Jodie Hall v Calum John McKinnon & Sheree Ann McKinnon (a Partnership)
[2022] FWC 2907
•2 NOVEMBER 2022
| [2022] FWC 2907 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jodie Hall
v
Calum John McKinnon & Sheree Ann McKinnon (a Partnership)
(U2022/5498)
| DEPUTY PRESIDENT BELL | MELBOURNE, 2 NOVEMBER 2022 |
Application for an unfair dismissal remedy – whether dismissal or resignation – not a dismissal – application dismissed.
On 18 May 2022, Ms Jodie Hall (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the FWAct). The Applicant alleges she was unfairly dismissed by her employer, ‘Calum John McKinnon & Sheree Ann McKinnon (a Partnership)’ (Respondent).
The Respondent (as a partnership) is the owner of a service station and restaurant trading as “Titto’s Store” in Mildura, Victoria. The Applicant states she was unfairly dismissed on 6 May 2022. The Respondent has raised a jurisdictional objection that the Applicant was not dismissed, but instead resigned her employment on that date.
Section 390 of the FW Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was “protected from unfair dismissal” at the time of being dismissed and if the Applicant has been “unfairly dismissed”. It was not in contention, and I am satisfied, that the Applicant was protected from unfair dismissal under s.382 of the FW Act and had made her application within time. The primary issue in contention was whether she was “dismissed” (s.385(a)). If the Applicant was dismissed, then the matters requiring determination were whether the dismissal was “not consistent with the Small Business Fair Dismissal Code” (s.385(c)) and, if the answer to that question was ‘no’, whether she was otherwise “unfairly dismissed” (s.385(b)). Subsequently the Commission would consider what, if any, relief ought flow from that conclusion. It was not contended, and I am satisfied, that there was any issue concerning any dismissal by way of “genuine redundancy” (s.385(d)).
The Applicant represented herself at the hearing. The Respondent was represented by Kate Burgess of counsel, with permission for representation having been granted at a previous mention hearing. At that same mention hearing, I also corrected the name of the Respondent to that stated above and, following consultation with the parties, determined that the matter would proceed by a hearing (s.399).
The Applicant gave evidence on her own behalf. She also filed witness statements for Ms Agata Cornale and Ms Angela Boschert (both former employees of the Respondent). The Respondent called Mr Calum McKinnon, Ms Sheree McKinnon (both owners of the Respondent), Ms Bronwyn Williams and Ms Tara Haby (both current employees of the Respondent). All witnesses were cross-examined, albeit some more briefly. Each party filed written submissions.
General observations
The critical events in question concern an exchange that occurred on 6 May 2022. The main protagonists to that event were the Applicant herself and Mr McKinnon, one of the owners of the Respondent. I will return to that event below but, by way of a high-level summary, there was a heated argument between the Applicant and Mr McKinnon that day, after which the Applicant left and did not return.
In reply submissions filed on 4 August 2022, the Applicant submits “she had no alternative but to resign”. The balance of those submissions indicate that the dismissal was being primarily alleged on the basis of a “forced” resignation within the meaning of s.386(1)(b), although it was put more generally that there was a termination on the employer’s “initiative”, suggesting reliance on s.386(1)(a) as well. I have assumed both are relevant to the Applicant’s application.
Notwithstanding that the key-event concerns what was said on 6 May 2022, and the context in which it was said, both parties led a reasonable volume of historical evidence - including allegations of prior or similar conduct. To put that in context, the Applicant’s primary witness statement was about two and half pages in length – the first one and a half pages of the statement addressed what I consider to be historical claims of poor treatment. The additional witnesses called by the Applicant were entirely directed at such ‘historical’ matters. The relevance of the parties’ ‘historical’ evidence (as I describe it), in-part depends on the purpose for which it was adduced.
On this basis, the Applicant’s case is presented more akin to the final straw breaking the camel’s back. There was also an element comparable to a tendency evidence submission, which was to the effect that if Mr McKinnon behaved in the way Applicant alleged throughout the course of her employment – then the Applicant’s contentions regarding the events on 6 May 2022 should be more readily believed. Aspects of the Applicant’s evidence from the two witnesses she called also had the purpose of demonstrating that the Applicant was of good character, in the sense that the Applicant was easy to work with and a good worker.
The Respondents also led historical evidence, albeit alleging poor behaviour of the Applicant. The purpose in doing so was somewhat different. Primarily, the purpose was to provide context to the meeting on 6 May 2022 (which the Respondents contend was initiated by Mr McKinnon as an attempt to manage poor behaviour by the Applicant).
Aspects of the Respondent’s materials are also relied upon to show prior poor conduct of, and warnings issued to, the Applicant demonstrating that there was no unfair dismissal (in the event that the Applicant was found to have been dismissed). That material would also be potentially relevant to remedy in the second scenario.
With those observations, I do not consider that the witness evidence called by the Applicant (other than her own) is sufficiently probative for any of those relevant purposes. Before I commence with the broader factual narrative and my findings, I will briefly explain my conclusions regarding those two witnesses.
Agata Cornale
Ms Agata Cornale was a former employee of the Respondent. She commenced working for the Respondent in around 2016 or maybe 2017, although she could no longer recall.
Ms Cornale’s statement, which was tendered, was a one-page statement dated 25 October 2019. At the time she gave evidence, she could no longer recall whether she prepared the statement on that date, although she said that 25 October 2019 was the last day she worked. I infer she prepared it on, or shortly after, 25 October 2019. She prepared it herself.
The substance of Ms Cornale’s evidence was about angry outbursts (I will use that term as shorthand) she witnessed Mr McKinnon engaging in. She identified four different events. The timing of the events were not specified, even by year. Moreover, on her evidence, each of the outbursts were directed at her, not the Applicant. The evidence shows the Applicant was only present for one of those events. For that event, the Applicant apparently admonished Mr McKinnon for his “tone”.
I do not consider Ms Cornale’s evidence is sufficiently probative for any relevant purpose.
Angela Boschert
Ms Angela Boschert was a former employee of the Respondent. She commenced working for the Respondent in March 2016 and resigned in July 2020. Her statement, which was tendered, was a one-page statement dated 23 June 2022. Her statement was prepared by herself for the purpose of the proceeding.
The substance of Ms Boschert’s statement is essentially twofold. First, Ms Boschert deposed that she found working with the Applicant “very rewarding”, with a “great working relationship” and the Applicant never “demanded” matters from other staff.
Second, she deposed she witnessed “some very disturbing verbal abuse” by Mr McKinnon towards the Applicant. She did not believe that abuse was warranted, let alone justified “flying off the handle” in front of other staff and customers. However, no instances - let alone time, date or even month or year, the staff member(s) involved, or importantly what was said – are described. She also stated that the Applicant was not the only staff member on the “receiving end” of Mr McKinnon’s outbursts, although again no instances are described.
With some hesitation, I am prepared to accept from Ms Boschert’s evidence that Mr McKinnon, in a period between March 2016 and July 2020, had engaged in some form of angry outbursts toward the Applicant “at times”. Although, without knowing the context they were made, let alone what was actually said, I am unable to be satisfied Ms Boschert’s evidence rises to such a level that it meaningfully advances the forensic purposes it appears to have been adduced for.
Factual findings
The Respondent bought the store in 2012 from the previous owner. The business is a small business, with about 6 employees.
The store has a small restaurant as part of the business. All staff have similar duties, which include serving customers, preparing food, cleaning, and restocking. Staff do not supervise or manage each other – the managers are the two owners, Mr and Mrs McKinnon.
The Applicant commenced working for the Respondent in September 2017.
Allegations – 2017 to 2021
The Applicant’s witness statement states that, when she started (i.e. around 2017), Mr McKinnon would “scream” at her for, by way of example, “not stirring the gravy right”. Mr McKinnon denies the event (and the Applicant restates that it did happen in her reply witness statement). Neither witness was examined about the specific events and no other witness gave evidence about them. I note that the Applicant’s statement says there were a few incidents but “not all of them I wrote down”. No notes of the events were recorded and, except for the first incident, the dates of the allegations were no more specific than from the year 2017 to (possibly) “the 1st 2 years” (i.e. about 2019).
The evidence does not sufficiently satisfy me of these allegations, let alone that Mr McKinnon’s conduct was such that he was continually or at least routinely abusive. There are many permutations, and context is important. I cannot find whether (on the Applicant’s case), Mr McKinnon “screamed” at “the top of his voice”, or raised his voice, or said nothing at all. I don’t know if he admonished (in a reasonable way) the Applicant and she took that criticism badly.
The Applicant says that three team members left “because of” Mr McKinnon. I accept that Ms Cornale’s evidence supports that conclusion in respect of herself, but Ms Boschert’s does not.
I also note that the period of time being referred to here is, perhaps, to late 2019 (the extent of Ms Cornale’s time as an employee) and possibly to mid 2020 (being the end of Ms Boschert’s tenure).
The Applicant also gave evidence for matters that appear to be in the period after Ms Boschert had left. According to the Applicant, she asserts that, “about 2 years ago” (i.e around 2020) Mr McKinnon was “put on medication” to control his temper. She says that if he had “forgotten” to take medication or would “lower his dose”, she might “cop the brunt of it” (being a reference to his temper). I do not consider this evidence helpful. To the contrary, it is largely speculative and purports to explain matters it is improbable she would know about (the medical effect of medicine) or would not even know at all (e.g. forgetting to take medicine).
Mr McKinnon agrees he was prescribed medicine to control his anxiety but denies (credibly, in my view) the other matters.
The Applicant gives two specific examples of further conduct, one in April 2021 and the other in December 2021.
The first event concerned a request by Mr McKinnon for the Applicant to turn on another fryer. She says that when she didn’t (because it wouldn’t be needed), Mr McKinnon engaged in an outburst toward her, and in front a customer, as she was told in effect to “put the fucking fryer on”.
Mr McKinnon’s account is quite different. He agrees he asked her to turn on the fryer. He says the Applicant responded “I don’t need it on it’s under control”, whereupon he said “Can you just do as you are asked for once and turn the damn fryer on?”. Mr McKinnon then turned the fryer on and he says she “seemed” extremely angry for a time afterwards to the point that he eventually said “If you don’t calm down, I will send you home”.
Mrs McKinnon, who was present, was cross-examined about the event. She does not refer to swearing, although her evidence was brief. I do not consider this allegation established.
The allegations for the events of December 2021 were similar in tenor (i.e. an outburst with swearing), although the triggering event was the Applicant arriving late for work. Mr McKinnon denies the event and says further that the other staff member (who had apparently called in sick) was not rostered that day and did not call in sick. I do not consider this allegation established.
The final event - prior to the key events of 6 May 2022 - occurred at some time possibly in late 2021. It wasn’t a complaint about Mr McKinnon’s conduct as such, but more in the nature of a complaint to the effect that the Applicant considered it was not “fair” that Mr McKinnon spoke to her about the Applicant’s conduct toward another staff member. While no dates were specified by the Applicant, Mr McKinnon describes an event on 11 December 2021, when he said another staff member “left early the day before upset”. The event he describes appears to be the one described by the Applicant.
The Applicant’s complaint was that Mr McKinnon “waited for me to arrive at work” (being the day after the other staff member went home). The Applicant’s complaint was that Mr McKinnon said he hadn’t yet spoken to the other staff member and yet he nonetheless believed that staff member went home because of the Applicant’s treatment of her. Mr McKinnon essentially agrees, and said his version of the conversation was “[the staff member]’s been going home and saying she’s not feeling well but I think it’s because you’re being aggressive in how you speak to her.”. The staff member had only just recently finished school. According to Mr McKinnon, the Applicant described the staff member as “lazy” and has no “initiative”. The Applicant denied in examination calling her “lazy” but agreed she had used the description regarding “initiative”.
Mr McKinnon also says he stated to the Applicant to the effect that “If you have problems with her, come to me about it so I can address them.”. Mr McKinnon said he called that staff member the same day to ask if she was feeling unwell because of the Applicant, and the staff member said it was. In this respect, Mr McKinnon’s perceptions were borne out.
Mr McKinnon says on 5 February 2022, the other staff member in question was working until about 11.30am when she left “in tears”. She resigned on 7 February 2022. The Applicant says she resigned for another job. In a text message exchange between the other staff member and Mr McKinnon on 8 February 2022, the staff member wrote of her decision to “bring forward my resignation”, consistent with the Applicant’s understanding she was leaving anyway, albeit she also wrote in the text message “As I don’t feel my mental stability and physical health can withstand other day”. Mr McKinnon replied to the text messages and wrote (among other matters) “I do apologise as I had spoke to [the Applicant] and thought she had improved. I have let you down”. That staff member was not called to give evidence.
Mr McKinnon then says the following day, 9 February 2022, he spoke to the Applicant about the matter and told her (among other matters) that the staff member resigned because of the Applicant’s bullying. Mr McKinnon also gave evidence that he said the Applicant needed to “have a look at yourself” and “If it’s not different next time I will have to let you go.” The Applicant denies the conversation.
I am satisfied that Mr McKinnon did raise these matters with the Applicant. The text message he received and sent the day before provides context suggestive of the fact that he considered there was a serious issue and, in those circumstances, I am satisfied he raised it.
For completeness, Mr McKinnon gave evidence that five staff members of his staff had been (in Mr McKinnon’s words) “bullied and mistreated” by the Applicant. Three of those people were not called as witnesses, one of whom was the staff member described above who resigned on 7 February 2022.
Ms Tara Haby gave evidence. She was a staff member who began working for the Respondent in about 2018. She said after about a year, she began to “bump heads” with the Applicant. She described a specific event in June 2021 to the effect that Ms Haby would start one task, then was told by the Applicant to start another, and that would then repeat. Ms Haby became upset and walked out of the store for a few minutes “to collect myself”. Mr McKinnon said as result of that event, he put the Applicant and Ms Haby on separate shifts (a matter all witnesses agreed). Mr McKinnon says that when he separately spoke to the Applicant about the matter, the Applicant said Ms Haby needed to “toughen up” (which the Applicant denied saying). Ms Haby also said that on a different occasion, the Applicant called her “useless”. Ms Haby was cross-examined about those matters. I accept her version of events.
Ms Bronwyn Williams was called to give evidence. Before working for the Respondent, she has worked in childcare for about 22 years. She commenced working for the Respondent in March 2022. She describes various events, albeit some at a level of generality, of what she says was poor conduct by the Applicant toward her. They included aggressive or terse statements like “I’m doing that; you don’t do that”. Ms Williams says she didn’t say anything back for these incidents, although she wanted to.
Another incident in late April 2022 involved the cleaning of fridges. Ms Williams says the Applicant asked her to “do the fridges” and, unlike the previous occasions, Ms Williams decided to retort and asked (sarcastically) “Are you sure I’m capable of doing it?”. This then descended into more of an argument. Mr McKinnon, who was nearby, intervened and said to the effect of “That’s enough” and that each of them have “had your say”. Ms Williams says she apologised to Mr McKinnon. She also said “Jodie kept mouthing off” and Mr McKinnon said “Jodie started grumbling to me”, although neither gave specifics. Mr McKinnon then said to the effect to the Applicant “That’s enough, let it go”. Ms Williams says the words used were “Shut up, you’ve had your say.”. The Applicant gives a broadly similar version, although said it ended with Mr McKinnon saying “Shut the fuck up, Jodie”. I prefer Ms Williams’ version to the extent of differences.
Ms Williams said the Applicant did not speak to her for a week following that event. I accept the substance of that evidence.
On another occasion, although the timing isn’t clear, Ms Williams says the Applicant came up behind her and made an “aggressive gesture” with her hands and Mr McKinnon, who evidently also saw it, said to the effect there’s “no need for that”. Specifics were not provided of the gesture and why it was “aggressive”, although the Applicant agrees she “frowned or made some kind of face gesture”. While the Applicant agrees Mr McKinnon told her to stop, she says the context was very different and that Ms Williams “laughed” about the gesture as though it was a joke. I do not accept Ms Williams laughed about it and prefer Ms Williams’ evidence about that event.
On 5 May 2022, Ms Williams was serving a customer. She says she was writing down the order and then the Applicant came across and “snatched” the order out of her hand and said to the effect “You’ve written it down. You don’t need to tell me what you need.”. When cross-examined, Ms Williams affirmed her statement. The Applicant disputed those events, although I prefer Ms Williams’ evidence to the extent of the differences.
On 5 May 2022, Mr McKinnon says the Applicant went into the office area where he heard the Applicant ask Mrs McKinnon to help finish making a coffee. Mr McKinnon interjected and said “Bronwyn [Williams] was out there” and gave evidence that (in his view), the Applicant was treating Ms Williams as though she did not exist. He says, and I accept, that was why he had a meeting with the Applicant the following day.
I would also record that so far as Mr McKinnon gave evidence about concerns expressed by other staff members, unless those witnesses were called to give evidence, I accept that evidence shows Mr McKinnon’s belief as to those matters but not as to prove their truth.
The first events of 6 May 2022
There are two parts to the events of 6 May 2022. The first concerns an initial meeting between Mr McKinnon and the Applicant. There was then a short break before a second encounter – an argument – occurred.
The initial meeting began at around 9am on 6 May 2022, being shortly after the Applicant arrived for work that day. Mr McKinnon asked her to come into the back office as he needed to have a chat with her.
There are conflicts between the two witnesses as to the content of this meeting, although certain aspects are agreed.
Mr McKinnon describes saying the meeting was about Ms Williams and “You don’t speak to her at all when on shift and make it a very uncomfortable workplace”.
The witnesses generally agree, and I find, there was a specific mention about the events of the day before (described above, where the Applicant was admonished for not asking Ms Williams to assist with coffee). While the details do not exactly align, both witnesses gave evidence to the effect - and I find - that Mr McKinnon said, or asked why, the Applicant did not like “Bronwyn” [i.e. Ms Williams] and possibly other employees. The Applicant said she disagreed with the assertion that she didn’t like Bronwyn, and in fact said she was a “lovely lady”. I prefer Mr McKinnon’s version of events for this part. It is corroborated in part by Ms William’s evidence that, for the week prior, the Applicant “wouldn’t speak to me”. That issue also reflects the very reason why Mr McKinnon called the meeting and I consider the Applicant was downplaying that problem.
The Applicant’s evidence, which I accept, is that she said to the effect that it wasn’t “fair” that Mr McKinnon was attacking her without getting the full story first. She said that Mr McKinnon said nothing to Ms Williams after the incident with the fridge (i.e. about a week earlier, as described above, as best as I can discern the timing of that event).
The Applicant’s evidence is that, by this stage, she felt she was being “attacked”. I disagree that she was being attacked, but I accept the Applicant was honest regarding how she felt.
On each of the two witnesses’ evidence, the Applicant said that she was doing her job although Mr McKinnon said that part of her job is working as a team with other employees and that she was not doing that. I find that part of the discussion occurred, although the timing in the narrative was not clear.
I find that the next part of the initial meeting involved the Applicant saying she was going to take her 10 days’ worth of booked holiday and to see her son in Perth. The Applicant gave evidence she said “I would take this time to decide weather (sic) I wanted to stay here or not”. I accept something to that effect was said. Mr McKinnon gives evidence the Applicant said “I’ll work until Thursday and go on holidays and let you know if I’m coming back”, which the Applicant accepted she said in cross-examination.
The Applicant’s evidence was that Mr McKinnon asked what she was going to do and she said “no, I’ll take the time” (to think about it when she was away). On her version, Mr McKinnon also said more forcefully “I fucking need to know now”. Mr McKinnon does not include that detail, although I accept he said it. The Applicant says, and I accept, she then said to the effect “You are not listening. I will work until next Thursday, take my 10 days off and think about it. And if I choose to leave then I won’t leave you in the lurch. I’ll give you 2 weeks notice.”
Mr McKinnon says, and I accept, that the Applicant got up to leave the meeting at one point but he told her to the effect to stay because “we need to sort this out for everyone’s sake”. While the details are in conflict, I am satisfied he said those words.
The parties agree, and I find, that the final element of the conversation involved the Applicant getting up to leave and Mr McKinnon saying to the effect “Don’t go banging and clanging and making everyone uncomfortable”. The Applicant says Mr McKinnon also said at the end of that statement to the effect “… or you can fuck off home”. Mr McKinnon denies that and said his words were “…if you can’t work take the day off”. I prefer the Applicant’s version.
When the Applicant left the meeting, Ms Williams says (and I accept) the Applicant ignored her after Ms Williams said “good morning”. Ms Williams says the Applicant went outside and cleaned the fuel bowsers, sent a phone message, and started restocking the fridges. I accept those matters, as do I accept Ms Williams’ evidence that the Applicant was peeling carrots in a way that enough peelings were ending up on the ground and Mrs McKinnon said to put them into a container because they were going onto the floor.
I would record here that I find (and the Applicant herself states) she was in a state of anxiety. The Applicant says she was shaking and went to the bathroom to try and calm down. Ms Williams and Mrs McKinnon agree she went to the bathroom.
I also find that, before the heated argument in the second conversation that was soon to follow, the Applicant was seriously considering resigning. Her oral evidence in respect of the first conversation held with Mr McKinnon on that morning included the following:
“Right. So, at this point in time in the conversation, you are seriously thinking about resigning? Well, yes, with what - with what I’d been putting up with for the last eight months, absolutely.”
The second events of 6 May 2022
The second part of events of 6 May 2022 then occurred following the Applicant’s return from the bathroom. The events that followed were witnessed by four persons, being the Applicant, Ms Williams and Mr and Mrs McKinnon. Unsurprisingly, the chronology and recollections do not exactly align between those witnesses, although there are a number of common components. I make my findings about them below.
Upon her return from the bathroom, the Applicant stated “I can’t do this I need to go home for the day”.
Mrs McKinnon then said to the effect, “You do what you need to do”.
Ms Williams states that Mr McKinnon “came out because of the noise” (which I infer is a reference to him not being in the immediate kitchen area where this was occurring). As to the “noise”, Ms Williams also described the events as an “argument” and Mrs McKinnon described them as a “heated argument”. The exact timing Mr McKinnon joined isn’t perfectly clear, although I find it was very close to the beginning of the events I have described. The Applicant’s evidence indicates, and I find, Mr McKinnon was present when she said she needed to go home. It is possible he asked what was going on and the Applicant repeated she couldn’t “do this” and needed to “leave”.
According to Ms Williams and Mr McKinnon, I find Mr McKinnon asked to the effect “what’s wrong?” or “what’s going on?”.
Mr McKinnon says the Applicant said “I can’t say anything without getting offended”. The Applicant denies these words. Neither of the other two witnesses refer to them and I accept the Applicant’s denial.
I find that the Applicant then said to the effect that “I need to see my boy” and that she had not “seen him for 2 years”.
What then was said by Mr McKinnon was somewhat more contentious between the parties regarding the exact words, although I do not consider the differences ultimately matter.
According to Mr McKinnon, he said:
“I don’t give a fuck about you not seeing your son. We all have things going on. Sheree might have cancer. It doesn’t give you the right to treat people like shit. You need to accept responsibility for your actions. I’ve tried to help you.” (‘Sheree’ is the first name of his wife, Mrs McKinnon.).
According to Ms Williams, he said: “I don’t give a fuck about your son. I’m worried about Sheree”.
According to Mrs McKinnon, he said: “I don’t give a fuck about you not seeing your boy. Everyone has problems Jodie. She [meaning me] might have cancer”.
According to the Applicant, he said: “Fuck your son, she might have cancer. She might have cancer”. In oral evidence, the second reference to cancer was “She might have fucking cancer”. I note also in the Applicant’s Form F2, she said this was repeated twice, a detail not reflected in her statements.”
I find that Mr McKinnon said “I don’t give a fuck about your son”, not “Fuck your son”. I also find he said “I’m worried about Sheree. She might have cancer”, although it would appear from the Applicant’s evidence she might have misheard “Sheree” for “she” and not appreciated who Mr McKinnon was referring to at the instant, although I consider it tolerably clear in context it would have necessarily been either his wife, Sheree, or Ms Williams (being the only two people in the room to whom the designation ‘she’ would make sense) and most sensibly his wife.
At that time, Mrs McKinnon was being investigated for cancer, although this was not a matter previously known by the Applicant.
There is some difference between the witnesses as to whether Mr McKinnon said additional words. On his statement (and in part reflected by Mrs McKinnon’s statement), he also said directly after stating his wife might have cancer that:
“It doesn’t give you the right to treat people like shit. You need to accept responsibility for your actions. I’ve tried to help you.”.
I accept Mr McKinnon said those words, although it appears that they were not heard by the Applicant. I would note that at this particular point in time, the argument (already heated) was close to its zenith and it is quite possible that everything being said by the main protagonists was not fully heard and responded to in a neat or linear way.
At this point, the Applicant was walking over to get her bag to leave. I accept this matter, as it was a specific matter that Mr McKinnon and Mrs McKinnon each affirm.
The Applicant and Ms Williams each indicate that Mr McKinnon then asked “Are you resigning”. Mr and Mrs McKinnon do not have this element, but I accept he asked the question. Ms Williams’ account doesn’t actually describe the Applicant picking up her bag (and other aspects of the words said are described in part in a slightly different order) but she refers to Mr McKinnon having said “Well, are you just going home? Or are you resigning?”. Her recollection makes more sense if the Applicant – having already said she wanted to go home – was picking up her bag to leave.
The words said next are also in contention. According to the Applicant, Mrs McKinnon said (in answer to Mr McKinnon’s question about resignation), “Yes, she is” and that Mr McKinnon replied to her “she doesn’t have the balls to quit” and then “shouted” that again. In cross-examination, the Applicant gave the following evidence:
“‘You can shove your job up your fucking arse’? You said that? Yes, after he said, ‘You don’t have the balls to resign’, which was like - yes, anyway, once he said that, that’s when I got my back up and said, ‘What, I don’t have the balls to resign? You can shove your job up your arse’ and left”.
Mr and Mrs McKinnon did not describe that in their statement (and it was clear from how the case was put that they denied saying it). Ms Williams’ statement did not refer to the alleged statements regarding the “balls to resign”. She was specifically cross-examined on that statement, and her evidence was she could not recall. Having regard to the highly memorable nature of the statement and that it was “shouted”, I doubt she would fail to recall it if heard and she was able to hear the argument clearly. I consider that Ms Williams was an honest witness, doing her best to give evidence about what she heard said that morning. I do not find that the words alleged were said.
What is largely undisputed following Mr McKinnon’s initial question – i.e. “Are you resigning?” – is the Applicant shouted (towards Mr McKinnon) words to the effect that “you can shove your job up your fucking arse”.
Mr McKinnon says he then asked “Is that your official resignation?” Mrs McKinnon gives similar evidence. The Applicant denies Mr McKinnon asked this. Ms Williams does not describe it, although I consider it was said (with or without the gloss “official”) given the context of what had just been said and the (undisputed) statement which follows next.
Mr McKinnon deposes, and I accept, that the Applicant then said “Yes, I’m quitting” and then to the effect that “I have two statements with my solicitor ready to go you”. The Applicant denies she said “I’m quitting” or referred to a “solicitor”. As to the first, however, she initially conceded those words were said in cross-examination, albeit she later denied it.16 I find the words were said and, indeed, were more likely in the context of just being asked if her collecting her bag was her “resignation”. As to the reference to a “solicitor”, that was consistently attested to by the other three witnesses and I was satisfied it was said.
At the time of this argument, the Applicant did not have a solicitor engaged (a matter she confirmed in her oral evidence). In relation to the two “statements” referred to, one was a reference to the statement by Ms Cornale and the other was to a statement by Ms Boschert. While I accept that the Applicant had not seen Ms Cornale’s statement by 6 May 2022 and that Ms Boschert’s statement did not yet exist, she had had enough discussions with the two of them to believe that they would provide a statement if asked.
The final words spoken were by Mr McKinnon, who said to the effect “go your hardest” or “go for your life”, which was a response to the threatened “statements” with the Applicant’s “solicitor”. The Applicant then walked out. Her evidence was that she did not feel like she had any other choice but to leave that day. There was no evidence to suggest that she ever changed her mind.
Following the events of 6 May 2022, the Applicant did not return to work. It would appear that the Applicant did not attempt to contact either Mr or Mrs McKinnon about any return to work and neither of those two contacted her in the days that followed.
I would briefly record evidence of matters following that event. While the matters are not directly relevant to the question of “dismissal”, I consider them relevant to any potential relief. Ms Williams deposes that it is her view, that work at the Respondent has “been completely different” since the Applicant left, in a positive way regarding the “atmosphere”. I accept that reflects her view. Ms Haby states she is “relieved” the Applicant no longer works at the Respondent, a matter I also accept.
Mr McKinnon also says that he subsequently contacted the staff member who quit in February 2022 and told her that the Applicant had quit and asked if she would like to return. On 9 June 2022, that former staff member returned to work with the Respondent.
Applicable principles
Section 394 allows for a person, who has been “dismissed”, to make an application that they were dismissed in support of a remedy for unfair dismissal. Satisfaction that a person was “dismissed” is a jurisdictional requirement under s.385(a).
The term “dismissed” is defined in s.12 of the FW Act by reference to s.386. Section 386 is as follows:
“386 Meaning of dismissed
(1)A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2)….”
In Quirk v Construction, Forestry, Maritime, Mining, and Energy Union [2021] FCA 1587 (Quirk), Perram J stated in respect of s.386(1)(a) that:
“216 The Dictionary in s 12 of the FW Act defines ‘dismissed’ as having the meaning set out in s 386. It provides that a person has been dismissed if ‘the person’s employment with his or her employer has been terminated on the employer’s initiative’. A termination will be on the employer’s initiative if the act of the employer directly or consequentially results in the termination: Mahony v White [2016] FCAFC 160; 262 IR 221 (‘Mahony’) at [22] citing Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (‘Mohazab’) at 205-206.”
At paragraphs [222] – [223] of Quirk, Perram J also stated:
“222 It is established that the use of the passive verb ‘terminated’ does not require the legal event which ends the relationship to be the employer’s. Thus in Mohazab, the employer accused the employee of the theft of an item of stock. It invited him to resign otherwise the police would be called in to investigate. The employee resigned. The question was whether the termination of the employment relationship was at the initiative of the employer. It was held, notwithstanding the fact that it was the employee who had brought the employment relationship to an end by resigning, that what had occurred was a termination of the employment at the initiative of the employer (and hence a dismissal). The correctness of this analysis was affirmed in a considered obiter dictum by the Full Court of this Court (Jessup, Tracey and Barker JJ) in Mahony at [21].
223 The question at hand is the meaning of the word ‘terminated’ in s 386(1). What that provision requires is two things: (a) an initiative of the employer; that (b) results in the termination of the employment relationship. The provision does not require the employer to pull the trigger but only to load the gun. In my view, the provision is expressed in such a way that it is agnostic as to the precise means by which the employment relationship comes to an end. Its focus is upon, however it might have ended, at whose initiative this occurred.”
In respect of s.386(1), a Full Bench of this Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 considered some of the circumstances where resignation (particularly ‘heat of the moment’ resignations) might be considered under either limb of s.386(1). The Full Bench stated:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1). There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2). A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
“Conduct”, as the term appears in s.386(1)(b), includes an act or omission: FW Act, s.12.
In Barkla v G4S Custodial Services Pty Ltd (2011) 212 IR 248 ABB; [2011] FWAFB 3769 a Full Bench cited, with evident approval, the following statement from an early decision of the Full Bench of the Australian Industrial Relations Commission in Doumit v ABB Engineering Construction Pty Ltd (unreported, AIRC (FB), N6999, 9 December 1996):
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”
In Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 (Koutalis) – subsequently followed by Burley J in Dahdah v Platinum Distributors Australia Pty Ltd (No 2) [2022] FCA 416 - Rares J stated (all original emphasis):
“43. The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at 179 [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) [2004] HCA 35; 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]]. (emphasis added)
44. In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:
In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight. (emphasis added)
45. This consideration also bears on the question of whether, in the circumstances, Mr Pollett had been constructively dismissed within the meaning of s 386(1)(b) of the Act. That provided that a person will have been dismissed if he or she 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.”
As to the operation of the exceptions in s.386(2), a Full Bench majority in NSW Trains v Mr Todd James[2022] FWCFB 55 recently clarified that the question of whether a person has been “dismissed” is determined by satisfaction of either limb of s.386(1). At [34], the majority stated “Section 386(2)(c) clarifies that s.386(1) does not apply to certain circumstances. It does not give rise (by implication or otherwise) to a category of dismissal that is separate to s.386(1).”
Consideration – dismissal
Section 386(1)(a)
While I apprehend that the Applicant’s primary case is that she was “forced” to resign (i.e. s.386(1)(b)), I will first consider whether the Applicant was dismissed at the initiative of the employer within the meaning of s.386(1)(a).
At the second meeting on 6 May 2022, I consider that the Applicant conveyed in clear terms she was quitting her job. Assessed objectively, there is little doubt in my mind that her statement to the effect “You can stick your fucking job up your arse”, coupled with the action of getting her bag to leave and then leaving, conveyed that resignation in direct and clear terms. If there was doubt, she specifically confirmed “I’m quitting” before finally walking out with a further threat of legal action – the “statements” ready to go – made that clear.
There is no doubt that the circumstances were made in the “heat of the moment”, in the sense that there was a heated discussion taking place. However, this is not a case of an employer opportunistically accepting a resignation in circumstances where a retraction of a purported resignation was on the cards. I consider that it is tolerably clear from the decision of Rares J in Koutalis that the factual matter to be determined is whether in fact the employee has, when assessed objectively, resigned. There is no evidence that would satisfy me that the Applicant did not, as a matter of fact, wish to resign. While her repeated evidence was that she felt she had “no choice”, it was clear that she intended to resign and, more relevantly, objectively did so.
While there were no discussions between the parties following the resignation (perhaps where a retraction might have been sought), the situation is some distance away from that before Rares J in Koutalis. In that matter, the plaintiff, Mr Pollett, had verbally resigned in the morning and then sought to retract that resignation that very afternoon. He also turned up to work the next day in uniform. Notwithstanding Mr Pollett’s somewhat “agitated” state at the critical meeting in question and purported retraction only hours later, Rares J was satisfied that, objectively, Mr Pollett’s statements at the end of a discussion that he was going to go and start his own business (before walking out) made it clear he had resigned. In this respect, the purported retraction was of no effect, given that the resignation had been accepted.
Other evidence before the court in Koutalis indicated that Mr Pollett’s existing state of mind on the morning of his resignation was to the effect that he had decided to leave and he had “had had enough of dealing with [his employers] Mr and Mrs Koutalis.” Objectively, Mr Pollett effectively communicated that intention to his employer. In this latter respect, and similar to the matter in Koutalis, the Applicant here was giving very strong signals that her employment was close to an end. She had specifically communicated to Mr McKinnon on the morning of 6 May 2022 that she was in the process of deciding whether to leave or not.
In my view, if (as was the case in Koutalis) a conclusion can be reached that, assessed objectively, there was a resignation, then it is unnecessary to consider whether a period of time might have been required for that resignation to be retracted. I consider that all the circumstances before me allow me to be satisfied that the resignation was effective at the time it was given. Even if a ‘cooling off’ period was expressly given, the evidence does not satisfy me that a different position would have been arrived at.
Justice Rares did not otherwise consider that the employer had “contrived, provoked or sought to engineer” the resignation. In this respect, I have considered whether the employer’s conduct here was of such a character the purported effect of the resignation might be vitiated by such conduct of the employer.
I do not consider that, in all the circumstances, the employer contrived, provoked or sought to engineer a resignation. Firstly, I do not consider the anterior events in the months and years referred to in the Applicant’s evidence warrant a conclusion that the Respondent contrived, provoked or engineered the resignation on 6 May 2022. I accept that the Applicant was unhappy.
The Applicant’s unhappiness was aggravated on 6 May 2022, as a result of the initial meeting with Mr McKinnon. In that meeting, she had already indicated she was considering leaving.
After brooding on the matter following the initial meeting on 6 May 2022, the Applicant decided to leave for the day and, somewhat abruptly, said exactly that. Mr McKinnon was entitled to try and clarify if she was leaving for the day or if she was never coming back. That was met with a non-answer about the Applicant wanting to see her son.
While neither of these two witnesses struck me as being overly offended by the use of swear words, Mr McKinnon’s outburst that followed nonetheless reflects very poorly upon him. Mr McKinnon should have behaved better and if he is unable to manage his temper in response to provocation, it might be better for the Respondent to leave primary responsibility for those matters with the other owner, Mrs McKinnon.
Specifically, saying that he did not “give a fuck” about the Applicant’s son (which although was also followed by additional important words said, albeit evidently not properly received or heard) was plainly inappropriate. I accept that the Respondent was a very small business and he was evidently dealing with his own significant personal stress as well as legitimate concerns about managing evidently poor relations between employees in a small work environment. However, allowing the situation to descend into an event where each of the two were yelling at each other mismanaged the situation.
I do not consider, however, the circumstances in their totality would impugn the resignation. It follows that I conclude that the Applicant was not dismissed within the meaning of s.386(1)(a).
Section 386(1)(b)
As to s.386(1)(b), the inquiry is directed to whether a person was “forced” to resign “because of conduct, or a course of conduct, engaged in” by her employer.
As Rares J makes clear in his Honour’s decision, the matters informing the factors he identified in Koutalis, and as stated in Sovereign House Security Services Limited v Savage [1989] IRLR 115, bear on the question of whether a person was constructively dismissed for the purpose of s.386(1)(b): Koutalis, [45].
Identification of the “conduct” or “course of conduct” is necessary.
The Applicant’s reply submissions state, with reference to the 6 May 2022 events, that “As a result of that discussion” (my emphasis), the Applicant resigned. This suggests that the critical events were those during the second meeting on 6 May 2022 (and possibly the events directly leading to it). However, the Applicant’s evidentiary case is broader. She says in her witness statement, in effect, that she had been screamed at and belittled since she commenced in September 2017 and “unfortunately putting up with it over 4 ½ years took its toll.”.
I am not satisfied that the sole event was the second meeting on 6 May 2022 but, rather, the Applicant’s decision to resign was due to her perception of a combination of events leading up to it. So much is clear from the Applicant’s own evidence, let alone the context of the morning of 6 May 2022, which led to the Applicant’s abrupt decision to leave for the day barely two hours after starting work.
However, I am not satisfied that the state of evidence allows me to conclude there was a “course of conduct” occurring in the months and years prior to 6 May 2022 such that, combined with the events of 6 May 2022 themselves, she was “forced” to resign as a result of that conduct or course of conduct. I have set out my findings in relation to those matters earlier, which I will not repeat here.
Even if the specific statement by Mr McKinnon regarding the Applicant’s son was the key event, there are two further matters I consider relevant. The first is that that the conduct – the words used by Mr McKinnon and how they were said – were heard differently by the Applicant than what was fully said. I am not satisfied it would be appropriate to conclude that the Respondent forced the Applicant to resign based on only part of conduct that the Respondent actually engaged in (and in this case the worst part).
The second relevant matter is that the key conversation was the culmination of the events of that morning. It would be unrealistic to treat the final moments in isolation from the course of conduct of the day. I do not consider that the conduct, or course of conduct, of the Respondent on that day (even factoring the particular seriousness of the final moments) satisfies me that the Applicant was forced to resign. Compounding these matters, in my view, was the Applicant’s sense of unfairness in relation to Mr McKinnon’s upbraiding of her own conduct. The Applicant’s alleged conduct in relation to Ms Williams was the specific matter that Mr McKinnon called the meeting for on the morning of 6 May 2022. It is clear from the evidence that the Applicant did not consider this fair or correct. She substantively disagreed that the matters Mr McKinnon raised occurred or were issues at all. Taking the allegation that the Applicant was not speaking to Ms Williams, the Applicant contends she did so (a matter I do not accept that contention beyond the cursory minimum) and then, somewhat contradictorily, said it “it takes two to make a conversation.”.
As I have already indicated, the conduct of that day was originally focused on Mr McKinnon’s attempts to manage the Applicant’s performance. Those attempts did not prove successful and, to the contrary, the Applicant’s view was that the process was unfair, that she had not behaved poorly toward other staff (most recently Ms Williams). The initial discussion with Mr McKinnon caused her to brood, to become more anxious and, far from getting better during the course of the hour or so that she worked, they led the Applicant to abruptly deciding to leave.
I have described what happened above, which began with Mr McKinnon first seeking to find out if she was coming back, and then the argument that then quickly developed. As also noted, it is my view that Mr McKinnon’s manner and language reflected poorly upon him. However, that does not alter my overall conclusion that I am not satisfied that the Applicant was “forced” to leave.
As I am not satisfied that the Applicant was dismissed within the meaning of either limb of s.386(1) of the FW Act, it follows that the Applicant’s claim must be dismissed.
If there was a dismissal
If I am wrong about the above matters and it was the case, for example, that the Respondent was (contrary to my conclusions applicable for the circumstances of the present case) required to provide some form of cooling off period and, possibly, to take positive steps to ascertain if the Applicant wished to continue working, then I will briefly state my conclusions.
In that hypothetical situation, the Respondent relies upon the Applicant’s conduct toward Ms Williams as supplying a valid reason. The Respondent also relies upon the earlier conduct toward another employee, which was said to result in that employee resigning on about 8 February 2022.
In respect of the earlier conduct leading up to February 2022, I am not satisfied those events supply a foundation for me to be satisfied those matters were proven. While I accept that Mr McKinnon accepted the truth of them (and, in part, acted on them through discussions with the Applicant), the Applicant denied them and the employee in question did not give evidence. Mr McKinnon was only acting on what he had been told by that employee and her subsequent emotional state, not what he saw himself. So far as Mr McKinnon warned the Applicant about her conduct regarding those matters (and I note there is a dispute about that fact, too), I would need to be satisfied that the matters underlying the initial warning were established. I am not satisfied of those underlying matters to the requisite level.
I would briefly record then that it follows I do not consider that the Respondent can satisfy the requirements of the Small Business Fair Dismissal Code.
That leaves the events leading up to 6 May 2022 as a possible valid reason, namely her conduct toward Ms Williams. That evidence, much like the Applicant’s own evidence regarding her allegations towards Mr McKinnon’s prior conduct, were cast at a level of generality. I am not satisfied that the evidence reaches such a level to supply a valid reason for the Applicant’s dismissal. I also note that the Respondent itself did not consider those matters were sufficiently serious (at that point) to warrant dismissal. The outcome of the first meeting on the morning of 6 May 2022 was that Mr McKinnon was content for the Applicant to continue working, although it is clear he wanted the issues he perceived regarding the Applicant’s conduct toward other employees to improve.
In terms of other factors in s.387, I do not consider she was notified in clear terms that dismissal was contemplated: s.387(b). While improvements to the Applicant’s conduct was clearly a matter Mr McKinnon was seeking to achieve, the discussion during the initial meeting on 6 May 2022 kept shifting to other matters, including the Applicant’s upcoming leave. I do not consider a clear outcome arose from it, although I do consider it sufficiently clear that Mr McKinnon had expressed that he was unhappy with the Applicant’s conduct and wanted change. It follows from this conclusion I do not consider that the Applicant was notified of the reason for her dismissal: s.387(c).
There was no request for the Applicant to have a support person and I consider that factor neutrally: s.387(d). I do not consider that the termination related to the Applicant’s performance, as distinct from conduct, and the factors in s.387(e) do not arise.
The small size of the Respondent and a complete absence of human resources expertise and matters in the Respondent’s favour: s.387(f)&(g). Other than as set out above, no specific matters were drawn to my attention for consideration, although I have regard to the Applicant’s economic circumstances (which were not strong) and her 5 years employment with the Respondent.
In consideration of all the circumstances in s.387, I would conclude that, if I am wrong on the question of whether the Applicant was dismissed, then her dismissal would be harsh, unjust or unreasonable and, therefore unfair within the meaning of s.385.
In relation to what remedy would be appropriate following that conclusion, I consider that reinstatement would be plainly inappropriate. The Applicant’s own material criticising the Respondent, the size of the Respondent, and the concerns of other employees, make that conclusion overwhelming.
As to compensation, the Applicant contends she would have stayed in employment for around another 4 months. I do not accept that. I consider that the employment relationship had a period of days and, most generously (including factoring in the Applicant being away for pending leave), no more than 2 weeks.
While I am unable to express final views on the rights or wrongs of the Applicant’s conduct in relation to Ms Williams (and, indeed, earlier conduct referred to by Mr McKinnon concerning other employees), I consider there was enough material present for McKinnon to act upon and to try and address. That said, I consider that the evidence of Ms Williams, Ms Haby and Mr McKinnon do show a credible picture that the Applicant’s working relationship with (at least) Ms Williams and Ms Haby caused those two considerable stress.
What also appears to be the case is that the Applicant was unaware of her effect on others. I consider this lack of insight in part explains her sense of unfairness regarding Mr McKinnon’s attempts to counsel her about those matters. Nonetheless, those issues were not going away. Even if the Applicant returned to work for her next shift or shortly after, it should not be forgotten that she had walked out from her shift on 6 May 2022 solely on the matters of the initial meeting on 6 May 2022. Those issues, in my view, were far from resolved. The Applicant’s own evidence was that she was already seriously considering resignation. I consider that event highly likely, if not a possible dismissal arising from a further walkout the moment Mr McKinnon attempted to manage his concerns about the Applicant.
In these circumstances, in the event I was wrong on the question of “dismissal”, I would award the Applicant two weeks ordinary pay. I would not make any further deductions for contingencies given the shortness of that time.
Orders
The Applicant’s application is therefore dismissed. An order[1] to this effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
J Hall on her own behalf
K Burgess of Counsel for the Respondent
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
August 17.
[1] PR 747497.
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