Jaclyn Anderson v Edamgrove Pty Ltd as trustee for the Edamgrove Trust No 8 & Keith Thompson

[2024] FWC 3546

[2024] FWC 3546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jaclyn Anderson
v

Edamgrove Pty Ltd as trustee for the Edamgrove Trust No 8 & Keith Thompson

(C2024/7586)

COMMISSIONER CRAWFORD SYDNEY, 20 DECEMBER 2024

General protections dismissal dispute – jurisdictional objection – employer argued employee voluntarily resigned – employee was dismissed - jurisdictional objection dismissed.

BACKGROUND

1. Jaclyn Anderson commenced full-time employment with Edamgrove Pty Ltd as trustee for Edamgrove Trust No 8 (Edamgrove) on 30 September 2024 in the position of Property Manager at the Stirling Motel in Rockhampton. Ms Anderson’s employment with Edamgrove ended on 16 October 2024. Ms Anderson filed a general protections application pursuant to s.365 of the Fair Work Act 2009 (FW Act) on 21 October 2024 which alleges Edamgrove dismissed Ms Anderson for exercising workplace rights. Edamgrove has raised a jurisdictional objection to Ms Anderson’s application on the basis that she voluntarily resigned from her employment with Edamgrove. This decision concerns how the employment relationship between Ms Anderson and Edamgrove ended.

1. I issued directions for the filing of evidence and submissions and listed the jurisdictional objection for hearing on 17 December 2024 via video. Ms Anderson represented herself. I granted permission for Edamgrove to be represented by Lisa Carey from CTI Lawyers because I was satisfied that would enable the matter to be dealt with more efficiently.  

MATERIAL FILED

Ms Anderson

1. Ms Anderson provided a witness statement dated 22 November 2024. Ms Anderson provides her account of the events that led to her employment with Edamgrove ending on 16 October 2024. Ms Anderson’s evidence is that she attended work in the morning on 16 October 2024 and performed administrative duties. Ms Anderson then told Keith Thompson (Project Manager – Operations) that she was going back to her room onsite to talk to her father and would come back at 1pm for a meeting about her employment. Ms Anderson handed her manager’s phone to Mr Thompson. Ms Anderson says she attended a meeting with Mr Thompson and Lee Dickens (Project Manager) at around 1pm on 16 October 2024. The meeting turned into an argument about Ms Anderson’s performance. Ms Anderson was eventually told by Mr Dickens to “pack up her things and go.” Ms Anderson needed a few hours to pack up her belongings and left the site that afternoon. I marked Ms Anderson’s statement Exhibit A1. Ms Anderson was cross-examined during the hearing on 17 December 2024. Ms Anderson maintained in cross-examination that she did not resign from her employment with Edamgrove.

1. Ms Anderson provided oral submissions at the end of the hearing.

Edamgrove

1. Edamgrove relied on a copy of Ms Anderson’s employment contract. I marked the contract Exhibit R1.

1. Edamgrove relied on a copy of a job advertisement for the Property Manger role. I marked the advertisement Exhibit R2.

1. Edamgrove relied on training and induction notes regarding Ms Anderson’s employment. I marked the notes Exhibit R3.

1. Edamgrove relied on a witness statement from Mr Thompson dated 29 September 2024. Mr Thompson’s evidence is that Ms Anderson told him at about 9:30am on 16 October 2024 that:

“I cannot balance for rollover. I am going back to my apartment to pack my bags and talk to her father and will be back at 1:00pm to hand the keys back.”

Mr Thompson says he then called Liam Kelly (CEO) and told Mr Kelly that Ms Anderson had resigned. Mr Thompson says Ms Anderson returned at around 12:40pm for a meeting with himself and Mr Dickens. The meeting turned into an argument and Mr Thompson says:

“… as the meeting progressed Jacklyn started to yell at us and Lee Dickens stated that this was not acceptable and that he felt that it was in everyone’s best interest that she should leave, Jacklyn got up and said she was allowed 2 hours to pack, which we granted.”

I marked Mr Thompson’s statement Exhibit R4. Mr Thompson answered some questions from me under an affirmation during the hearing.

1. Edamgrove relied on a witness statement from Mr Kelly dated 6 December 2024. Mr Kelly states he received a phone call from Mr Thompson at around 9:45am on 16 October 2024 and that Mr Thompson indicated Ms Anderson had resigned and would be returning at 1pm to return the keys. Mr Kelly states Mr Dickens and Mr Thompson did not have the authority to dismiss Ms Anderson and that he did not give them authorisation to dismiss Ms Anderson. I marked Mr Kelly’s statement Exhibit R5. Mr Kelly was not required for cross-examination. Mr Kelly confirmed during the hearing that Ms Anderson was paid one week of wages in lieu of notice by Edamgrove. Mr Kelly indicated that payment was required by the probationary period clause in Ms Anderson’s employment contract.

1. Edamgrove relied on a witness statement from Mr Dickens dated 29 October 2024. Mr Dickens states Mr Thompson:

“… approached me to inform me that Jaclyn had informed him that she was resigning and that she would be back at 1pm to hand in her keys and formalise the resignation.

1pm came Jaclyn approached me and said “are we all good to talk” I assumed this was in reference to her resigning and handing in her keys. Keith and I sat down at a table with Jaclyn.

At this point she stated that she wanted to discuss her role and her position…”

Mr Dickens says he and Ms Anderson then disputed elements of her performance and the requirements of her role. Mr Dickens says the meeting ended in the following way:

“She then became very aggressive in her speech towards Keith and myself, at that point I said ‘I’m not going to continue with the meeting, as per your instruction this morning Jaclyn you were resigning and leaving, I suggest we finish this meeting you can go and pack your things hand in your keys and leave the premises”.

At this point the meeting finished, and she left the table.

Jaclyn then came back towards the table very loudly asking to speak again. At which point I stated: ‘I do not wish to continue talking as it was not in the best interests of all parties.’”

I marked Mr Dickens’ statement Exhibit R6. Mr Dickens was cross-examined by Ms Anderson.

1. Ms Carey made oral submissions at the end of the hearing.

CONSIDERATION

1. I consider the evidence establishes that Ms Anderson referred to resigning in a conversation with Mr Thompson at around 9:30am on 16 October 2024. Mr Thompson’s evidence was not challenged in cross-examination. There is also uncontested evidence from Mr Dickens and Mr Kelly that Mr Thompson informed them that Ms Anderson was resigning. I accept Ms Anderson denies stating that she was resigning but I consider based on the other evidence that Ms Anderson must have made some reference to resigning in the conversation with Mr Thompson. I do not consider Ms Anderson’s conduct in handing her manager’s phone to Mr Thompson to be overly relevant. Ms Anderson may have taken that step if she was resigning from her employment, but she may also have done that because she was stepping away from her duties to remain in her room until the 1pm meeting.

1. However, I do not consider the evidence establishes that Ms Anderson communicated a legally effective resignation to Mr Thompson during the conversation at around 9:30am on 16 October 2024. I consider the following evidence suggests that Ms Anderson indicated to Mr Thompson that she would resign at a meeting later in the day, as opposed to communicating a legally effective resignation:

i.Ms Anderson and Mr Thompson both confirmed that Ms Anderson referred to returning to her room to discuss the situation with her father. This suggests Ms Anderson wanted to seek advice from her father about what to do. This is not consistent with Ms Anderson having already communicated a definite decision to resign.

ii.Mr Dickens’ statement refers to Mr Thompson telling him that Ms Anderson would be attending a meeting at 1pm to “hand in her keys and formalise the resignation.” That evidence suggests Mr Thompson communicated that Ms Anderson had not “formalised” her resignation and that this step would subsequently occur at the 1pm meeting. This indicates Ms Anderson’s resignation was not confirmed during the discussion with Mr Thomson at around 9:30am. 

iii.There is no evidence that Ms Anderson returned to her room to pack her bags, or that she intended to return her keys at the meeting at 1pm. Mr Dickens and Mr Thompson confirmed that Ms Anderson attended the meeting at around 1pm and started discussing issues she was experiencing with her role and defending herself in relation to the alleged issues with her performance. Ms Anderson had not packed her bags at this time because she subsequently requested, and was granted, two hours to do this when the meeting ended. This all suggests Ms Anderson did not believe she had communicated a definitive resignation to Mr Thompson at around 9:30am.

iv.The Form F8A filed by Edamgrove refers to concluding Ms Anderson’s “tenure on the probationary terms as per her employment agreement.” This suggests Mr Kelly’s understanding when he completed the Form F8A was that Edamgrove had dismissed Ms Anderson during her probationary period.

v.Mr Kelly confirmed during the hearing that Edamgrove paid Ms Anderson one week of wages in lieu of notice for termination after the employment ended. Mr Kelly referred to doing this because there was confusion about what had occurred at the meeting on 16 October, and ambiguity as to what the resignation date was. I agree the end of the employment relationship between Ms Anderson and Edamgrove was confusing. That is why I do not consider I can find that Ms Anderson communicated a clear and definitive resignation to Mr Thompson at around 9:30am on 16 October 2024.

1. In Bupa Aged Care,[1] the Full Bench explained how a “dismissal” at the initiative of an employer can arise where an employee has referred to resigning:

“(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.”

1. I consider this case falls within the category of an ostensible resignation where Edamgrove decided to rely on the resignation rather than clarifying or confirming that Ms Anderson genuinely intended to resign. That constituted a termination at the initiative of Edamgrove and a “dismissal” within the meaning of s.386(1)(a) of the FW Act.

1. I accept Ms Anderson admitted during cross-examination that she was in a “neutral” state of mind when she had the discussion with Mr Thompson at around 9:30am on 16 October 2024. However, I do not consider this to be a case of a “heat of the moment” resignation or that Ms Anderson’s mental condition was such that she could not have been reasonably understood as communicating a resignation. I consider Ms Anderson told Mr Thompson that she intended to subsequently resign at a meeting in the afternoon on 16 October 2024. Ms Anderson ultimately decided not to finalise the resignation and instead tried to argue that she should remain employed. Ms Anderson did not communicate a legally effective resignation.

1. Edamgrove also argued that Mr Dickens and Mr Thompson did not have the authority to dismiss Ms Anderson without Mr Kelly’s approval, and this demonstrates Ms Anderson could not have been dismissed. I reject that argument. Mr Dickens and Mr Thompson communicated to Mr Kelly that Ms Anderson had resigned. Mr Kelly relied on this information to process the end of Ms Anderson’s employment with Edamgrove. However, I consider Mr Dickens and Mr Thompson misstated the legal position to Mr Kelly who then acted on that incorrect advice. That essentially means Mr Kelly made the decision to “dismiss” Ms Anderson within the meaning of the FW Act based on the incorrect advice he received from Mr Dickens and Mr Thompson.

1. I dismiss Edamgrove’s jurisdictional objection.

1. Ms Anderson’s application will be listed for conciliation in late January 2025.

COMMISSIONER

Appearances:

Ms Anderson representing herself.

Ms Carey from CTI Lawyers representing Edamgrove.

Hearing details:

2024.
Sydney (by video via Microsoft Teams).
17 December.

[1] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

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