John Hotchkiss v Amana Living Incorporated T/A Amana Living

[2012] FWA 9451

[2012] FWA 9451

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Hotchkiss
v
Amana Living Incorporated T/A Amana Living
(U2012/12376)

COMMISSIONER WILLIAMS PERTH, 7 NOVEMBER 2012

Termination of employment - jurisdiction.

[1] Mr Hotchkiss, the applicant in this matter has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Amana Living Incorporated T/A Amana Living (Amana or the respondent).

[2] The application was the subject of a conference before a Fair Work Australia Conciliator however the matter has not been resolved.

[3] The application says the alleged dismissal took effect on 12 October 2011. The application was made on 14 August 2012.

[4] The application has been lodged more than 14 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made. The respondent objects to the application on the grounds that the applicant resigned and in any event the application has been made after the 14 day statutory time limit.

[5] The parties were invited to, and have provided, written submissions and supporting material regarding their respective positions on these issues.

Consideration

[6] The relevant sections of the Act are set out below.

“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) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

“s. 394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[7] In summary only a person who has been dismissed can make an application such as this to Fair Work Australia for a remedy for alleged unfair dismissal. A person who has resigned but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer is deemed to have been dismissed. Applications must be made within 14 days of the dismissal but Fair Work Australia can allow a further period for an application to be made only if there are exceptional circumstances considering the factors prescribed in s. 394 (3) of the Act.

Was the applicant dismissed?

Background

[8] The respondent is the principal aged care agency for the Anglican Diocese of Perth.

[9] The respondent delivers a range of aged care, accommodation and community services including nursing homes, hostels, retirement villages and dementia hostels.

[10] The applicant was employed in early 2010 and at the time of his employment ending was working as a Community Support Worker.

[11] In October 2011 the wife of a client for whom the applicant was caring complained to the respondent regarding the applicant’s conduct towards her. The respondent undertook an investigation into the complaint.

[12] Consequently on 10 October 2011 the respondent wrote to the applicant specifying the details of the allegation made against him as follows:

“On Monday 3 October, Mrs Aziz reports that you put your hand on her back and pushed her towards her husband and said, ‘You can shave him yourself.’ This upset Mrs Aziz and she became angry and shouted at you saying you had no right to touch her.”

[13] The letter said that the investigation conducted had established that the complaint against the applicant was different from an incident that he had reported.

[14] The letter advised the applicant that he had been stood down on pay pending a disciplinary meeting to be held on 12 October 2011 to discuss the issue. The letter advised the applicant that he should bring a representative and that potentially this meeting could result in a warning being issued or termination due to the seriousness of the matter.

[15] The applicant has at all times denied the allegations against him and contended that Mrs Aziz had acted in an aggressive manner towards him.

[16] The applicant attended the disciplinary meeting on 12 October 2011 without a representative.

[17] The applicant said he had made the decision to resign and provided a written resignation letter to the respondent confirming this decision.

[18] The resignation letter is handwritten and says:

“Given a choice of terminating services or giving my resignation I choose to resign.”

[19] The resignation letter is dated 12 October 2011.

[20] Later that day at 2.54 p.m. (attachment JPH7 to the respondent’s submissions) the applicant sent an email to Marita Sealey, the respondent’s General Manager Home Care, which says amongst other things:

“I don’t know you but today I was forced to give my resignation.

...

Mrs Aziz abused my client. Her right. I did not and reported this to my coordinator. For that I am sacked.”

[21] Later that day at 7.10 p.m. the applicant again emailed Ms Sealey as follows:

“I have decided on reflection not to resign.”

[22] The following day, 13 October 2011 at 8.54 a.m, Ms Sealey replied to the applicant as follows:

“As you have resigned, you are not to contact any of the Amana Living clients or their families for any reason.”

[23] Later that day the respondent sent a letter to the applicant confirming his resignation had been accepted.

[24] The respondent argues the applicant resigned before the respondent had made a final decision on the issue under investigation. The respondent denies that the applicant was constructively dismissed as he had no alternative but to resign. The respondent denies the applicant was advised to resign or threatened that if he did not he would be terminated.

[25] The applicant in his application says that he was notified of the meeting that was to be held on 12 October 2011 less than a day before that meeting and he sought to obtain representation but was unable to. The applicant says that he explained this to the respondent’s Operations Manager, Mrs Wright, but she refused to postpone the meeting.

[26] The applicant says that it was Mrs Aziz who for a lengthy period was abusive and aggressive towards him and he at no time pushed her. The applicant says he did gently move her to one side so that he could get out of the area where Mrs Aziz was being aggressive toward him. The applicant says that at the time he notified his Supervisor, Leonie, of what had occurred.

[27] The applicant says that he should not have resigned but should have let Amana dismiss him.

Consideration

[28] The respondent in its form F3−Employer’s Response to Application for Unfair Dismissal set out in considerable detail the jurisdictional objections to this application, being that the applicant was not dismissed but had resigned and that even if he had been dismissed the application was made beyond the 14 day statutory time limit.

[29] The applicant has been invited by letter dated 7 September 2012 to provide information relating to the jurisdictional objections raised by the respondent and any matters to be considered by the Tribunal under s. 394 (3) of the Act.

[30] In this case the applicant admits he resigned and the respondent has provided a copy of his letter of resignation that the applicant provided on 12 October 2011.

[31] The applicant however argues that the Tribunal should ignore the fact that he tended a letter of resignation and instead decide that although he resigned he was forced to do so because of conduct, or a course of conduct, engaged in by his employer.

[32] The onus in these circumstances is on the applicant to demonstrate that he was forced to resign. The applicant needs to provide evidence demonstrating this or at least put an argument asserting facts about the employer’s conduct that support a finding that he was forced to resign which would warrant the Tribunal holding a hearing to determine whether the applicant’s assertions are correct.

[33] In this matter the applicant has put very little information before the Tribunal about the conduct of the employer leading up to his resignation.

[34] I accept that the documentary evidence provided by the respondent, including the applicant’s resignation letter and the emails he sent to the respondent the next day, demonstrate that at the time the events unfolded the applicant felt pressured to resign.

[35] The applicant however has put nothing of substance before the Tribunal as to what the conduct of the employer was that left him with no choice and so forced him to resign.

[36] The fact that at the time the applicant felt he should resign in itself does not determine the question as to whether the employer’s conduct had forced him to do so.

[37] As the Full Bench of the Australian Industrial Relations Commission held in O’Meara v Stanley Works Pty Ltd, PR973462 at pn 23, 11 August 2006, Giudice J, Watson VP, Cribb C),

“There is a requirement of some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. … In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the [employee] had no effective or real choice but to resign.” (Underlining added)

[38] The Tribunal is required to objectively consider the conduct of the employer and whether the employee’s response, to resign, was the probable result.

[39] Further the Tribunal should not readily accept the subjective perception of the employee. As was explained by the Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Ltd v Doumit, Print N6999 at pn 12, Munro J, Duncan DP, Merriman C,

“...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.”

[40] What is known here is that the respondent was in the process of investigating a complaint against the applicant. The respondent directed the applicant to attend a disciplinary meeting regarding the matter. The applicant was unable to obtain representation for that meeting and the meeting was not adjourned by the respondent as requested by the applicant. The applicant tendered his resignation in writing.

[41] An employer advising an employee in writing of an allegation against them, noting the employee’s version of events was different from the allegation, expressing concern as to the seriousness of that allegation, advising the employee they are stood down on pay, explaining that the outcomes of a disciplinary process range up to and including termination and arranging a meeting to deal with the issue is not at all unusual and is not conduct that forces and an employee to resign from their employment.

[42] In this case the respondent’s letter of 10 October 2011 which detailed the above also says:

“Should we be unable to resolve the concerns to my satisfaction at this meeting, at least a warning will be issued. It may also be necessary to review your roster or your services may be terminated due to the seriousness of the matter.”

[43] This demonstrated to the applicant at that time that the respondent had not reached a final conclusion on this issue and that if disciplinary action was to be taken it could be a warning, a roster change or termination of his employment.

[44] None of this indicates the applicant’s decision to resign was other than voluntary however reluctant he may have been. The applicant has not explained any conduct by the respondent that objectively meant that he had no effective or real choice but to resign.

[45] The applicant has not put any information before the Tribunal that shows that the respondent’s conduct forced him to resign. Consequently in my view the applicant was not forced to resign. The applicant has not been dismissed and so my conclusion is that he is unable to make this application.

[46] Accordingly this application should now be dismissed.

[47] In the circumstances of this matter however given the application has been made out of time it is appropriate in all the circumstances for me to consider the alternative question and that is, if I am wrong in my determination above and the applicant was dismissed by the respondent should a further period of time be allowed for him to make this application?

Are there are exceptional circumstances?

The reason for the delay

[48] The only information the applicant has provided as to the reasons for the delay in making this application are that he has been suffering from severe anxiety/depression/financial pressure and he has been under medication and seeing a psychologist. He has also advised that his partner became seriously ill after his resignation and that he has lost a considerable amount of weight which he has since regained following treatment.

[49] The applicant has not provided any medical evidence regarding these matters to satisfy the Tribunal that he was rendered unable to make an application such as this because of these illnesses and difficulties for the period of the delay being approximately 9 months.

[50] On a number of occasions since his employment ended the applicant has raised the grievance he has regarding the circumstances surrounding his resignation by correspondence with the respondent and with a number of other individuals and organisations such as the Health Care Council.

[51] The applicant says he has applied for as many as 57 jobs since his employment ended.

[52] The fact that the applicant has been capable of pursuing his grievance as he has and was able to apply for a number of jobs indicates that he was at various times since his employment ended in October 2011 capable of making an application such as this.

[53] There is no indication as to whether the applicant was aware of the statutory 14 day time limit however as is clear from all previous authorities not being aware of this requirement is not an acceptable explanation for a delay in lodging an application.

[54] This application has been made approximately 9.5 months after the 14 day time limit for making such applications had passed. The applicant has not demonstrated at all that there is an acceptable explanation for this delay or any significant part of this delay.

Any action taken by the person to dispute the dismissal

[55] As noted above, the applicant has on a number of ocassions raised his grievance by email and letter regarding how his employment ended with the respondent and others since he has been dismissed.

Prejudice to the employer (including prejudice caused by the delay)

[56] There is no evidence that there is particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[57] The Tribunal when considering the merit of the substantive application for the purposes of an extension of time application such as this is not expected to conduct a full hearing not is it to decide the rights or wrongs of the application. In determining the merit of the substantive application consideration would be given to the allegations made against the applicant, his response to those allegations, the investigation conducted by the respondent, the respondent’s decisions and the reactions of the applicant at the time. Clearly from the information provided by the applicant and the respondent there are arguments on both sides about all of these issues. Consequently the merits of the application for the purposes of this extension of time application are a neutral consideration.

Fairness as between the person and other persons in a similar position

[58] There is no evidence of persons in a similar position to be considered.

Summary

[59] The onus is on the applicant to persuade Fair Work Australia that a further period should be allowed for him to make this application beyond the statutory time limit of 14 days. I have considered the information provided by both parties and find that none of the circumstances that the applicant has brought to the attention of the Tribunal, neither by themselves nor together, are such as would amount to exceptional circumstances.

[60] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made.

Conclusion

[61] To conclude, I have found above that the applicant resigned but was not forced to do so because of the conduct of the respondent. Consequently the applicant was not dismissed and so is not able to make this application.

[62] If I am wrong on this and the applicant was dismissed then I am not satisfied that there are exceptional circumstances taking into account the matters identified in s. 394 (3) of the Act and so I would not allow a further period for this application to be made.

[63] Accordingly this application will now be dismissed and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 17 September 2012

Respondent, 5 October 2012

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