Jessica Cummings v Bupa HI Pty Ltd - [2024] FWC 1942

[2024] FWC 1942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jessica Cummings
v

Bupa HI Pty Ltd

(U2024/562)

COMMISSIONER SIMPSON

BRISBANE, 24 JULY 2024

Application for unfair dismissal remedy – Jurisdictional Objection that the Applicant Resigned – Objection upheld – Application dismissed.

On 16 January 2024, Ms Jessica Cummings (Ms Cummings / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Bupa HI Pty Ltd (the Respondent).

I listed the matter for a directions hearing on 8 April 2024. The matter was listed for hearing on 4 June 2024.

Ms Cummings appeared at the hearing on her own behalf. The Respondent was represented by Julia Lucas of Counsel.

The Applicant relied on her Form F2 Application and its attachment, documentary evidence, written submissions and oral submissions and evidence. The Respondent relied on its Form F3 Response, documentary evidence, written submissions and oral submissions and evidence.

The Applicant resigned from her employment on 8 December 2023 effective 4 January 2024, and submits the Respondent forced her to resign. The Application was filed on 16 January 2024, within 21 days of the end of employment. The Respondent provides the resignation was at the Applicant’s initiative and it could not have unfairly dismissed the Applicant.

Relevant legislation

Section 385 of the Act states:

“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 jurisdictional objection is that Ms Cummings was not dismissed by the Respondent. Section 386(1) of the Act provides:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

Background

Ms Cummings commenced employment with the Respondent on 3 April 2023 as Customer Service Advisor on a full time basis. The Applicant’s role involved taking customer service calls from the Respondent’s health insurance customers including in relation to queriers they have about their private health insurance policies.

Ms Cummings’ Team Leader from 31 July 2023 was Ms Maddison Coyne (Ms Coyne) who was the Team Leader of Customer Service Team 14. Ms Coyne reports to Mr Nathan Varley (Mr Varley), Senior Services Manager, and Ms Haylee Atkinson (Ms Atkinson) is the relevant Strategic People Partner who has the primary responsibility of supporting Team Leaders with human resources issues, including Mr Varley.

Ms Cummings was absent from work on a number of occasions between 12 September 2023 and 6 October 2023. On 10 October 2023 a meeting was held between Ms Coyne and the Applicant where Ms Coyne said she made clear that there would be zero tolerance for being late moving forward. It is alleged Ms Cummings continued to fail to follow Ms Coyne’s direction.

On 8 December 2023, the Ms Cummings entered a coaching session with Ms Coyne. During this coaching session they discussed Ms Cummings attendance issues and her potential resignation.

Following the meeting on 8 December 2023, Ms Cummings submitted a resignation letter to the Respondent with her employment to end on 4 January 2024.

On 11 December 2023 Ms Cummings contacted Ms Coyne to enquire about the process of her resignation, and in the course of the discussion, Ms Coyne provided that Ms Cummings would be required to work out her notice period until 4 January 2024. Ms Cummings worked out her notice period until 4 January 2024.

On 12 January 2024 Ms Cummings lodged an application with the Commission under s.394 of the Act.

JURISDICTIONAL OBJECTION

The jurisdictional issue to be determined is whether Ms Cummings resigned from her employment in her meeting with Ms Coyne on 8 December 2023 because she was “forced” to do so because of conduct engaged in by the Respondent.

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.

It is accepted that on the jurisdictional issue, the Respondent bears the legal onus of establishing that the Applicant was not dismissed. However, in circumstances such as the present, where an employee resigns but claims their resignation was, at law, a dismissal, an evidentiary burden exists on the employee to establish that the termination was at the initiative of the employer or forced by the employer’s conduct.

EVIDENCE & SUBMISSIONS

Applicant Absence 12 September – 6 October 2023

Ms Coyne’s evidence was that the Applicant was absent from work on a number of occasions between 12 September 2023 and 6 October 2023. Mr Coyne’s evidence was that in circumstances where an employee does not log in for work at their scheduled time, she will try to call them. If they do not answer, she will either call or send them a text message. If she does not hear back from the employee, she will often call their emergency contact, because she wants to ensure that they are okay.

Ms Coyne attempted to have a number of informal discussions with the Applicant to reset her expectations and to make sure that the Applicant understood what was required of her.

10 October 2023 Meeting

Ms Coyne’s evidence was that on 10 October 2023, the Applicant was due to start her shift at 8:00am. Ms Coyne stated that she called the Applicant at 8:33am but there was no answer. Ms Coyne stated that she then sent the Applicant a text message in which Ms Coyne stated, “Hey. Your shift started at 8:00am, Jess. Please call me when you get this message.” Ms Coyne’s evidence was that she then called the Applicant a second time at 12:02pm but there was no answer. Ms Coyne then sent the Applicant a further text message in which she stated, “Hey again, I hope you're okay. I will be reaching out to your emergency contact if I haven't heard from you in the next hour.”

Ms Coyne held a meeting with the Applicant on 10 October 2023 in which she made clear that there would be zero tolerance for being late moving forward and that being late would constitute a failure to follow reasonable directions. It was submitted following this initial meeting, the Applicant immediately and repeatedly failed to follow Ms Coyne’s reasonable direction. Ms Coyne again reiterated to the Applicant the requirement to call the ‘Sick Line’ in the event of non-attendance, where she highlighted further instances of conduct and warned of potential disciplinary consequences.

Ms Coyne’s evidence was that she arranged a catch up with the Applicant on MS Teams to reset her expectations with the Applicant. Ms Coyne stated that she said that, firstly, she wanted to highlight instances since the start of the month where the Applicant had been late and an occasion where the Applicant exceeded her break time without letting Ms Coyne know. Ms Coyne stated that she went through each of these instances one by one and advised the Applicant that there was zero tolerance moving forward for being late. Ms Coyne stated that if the Applicant was going to be late again for any reason, she must let Ms Coyne know before the Applicant’s shift started. Ms Coyne stated she told the Applicant that a failure to do so would be a failure to follow a reasonable direction and this could lead to disciplinary consequences, up to and including dismissal.

Ms Coyne stated that she also made clear to her that her breaks were not to be exceeded. If she had a 24-minute break scheduled, she needed to be back within that 24-minutes. Ms Coyne stated it was explained that there would be no tolerance for taking long breaks moving forward. Ms Coyne said that she also said that the final thing she wanted to ensure the Applicant understood was when a personal break should be used. Ms Coyne stated that she outlined they should be used for reasons like having a drink of water, going to the toilet, taking a minute or two to reset after a tough customer call, taking medication, if this could not wait until the next scheduled break. Ms Coyne said she also told the Applicant that she was to let Ms Coyne know when she took a personal break so that Ms Coyne could check in.

Ms Coyne stated that following that meeting, she sent an email confirming expectations and consequences if the highlighted behaviour continued. Ms Coyne said she reiterated that this would constitute a failure to follow reasonable direction, which could have disciplinary consequences up to and including dismissal.

In cross examination, Ms Cummings was shown a copy of the email and disputed she was late on the days listed in the email.

Failure to Follow Reasonable Directions – 11 to 12 October 2023

Ms Coyne’s evidence was that on 11 October 2023 at 12:11pm, she sent an email to her team asking them to call the Sick Line whilst she was going to be at a conference the next day. Ms Coyne stated she gave them the number for the Sick Line in the email.

In cross examination, Ms Cummings said she was absent this day and wouldn’t have seen the email but accepted she would have received the email.

Ms Coyne’s evidence was that on 12 October 2023, the Applicant did not log in when she was supposed to start her shift. Ms Coyne stated she phoned the Applicant at 8:02am and she picked up the phone and the Applicant said her cat was messing with her phone and that's why she was often sleeping in, but she had fixed that issue and would be on time today so there was no problem. Ms Coyne said it was explained to the Applicant that Ms Coyne was calling because she hadn't heard anything from the Applicant the day before and it was extremely concerning as the Applicant usually at least sends a text message. Ms Coyne stated it was explained to the Applicant that it is a reasonable direction that the Applicant call as soon as practical on the day that she is sick and Ms Coyne asked the Applicant why she didn't. The Applicant said she was just anxious since she had messed up again. Ms Coyne stated she explained to the Applicant that by not calling, the Applicant was setting herself up for more anxiety causing the situation to escalate as she was not following reasonable directions.

Ms Coyne’s evidence was that on the same day, she called the Applicant at 6.58pm and told the Applicant that she wanted to reach out to her this afternoon about her not following the reasonable direction set out. Ms Coyne stated she informed the Applicant of the following in that conversation:

·   Changes to calling in sick that had been implemented.
·   Moving forward, if unable to log in due to sickness/ carer's leave, the Applicant was required to call the Sick Line and not Ms Coyne, between 8am and 9:30am.
·   The Sick Line phone number.
·   Since the 12/09/2023, the Applicant’s communication had been slipping and there were instances where Ms Coyne was not able to contact the Applicant until well after her shift started, one instance where Ms Coyne had to contact the emergency contact and then yesterday where Ms Coyne heard nothing from the Applicant all day and had to call again at 8am.
·   This behaviour was very concerning but the Applicant was not showing engagement in the role or the expectations.
·   If the Applicant did not call in and advise that she will not be logging in, this meant she was not following reasonable directions and there would be disciplinary consequences.
·   Ms Coyne also needed to follow up on some medical certificates she didn’t believed she’d received from the Applicant.

Ms Coyne’s evidence was that following this conversation she then followed up with an email.

In cross examination, Ms Cummings accepted the requirement set out in the email was that she call the Sick Line and not Ms Coyne, between 8am and 9:30am.

Applicant Exhaustion of Sick Leave and Further Absences 17 October to 16 November 2023

On 17 October 2023 at 10.18am, Ms Coyne stated she caught up with the Applicant in the morning to advise her that she had exhausted her leave. Following this conversation, Ms Coyne said she provided the Applicant with a copy of her letter directing her to provide medical certificates in respect of any personal leave absences, amongst other things. It also reinforced the requirement that the Applicant was required to call the Sick Line. In cross examination Ms Cummings denied receiving this letter.

Ms Coyne’s evidence was that between 24 and 27 October 2023, the Applicant had a number of further absences and did not call the Sick Line.

Ms Coyne said she recalled that at some point between 12 and 25 October 2023, she again directed her consultants to use the Sick Line to call in sick at a team meeting held between those dates (although she could not recall exactly when).

On 31 October 2023, Ms Coyne said she met with the Applicant via MS Teams to understand why she was not calling the Sick Line as required. Ms Coyne’s evidence was that the reason the Applicant gave was that she was sleeping through and then not bothering to call. However, she could just message Ms Coyne back since most days Ms Coyne had texted her after her shift had started. Ms Coyne stated she told the Applicant that this was not acceptable and that the process is the same for everyone in the team. Ms Coyne said to the Applicant that she needed to use the Sick Line the next time she was sick, otherwise Ms Coyne would need to take further action.

Ms Coyne said she reminded her entire team, including the Applicant, of this process by email on 6 November 2023. In cross examination, Ms Cummings said she was absent this day and did not receive this email. Ms Cummings then clarified she meant she did not recall reading this email.

On 6 November 2023, Ms Coyne said she sent the Applicant a text message after her shift had started, wishing her a Happy Birthday and asking her to call when she got the message. The Applicant messaged Ms Coyne back at 10:44am (after the Sick Line had closed) to say that she wasn't well and that she didn't wake to her alarm in time to call the Sick Line. She said she couldn't return Ms Coyne’s call as she had no voice. She provided a medical certificate from her General Practitioner indicating that she was unfit to attend work that day.

Ms Coyne’s evidence was that between 7 and 10 November 2023 and 13 November 2023, the Applicant advised on each day by text that she was not well and would not be logging on for work. She provided a medical certificate in relation to her absences on 7, 8 and 10 November 2023.

On 14 November 2023, Ms Coyne called the Applicant at 7:21am but there was no answer. Ms Coyne said she sent the Applicant a text message asking her to call, but she did not respond. Ms Coyne said she tried to call the Applicant’s emergency contact at 2:54pm but there was no answer. Ms Coyne left a voicemail requesting he call her back.

Ms Coyne’s evidence was that the Applicant did not notify of her absences from work between 9 and 16 November 2023 using the Sick Line as directed and did not provide any medical evidence in support of her absences on 10, 11-16 November 2023.

Letter re Abandonment of Employment – 16 November 2023

On 16 November 2023 at 10.16am, Ms Coyne said she sent an email to Ms Atkinson summarising the history of issues she had had with the Applicant, including her absences from work, failing to call the Sick Line, and ignoring directions. Ms Coyne said she asked Ms Atkinson for guidance on next steps and told her she had discussed her concerns with Mr Varley. In cross examination, Ms Cummings was shown a copy of this email and confirmed she often called the Sick Line and there was no answer. Ms Cummings also accepted that Ms Coyne had asked Ms Cummings to provide screenshots of her attempting to call the Sick Line and that she did not do this. Ms Cummings’ oral evidence was that she found the screenshot but it didn’t have a date so she didn’t believe there was any purpose in providing it.

On 17 November 2023, Ms Coyne said she had a Microsoft Teams meeting with Ms Atkinson. The purpose of the meeting was for Ms Coyne to be shown the HI Leaders page on the Bupa Intranet. The HI Leaders page had various resources available for Team Leaders to assist them in dealing with issues with staff that they might come across. Since Ms Coyne was a relatively new Team Leader, she hadn’t yet used the page or the templates and resources on it.

On that same day Ms Coyne said she contacted Ms Atkinson via MS Teams to get further assistance trying to access the template for a letter of abandonment of employment that Ms Coyne had intended to send to the Applicant. Ms Coyne said Ms Atkinson responded to her request and asked her to set aside time for the following Monday to talk through everything. Ms Coyne understood this to mean that she wanted to talk to her about issues concerning the Applicant.

Ms Coyne said that on Monday, 20 November 2023, the Applicant was due to start her shift and when she did not login, Ms Coyne called her at 7:20am but she did not answer. Ms Coyne then sent the Applicant a text message at 7:21am asking her to call.

On the same day, Ms Coyne provided a letter to the Applicant and copied in Mr Varley in which she advised the Applicant that Bupa’s records indicated that, among other things, the Applicant had been absent from work since 6 November 2023 and had failed to properly notify Bupa of the reason for or expected duration of her absence using the Sick Line and was a complete no show for 17 and 20 November 2023. Ms Coyne said she provided the Applicant until 5pm on 22 November 2023 to contact her or failing contact, that her employment would be considered abandoned.

Ms Coyne said she received a call from the Applicant at 3:51pm in which she stated words to the effect that she ‘is still unwell, that it had nothing to do with work and that she doesn't hate her job or anything like that’. Ms Coyne said she asked the Applicant why she hadn't contacted Ms Coyne and the Applicant said that she just “hasn't had a minute to call”. Ms Coyne’s evidence was that the Applicant also said that she'd messaged Ms Coyne on 16 November 2023 and that when Ms Coyne told her in a reply that she was not following the process again and she needed to call, she “just didn't.” She figured she'd “messed up and would be in trouble anyway.” Ms Coyne stated that she asked the Applicant when she would be returning to work and she said she hoped to that week, but she just “doesn't know when she will feel up to it.” Ms Coyne said she asked the Applicant if she had a medical certificate for every day that she had not been at work. Ms Coyne’s evidence was that the Applicant said she had some, but not all, because she hadn’t “been able to pay for a doctor's appointment every day”. Ms Coyne said she advised the Applicant that they would discuss this more when she returned, but if she was not logging in the following day, she needed to call the Sick Line and provide a medical certificate.

Mr Varley’s evidence was that on 16 November 2023, he was copied in on an email from Ms Coyne to Ms Atkinson. Mr Varley said the email set out the Applicant’s failures to notify of absences, failures to use proper processes to notify of absences, and failures to provide a medical certificate to justify her absences on certain dates. He said Ms Coyne requested that Ms Atkinson provide guidance on next steps as they both had agreed that this behaviour from the Applicant could not continue.

Ms Atkinson said that on 16 November 2023 at 9:16pm, she received an email from Ms Coyne with the subject line “Jessica Cummings”. She said the email summarised issues that Ms Coyne had experienced with the Applicant, including her no-shows and failure to call the sick line. Ms Atkinson said Ms Coyne’s email requested that she offer guidance on next steps “as I have discussed my concerns with Nathan and he agrees this behaviour cannot continue and we would like to have a plan in place when she returns”. Ms Atkinson said attached to the email was an email with the subject line “Follow Up on Expectations”, an email with the subject line “Follow up on Leave Exhaustion” and a document titled “Exhaustion of Sick Leave – Jess”.

Ms Atkinson said following receipt of this email, on Friday 17 November 2023, she met with Ms Coyne on Microsoft Teams. She said Ms Coyne told her that she had been attempting to contact the Applicant following her no-call, no-shows to work, without success. Ms Atkinson’s evidence was that she recommended that Ms Coyne send a “Request to make further contact” letter to the Applicant. Ms Atkinson considered a more formal and structured approach should be taken towards addressing the Applicant’s conduct from this point forward.

Letter of 20 November 2023

It was submitted that the Applicant repeatedly failed to attend work and to call the Sick Line. On 20 November 2023 and after the Respondent’s repeated attempts to contact the Applicant had failed, the Respondent wrote to the Applicant informing her that she had until 22 November 2023 to make contact or her employment would be considered to be abandoned. Later that day, the Applicant made contact but advised that she didn’t know when she would be up to returning to work.

In cross examination, the Applicant said she was only absent two days and had provided medical certificates up until 17 and 20 November 2023 and after the fact had provided documentation for those days. The Applicant was asked if she accepted that she had to call the Sick Line prior to a rostered shift start time each day to advise she wouldn’t be in attendance, to which she replied that the process in the enterprise agreement was to contact her team leader before her shift or the next convenient time. It was put to Ms Cummings there were at least two days where she did not contact the Sick Line or her team leader. Ms Cummings contended she had been in contact with Ms Coyne for every other day other than two days and one should presume she was still sick, and she doesn’t believe she should face adverse absence because of illness. Ms Cummings accepted that Bupa had a duty of care to make sure their employees are alright when they fail to turn up to work.

Ms Cummings accepted on 17 and 20 November she failed to call the Sick Line or contact her team leader and ignored Ms Coyne’s messages and calls which lead to Ms Coyne having to contact her emergency contact.

Applicant Absence 21 November to 24 November 2023

Between 21 November 2023 and 24 November 2023, the Applicant was absent from work and did not make contact with the Respondent.

On 21 November 2023 at 10.46 am, Ms Coyne said she sent an email to Ms Atkinson providing an update on the Applicant’s work attendance. Ms Atkinson responded to Ms Coyne at 10.29am. She recommended that Ms Coyne draft a formal meeting invite for the Applicant to discuss on the Applicant’s return to work. Ms Coyne stated she was asked to draft the letter and send it back to her for review.

Mr Varley’s evidence was that it was determined that it had become necessary to send the Applicant a letter asking her to make contact with Ms Coyne. Mr Varley said this was following the process for dealing with job abandonment by an employee. Mr Varley said he advised Ms Coyne on the content of the email to be sent to the Applicant attaching that letter on 20 November 2023 via Microsoft Teams chat. Mr Varley stated that he was copied into the letter requesting contact from the Applicant that was sent by Ms Coyne to the Applicant on 20 November 2023. Mr Varley stated that on 21 November 2023, he was informed by Ms Coyne on Microsoft Teams chat that the Applicant had again no-called, no-showed at work that morning.

Mr Varley’s evidence was that in the afternoon of 21 November 2023, he had a Teams call with Ms Coyne to discuss next steps regarding the Applicant. He said they discussed that Ms Coyne had continued to set clear expectations with the Applicant regarding the correct process for calling in sick, but the Applicant had continued to refuse to follow those directions. Mr Varley said that he said to Ms Coyne that they should reach out to Ms Atkinson and get the ball rolling regarding a formal investigatory process, so that they could follow a formal path to address the Applicant’s failure to follow reasonable directions.

Ms Atkinson said On Tuesday 21 November 2023 at 10:46am she received a further email from Ms Coyne providing an update on the Applicant’s attendance. The email stated, amongst other things:

· The Applicant had contacted Ms Coyne after receiving the request for contact letter and said that she was still just unwell and that it had nothing to do with work;

· The Applicant stated that she “just hadn’t had a minute” to call Ms Coyne about calling in sick, and she “just didn’t” follow the process for calling in sick because “she figured she’d messed up and would be in trouble anyway”;

· The Applicant had said she hoped to return to work that week, but she didn’t know when she would feel up to it;

· The Applicant had medical certificates for some but not all days she had not been at work because she hadn’t been able to pay for a doctor’s appointment every day;

· The Applicant had been sent a leave exhaustion letter, so her failure to provide a medical certificate or statutory declaration was a failure to follow the direction contained in that letter;

· Ms Coyne had directed the Applicant to call the sick line and get a medical certificate if she was going to be absent from work;

· The Applicant had not shown up to work or called the sick line that morning, and Ms Coyne had sent her a text message requesting that the Applicant call her back;

· Ms Coyne would send the request for contact letter again if she didn’t hear from the Applicant that day.

Ms Atkinson said that she replied to this email at 10:29am and recommended that Ms Coyne draft a letter inviting the Applicant to a formal meeting to discuss these issues. Ms Atkinson stated in her email:

“With the allegations you’ll need to be specific for e.g. Allegation 1 On dates you failed to follow the required notification process to advice of you absence for your scheduled shifts (the times she text)

Allegation 2

On dates you failed to notify of your absence for your scheduled shift (the dates she has not even text/attempted the sick line)

Allegation 3

You have failed to provide evidence to support your absences on dates”

Ms Atkinson said she requested that Ms Coyne draft the letter for her to review so that it could be ready for when the Applicant returned to work. Ms Atkinson attached to this email a template document titled “Notice to attend a formal investigatory meeting (multiple allegations) (7)” (Notice to Attend).

Ms Atkinson said at 2:53pm Ms Coyne emailed her a draft version of the Notice to Attend addressed to the Applicant. At 7:39pm she replied to Ms Coyne attaching a further draft of the Notice to Attend and stated that the amendments were “Just with the times she has text instead of called/said she called this sick line I changed it to the number of times given there were so many dates.”

Preliminary Meeting on 27 November 2023

The Respondent submitted that on 26 November 2023, Ms Coyne had a meeting with the Applicant to inform her of a meeting to be scheduled the following day in order for the Applicant to respond to allegations against her. On 27 November 2023, Ms Coyne had a preliminary meeting with the Applicant in which she provided her with a Notice to Attend in the form of a letter outlining details of allegations that the Applicant would be required to respond to. Those allegations included unscheduled absences from her shifts, including a failure to follow the required notification process for absences; a failure to notify of her absence; and a failure to provide evidence to support her absences on discrete dates set out in the letter. Ms Coyne’s evidence was that the Applicant was advised that she was welcome to bring a support person to the meeting on 28 November 2023.

Ms Coyne submitted that following the meeting, she sent the Applicant a letter via email summarising the allegations made against her including:

· Failure to follow the required notification process to advise Bupa of her absence for her scheduled shifts on 14 occasions between 24 October 2023 and 24 November 2023;

· Failure to notify of her absences from 13 November to 16 November 2023 and 20 November 2023

· Failure to provide evidence to support her absences from 13 November to 16 November 2023.

In the letter, the Applicant was also advised that if substantiated, the conduct may be considered a breach of Bupa’s Code of Conduct, may result in disciplinary action including the termination of her employment.

Mr Varley’s evidence was that on 27 November 2023, he was copied along with Ms Atkinson into a letter that was emailed by Ms Coyne to the Applicant. The letter was a Notice to Attend. The Notice to Attend set out a number of allegations made against the Applicant in relation to her unscheduled absences from her shifts, including a failure to follow the required notification process for absences; a failure to notify of her absence; and a failure to provide evidence to support her absences on discrete dates set out in the letter.

In cross examination, Ms Cummings accepted she received the Notice to Attend letter but contended she was absent on 27 November 2023 so got it the following day. Ms Cummings contended that she was given the letter on the same day the formal meeting occurred. Ms Cummings oral evidence was that she didn’t get a chance to be taken off calls to prepare for the disciplinary meeting. Additionally, she contended she did not have an opportunity to bring a support person because she had no time to organise one.

In cross examination, Ms Cummings was showed an email dated 27 November 2023 which provided that as per the discussion with Ms Coyne that morning, the letter outlined the details of the Formal Investigatory Meeting Ms Cummings was asked to attend the following day. It also noted Ms Cummings was welcome to bring a support person. Ms Cummings said she didn’t recall this email and reiterated that she didn’t get any administration time. Ms Cummings did not accept that this email was sent on the 27 November. The email in question is date and time stamped as ‘Monday 27 November 2023 9:32 AM’.

Events of 28 November 2023 - Formal Investigatory Meeting

On 28 November 2023, Ms Coyne and Mr Varley were present at the meeting with the Applicant. The Applicant did not bring a support person. The Applicant confirmed this in her oral evidence. Ms Coyne went through each allegation with the Applicant and provided her with an opportunity to respond. The Applicant was advised that the Respondent would be in touch once a decision in respect of the allegations had been reached.

Ms Coyne’s evidence was that in the course of that meeting she noted that the meeting was to provide the Applicant with an opportunity to respond to the allegations against her. Ms Coyne’s evidence was that she said to the Applicant at the outset that they would go through each allegation and give her an opportunity to explain. In her oral evidence, Ms Cummings accepted this.

Ms Coyne stated that in response to the question of how the Applicant understood the sick leave requirement, the Applicant said that it was ‘up in the air’, and that she found it confusing because sick leave was accepted as a text message, but it was then not accepted anymore. Ms Cummings confirmed in her oral evidence she recalled saying this. Ms Coyne’s evidence was that she referred to the email she had sent to the Applicant on 12 October 2023 setting out her expectations and the Applicant said that she thought it was to provide a medical certificate and call the Sick Line but that she didn’t really know. Ms Cummings said in her oral evidence that Ms Coyne told her how to set a timed message to send Ms Coyne when she was absent and also directed that Ms Cummings could call her message her due to Ms Cummings personal and mental health issues. Ms Cummings said in her oral evidence she stated it was ‘up in the air’ because Ms Coyne kept changing her story. The Applicant contended that after the Sick Line process was implemented, she continued to have an arrangement with Ms Coyne that she was to text Ms Coyne.

Ms Coyne said she then moved on to explain the specifics of the allegations and provided the Applicant with an opportunity to respond to each of them. In her oral evidence, Ms Cummings agreed that this occurred. Ms Coyne said at the end of the meeting, she said to the Applicant that they would be in touch once a decision had been reached, that the matter was confidential and she was not to speak to anyone other than Ms Coyne, Mr Varley or Ms Atkinson.

Mr Varley stated that on the morning of 28 November 2023, he met with Ms Coyne over Microsoft Teams to go through a ‘script’ for the meeting. He said he was aware that this was one of the first formal investigations that Ms Coyne had led, so he took her through what the process looked like and a ‘script’ to follow for the meeting. Mr Varley’s evidence was that the purpose of a ‘script’ is to ensure that each allegation is put to the employee and the employee is given an opportunity to respond to each allegation, and this ensures that nothing is missed or forgotten. He said he told Ms Coyne that if anything came up that was overwhelming or if Ms Coyne wasn’t sure how to respond, he would be there to assist her.

Mr Varley stated he would ordinarily be present for formal investigatory meetings with his direct reports. If he was unavailable, a Senior Team Leader or other Senior Services Manager would step in. These meetings are always held with two leaders from the business.

Mr Varley stated at the meeting on 28 November 2023 at 1.00pm, the Applicant was present at the meeting along with himself and Ms Coyne. Mr Varley’s evidence was that the Applicant did not bring a support person to the meeting. Mr Varley stated that in the course of that meeting, Ms Coyne raised with the Applicant the allegations that were set out in the Notice to Attend. The process that was required in calling the sick line was again detailed to the Applicant and she was reminded that Ms Coyne had sent her an email detailing the required process previously. Mr Varley said they went through the allegations in the Notice to Attend and gave the Applicant the opportunity to respond to each allegation.

Mr Varley stated the Applicant stated that she got anxiety calling in sick, had phone issues, and she was naturally not a morning person and that was why she did not call the sick line in the instances put to her. She stated that she could not afford to go to the doctor and that was why she did not provide medical certificates for some dates where she was absent. Mr Varley stated when the Applicant referred to her anxiety, he asked her if she had evidence from her doctor or if she had accessed the Employee Assistance Program. She stated that she hadn’t and that she was ok. The Applicant said in her oral evidence that this was correct. It appeared to Mr Varley that the Applicant only referred to her anxiety when she realised that the meeting was serious and that there were a lot of instances of misconduct to be put to her.

Mr Varley stated he was notetaking during the meeting. His notes recorded each of the allegations put to the Applicant, including the questions about her conduct, and the responses of the Applicant to each allegation. This document was recorded for their purposes and was not provided to the Applicant.

29 November – 1 December 2023

The Respondent submitted that the following day on 29 November 2023, the Applicant exceeded her break time. The Applicant said in her oral evidence that she did not recall this.

Ms Coyne’s evidence was that at 2:38pm on 30 November 2023, she sent an email to Ms Atkinson, copying in Mr Varley, updating her that they had undertaken the Formal Investigatory Meeting with the Applicant on Tuesday. Ms Coyne said she attached a document that recorded each of the allegations put to the Applicant and her response to the allegations. Ms Coyne said she told Ms Atkinson that since the Formal Investigatory Meeting, the Applicant had been late back from her breaks 4 out of 5 times and Ms Coyne asked for her advice on next steps.

On 1 December 2023, Ms Coyne said she tried to call the Applicant when she did not log in at her scheduled time, however she did not answer. Ms Coyne said she then sent her a text message. In her oral evidence, the Applicant said she wasn’t sure about this.

Ms Coyne’s evidence was that she received an email from the Applicant at 5:40pm in which she said, among other things, that her phone was broken and gave details of medical issues she had been recently experiencing.

Mr Varley stated that on 30 November 2023, Ms Coyne informed him via Microsoft Teams chat that the Applicant had continued to exceed her allotted break times on each day after the meeting on 28 November 2023. Mr Varley said he replied that if that was so, he wanted to push for firing the Applicant, as he set clear expectations of the process that she was required to follow and she didn’t. Mr Varley said that neither he nor Ms Coyne had the authority to terminate the Applicant’s employment. If he reached the view that it was appropriate to terminate the Applicant’s employment, he would speak to Ms Atkinson about it. If she agreed, he would draft a request that would be sent to Josh Breakwell, Mr Breakwell’s higher up and Ms Atkinson’s higher up. Approval for termination would then come from them.

Ms Atkinson said that on Thursday 30 November at 2:38pm, she received an email from Ms Coyne informing her that Ms Coyne and Mr Varley had held the Formal Investigatory Meeting with the Applicant on Tuesday, where they went through every instance of failing to follow reasonable directions in respect of her absences.

Ms Atkinson said the email attached a document that recorded the Applicant’s responses to the allegations put to her at the meeting, as well as an email sent to the Applicant by Ms Coyne. It further stated:

· Ms Coyne also had an informal meeting with the Applicant about adhering to her schedule on 10 October 2023, “where I clearly told her there would be zero tolerance to lateness moving forward”;

· Since the investigatory meeting, the Applicant had exceeded four out of 5 breaks by a substantial amount each time;

· Ms Coyne was particularly concerned about the Applicant’s ability to stick to a schedule when working from home, where distractions often arise;

· “Nathan and I agree that the meeting where we’ve asked for her responses on not following reasonable directions has had no impact and would appreciate your advice on next steps.”

Ms Atkinson said the email contained screenshots demonstrating the Applicant’s late return to the system after breaks.

First and Final Warning Letter & Meeting on 4 December 2023

It was submitted that on 4 December 2023, Ms Coyne had a meeting with the Applicant at which she advised her that the allegations in the Notice to Attend had been found to be substantiated and that she was issuing her with a First and Final Warning in relation to her misconduct. That same day, she provided the Applicant with a copy of that letter. It stated that any further misconduct, including a failure to follow reasonable direction such as calling the Sick Line prior to the start of the Applicant’s shift time; provide medical evidence to support absences; or adhere to schedule including break times could result in further disciplinary action up to and including the termination of the Applicant’s employment.

Ms Coyne’s evidence was that before issuing the Applicant with her First and Final Warning Letter on 4 December 2023, Ms Coyne had discussions with Mr Varley and Ms Atkinson. Ms Coyne said she could not recall the specifics of those conversations, but that she would have spoken to them before finalising the letter to the Applicant because this is not something she would have sent to her without one or other of them authorising her to do so.

At 8:13am on 4 December 2023 Ms Coyne said she sent Ms Atkinson an email which forwarded the Applicant’s email to Ms Coyne dated 1 December 2023 and advised Ms Atkinson that the Applicant was again a no-call, no-show on 1 December 2023.

Ms Coyne stated that at 9:53am on 4 December 2023 Ms Atkinson sent her an email copying in Mr Varley in which she provided her with an outcome guidance matrix. Ms Coyne stated that Ms Atkinson advised, among other things, that on a quick review, the Applicant’s conduct did look to fall into the First and Final Warning category.

Ms Coyne stated that later that afternoon, she met with the Applicant over MS Teams and issued her with her First and Final Warning. Ms Coyne said she advised her that the allegations had been found to be substantiated and that she was being issued with a final written warning with respect to her conduct. Ms Cummings agreed in her oral evidence that this occurred. Ms Coyne stated that on the same day, she provided the Applicant with written confirmation of her Final Written Warning letter.

Ms Atkinson said on Monday 4 December 2023 at 8:13am she received an email from Ms Coyne forwarding an email from the Applicant and stating that the Applicant was a no-call no-show again on Friday. The forwarded email was sent to Ms Coyne at 5:40pm on Friday 1 December 2023. The forwarded email from the Applicant stated, amongst other things, that her phone was broken so that she could not make or receive calls; she had tried but failed to call the sick line that morning, and that she was unwell. The email stated that the Applicant “Should have emailed earlier but only just thought of it to send through my med cert.”

Ms Atkinson said at 9:53am on 4 December 2023 she sent an email to Ms Coyne, copying in Mr Varley, which stated:

“Please see attached outcome guidance matrix for managing misconduct to assist you with making your decision with Jessica’s outcome, on a quick review it does look to fall within the First and Final Warning conduct.

A few things to note when delivering the outcome to Jessica – she is saying her phone is broken, yet she can connect to Wifi can you please advise her that she can call from Wifi. Also if her illness is having that much of an impact on her that she can’t follow reasonable direction I think we should talk to her about commencing the Fitness for Work process with her doctor.

Feel free to pop 15 mins in to talk through your outcome.”

Ms Atkinson said her email attached a document titled “Outcome guidance matrix for Managing Misconduct”, which is a document that is designed to guide Leaders in determining the appropriate and proportionate outcome when managing misconduct.

5, 6 & 7 December 2023

It was submitted that on 5 December 2023, the Applicant did not show up to work on time. Ms Coyne asked Mr Varley and Ms Atkinson for support in terminating the Applicant’s employment. The Respondent submitted that on 6 December 2023 the Applicant exceeded her break time, and on 7 December 2023, the Applicant did not show up for work or make contact.

5 December 2023

Ms Coyne stated that on 5 December 2023, the Applicant did not start her shift on time, and Ms Coyne saw this is as a failure to comply with the directions given in the First and Final Warning. Ms Cummings accepted in her oral evidence she did not start her shift on time. The Applicant was asked in cross examination whether she thought this incident was in breach of the First and Final Warning and she said that for disciplinary procedure you are allowed some time for change after the fact and Ms Coyne never expressed Ms Cummings mental health issues. Ms Cummings evidence was that if Ms Atkinson had been made aware of her mental health issues, she would have advised a different approach to the process, taking into account her mental health challenges.

At 8.30am, Ms Coyne sent a copy of the First and Final Warning letter to Ms Atkinson and Mr Varley and advised them that the Applicant had not started her shift on time. Ms Coyne stated that she advised them that she was seeking support to terminate the Applicant’s employment.

Ms Coyne stated that at 3:01pm on 5 December Ms Atkinson advised her on Teams chat that she would come up with a response to the Applicant following her lateness again on that day.

Ms Coyne stated that she did not have authority to terminate the Applicant or anyone’s employment. Accordingly, she knew she would have to wait for a response from Ms Atkinson or Mr Varley because she could not otherwise take further action on her own.

Mr Varley stated on 5 December 2023 at 9.30am, he was copied to an email from Ms Coyne to Ms Atkinson that attached a document titled “Outcome to investigation – final written warning – Jessica Cummings” (First and Final Warning). The First and Final Warning was dated 4 December 2023 and set out the allegations put to the Applicant in the 28 November 2023 meeting and stated that the allegations had been determined to be substantiated. Mr Varley said it stated that any further misconduct, including a failure to follow reasonable direction such as to call the sick line prior to the start of the Applicant’s shift time; provide medical evidence to support absences; or adhere to schedule including break times could result in further disciplinary action up to and including the termination of the Applicant’s employment. Ms Atkinson’s evidence corroborated this.

Mr Varley stated Ms Coyne’s email to Ms Atkinson and Mr Varley stated that she had had a meeting with the Applicant the day prior, provided her with the First and Final Warning and told her in no uncertain terms that this was her last chance. However, the Applicant had not started her shift on time that morning and logged in 28 minutes late (38 minutes including set up time). Mr Varley said Ms Coyne advised that she was consequently seeking support to terminate the Applicant’s employment. Ms Atkinson’s evidence corroborated this.

Ms Atkinson said at 3:01pm on 5 December she advised Ms Coyne that she would come up with a response to the Applicant for her following her lateness again that day.

6 December 2023

Ms Coyne stated that at 8:14am on 6 December 2023, she forwarded Ms Atkinson the email that Ms Coyne had sent to the Applicant on 4 December 2023 attaching the outcome to the investigation and final written warning. Ms Atkinson’s evidence corroborated this. Ms Coyne said that afternoon, the Applicant started her last break early and was late to come back from it. Ms Cummings disputed in her oral evidence that she exceeded her break time on this day, saying she was entitled to a 15 and 24 minute break and not two 15 minute breaks as the Respondent alleged. Ms Coyne saw this as a failure to comply with the directions given in the First and Final Warning.

7 December 2023

Ms Coyne stated that on 7 December 2023, the Applicant didn’t show up for her shift, did not call into the Sick Line or send a text message. Ms Coyne saw this is as a failure to comply with the directions given in the First and Final Warning.

Ms Coyne stated that at 11:16am on 7 December 2023 she advised Ms Atkinson via Teams chat that the Applicant had not shown up for work or called the sick line or made contact after she had called her. Ms Atkinson advised Ms Coyne that she would look to respond to Ms Coyne by the end of the day. Ms Atkinson’s evidence corroborated this.

Ms Coyne stated that at 1:59pm on 7 December 2023 she advised Ms Atkinson via MS Teams chat that she had not heard from the Applicant and that she had noticed that the Applicant had exceeded her last break the day before. Ms Atkinson’s evidence corroborated this.

In her oral evidence, Ms Cummings said she was suffering from a genuine illness and had mental health issues Ms Coyne was aware of. Ms Cummings said she did occasionally ‘mess up’ but kept Ms Coyne ‘in the loop’ to the best of her ability. Ms Cummings did not accept this was a breach of the First and Final Warning and said she had anxiety. Ms Cummings accepted she was absent on 7 December and did not tell anyone of her absence.

Meeting on 8 December 2023 & Resignation

Evidence of Ms Coyne regarding 8 December Meeting

On 8 December 2023, Ms Coyne sought advice from Ms Atkinson in relation to how to proceed with a regular coaching meeting she had booked in with the Applicant, who had showed up for work on that day. Ms Atkinson advised that Ms Coyne’s approach should be to advise the Applicant that she was still working with the People Team on next steps, to ask her what she was thinking with her ongoing employment given she was not committed to the role.

Ms Coyne stated that she understood Ms Atkinson’s direction to mean that she should ask the Applicant open questions to identify if she had fully understood the severity of her actions and what the First and Final Warning meant. Ms Coyne’s evidence was that it was her intention that if there was a misalignment in her understanding, she would provide the Applicant with coaching and reset the expectations moving forward, giving her the benefit of the doubt that she had not intentionally disregarded the direction.

At approximately 2.30pm, Ms Coyne had a regular coaching session with the Applicant. The meeting went for approximately 45-60 minutes. Ms Coyne said the purpose of the meeting was to catch up with the Applicant and to try to understand how the Applicant was going and whether she had understood what the First and Final Warning Letter had meant, to provide coaching and to reset expectations. Ms Coyne’s evidence was that in her experience, it would be unusual for someone to continue to fail to comply with reasonable and lawful directions after receiving a First and Final Warning unless they did not understand what the warning was about. Ms Coyne said that because the Applicant had demonstrated instances of the behaviour about which she had been warned after receiving the First and Final Warning, Ms Coyne wanted to ensure that she had properly understood what it meant. In the meeting, the Applicant said that she did not have much to say.

Ms Coyne’s evidence was that she said to the Applicant that Ms Coyne was a little concerned because after the meeting on Monday, in which they gave the Applicant a First and Final warning, there had been further instances of the Applicant not following reasonable direction. The first was being late to work the day after the meeting without a reasonable explanation, and the Applicant then went over her last break by 6 and a half minutes on Wednesday and didn’t let Ms Coyne know or give an explanation as to why. Ms Coyne said on Thursday, the Applicant was absent from work without following the correct process or advising anyone. Ms Coyne said she asked her what she understood would happen to her if she breached policies again after the written warning, and she said that she understood if any further instances of not following direction occurred, then her employment at Bupa may be terminated.

Ms Coyne said she then asked the Applicant what she was considering with her ongoing employment, given she was not committed to her role at Bupa. Ms Coyne’s evidence was the Applicant said that she was committed and wanted to be there. Ms Coyne said she then said to the Applicant that the behaviours that the Applicant had been continuously exhibiting did not show commitment to the role, so Ms Coyne asked the Applicant why she would want to be there. Ms Coyne contended that the Applicant then asked “What does that mean?” Ms Coyne stated that she then said at that stage, she was not sure. Ms Coyne said she told the Applicant the issue was currently sitting with Ms Coyne’s boss and HR for the next steps, but as per the outcome letter sent to her four days ago and the discussion they had, as well as the Applicant confirming just before what the outcome letter meant, they had made it quite clear that any further misconduct or failure to comply with policies and procedures without a reasonable explanation could result in further disciplinary action, up to and including the termination of the Applicant’s employment.

Ms Coyne’s evidence was that the Applicant then asked, “So should I just quit then?” Ms Coyne contended she said to the Applicant that that choice was not up to Ms Coyne, that is something the Applicant would need to decide. Ms Coyne said the Applicant then asked how long it would take to hear back from Ms Coyne’s boss. Ms Coyne stated that she said that she was not too sure, as Mr Varley had said it can take a while for everyone who needs to be across the issue to come back to them with a decision.

Ms Coyne stated that the Applicant stated, “I think I should just quit”. Ms Coyne’s evidence was that she said to the Applicant words to the effect, “that's your prerogative Jess, if that is what you think the right thing to do is, that is your choice and I can do nothing but support it.”

Ms Coyne said that the Applicant then explained that she already had another job anyway and that Telstra were going to take her back and that she liked working there and that she asked them if they had any jobs when they had the investigation meeting. Ms Coyne stated that she said to her that was great news and asked whether she enjoyed working there and she said she did and they were a lot more flexible with her as single mum who needed to look after the boys. Ms Coyne stated she told her she was really glad to hear that, and that it sounded like they might be a good fit for her to go back to.

Ms Coyne contended that the Applicant asked, “So what do I do now?” Ms Coyne replied that was up to her, and if she wanted to wait for the outcome, they could do that, otherwise, she could decide whether she wanted to resign; she’d just need to send an email outlining that. There is a four week notice period, so she would need to include her last working day with Bupa.

Ms Coyne contended she asked the Applicant if she would like to take the weekend to think about it and the Applicant stated “No. I know I've messed up again and I do think Telstra will be better for me. Can I send you the email now?”

Ms Coyne stated that she said that she was comfortable with the Applicant using this time now for her to send the email. Ms Coyne said she asked if she wanted her to stay there, and the Applicant responded by saying that she might as well get it over with. Ms Coyne said the Applicant then started typing the email and asked, “is this okay?” Ms Coyne stated that the Applicant read out to the terms of her proposed email, which was consistent with the first paragraph of the email set out below. Ms Coyne said she said, it was short and sweet and that was fine. The Applicant then sent the email, which Ms Coyne received on 8 December 2023 at 2:20pm.

The email stated:

“Dear Maddi, Please accept this email as my notice of resignation. My last day of employment will be the 4th of January 2024.

I have enjoyed my time at Bupa and your guidance throughout.

Thankyou!”

Ms Coyne stated that she said that she was sorry it had come to this but that she was glad the Applicant had something more suitable lined up already. Ms Coyne said they spoke for a further 10-15 minutes about the different roles the Applicant had been offered and how they aligned more with her career goals.

Ms Coyne said the Applicant then asked, “If the Telstra stuff doesn't work out, can I use you as a reference?” Ms Coyne told the Applicant that if she wanted to put Ms Coyne down as a reference, she could but Ms Coyne would need to be honest about the Applicant’s attendance and the concerns she had with the Applicant’s employment.

Ms Coyne stated that the Applicant then asked whether she would have to work the notice period, to which Ms Coyne replied that she would talk to Mr Varley about it and that it would depend on the business needs. Ms Coyne contended she said words to the effect that she had seen instances in the past where people have worked their notice period; and instances where they had agreed for them to finish up immediately in lieu of the four weeks’ notice or if deemed a risk to the business, they were paid the notice period. Ms Coyne said that she stated to the Applicant that would be a decision to put to Mr Varley. Ms Coyne said the Applicant said words to the effect of, “okay, it'd just be nice to spend some more time with my kids before Christmas.” Ms Coyne said to the Applicant that was understandable and that she’d ask Mr Varley and get back to her on Monday.

Ms Coyne’s evidence was that the Applicant was not demonstrably upset at all in the meeting or expressing any distress at the prospect of losing her job. In fact, it was the most open and comfortable she had seen her. Ms Coyne said the Applicant appeared to be excited about her new role at Telstra which seemed to be promising her with a lot of flexibility. Ms Coyne said she congratulated her and was genuinely excited for her. Ms Coyne was also pleasantly surprised to see that the Applicant had thanked and complimented her in her resignation email, as she had not read this part aloud in the meeting.

Ms Coyne wholly disputed the characterisation of the 8 December 2023 meeting as set out in the Applicant’s witness statement filed in this proceeding. Ms Coyne contended that she did not force or coerce the Applicant to resign from her role and did not say to the Applicant words to the effect that, “Bupa will be terminating your employment on the following Monday.” Ms Coyne also stated she did not say words to the effect, “why would you rather be fired?” Further, Ms Coyne said she did not entice the Applicant to resign by offering her to be paid 4 weeks to spend time with her kids and have a break over Christmas or by telling her it was unlikely Bupa would require her to work the 4 weeks’ notice period. Additionally, Ms Coyne said she did not instruct the Applicant to “wash her face from crying”.

Ms Coyne reiterated she had no authority to terminate the Applicant’s employment and was following the advice of Mr Varley and Ms Atkinson at all times, including during the 8 December 2023 meeting.

Ms Coyne contended that the Applicant did not resign in the heat of the moment, and she considered the Applicant’s resignation to be clear and unambiguous. At no time during her 4 weeks’ notice period did the Applicant seek to rescind her resignation.

Evidence of Ms Atkinson regarding the 8 December 2023 Meeting

Ms Atkinson stated that at 8:28am on 8 December 2023, Ms Coyne advised her via Teams chat that the Applicant had logged on to work that morning with no contact yesterday.

At 1:44pm on the same day, she said Ms Coyne told Ms Atkinson via Teams chat that she had a coaching session scheduled with the Applicant in 45 minutes. She asked whether there was an update that she could give the Applicant, for example an invite to another formal meeting, at this time. She also told Ms Atkinson that the Applicant was late back from her first break that morning. Ms Atkinson’s evidence was that at 2:24pm she said to Ms Coyne via Teams chat:

“Hello – just let her know you are working with the people team on next steps, ask her if she understood the warning and what she is thinking with her on going employment given she is not committed to the role and is clearly displaying this.”

Ms Atkinson’s evidence was that in terms of next steps, she had intended that another formal meeting invitation be prepared. Ms Atkinson said she wanted to get a view on what the Applicant’s understanding of the final written warning that had been issued the few days prior given the misconduct had continued and to have the new allegations put to her including the most recent no-shows on 1 and 7 December 2023 and when she was late to work on 5 December 2023. Ms Atkinson said in her view, allowing the Applicant to provide a response to these allegations at a further formal meeting was a necessary next step before she could then seek authorisation to terminate the Applicant’s employment. Because the Applicant had engaged in further breaches after the First and Final Warning, she believed that this would have provided grounds to terminate the Applicant’s employment.

Ms Atkinson said it was her view that termination of the Applicant’s employment was likely imminent. Ms Atkinson intended to speak with Ms Coyne after her meeting with the Applicant to see what the Applicant had to say about the Final Written Warning, and to advise Ms Coyne on appropriate next steps to draft a formal meeting invite to put the further allegations to the Applicant. Given that they needed to provide 24 hours’ notice of a formal investigatory meeting, and then allow time for ‘Sarah’ and ‘Antonia’ to provide their endorsement, in her view termination would likely have taken place in the middle of the following week (around 13 or 14 December 2023).

Ms Atkinson said she expected that Sarah and Antonia would have endorsed the decision to terminate the Applicant’s employment and it would be unusual for them to act against the recommendation of the Team Leaders and the Strategic People Partner who were close to the matter. Their approval was something of a rubber stamp.

Ms Atkinson said Ms Coyne responded that she would note the Applicant’s responses and get back to her.

On 8 December 2023, Ms Atkinson said she received a call from Ms Coyne in which she recounted her meeting with the Applicant. Ms Atkinson said Ms Coyne stated that she had asked the Applicant if she had understood the meaning of the formal process that had been put in place regarding her conduct, including the meaning of the First and Final Warning. Ms Atkinson said Ms Coyne stated that the Applicant had said she wished to resign because she had been offered another role at Telstra that would be more flexible, and she had the option of two roles at Telstra that she was working through. Ms Atkinson said she asked Ms Coyne whether she had given the Applicant the option of thinking over her choice to resign overnight, and Ms Coyne said that she had. Ms Atkinson said Ms Coyne did not mention to her that the Applicant was upset or that her demeanour was unusual.

Ms Atkinson said she did not have any concerns in relation to Ms Coyne’s conduct of the meeting with the Applicant from what Ms Coyne described to her. Further, Ms Atkinson said from what she observed in their interactions, Ms Coyne is one of the more cautious and compassionate Team Leaders and if anything, the Applicant’s behaviour should have been nipped in the bud earlier. Ms Atkinson said she felt confident that Ms Coyne knew that she did not have the authority to terminate the Applicant, as she was seeking authorisation to do so.

Evidence of Mr Varley regarding the 8 December 2023 Meeting

At 8:27am on 8 December 2023, Mr Varley said he received an email sent to himself and Ms Coyne from ‘Josh’ with the subject line ‘Jessica Cummings – Real Time observations’. Josh stated “Suggest you inspect the morning behaviours of Jessica Cummings these past few days – a pattern of behaviour of long personal breaks, ACW and lateness being called out in the RT chats. Seems to be a significant loss of productivity from her”.

Mr Varley said at 9:43am Ms Coyne replied to Josh, copying him in. Mr Varley said she updated him on the formal process that had been put in place regarding the Applicant and stated that she was waiting to hear back from Ms Atkinson regarding her request to terminate the Applicant.

Mr Varley said at 1:50pm on 8 December 2023, he received a Teams chat message from Ms Coyne that stated that she hadn’t heard back from Ms Atkinson and she had a coaching session with the Applicant in 40 minutes. Mr Varley said Ms Coyne said “I don’t want to ignore the issues going into the coaching session and let her think she’s getting away with it, what is an appropriate way to address this in case Haylee is unable to respond before then?” Mr Varley said he responded “Address it with her. We will have a 2nd investigation with her. So draft a 2^nd investigation letter and we’ll catch up with her next week in an investigation”.

Mr Varley’s evidence was that it was his view that a further meeting with the Applicant and a second notice to attend a formal investigatory meeting (Second Notice to Attend) was necessary so that the further allegations of her misconduct after the First and Final Warning could be put to her and she could have a chance to respond.

Mr Varley said he was comfortable that it was unlikely that the Applicant would have a good reason for the further misconduct, especially given her history of failure to follow reasonable directions. Mr Varley said he felt that they would have terminated the Applicant following a second investigatory meeting. In his view, termination was a week or two away, allowing time for the second formal investigatory meeting, the Applicant to respond to the allegations, him to put forward the recommendation that the Applicant be terminated and for the necessary to sign off.

Mr Varley said he was aware that as Ms Coyne was a fairly new Team Leader, she wouldn’t have gone down the path of termination previously. That was why Mr Varley said to her that she should draft a second investigation letter, which is the next step in the business process towards termination.

At 3:27pm on 8 December 2023 Mr Varley received a Teams message from Ms Coyne attaching a screenshot of a resignation email the Applicant had sent Ms Coyne.

Mr Varley said he discussed the Applicant’s resignation at the 8 December 2023 meeting with Ms Coyne, although he cannot recall exactly when this occurred. Mr Varley said he thought that it is likely that they discussed it briefly at their next scheduled fortnightly catch up.

Mr Varley said he recalled that Ms Coyne told him that she asked the Applicant why the Applicant had not followed the correct processes after the First and Final Warning. He said Ms Coyne said that the Applicant asked if she was in trouble and Ms Coyne said that there would have to be another investigation. He said the Applicant asked Ms Coyne if she should just go back to Telstra if she was going to be fired, and Ms Coyne said “I can’t tell you if that will happen but we will have to do the investigation and one of the outcomes could be termination.” He said Ms Coyne told him that the Applicant had then resigned. Mr Varley said to Ms Coyne that that was a good outcome for them and the Applicant.

Mr Varley said he was very confident that Ms Coyne did not overstep the mark in that meeting. He said Ms Coyne as a manager is very by the book and keeps detailed notes on every employee under her management in OneNote. It was his view that Ms Coyne was very supportive of agents that had behavioural issues and who probably should have been let go. He said she wished to coach them into improving their behaviour rather than dismissing them. Mr Varley said he believed that if Ms Coyne was sterner, the Applicant likely would have been dismissed sooner.

Mr Varley’s evidence was that following her resignation, the Applicant worked for a further four weeks as part of her notice period. He recalled that she was a poor employee in the month after her resignation. He said Ms Coyne raised with him that the Applicant would take extra-long breaks and not show up at the right time.

Mr Varley said Ms Coyne asked him if she should continue to coach the Applicant regarding her further misconduct. He said that at the end of the day the Applicant was leaving in a month and that Ms Coyne should just leave it as it was not worth it. Mr Varley felt that although they could dismiss the Applicant during her notice period for further misconduct after her First and Final Warning, they should not do so given it was the lead up to Christmas.

Respondent Submissions – 8 December 2023 Meeting & Resignation

The Respondent submitted that the version of events that took place in the Applicant’s catch-up meeting with Ms Coyne on 8 December 2023, clearly and unequivocally outlined to the Applicant that in response to her question as to whether she should “just resign” Ms Coyne relayed that it was entirely a matter for her. In other words, it was the Applicant’s voluntary choice.

The Respondent submitted while it is accepted that it would have appeared and it was expressed to the Applicant at that meeting, that HR was in the process of making a decision regarding next steps after the Applicant had allegedly engaged in further misconduct following her First and Final Warning, it was also made clear to her that no decision had yet been made. The Respondent submitted therefore, should the Applicant have been left with the impression that she had no choice but to resign, this was no more than a subjective opinion that she held. The decision to resign at that point was clearly within the Applicant’s discretion.

It was submitted that the Respondent’s disciplinary process was deliberate and structured, and Ms Coyne as the Applicant’s Team Leader did not have the authority to dismiss the Applicant from her employment, nor did her Team Leader, Mr Varley or Ms Atkinson. It was submitted Ms Coyne was at pains to ensure that she did not overstep the line in this regard, taking the time to confirm with Mr Varley and Ms Atkinson exactly what she should discuss with the Applicant at the 8 December 2023 coaching session. The Respondent contended that there was a clear and further next step in the process of managing the Applicant’s misconduct which the Respondent was still to engage in before any decision to terminate the Applicant’s employment was to be made. It was submitted up until that point, the Respondent had followed these processes to the letter and in accordance with its formal misconduct procedures in its outcome matrix.

The Respondent submitted that while the resignation was made at an advanced point in the disciplinary process, it was not made in response to the Respondent having decided to dismiss the Applicant. It was submitted at the time of the resignation, Ms Coyne communicated no such thing to the Applicant and she was simply asking what the Applicant’s intentions were with her employment in light of further conduct which had occurred following the First and Final Warning and her demonstrated lack of commitment to her role.

The Respondent contended that the Commission should accept the evidence of Ms Atkinson and Mr Varley that the Respondent was still intending to conduct a further formal investigatory meeting at which the further allegations of misconduct would be put to the Applicant for her response, and if found to be substantiated, the next likely step in the Respondent’s process would be to terminate her employment.

The Respondent submitted that it was the Applicant’s decision to resign and that she was not forced or coerced by the Respondent. It is submitted that the Respondent had strict processes that it complied with to address employee misconduct which it had followed to the letter in the circumstances of the present case.

The Respondent submitted the misconduct included a failure to follow reasonable direction such as calling the Sick Line prior to the start of the Applicant’s shift times; providing medical evidence to support absences and/or adhering to her schedule, including break times. Significantly, there were a number of occasions where the Applicant did not attend work and the Respondent was unable to contact her, resulting in the Respondent having to take steps to contact the Applicant’s emergency contact.

The Respondent submitted just prior to a meeting which took place on 8 December 2023, at which the Applicant contends she was forced to resign by her Team Leader, Ms Coyne, Ms Coyne confirmed with her Team Leader, Mr Varley and Ms Atkinson, the HR Strategic People Partner, that no decision as regards the Applicant’s prospective dismissal had been made. The Respondent submitted the evidence is clear; the Applicant would have undergone a further investigatory meeting at which allegations would have been put to her that she had failed to comply with her First and Final Warning. It would only have been once those allegations had been substantiated that a recommendation and a final decision would have been made to terminate the Applicant’s employment.

The Respondent submitted the Applicant’s resignation at the 8 December 2023 meeting was clear and unequivocal. Ms Coyne also made it plain to the Applicant that her decision to resign was a decision for her and her alone. She asked the Applicant if she wanted further time to think about it, but the Applicant was clear that she had received a further job offer which was to provide her with more flexibility. The fact that the Applicant did not make any attempts to rescind her resignation in the 4 weeks which followed, lends further support for the fact that her resignation was voluntary and not done in the heat of the moment. It was submitted the Applicant was therefore not dismissed within the meaning of s386(1) of the FW Act.

Evidence of Ms Cummings - 8 December 2023 Meeting & Resignation

Ms Cummings submitted that on 8 December 2023 she attended a routine coaching meeting with Ms Coyne, her team leader. Ms Coyne allegedly created ‘a coercive and intimidate atmosphere’, informing Ms Cummings that she would be dismissed by the Respondent on 11 December 2023, the next business day. Ms Coyne allegedly presented Ms Cummings an ultimatum to either resign immediately or face termination, with no valid grounds or justification for the impending termination. Ms Cummings asserted that despite her reluctance to resign, Ms Coyne insisted that she tender her resignation from the Respondent.

Ms Cummings claimed that she was visibly emotional and distressed with the prospect of losing her job during the holiday season as a single parent. Ms Cummings evidence was that Ms Coyne allegedly responded with questions like “why would [Ms Cummings] rather be fired”, and Ms Cummings was brought to tears. Ms Coyne was allegedly forceful in reiterating the benefits of resignation and ‘minimizing the consequences of termination’. This included Ms Coyne apparently informing Ms Cummings that she would be paid out her notice period and would not be required to work the four-week notice, stating that “I would get to spend the school holidays with my children”. Ms Coyne allegedly extended the meeting 20 minutes longer than it was scheduled for, which was beyond the ordinary practice of the Respondent. Ms Cummings stated she believed that was pre-planned by the Respondent, and that the primary goal of the meeting had been to induce her to resign. By the end of the meeting, Ms Cummings had agreed to resign and provided Ms Coyne with her resignation email. Ms Cummings alleged Ms Coyne then told her to take a break to wash her tears before going back to work.

The Applicant contended that Ms Coyne, on behalf of the Respondent, engaged in the meeting on 8 December 2023 in a way which was intended to induce, and explicitly encouraged, Ms Cummings to resign. The Applicant asserted that the Respondent engineering a routine coaching session into a disciplinary meeting with no warning and Ms Coyne allegedly stating that Ms Cummings would be terminated by the Respondent on 11 December 2023 if she did not resign, as well as indicating that she would be able to be paid in lieu of notice, was a course of conduct designed to force Ms Cummings to resign.

The Applicant submitted that her resignation was not voluntary but was coerced through duress and undue influence by Ms Coyne, creating a hostile and intimidating environment with no opportunity to respond or seek representation, utilising the threat of imminent termination to force Ms Cummings to resign.

The Applicant submitted that the circumstances of the meeting and of providing the resignation indicate that it was not at Ms Cummings initiative, and that her resignation while clear and unambiguous was not genuine. The Applicant submitted the resignation was done in the heat of the moment.

The Applicant contended the significant discrepancy between the recommendations of the Respondent’s human resources personnel Ms Atkinson, and the conduct of Ms Coyne, is representative of the intention of the management of the Respondent to induce Ms Cummings to resign. It was contended that this conduct should also be taken into account when considering the Respondent’s contention that if Ms Cummings did not resign at her own initiative, she would have rescinded it during her four-week notice period working.

In reply to the Respondent’s material, the Applicant asserted that the material of the Respondent demonstrated that the Respondent had unfairly intended to dismiss her from her employment. The Applicant asserted that the witness statements of the Respondent’s staff indicate that the management of the Respondent had predetermined to terminate her employment, without allowing her to respond or considering her individual circumstances and without assessing her overall performance or her mental health in breach of the general protections. It was submitted this substantiated the Applicant’s submission that the dismissal was harsh, unjust and unreasonable.

The Applicant suggested that the Respondent’s failure to provide evidence that there was a mandatory “sick line” to notify absences through suggests that their disciplinary process was not legitimate, and that Ms Cummings always complied with the terms of the Respondent’s enterprise agreement and internal policy when notifying of absence. The Applicant pointed to the enterprise agreement specifically providing that where an employee cannot afford to attend a doctor, they are allowed to submit a statutory declaration instead. It was submitted the Respondent refusing to acknowledge this brings into question the credibility of their evidence, especially if they are pointing to the employment contract as if to overrule the terms of an enterprise agreement.

The Applicant asserted that the witness evidence of Ms Coyne and Mr Varley and the messages between them demonstrated that the Respondent had already determined to dismiss Ms Cummings from her employment before the meeting on 8 December 2023. The messages allegedly indicate a predisposition towards termination of Ms Cummings’ employment.

The Applicant asserted that the internal email from Ms Coyne to Mr Varley providing the resignation email is indicative of a level of ambiguity in the Respondent’s perception of Ms Cummings’ email. The Applicant also provided that any reference to alternative employment with Telstra was a reference to actions taken to mitigate the financial loss due to dismissal, rather than indicative of an intention to resign to take up work elsewhere.

The Applicant submitted that the Respondent’s actions and intentions, especially considering its inconsistent adherence to its obligations under the relevant enterprise agreement, constitute the resignation as a dismissal which is harsh, unjust and unreasonable. It was submitted attempting to terminate employment as part of a disciplinary process in response to Ms Cummings informing Ms Coyne of her absence due to illness is ‘a clear violation of fair and reasonable employment practices’.

Ms Cummings oral evidence regarding 8 December meeting

Ms Cummings oral evidence was that the meeting on 8 December 2023 went for an hour and a half. The Respondent put to the Applicant various questions about the meeting on 8 December.

It was put to Ms Cummings that in the 8 December meeting Ms Coyne said she was a little concerned because after the meeting on Monday 4 December 2023, in which they gave the Applicant a First and Final warning, there had been further instances of the Applicant not following reasonable direction. Ms Cummings denied Ms Coyne said this in this way. Ms Coyne said in the 8 December meeting that the first instance was being late to work the day after the 4 December meeting without a reasonable explanation. The Applicant did not recall Ms Coyne saying this. It was put to the Applicant she then went over her last break by 6 and a half minutes on Wednesday and didn’t let Ms Coyne know or give an explanation as to why. Ms Cummings accepted Ms Coyne said this in the meeting but said she disagreed with Ms Coyne. It was put to the Applicant that Ms Coyne said during the 8 December meeting she said to the Applicant that on Thursday 7 December, the Applicant was absent from work without following the correct process or advising anyone. Ms Cummings recalled Ms Coyne saying this to her.

Ms Cummings said she recalled Ms Coyne asking her what she understood would happen to her if she breached policies again after the written warning, and Ms Cummings agreed with Ms Coyne’s evidence that she said that she understood if any further instances of not following direction occurred, then her employment at Bupa may be terminated.

Ms Cummings said she recalled Ms Coyne asking her what she was considering with her ongoing employment, given she was not committed to her role at Bupa. Ms Cummings said she said to Ms Coyne she was committed and wanted to be there.

Ms Cummings did not accept Ms Coyne’s evidence that Ms Coyne said to the Applicant that the behaviours that she had been continuously exhibiting did not show commitment to the role, so Ms Coyne asked her why she would want to be there. Ms Cummings contended she was told Bupa was going to fire her on the Monday and she asked why.

Ms Cummings evidence was that Ms Coyne kept ‘hounding and hounding her’ about whether she was going to resign or be terminated. Ms Cummings evidence was that when Ms Coyne said Ms Cummings said ‘what does that mean’ this was Ms Cummings asking what Ms Coyne wanted her to do or say. Ms Cummings said Ms Coyne asked her why she would rather get terminated and not just resign. Ms Cummings said she said to Ms Coyne she was happy to wait until Monday.

Ms Cummings was asked if she recalled Ms Coyne saying the issue was currently sitting with HR for the next steps but as per the outcome letter they had made it quite clear that any further misconduct or failure to comply with policies and procedures without a reasonable explanation could result in further disciplinary action, up to and including the termination of the Applicant’s employment and that the Applicant asked, “So should I just quit then?” Ms Cummings said this was in response to Ms Coyne ‘hounding’ her and Ms Coyne putting pressure on her.

Ms Cummings was asked if she recalled Ms Coyne saying that the choice was not up to Ms Coyne, that is something Ms Cummings would need to decide. Ms Cummings was also asked if she recalled asking how long it would take to hear back from Ms Coyne’s boss. Ms Cummings did not answer the question directly and instead reiterated Ms Coyne was ‘hounding’ her and kept ‘on going’. Ms Cummings said she gave up and just resigned and she asked what to write in the resignation. Ms Cummings said Ms Coyne told her what to write.

Ms Cummings denied saying “I think I should just quit”. Ms Cummings said she didn’t know if Ms Coyne said “that's your prerogative Jess, if that is what you think the right thing to do is, that is your choice and I can do nothing but support it.”

Ms Cummings said she felt the conversation was going to keep being extended until Ms Coyne got the outcome she wanted which was resignation.

Ms Cummings was asked whether she told Ms Coyne she already had another job with Telstra. Ms Cummings said she said she was going to apply for Telstra. Ms Cummings agreed Ms Coyne stated to her that she was happy for Ms Cummings.

Ms Cummings disputed Ms Coyne’s evidence that the Applicant asked, “So what do I do now?” and disputed that Ms Coyne replied that was up to her, and if she wanted to wait for the outcome, they could do that, otherwise, she could decide whether she wanted to resign; she’d just need to send an email outlining that.

Ms Cummings disputed Ms Coyne’s evidence that Ms Cummings stated “No. I know I've messed up again and I do think Telstra will be better for me. Can I send you the email now?”

Ms Cummings disputed Ms Coyne’s evidence that Ms Coyne stated that she said that she was sorry it had come to this but that she was glad the Applicant had something more suitable lined up already. Ms Cummings disputed Ms Coyne’s evidence that they spoke for a further 10-15 minutes about the different roles Ms Cummings had been offered and how they aligned more with her career goals.

Ms Cummings accepted that she asked Ms Coyne to be a reference. Ms Cummings said Ms Coyne has said she wouldn’t have to work the notice period, but Ms Coyne said she would contact her on Monday regarding next steps. Ms Cummings disputed Ms Coyne’s evidence that Ms Cummings was not upset at the meeting.

It was put to Ms Cummings that in her reply submissions she stated that “… While Maddison may have emphasized that the decision to resign was mine alone, …” but on the other hand said that the meeting was very forceful and coercive. Ms Cummings said she wasn’t stating that’s what she agreed but was stating that was in Ms Coyne’s witness statement.

The Respondent asked Ms Cummings whether she raised a dispute about the requirement to call the Sick Line rather than contacting the team leader (as Ms Cummings has said is required by the EA). Ms Cummings said she didn’t because she was suffering from anxiety and avoided confrontation. Ms Cummings was asked what her reasoning was for not calling in sick on a number of occasions. Ms Cummings said because of her anxiety she avoided things.

11 December 2023

Ms Coyne’s evidence was that on 11 December 2023, the Applicant messaged her via the messenger platform asking whether Ms Coyne had any updates on her resignation.

Ms Coyne’s evidence was that she told the Applicant that she did and asked the Applicant to call her. In that call Ms Coyne stated she advised the Applicant that due to Christmas leave starting soon and reduced staff, they would require her to work out her notice period. Ms Coyne’s evidence was that the Applicant tried to say that Ms Coyne told her she wouldn't have to, and Ms Coyne said she clearly explained that she was sorry if there was any misunderstanding, but she had only told the Applicant the examples of what she’d seen in the past and did not say she wouldn't have to work the notice period and would get paid.

Ms Coyne stated that the Applicant appeared to be upset and said she wouldn't be putting any effort into her calls. Ms Coyne said she told the Applicant that she would need to make Mr Varley aware of that, and the Applicant clarified she wouldn't be going above and beyond, but would work to the same standards she had up until that point.

Ms Cummings provided that on 11 December 2023, she reached out to Ms Coyne for an update regarding her resignation. Ms Coyne allegedly then stated “[The Respondent] was never going to fire [Ms Cummings] because [Ms Cummings] had been sick”, and notified Ms Cummings that she would have to work out her notice period. Ms Cummings mentioned how she wanted to wait for the outcome on Monday rather than resigning, and that the holiday period was amplifying her distress. Ms Cummings accused Ms Coyne of inducing her to resign on false pretences, and fabricating her belief she was being terminated, and at one point she indicated she would refuse to perform work for the remainder of her employment. Ms Coyne rejected the accusation that she had ever claimed the Respondent was going to dismiss Ms Cummings and reported the incident to her manager Mr Varley. Ms Coyne allegedly instructed Ms Cummings not to discuss the matter with other employees of the Respondent.

The Applicant’s evidence was that Ms Coyne stated that they were never going to fire her, and Ms Cummings said she ‘went off’ at Ms Coyne and got very angry. Ms Cummings was asked if she tried to withdraw the resignation and Ms Cummings said she never would have resigned.

The Applicant was asked about a Teams message she sent to Ms Coyne on 11 December which stated “Good Morning Maddi [smiley face emoji] hope you had a great weekend. Just wondering if you have any update on my resignation this morning?” It was put to the Applicant that this was a very friendly jovial way to respond to the person she said had forced and coerced her to resign. Ms Cummings said she was just a very nice person.

Allegations of Mental Health Illness

The Applicant’s evidence was that she was the victim of a cyber-attack, and it resulted in physical symptoms such as headaches, fatigue, insomnia, anxiety, and stress. The Applicant submitted the aftermath necessitated extensive measures, including acquiring new devices, identification, and bank cards. She submitted that was compounded by the inability to discuss these challenges, she felt isolated and unsupported, exacerbating her mental health struggles.

The Applicant stated that subsequently, her mental health deteriorated, culminating in her first instance of a "no call - no show" as she grappled with anxiety and diminished functionality. It was stated this incident marked the onset of ongoing mental health challenges and associated absences from work. The Applicant stated that it is pertinent to note that she had a history of mental health issues, including PTSD and depression, which had not previously been disclosed to Bupa.

The Applicant contended that Ms Coyne failed to appropriately convey her emotional state and well-being to Ms Atkinson despite her repeated discussions about her anxiety with her, which often included emotional moments during calls and meetings. The Applicant contended that Ms Coyne, as a team leader, had a responsibility to recognise and address any concerns regarding her mental health and ensure that appropriate support mechanisms were implemented.

The Applicant stated that her absence notification procedures aligned with the requirements outlined in the enterprise agreement. Despite the challenges posed by her mental health condition and the lingering effects of Post-Viral Syndrome, characterised by symptoms such as fatigue, headaches, and difficulty concentrating, she said she endeavoured to promptly inform Ms Coyne of absences whenever feasible. Ms Cummings contended this was communicated to Ms Coyne, along with the official diagnosis provided by the General Practitioner, which attributed Ms Cummings symptoms to Post-Viral Syndrome.

The Applicant’s evidence was the constant fluctuations in what constituted acceptable absence notification methods, ranging from contacting the Team Leader directly to utilising the Sick Line, significantly exacerbated her mental health and anxiety challenges. She said the inconsistency in protocol added an additional layer of stress and uncertainty to an already demanding situation, further compromising her ability to manage her mental well-being effectively.

The Applicant contended that both Mr Varley and Ms Coyne failed to accurately report on her emotional state during the meeting or acknowledge her disclosure of mental health issues, particularly anxiety.

The Applicant’s evidence was that throughout the process, her mental health struggles, including explicit expressions of anxiety and emotional distress, such as crying, were consistently overlooked.

Ms Cummings evidence was that asking for evidence of a medical diagnosis or access to an Employee Assistance Program (EAP) when she disclosed her anxiety can feel discriminatory if it creates a barrier to receiving the support and accommodation she may need. She said she disclosed her anxiety in good faith, hoping for understanding and support, but being asked for proof or if she had accessed the EAP made her feel like her concerns were being doubted.

The Applicant was asked in cross examination whether she provided any evidence to Bupa she had a diagnosable mental health condition. The Applicant’s oral evidence was that she did not have to disclose that due to privacy. The Applicant accepted she did not provide any evidence to Bupa of a diagnosable mental health condition.

The Applicant was asked in cross examination whether she accepted she was given information about contacting the EAP. The Applicant said she was not given this information but had heard of the EAP. The Applicant said she did not feel comfortable using the EAP as she did not like talking to strangers.

Mr Varley stated that in the meeting of 28 November 2023 when the Applicant referred to her anxiety, he asked her if she had evidence from her doctor or if she had accessed the Employee Assistance Program. The Applicant said in her oral evidence that this was correct.

Ms Coyne’s evidence was that the Applicant stated she was feeling anxious about ‘messing up’ again and there was no mention of having a condition of anxiety. Ms Coyne’s oral evidence was that during the meeting of 28 November when the Applicant said she had anxiety, Mr Varley asked the Applicant questions about this and the Applicant said it was self diagnosed.

CONSIDERATION OF JURISDICTIONAL OBJECTION

Ms Cummings alleges her resignation was 'forced'. In assessing whether Ms Cummings resignation was 'forced', it is necessary to consider the conduct of the Respondent. It is necessary to assess whether the purported conduct was engaged in by the Respondent with the intention of bringing Ms Cummings employment to an end, or whether the termination of Ms Cummings employment was the probable result of the purported conduct such that Ms Cummings had no effective or real choice but to resign. The most relevant event is the meeting on 8 December 2023 between Ms Cummings and Ms Coyne.

I have set out in some detail above the evidence of the witnesses. Having weighed that evidence I am satisfied that the Applicant resigned from her employment on her own volition, and the conduct of the Respondent was not intended to bring the employment to an end, or that the termination of Ms Cummings employment was the probable result of conduct of the Respondent such that Ms Cummings had no real choice but to resign. I have arrived at that conclusion because I prefer the evidence of Ms Coyne over that of Ms Cummings where they conflict. While I am inclined to accept that Ms Cummings would have had an emotional response during the meeting on 8 December, I am still of the view that Ms Cummings reached a conclusion on her own to resign from her employment.

The evidence supports the conclusion that Ms Cummings would have been aware that her employment with the Respondent was in serious jeopardy because of her own conduct, and she ultimately reached a decision on her own to terminate the employment relationship herself, rather than face the prospect of a further disciplinary process investigating her conduct post the final warning. I have concluded that Ms Cummings had formed a view that she was likely to be dismissed soon because of her conduct post the final warning. I generally found Ms Coyne’s evidence to be more credible. Further Ms Coyne’s contemporaneous notes are the best evidence of the way the conversation on 8 December is likely to have unfolded. I am satisfied on the evidence that Ms Coyne did not seek to coerce Ms Cummings to resign but merely laid out the options open to her in the circumstances. It seems clear from the evidence that the Respondent had an established disciplinary process to be followed, Ms Coyne was following that process, and was aware of the limits of her own role within that process.

It appears from the evidence that Ms Cummings had raised with Ms Coyne the possibility of being paid notice without being required to work out the notice period, and if this was to occur it would be attractive to Ms Cummings. Ms Cummings also did not challenge Ms Coyne’s evidence about Ms Cummings saying that she had another employment option to move to at Telstra, except to the extent that Ms Coyne’s evidence was to the effect that she understood Ms Cummings had secured this alternative employment, whereas Ms Cummings evidence was that she had applied to work again with her former employer at Telstra. I accept that Ms Coyne did advise Ms Cummings during their discussions on Friday 8 December that Ms Coyne would talk to Mr Varley about Ms Cummings question as to whether Ms Cummings would be required to work during the notice period. I accept that Ms Coyne advised Ms Cummings that this may be possible depending on the business needs. This was not however a commitment from Ms Coyne that Ms Cummings would not be required to work out the notice period, she merely indicated she would enquire if it was possible. After raising the query Ms Coyne was subsequently advised by more senior management that the Respondent did not agree to this request from Ms Cummings, and Ms Coyne communicated this to Ms Cummings on Monday 11 December. Ms Cummings cannot rely on the discussions with Ms Coyne concerning this request to support a conclusion that she was coerced into resigning on the basis of a false promise that she would not be required to work out her notice period.

I am not persuaded that Ms Coyne said to Ms Cummings on the Monday 11 December that Ms Cummings was never going to be dismissed, as it seems implausible that she would have done so. Ms Coyne making such a statement is inconsistent with all of the evidence from each of the witnesses for the Respondent concerning where the matter was likely to progress if Ms Cummings remained employed. There would also appear to be no motive for Ms Coyne making such a statement, because doing this would be likely to have the effect of distressing and antagonising Ms Cummings when Ms Coyne was aware that Ms Cummings would be continuing to work with her for another month. It would also be inconsistent with either of the versions of the conversation given by Ms Cummings or Ms Coyne that occurred the previous Friday 8 December.

It would also seem logical that had Ms Cummings genuinely believed she had been coerced into resigning on the basis of false representations made to her by Ms Coyne on 8 December, she would have attempted to rescind her resignation, either immediately on Monday 11 December or at some point during the four week notice period, however the evidence supports the conclusion that she made no attempt to rescind her resignation given in writing on 8 December.

I also prefer the evidence of the witnesses for the Respondent that at no point did Ms Cummings advise the Respondent that she had a diagnosable condition that she claimed was the underlying cause of her attendance issues. Had she done so the circumstances here may have been different. Ms Cummings own evidence tends to support the conclusion that she regarded information concerning the state of her health as private and was reluctant to divulge information of this nature to the Respondent.

CONCLUSION

For the reasons set out above I have concluded that the Applicant has not been dismissed by the Respondent within the meaning of section 386(1) of the Act, and the Applicant brought the employment relationship to an end on her own initiative. As the Applicant has not been dismissed the Commission does not have jurisdiction to deal with the unfair dismissal application and the application is dismissed.

As I have dismissed the application it is unnecessary to deal with the matter any further, however for completeness I would add that even had I determined the Applicant had been dismissed at the initiative of the Respondent, the evidence tends to support a conclusion that in those circumstances such a dismissal would not be likely to have been found to be unfair given the chronology of events set out above.

COMMISSIONER

Appearances:

Ms Jessica Cummings on her own behalf.

Ms Julia Lucas of Counsel for the Respondent.

Hearing details:

2024
By Microsoft Teams Video
4 June.

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