Kate Ludgate v West Australian Rifle Association Inc

[2016] FWC 771

[2016] FWC 771 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kate Ludgate
v
West Australian Rifle Association Inc.
(C2015/1746)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 4 FEBRUARY 2016

Application to deal with contraventions involving dismissal – jurisdictional objection alleging that application was lodged outside the statutory time on the basis that the applicant resigned her employment on 19 January 2015 – applicant dismissed on 10 January 2015 – jurisdictional objection dismissed.

[1] Mrs Kate Ludgate (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 18 February 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by the West Australian Rifle Association Inc. (WARA - the Respondent) on 10 February 2015 in contravention of the general protections provisions in the Act.

[2] WARA in its Form 8A – Employer Response to General Protections Application raised a jurisdictional objection, contending that Mrs Ludgate had resigned her position on 19 January 2015 and that her application had therefore been lodged nine days outside the 21 day statutory timeframe for lodgement specified in s.366(1) of the Act.

[3] The Commission issued Directions on 16 March 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the effective date of dismissal and the extension of time issue.

[4] The date of dismissal and extension of time issues were the subject of a telephone hearing on 17 July 2015. At the telephone hearing, Mr Steve Heathcote of counsel appeared with permission for Mrs Ludgate, while Ms Caroline Pellow appeared with permission for WARA. Mrs Ludgate gave evidence on her own behalf.

[5] For the reasons set out below I find that Mrs Ludgate was dismissed on 10 February 2015 and that her application was made within the 21 day statutory timeframe. WARA’s jurisdictional objection is therefore dismissed. Mrs Ludgate’s application will now be listed for a conference aimed at resolving the dispute.

Background

[6] Mrs Ludgate commenced employment with WARA as its Executive Officer on 22 July 2013. Mrs Ludgate was absent from the workplace for personal reasons (Mrs Ludgate was the victim of domestic violence) from either 8 or 16 October 2014 (the actual date is disputed but not material) until the cessation of her employment in early 2015, although Mrs Ludgate attended a WARA strategic meeting on 10 November 2014 while on personal leave. It is not disputed that Mrs Ludgate’s absence involved a mix of annual leave, personal leave and time off in lieu. Mrs Ludgate provided WARA with a medical certificate dated 11 December 2014 which stated that she had “a medical reason (or, as a caregiver) to be off work (or school) from Monday, 8 December 2014 and returning to work (or school) on January 19, 2015.” 1

[7] On 12 January 2015 Mrs Ludgate sent an email to WARA requesting that WARA consider the possibility of allowing her to work remotely. WARA contended that in that email Mrs Ludgate also stated that she was unable to return to work on 19 January 2015. Mrs Ludgate’s email was not put before the Commission by either party.

[8] Mrs Ludgate telephoned Ms Mary Brown, Chairman of WARA, on 19 January 2015. The details of that conversation are disputed. Mrs Ludgate contended that she contacted WARA to get directions as she had not received a response to her email of 12 January 2015 and that she was verbally advised that her position was no longer available. WARA, on the other hand, submitted that during the conversation Ms Brown indicated that working remotely was not a viable option given the seniority of Mrs Ludgate’s position, that Mrs Ludgate agreed that it was not a viable option and that Mrs Ludgate informed WARA that she would therefore be resigning.

[9] Following the conversation, Mrs Ludgate sent a text message to Ms Brown at 2:38 pm which stated:

“Mary would you mind if I could please have the opportunity to resign with WARA under my circumstances?” 2 (Underlining added)

[10] Ms Brown responded as follows (the time and date of the message is not indicated on the copy provided to the Commission):

“Hi Kate I would appreciate your notice of resignation due to personal circumstances effective immediately to allow us to progress with appointment …” 3 (Remainder of message not provided)

[11] Mrs Ludgate responded in the following terms (again, the time and date of the message is not indicated on the copy provided to the Commission):

“Thank you very much Mary – that is sincerely appreciated and also the offer for reference for me. I would like to please take the opportunity to resign effective immediately if at all possible will def be in touch in relation to handover etc. thank you so very much once again for your support and time and speak soon.” 4 (Underlining added)

[12] This was followed by a further text from Mrs Ludgate to Ms Brown (again, the time and date of the message is not indicated on the copy provided to the Commission) which stated:

“Sorry to bother again Mary – I’m just wondering if I will have any annual leave owing that I will receive and when I might be able to get this? Thanks once again and will hopefully get down to drop all off this week sometime.” 5

[13] Mrs Ludgate sent Ms Brown a further text message at 12.43 pm on 20 January 2015 in the following terms:

“Mary, just wondering if you can please confirm for me if I will be receiving any annual leave or termination payment entitlements and if so – when these might be likely to be received etc.? I’m needing to try and plan ahead and know my position at the moment. So sorry to bother you with this and look forward to hearing from you. Kate” 6

[14] Ms Brown subsequently responded to Mrs Ludgate by text message (again the time and date of the message is not indicated on the copy provided to the Commission) as follows:

“Hi Kate sorry I didn’t get back to you yesterday. Unfortunately with the leave etched paid to you over Christmas and subsequent leave without pay there is not a lot of leave to pay. You were advanced nearly 2 weeks since pay prior to Christmas. One week was replaced with toil. The othe 34 hours was an advance on entitlement based on your return and ability to accrue leave. As this is now not tre case the money paid in advance leave can be offset by accruals you have remaining so to cover neg sick have almost enough in annual leave and once offset there is no remaining leave to pay out. Will put in an email and send to you today. I can provide a separation certificate for you for Centrelink but need your letter of resignation to do that. Could you please send that to me today…” 7 (Typographical/spelling errors not corrected)

[15] In subsequent developments, WARA wrote to Mrs Ludgate on 30 January 2015. The letter read as follows:

“Dear Kate

Re: Resignation from position of Executive Officer of the West Australian Rifle Association.

Further to our discussions previously and final discussion earlier this week I wish to convey the deep regret that the WARA has in requesting your resignation from the position of Executive officer. While we understand and sympathise with the situation you find yourself to be in through no fault or design of your own and while we have been extremely accommodating over the last 4 months in particular, we now request your formal resignation to allow the Association to operate at full capacity.

The reason is that there are no further alternative solutions as discussed and outlined here are:

1. Inability to perform the functions of the office if Executive Officer – this has been the case since October 2014 and while we have worked with you over this time and provide support financially and in fulfilling the requirements of the role and have left your job open for your return, your inability to return to the role in Perth and your ongoing health issues have left us with no option.

2. Staff supervision – your absence has left the office junior on her own for most of the working week and the responsibility of managing staff and guiding their daily activities to members of the Executive Council who themselves work full time elsewhere and as the activities return to normal levels after the summer lull this cannot continue.

…

Furthermore we empathise with your current situation and understand this is not of your design. As discussed previously there may be the opportunity to return to a Membership Development role once this is established later in the year however for the time being there is no current opportunity for further employment with the WARA.” 8 (Underlining added)

[16] On 2 February 2015 Mrs Ludgate sent Ms Brown an email which stated:

“I am very concerned that the resignation was requested under the circumstances and felt this was an unnecessary request.

… am now able to return to work (which I have been able to since 19 January 2015) but now resume full duties as required in the office. So am now wanting to return to work ASAP.” 9

[17] Mrs Ludgate and Ms Brown continued to exchange text messages over the period 3 and 6 February 2015. At 1.12 pm on 9 February 2015 Mrs Ludgate sent the following text to Ms Brown:

“Hi Mary, As I have not received a response from you as requested and am able to return to work as stated previously (since 19th January), I will be returning to the office at commencement of business tomorrow, to resume full duties within my role of Executive Officer …” 10

[18] Ms Brown emailed Mrs Ludgate on the same day requesting that she attend a meeting on 10 February 2015 “to discuss your employment options.” 11 It was at that meeting that Mrs Ludgate alleges she was dismissed.

[19] As previously mentioned, Mrs Ludgate’s application was received by the Commission on 18 February 2015.

Did Mrs Ludgate resign on 19 January 2015 or was she dismissed at some later date?

[20] To determine whether Mrs Ludgate’s application was made within the statutory timeframe it is first necessary to come to a view as to whether she resigned on 19 January 2015 or was dismissed at some later date, e.g. 10 February 2015.

Mrs Ludgate’s case

[21] Mrs Ludgate submitted that her dismissal took place on 10 February 2015. In her written submissions, Mrs Ludgate outlined the series of events leading up to the cessation of her employment in similar terms to those set out above. With regard to the meeting of 10 February 2015, Mrs Ludgate submitted that she was dismissed at that meeting for the following reasons:

• the relationship was ‘non-recoverable’ because she had taken leave; and



• there was a risk of the situation which led to her absence recurring, i.e. she may need to take further leave as a consequence of further episodes of domestic violence.

[22] At the telephone hearing, Mrs Ludgate submitted that during her telephone conversation with Ms Brown on 19 January 2015 she was told not to return to work, characterising this as the beginning of a period of negotiations which did not come to any satisfactory conclusion. Mrs Ludgate further submitted, among other things, that:

• her text messages of 19 January 2015 were not a resignation but rather a defensive response;



• it was Ms Brown who sought Mrs Ludgate’s resignation;



• subsequent discussions between the parties meant that those text messages were not a resignation; and



• it was reasonably clear that as of 19 January 2015 the parties did not consider the matter concluded.

[23] Mrs Ludgate also drew the Commission’s attention to the minutes of the WARA Council meeting of 8 February 2015 which stated at Item 10, under the heading “Staffing issues Executive Officer and Accounts Administrator” that “Further to the above changes we were notified by the Executive Officer (Kate Ludgate) of her intention to resign in mid-January and have initiated the process of recruiting a replacement” (underlining added).

[24] In her witness statement 12 Mrs Ludgate denied that she had resigned due to an inability to return to work on 19 January 2015. Mrs Ludgate further deposed that at the meeting of 10 February 2015 she was dismissed and told to immediately return all company property and go away and come back with a deed of settlement.

[25] Key aspects of Mrs Ludgate’s oral evidence at the telephone hearing were that:

• in her telephone discussion with Ms Brown on 19 January 2015 another role was discussed after Ms Brown has indicated to Mrs Ludgate that she could not return as Executive Officer;



• the opportunity discussed was the Membership Officer role;



• while she did not accept that role, she had not completely ruled it out and asked whether she could think about it overnight;



• her text message of 19 January 2015 regarding resignation was caused by shock;



• she acknowledged that it was she who proposed in the telephone conversation with Ms Brown on 19 January 2015 that she resign, having done so given the reputational damage attached to being dismissed;



• at the time of the letter of 30 January 2015 she was still considering the viability of resigning and thought that she was still employed; and



• following the meeting of 10 February 2015 she definitely knew that she was no longer employed.

WARA’s case

[26] WARA maintained in its written submissions that Mrs Ludgate had resigned from her employment on 19 January 2015. To support that view, WARA also set out the series of events leading up to the cessation of Mrs Ludgate’s employment in similar terms to those outlined above.

[27] At the telephone hearing WARA, relying on Mrs Ludgate’s text messages of 19 January 2015, submitted that Mrs Ludgate had resigned on that date. WARA further submitted that the subsequent communications between the parties regarding Mrs Ludgate’s entitlements broke down as Mrs Ludgate’s final payout was not what she expected. As a result, WARA contended that Mrs Ludgate attempted to retract her resignation. WARA submitted that in those circumstances it asked for a formal resignation from Mrs Ludgate.

[28] As to the meeting of 10 February 2015, WARA described the meeting as a discussion aimed at trying to resolve issues and that 10 February 2015 therefore could not be deemed the effective date of dismissal.

[29] Responding to Mrs Ludgate’s submission regarding the WARA Council meeting minutes of 8 February 2015, WARA submitted that the notetaker may not have understood the terms of the discussion regarding Mrs Ludgate’s resignation.

Consideration of the issues

[30] The text messages sent by Mrs Ludgate on 19 January 2015 suggest that she had resigned on that day. That view, is reinforced by Mrs Ludgate’s oral evidence that it was she who proposed that she resign. However it is unfortunate that complete copies of all of the emails and text messages exchanged between Mrs Ludgate and Ms Brown over the period 12 to 30 January 2015 were not put before the Commission. As a result, key aspects of the submissions are unable to be corroborated, e.g. whether Mrs Ludgate stated in her email of 12 January 2015 that she was unable to return to work on 19 January 2015.

[31] I find it perplexing that if WARA considered Mrs Ludgate had resigned on 19 January 2015 why it simply did not rely on her text messages of that date to process her resignation as opposed to pressing Mrs Ludgate to submit a formal letter of resignation. Beyond this, the language used in WARA’s letter of 30 January 2015 suggests that it was WARA that had initiated the discussions regarding resignation for the reasons outlined in that letter.

[32] Further, while WARA described the meeting of 10 February 2015 as an attempt to resolve the issues between it and Mrs Ludgate, it is significant in my view that it did not dispute Mrs Ludgate’s evidence that she was told at that meeting to prepare a deed of settlement. The purposes of such a document in circumstances where WARA was of the view that Mrs Ludgate had resigned is again perplexing. In other words, WARA’s actions after 19 January 2015 appear to implicitly, even if not intentionally, acknowledge that Mrs Ludgate’s resignation was not definite.

[33] For the above reasons and based on the material before the Commission, I consider that, on balance, Mrs Ludgate was likely to have been dismissed on 10 February 2015 as opposed to having resigned on 19 January 2015.

[34] Relying on 10 February 2015 as the date of dismissal means that Mrs Ludgate’s general protections application was lodged within the statutory 21 day statutory timeframe. In those circumstances it is not necessary to consider whether or not there were exceptional circumstances warranting the Commission granting a further period for the making of an application. Mrs Ludgate’s application will now be listed for a conference aimed at resolving the dispute.

Conclusion

[35] I find that, on balance, Mrs Ludgate was dismissed on 10 February 2015 and that her general protections application was made within the 21 day statutory timeframe. WARA’s jurisdictional objection is therefore dismissed. Mrs Ludgate’s application will now be listed for a conference aimed at resolving the dispute.

Appearances:

S. Heathcote of Counsel for Kate Ludgate.

C. Pellow for the West Australian Rifle Association Inc.

Hearing details:

2015.

Melbourne, Perth and Sydney (telephone hearing):

July 17.

 1   Exhibit H1 at Attachment 1

 2   Outline of Submissions of the Respondent at Attachment B

 3   Ibid

 4   Ibid at Attachment A

 5   Ibid at Attachment C

 6   Ibid at Attachment D

 7   Ibid at paragraph 20 and Attachment E

 8   Exhibit H1 at Attachment 2

 9   Ibid at Attachment 3

 10   Ibid at Attachment 5

 11   Ibid

 12   Exhibit H1

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