relocating the Applicant to a different location, I accept that it was under no obligation to do so.
CONCLUSION
For the reasons stated above and following the obiter in Idameneo, I am satisfied and find that the Applicant freely resigned from her employment on 20 December 2023 and not because of the conduct of the Respondent.
The jurisdictional objection of the Respondent is upheld.
The Applicant’s unfair dismissal application is dismissed.
I so Order.
COMMISSIONER
[1] [2017] FWCFB 3941.
[2] Ibid at [47].
[3] Ngo v Link Printing Pty Ltd (1999) 94 IR 375; Sovereign House Security Services Ltd v Savage [1989] RILR 115; Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183.
[4] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941; Koutalis v Pollett (2015) 253 FCR 370; Sovereign House Security Services Ltd v Savage [1989] IRLR 115.
[5] [2024] FWC 279.
[6] Ibid at [78].
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