Juliarna Clark v St Mary's College
[2025] FWC 119
•14 JANUARY 2025
| [2025] FWC 119 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Juliarna Clark
v
St Mary’s College
(U2024/8961)
| DEPUTY PRESIDENT BELL | MELBOURNE, 14 JANUARY 2025 |
Application for an unfair dismissal remedy - jurisdiction objection – whether dismissal or resignation – not a dismissal – application dismissed
On 2 August 2024, Mrs Juliarna Clark (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 Act). The Applicant alleges she was unfairly dismissed by St Mary’s College (Respondent / College) on 12 July 2024. The Respondent objects to the application, and says that the Applicant was not dismissed but, rather, that she resigned.
Section 390 of the 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 Act and had made her application within time.
The primary issue in contention was whether Mrs Clark was “dismissed”. Unless a person has been dismissed, they cannot be found to be “unfairly dismissed”: s 385(a). Whether a person has been dismissed is determined by s 386 of the Act. If Ms Clark was dismissed, then the issue for determination was whether the dismissal was harsh, unjust or unreasonable. The cessation of employment was not, and was not contended to be, a genuine redundancy and the Small Business Fair Dismissal Code was not applicable.
Section 386(1) provides:
“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”
There are exceptions to s 386(1) but none are presently relevant.
For the reasons that follow, I find that Mrs Clark resigned and did so voluntarily and without any undue or improper pressure or influence by the College. Her unfair dismissal application therefore fails.
The Applicant represented herself at the hearing. The Respondent was represented by S. Bunce of counsel, with permission for representation having been granted at a previous mention hearing. The Applicant gave evidence on her own behalf. The Respondent called Dr Darcy McCormack, the Principal of St Mary’s College. Each party filed written submissions.
Factual findings
The respondent is a Catholic co-educational residential college located adjacent to the University of Melbourne’s campus in Parkville, Victoria. The College primarily provides accommodation, meals, and academic support for about 160 students. The College has a workforce of about 29 employees, primarily housekeepers, maintenance staff and tutors. There are a small number of administration and management staff.
The day-to-day leadership of the College is by its Principal, Dr McCormack. Dr McCormack has been Principal since January 2015.
Prior to the COVID-19 pandemic in Victoria, the second-most senior position at the College was the Dean & Deputy Principal, who reported to the Principal. Historically, that position was a ‘live-in’ position, with the College providing accommodation to that person. During the pandemic, Dr McCormack had difficulty filling that position and, in particular, filling it with a live-in role. Up until about September 2022, the position of Dean & Deputy Principal was filled on the basis of it being a non-residential role. A separate role of Residential Coordinator became a live-in role, a situation which Dr McCormack considered was not ideal but it got the College through the pandemic challenges.
Mrs Clark’s association with the College goes back to about 2016. In that year, Mrs Clark commenced directing the College choir. This involved regular rehearsals during semester, in addition to the choir leading three mass services across each calendar year and entertainment at a further six College events spread across a typical year. I infer the frequency of these events were also impacted by COVID-19 issues. In about 2022, Mrs Clark commenced study for a PhD in Music.
In or around September 2022, the then Dean & Deputy Principal resigned to take up an opportunity elsewhere. Dr McCormack approached Mrs Clark and asked if she would perform as Acting Dean (but not Deputy Principal). The role involved 2 days a week work and Mrs Clark agreed.
Mrs Clark’s performance in the acting role continued for about 2 months, from October 2022 to December 2022. There was, I infer, discussion at some point throughout that period between Dr McCormack and Mrs Clark about the College’s intentions regarding a permanent appointment and whether Mrs Clark would be interested. She was interested and Dr McCormack arranged for an interview. The role was not advertised. In effect, Dr McCormack had identified his preferred candidate and, subject to the (likely) positive outcome in an interview, Mrs Clark would be offered the job.
Pausing there, it is convenient to provide my assessment about the witnesses at this point. Mrs Clark’s evidence was littered with deeply speculative assertions, typically seeking to impugn the motives of Dr McCormack. Much of Mrs Clark’s speculation was not based on views she held at the time, but that she had since developed either leading up to the end of her employment or thereafter. Taking her interview in 2022 with Dr McCormack as an example, the evidence indicates there was another employee at the time who might have been interested in the role offered to Mrs Clark. Dr McCormack had clearly formed the view Mrs Clark was the most suitable option and was proceeding on that basis. The interview was conducted by a panel of three, including Dr McCormack. The interview was conducted in the West Hall of the College. After the interview, Dr McCormack turned the hall lights off, which had coincided with the other (theoretical) candidate having walked past. The parties did not come into contact, although I would indicate that it was probably undesirable if they did (if only to avoid any potential sense of disappointment in the other individual if it was realised an interview was taking place). I would not even comment upon these events save that Mrs Clark makes the extraordinary assertion that
“the whole contrived avoidance was an early example of preferencing scheming tactics over openness and accountability; forcing me to resign is another example of attaining desired outcomes through theatrical, sneaky means without exercising due process.”[1]
Both witnesses were cross-examined. I found Mrs Clark’s assessment of a large number of matters was deeply coloured by her hindsight perception of events, of which the above example given is just one of several. Mrs Clark was not a reliable witness and was frequently unable to give straightforward answers to clear questions without making a speech about irrelevant matters or diverting on some tangent. By contrast, I considered Dr McCormack was an impressive witness, who gave his best attempts to answer questions clearly, making concessions where appropriate, and avoided self-serving embellishment. To be clear, I do not consider Mrs Clark was being dishonest or was deliberately embellishing her evidence but her perspective of matters (particularly motives of others) was so deeply skewed that I have no hesitation in accepting the evidence of Dr McCormack over Mrs Clark to the extent of any conflict. With those conclusions, I also observe that there were many matters of a factual nature where the witnesses were in agreement.
The interview was a success from Mrs Clark’s perspective, and she was offered the position of Dean. It is unclear whether salary was specifically discussed during the interview, although Mrs Clark says it was not. She says, and on this point I accept, she only saw the offered salary for the first time when she was provided with a contract.
I infer a proposed contract was given to Mrs Clark sometime shortly after the interview. The offer was for a full-time position, based on 38 hours per week. It would appear that the initial offer was for $85,000 per annum. I do not have that version (i.e. for $85,000) of the unsigned contract before me, although it does not matter as I infer it was substantially the same (other than salary) to the version ultimately signed by the parties.
Mrs Clark evidently considered that the role should be remunerated higher. To prosecute her case at the time, Mrs Clark prepared a PowerPoint presentation, which she presented to Dr McCormack in about early December 2022. The presentation was titled “DEANY DETAILS: The Dream” and was premised “Setting up a premise for Juliarna’s long-term happiness”. Among other matters, that presentation provided information about Mrs Clark’s existing salary expectations for her (then) primary work as a speech pathologist and singing teacher. The latter comparators contained salary estimates for a full-time role as between $103,000 and $118,000 per annum. A slide titled “The magic number” presented those figures as an hourly rate of “Around $52”. With that information being presented, Mrs Clark’s presentation contained a slide comparing “Scenario 1” and “Scenario 2”. Scenario 1 was described as the “Current Offer”, with reference to $85,000, “5 days- 38 hours” and a calculated hourly rate of $43. Scenario 2 was Mrs Clark’s proposal, which was a “4-day week”, based on the same salary of $85,000. In Mrs Clark’s scenario, 4 days was clarified to be 31.5 hours, leading to an hourly rate of $51.89.
During this presentation, Mrs Clark’s evidence is that the contract “on paper” would be for full-time hours but she would only be required to work a 0.8 fraction. I reject that evidence. Dr McCormack’s evidence, which I prefer, is that he suggested Mrs Clark could work from home one day a week when she needed to, but due to the College’s usual requirement that staff in that role be present for students, he asked Mrs Clark to be discrete about it.
Another matter that appears to have been discussed in connection with Mrs Clark’s travel was that she was offered access to the College “ensuite rooms”, of which there were two. It also appears that during this discussion, Mrs Clark referred to an apartment in the city that she and her partner owned, in which she would sometimes stay when she had late-night commitments in the city.
The College did not agree to Mrs Clark’s proposal regarding salary or hours but did decide to make a slightly elevated salary offer, being $88,000 before superannuation. That offer was accepted and, on 16 December 2022, the parties signed an employment agreement (the Employment Agreement).[2] It is unnecessary to set out the full terms of the Employment Agreement, but it included the following:
· The minimum hours were 38 per week;
· The College was required to pay the Remuneration Package, which was $88,000 plus superannuation (and which could be varied from time to time). The Remuneration Package contained no provision for accommodation, and nor did the agreement or Position Description otherwise make provision for such (a matter of relevance to Mrs Clark’s case, to which I will return);
· The term of the agreement was 36 months;
· The duties were those set out in a Position Description, which was a separate document;
· The Location of work was at the College premises in Parkville; and
· Other benefits were provided for, including meals and reimbursement for certain expenses.
From the commencement of her role as Dean, Mrs Clark worked full-time hours. At that time, and throughout her time as Dean or Acting Dean, Mrs Clark lived about 50km from the College. She commuted to work.
The “ensuite rooms” also appear to be called the “isolation rooms” or “iso rooms” more colloquially, because they were primarily used for students with COVID-19. Mrs Clark does not submit, and in any case I do not find, that there was any contractual obligation or entitlement of employment to use the ensuite rooms, although it is tolerably clear that the College was content for Mrs Clark to regularly use them on occasion (presumably subject to availability, given there were only two of those rooms). In effect, the access to those rooms was a gratis offer that the College was happy to make.
Mrs Clark used the ensuite rooms occasionally. The exact detail was not before me.
More attractive accommodation at the College was evidently in rooms called “apartments”. Up until about February 2023, a scholar in residence had been staying in one such apartment (Apartment). The circumstances of Mrs Clark taking up access in the Apartment are disputed but it is not necessary to resolve that. Sometime after February 2023, Dr McCormack granted Mrs Clark access to the Apartment, which she took up. There was no entitlement to use it (other than, perhaps, a bare licence or licence terminable at will). However, Dr McCormack stated from the beginning that the College might need it back at short notice, as he was looking to appoint a new scholar in residence.
From around that time in 2023 through to early 2024, Mrs Clark was the sole person who used that apartment (i.e. the one vacated by the scholar in residence in February 2023), although in practice she only used it one or two nights a week. She was not charged any rent. As with the ensuite rooms, it was provided gratis.
With reference to any room usage, it is clear that there was no entitlement on Mrs Clark’s behalf to use or exclusive use of any room and this position was objectively clear. While certain rooms were vacant, they were available for occasional use but if a need for the room to be used otherwise arose, that other need was likely to take priority.
In about November 2023, Mrs Clark and Dr McCormack had a discussion in which, among other matters, Mrs Clark raised her dissatisfaction with the performance of some other employees at the College. Also in that conversation, Mrs Clark made a request for a salary increase to the range of $115,000 to $120,000. In response to the salary increase request, Dr McCormack discussed that request with the Remuneration Committee and it was shortly after agreed that Mrs Clark was to receive a salary increase to $91,000. Mrs Clark was also separately paid for some weekend work she had been performing.
When Dr McCormack reported back to Mrs Clark with the salary increase, Mrs Clark says he tried to persuade her to reduce her working hours to three days a week. I do not accept that evidence. I accept that there was a previous discussion about engaging a new position of a ‘Pastoral Assistant’, who would take on aspects of Mrs Clark’s role (thus reducing her role). However, I accept that Dr McCormack did not consider that the Dean role could practicably be moved to a part-time role and this was not his intention.
In early 2024, Dr McCormack learned that the previous occupant of the apartment room referred to above would be returning (and seeking accommodation). Pausing here, Mrs Clark asserts that Dr McCormack’s description of that person as a returning ‘scholar’ was, according to Mrs Clark, “deliberately misleading”.[3] This assertion by Mrs Clark is another illustration of gross exaggeration. The individual in question specialised in economics, was qualified at the PhD level, and was intending to perform teaching work in that role. Mrs Clark states he is a ‘full-time worker, not a scholar’ and the arrangement was a ‘rental agreement’. Describing that person as a scholar was not misleading, let alone deliberately so. The individual did undertake work within the College for the assistance of students but even if that were not the case, the description of ‘scholar’ is a broad description evidently common within the College and was not intended to have any legal or technical meaning. I have not sought to address the numerous assertions and claims in Mrs Clark’s evidence, because it is not necessary to do so and many on their face rise no higher than assertion or speculation based heavily on hearsay (including hearsay as to the state of mind of others). By way of just one further example, Mrs Clark says that email correspondence from her to Dr McCormack in 2023 was responded to “quite swiftly and on topic” but by 2024 responses were rare and, when made, “were extremely short, with empty phrases like ‘go well!’ and far too many explanation marks.”[4] The unsupported assertion in that extract alone is presented as one element of the changing (and supposedly increasingly toxic) work relationship — it is unpersuasive.
At around that time, and I infer due to the fact that Dr McCormack had apprised Mrs Clark of the returning scholar, he had showed Mrs Clark a smaller apartment with ensuite behind Dr McCormack’s own premises on the College. That apartment is part of Dr McCormack’s personal residence as Principal of the College. As events transpired, that apartment was soon used for personal reasons by Dr McCormack through a series of visiting family members and was not available for Mrs Clark.
As a consequence of the return of the above individual, the apartment room that Mrs Clark had been using was no longer available from 1 March 2024. The arrangement with the scholar involved a 9-month lease, meaning the room would not be available until December 2024. Nonetheless, Mrs Clark did retain access to the ensuite rooms, although it appears (and this is not levelled as criticism) that Mrs Clark did not view those rooms as favourably.
Mrs Clark describes these events as one of a number of factors implemented by Dr McCormack to “force” her to resign. I reject that claim. There was nothing of the sort. It is entirely rational and proper for the College to use that room for income-generating purposes (even at modest rent), coupled with the benefits to the College of having an academic in residence.
Mrs Clark also asserts that there was a wider pattern or plan designed to force her out. In her Form F2 application, Mrs Clark states the position thus:
“I was one full year into a 3-year contract when I pointed out the job was underpaid and the workplace was toxic. Dr McCormack was livid, and a campaign of surreptitious bullying commenced almost immediately. As part of this, he used my failing health as the lever to make the job unmanageable. He proceeded to take back access to an apartment which had been part of the arrangement that made the initial job possible, straight after I angered him, so Jan 2024. This increased the driving on top of the work hours to an extra 15 hours, making my time away from home in excess of 60 hours each week”.[5]
I have addressed the issue of taking back of the apartment. I will address the other issues briefly. The alleged ‘toxic’ workplace rises no higher than an allegation. Dr McCormack’s belief was the opposite, albeit he acknowledged that there were instances from time to time of matters involving other employees that needed to be addressed. However, Mrs Clark’s evidence provides no serious evidence or detail. In one email she wrote on 21 May 2024 (the day she confirmed her resignation), Mrs Clark stated that “It has been both the best job I’ve had and the worst job. The students, [and three specific employees] are fantastic to work with, but it’s also very toxic at times, with not enough depth in the leadership team, little clarity around processes, and absolutely no appetite for introducing anything new”.[6] Even if I accepted — which I do not — that there was “not enough depth in the leadership team, little clarity around processes, and absolutely no appetite for introducing anything new”, that is a long way from toxic.
The allegation of a “campaign of surreptitious bullying commenc[ing] almost immediately”[7] is unsustainable and not supported by any credible evidence. The credible evidence before me, namely that of Dr McCormack, demonstrates the opposite.
The claim of being “underpaid” is not established with any credible evidence. The evidence does show that Mrs Clark believed her role should have been more highly remunerated but the College’s different position on her remuneration is not evidence of underpayment. A disagreement by the College to accede to Mrs Clark’s repeated requests for increases in remuneration is not conduct designed to “force” her to leave.
Notwithstanding, it is quite clear that Mrs Clark’s perception of the issues of her hours, pay and travel was weighing heavily on her, as was a particular difficulty she was having at the time with an injured knee (injured in 2019 but was evidently becoming exacerbated in 2024), together with her long commute.
On 16 May 2024, Mrs Clark wrote the following three-page letter to the College (original emphasis, with some aspects omitted due to references to third parties):
“Dearest Darcy and members of council,
It was with a most heavy heart that I write to inform you that I am unable to continue in a fulltime commitment to my beloved St Mary’s College. I truly enjoy being the Dean and have found all aspects of the role that are around supporting the development of our wonderful student body most satisfying and rewarding. I thoroughly enjoy working with Darcy, the administration team, the student leaders, the academic and residential tutors, the housekeeping staff, the kitchen staff, and the students at large. St Mary’s is an exceptional place to work, particularly in regards to the building up of others and engendering a culture of respect and inclusivity.
The only exceptions to an otherwise halcyon work experience over the last year and half, are a period of time last year where there was considerable stress in advocating for college in a HR/Worksafe issue and my sustained effort across 2023 advocating to Qamba for improved IT outcomes. Both these pursuits proved emotionally taxing and extremely time consuming, however they are not actually within my portfolios. This year I have deliberately focused on regular ‘Dean-ing’, and I have had an entirely positive experience of the actual work.
Last year, there was an apartment available that I used a couple of nights a week for staying over when I worked a late night and an early start. I regularly had my children dropped there on a Friday after school if [her husband] was working in town, and then when [a matter personal to her husband], Darcy’s generosity extended to allowing [her husband] to also freely access the apartment whether I was there or not. I am deeply grateful for the entire year’s access, as it was not anticipated and was not in my employment contract. However, the use of it from the start of my full time work here has served to mask the impacts of commuting to a full-time job in Parkville, from my home. (For context, I live in [a suburb about 50km distant], passing several of our regional students’ homes before arriving at mine.)
There is no longer a surplus apartment available and from January this year, I have been commuting daily. Darcy has been very kind to allow me one day working from home, which I routinely do on a Wednesday. This avoids ever having three long commuting days in sequence.
There are two issues combining to cause me to face up to admitting I live too far away to be in a fulltime role in Parkville even with one day a week working from home:
1. The cumulative effect of regular commuting of 3-4 hours for each day of attendance is proving too high a price to my ability to be present and supportive as a mother/wife (particularly whilst [omitted]), and,
2. there has been significant decline in my own mobility since I commenced, with a commensurate increase in pain upon standing and walking, which leaves me completely wrung out by the time I return home, impacting further on my ability to be an active caregiver for the time that I am at home.
To explain the second point, when I commenced the role in January 2023, I had been waiting for an appointment with the orthopaedic team at RMH since 2019. Thus, I commenced the Dean role with some fluctuating pain in one knee, and a leg that would give out from under me on certain turning movements, or if I walked on uneven terrain. I limped and could not run, and would definitely fall over if I attempted to walk across an uneven paddock; as you might expect, none of this unduly impeded my regular workday.
The decline since then has been significant.
You may remember that this time last year, I brought my horse Anouk down to West Garden, to introduce her to some interested international students who had never met a horse before and had not gone home for Mother’s Day. I recall that at that time, only one year ago, I wore a knee brace for support, but could still mount with James giving me a leg up. I rode Anouk bareback for a few minutes to demonstrate how you can control the horse from its back and show them how quiet this particular horse was. I believe that was the very last time I mounted bareback-something I used to do regularly, for a thrilling and restorative ten minutes of joy here and there in a busy week.
I have not been able to get my leg over a horse at all, or ride a bike, or swim, or perform a gig standing up, or walk any amount of steps, or even stand up from sitting without a stabbing pain, for at least the last six months, after developing significant pain and a severely reduced range of motion in my right hip. A recent MRI has indicated it is not irreversible ageing. Rather, a large tear in the labrum in my right hip is the cause of this reduced range of motion and increase in hip pain.
In addition to left knee and right hip damage, about three months ago I suddenly felt a new pain in my left heel (I assumed I had trodden on my son’s Lego and it was a bruise). An ultrasound has revealed a decent case of plantar fasciitis, likely caused by limping since the original knee injury in 2019.
I have articulated the above information about my mobility to explain how it has come to pass that it is now a significant problem, but also to show that it is fixable; upon the advice of my GP, I am now anticipating that with surgical intervention, I will return to being active and pain-free.
There are several levers that will be making a difference to my situation in the future.
1. Firstly, improving my mobility. Preliminary discussions with GP following recent imaging indicate that all my issues are eminently addressable with surgery; I have actual upcoming appointments with both a knee surgeon and a hip surgeon and am most hopeful of significant gains before the year is out. My first appointment with a surgeon is at the Epworth on June 13.
2. Secondly, the train station opening at Parkville. It will be on my train line and will provide an option of boarding at my local station and alighting at Grattan St, 35-40 minutes later, with peak hours having little impact. Long-term, this would make commuting for a fulltime position highly appropriate and manageable (it is due to be opened in 2025 with rumours of being ready for end of this year).
Given all of the above, I am asking college to consider a temporary reduction in scope and time fraction until the end of the year in anticipation of improved health and mobility by 2025.[8] I would like to reduce to 0.4, coming in for only two days each week, commencing as soon as possible.
If it is not possible, then as terribly sad as it makes me to even think of, please consider this my resignation, as I simply cannot cope with the physical discomfort of the long days, and need to be more functional in the hours that I am at home.
If it needs to be a resignation, I hope it is not the end of my association with St Mary’s. I would relish returning to directing the College Choir at a once a week rehearsal, and would be happy to provide casual consults for the ACU Speech Pathology students or any students requesting help with academic writing and formatting. I have been individually consulting with quite a lot of RMIT students in this manner and find it very rewarding.
If I am resigning, I would appreciate the council giving consideration to allowing me to leave with two months’ notice, rather than three. I took a significant pay cut to undertake this role and leaving by July 15 would allow me organise well-paid work as a speech pathologist locally for a couple of days a week, to align with the start of Term 3 of the school year.
As a last point, I have found the College Council to be an inspirational collective of individuals with impressive depth of wisdom and knowledge in their respective fields, unified by a shared moral purpose, with each member demonstrating strong personal ethics and values in their conduct and discourse. I remain deeply impressed with the College Council and believe St Mary’s is in extremely capable hands with the current members. This made it disappointing that I am out of step with the council’s Remuneration and HR Committee, with their rejection of my earlier request to consider increasing the salary of this position to reflect the responsibilities associated with being the Dean. I felt there are many expectations around the role that are executive level in nature, including unpaid weekend work when required and the long notice period. Salary of $88k last year did not reflect to me an appreciation of the scope and requirements of the role, and is considerably under the salary of all other Dean roles around the crescent. Our Dean salary is considerably less than even Associate Dean roles attract at larger colleges. I would encourage the council to again consider where you pitch the salary of the Dean here for future employees to ensure that there is a feeling of being appreciated in the role.
When my body is working for me again, and Parkville Station opens, should the role of Dean of St Mary’s College again arise, I would be applying in a heartbeat; it is a unique and wonderful student community and it is an honour to work in a capacity that supports the growth of the hearts and minds of these remarkable and inspirational young people.”[9]
It suffices to say that the picture of Mrs Clark’s tenure at the College presented by her letter of 16 May 2024 is very, very different to the “toxic”, “scheming” workplace she asserts in her evidence. I consider that the letter of 16 May 2024 far better reflects the reality of Mrs Clark’s state of mind about such matters up until that time, and indeed the substance of her employment (including access to accommodation and her hours), and that her view on such matters has only changed since the request in her letter was not accepted and she formalised her resignation.
The above letter was provided by Mrs Clark to Dr McCormack at a meeting in a nearby café on 16 May 2024, which was a Thursday. Mrs Clark was clearly keen to hear whether Dr McCormack would agree to the reduction in time fraction. He did not make a decision either way but did indicate his view that the College would not be in a position to reduce or split the role. Dr McCormack encouraged Mrs Clark to take the weekend to consider it further.
Dr McCormack consulted internally within the College board. The effect of those discussions was that the College did not agree to split or reduce the role.
Mrs Clark did not attend work on Friday, 17 May 2024. On Monday, 20 May 2024, Mrs Clark was in her office at the College and Dr McCormack spoke with her. In that discussion, Mrs Clark was told that the College would not be agreeing to Mrs Clark’s request and would have to accept her resignation. Mrs Clark asked for a further 24 hours.
On 21 May 2024, Mrs Clark was again in the office. Dr McCormack approached her to ask “how’s it going?”. Mrs Clark says of this event that Dr McCormack rolled his eyes, which Dr McCormack denies (and I accept his denial). Nonetheless, what is now clear is that Mrs Clark’s assessment of the College had substantially changed from the tenor of her correspondence only days earlier. At 11.56am, Mrs Clark wrote an email to Dr McCormack titled “Go ahead”, and stated:
“Hello Darcy,
I have done what I needed to do. You can go ahead and accept my resignation.
Congratulations.Kind regards,”[10]
Mrs Clark wrote a separate email on 21 May 2024 (I have referred to this email above), not copied to Dr McCormack to two of the board members which contained a lengthier explanation and was titled “Resignation by design”, reflecting a very different attitude to that expressed in her letter days earlier.
Dr McCormack responded to the email sent to him shortly after receiving it and stated “I accept your resignation with much sadness.” To that, Mrs Clark responded:
“Unlikely, since you are manoeuvring me into resigning.
But nonetheless, if it is going to happen, best put it in writing.”[11]
In her letter of 16 May 2024, Mrs Clark wrote “If I am resigning, I would appreciate the council giving consideration to allowing me to leave with two months’ notice, rather than three.”[12] There is no dispute that Mrs Clark continued to work thereafter and, consistently with her request, her undisputed final day was 12 July 2024.
Consideration
The respondent relies on the principles stated by the Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/a Bupa Aged Care Mosman v Shahin Tavassoli (‘Bupa’).[13] There was no suggestion those principles were disputed. At [47] of Bupa, the Full Bench states:
[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 probable 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.
There is no question that there was objective conduct of resignation. The resignation was foreshadowed in the lengthy letter on 16 May 2024, on the basis that a resignation would follow if Mrs Clark’s request to change her hours was not accommodated. Mrs Clark’s request was not agreed to, which was communicated to her clearly. Mrs Clark formally confirmed by email on 21 May 2024 her resignation. That resignation did not take effect immediately but Mrs Clark continued to work for a further 2 months, substantially in accordance with the request in her letter. Her employment ended at the end of that period.
I do not consider that Mrs Clark was presenting her case on the first limb of s 386(1). Her resignation was real and genuine. It was not made in the ‘heat of the moment’ but followed clear reflection and deliberation.
Rather, Mrs Clark’s case was on the basis that it was “forced” by conduct or a course of conduct by the employer. The alleged conduct said to force Mrs Clark’s resignation has been described in greater detail above. There was no conduct engaged in by the College that in fact forced Mrs Clark’s resignation. It is unnecessary to repeat what I have stated above. The reasons Mrs Clark resigned were those stated in her letter sent on 16 May 2024. In short, they were the fact that Mrs Clark was finding the commute too much of a burden in light of her personal circumstances, and which had been further exacerbated by her injuries. No doubt these attitudes were impacted by Mrs Clark’s assessment of the salary she ought to have been paid. None of those matters were conduct or a course of conduct by the employer.
Mrs Clark was not “dismissed” within either limb of s 386(1) of the Act. It follows that Mrs Clark cannot meet the requirements of s 385, which provides that to be “unfairly dismissed” she must have been “dismissed”.
Order
As Mrs Clark was not unfairly dismissed, her application must be dismissed. An Order[14] giving effect to these reasons will be issued separately.
DEPUTY PRESIDENT
Appearances:
J. Clark on her own behalf
S. Bunce of counsel for the respondent
Hearing details:
2024.
Melbourne:
October 16.
[1] Exhibit A1 Witness Statement of Juliarna Clark at [6].
[2] Attachment DM-1 to Exhibit R1 Witness Statement of Darcy McCormack.
[3] Exhibit A1 at [13(b)].
[4] Exhibit A1 at [19].
[5] Form F2 – Application for Unfair Dismissal Remedy, Courtbook at 4 (‘Form F2’).
[6] Annexure 8 to Exhibit A1.
[7] Form F2, Courtbook at 5.
[8] Emphasis in original.
[9] Annexure 7 to Exhibit A1.
[10] Annexure DM-7 to Exhibit R1.
[11] Annexure DM-7 to Exhibit R1.
[12] Annexure 7 to Exhibit A1.
[13] [2017] FWCFB 3941; 271 IR 245 (Bupa), at [47].
[14] PR780196.
Printed by authority of the Commonwealth Government Printer
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