Lara Coughlan v McLeod Rail
[2017] FWC 1067
•1 MARCH 2017
| [2017] FWC 1067 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lara Coughlan
v
McLeod Rail
(U2016/10914)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 1 MARCH 2017 |
Application for relief from unfair dismissal.
[1] Ms Lara Coughlan was employed by McLeod Rail Pty Ltd from 25 March 2013 until 11 August 2016. Ms Coughlan alleged she was unfairly dismissed. McLeod Rail alleged that Ms Coughlan resigned her employment.
[2] The first issue in dispute is whether Ms Coughlan was forced to resign because of conduct or a course of conduct engaged in by McLeod Rail. 1
Evidence of Ms Lara Coughlan
[3] Ms Coughlan gave evidence that when she attended the meeting with Ms Mary Thompson the Managing Director of McLeod Rail and Mr Brian Fitzsimons the recently appointed Construction Manager on 11 August 2016. She was not told prior to the meeting why it had been called. 2 Ms Mary Thompson asked her if she wanted someone else to attend the meeting with her but as she did not know the purpose of the meeting she said “no, why would I need anyone?” She said that Ms Thompson appeared to have her personnel file.3
[4] Ms Thompson told Ms Coughlan that she was hard to manage. When asked why she produced two timesheets from when Ms Coughlan was working in Tasmania, Ms Thompson handed her a time sheet and said that “I had worked all day and changed my story three times”. 4 Ms Coughlan said that Ms Thompson was showing her the wrong time sheet.5 Ms Thompson then said that Ms Coughlan had told her she couldn’t work because she was violently ill. Ms Coughlan denied using those words but, in accordance with Ms Thompson’s instructions, she did not attend the site when she was unwell and instead she completed paperwork and then attended the site when she felt better.6 When asked what paper work she was doing, Ms Coughlan said she was completing all the timesheets. Ms Thompson said she did not believe that Ms Coughlan had been on site and when Ms Coughlan told her to ask the other workers, Ms Thompson said she wouldn’t believe them because they were on Ms Coughlan’s side.7
[5] Ms Thompson said she was difficult to manage when she was in Tasmania and she didn’t write any reports about an incident. Ms Thompson said that when she spoke to her and the others it seemed like they had all come together and had come up with a plan. Ms Coughlan denied this allegation. 8
[6] Ms Coughlan said she got very distressed and was crying. She asked Ms Thompson what she wanted from her. She asked her if she was wanting to get her to leave and that none of what she was saying was true. 9
[7] Ms Thompson said that she felt that Ms Coughlan was trying to make things easy by not writing reports and getting all the boys to tell a consistent story. Ms Coughlan said she was not going to sit there while Ms Thompson made up stories about her and again asked her what she wanted. She also asked her if she wanted her to quit. Ms Coughlan then said to Ms Thompson “I know you have the piece of paper there that you want me to sign it where is it?” Ms Thompson said “I want you to tell me more about yourself.” Ms Coughlan then said “I am not listening to you anymore and said give me the piece of paper you want me to sign.” She said from previous experience she knew that Ms Thompson would have a resignation letter she wanted her to sign. 10
[8] Ms Thompson then passed her the piece of paper and she signed it. She said she felt that she was instructed to sign it. 11 She said she was crying uncontrollably at this time. She said she did not read the form closely but she understood it was a resignation letter.12 She didn’t fill in any of the form. She left the meeting and she was very distressed.13
[9] Ms Coughlan said she was forced to resign because:
1. she had been ostracised by Ms Thompson and others in the workplace;
2. she had been excluded from her usual work and had her duties and responsibilities reduced;
3. Mr Brian Fitzsimons was employed to replace her;
4. her integrity was repeatedly challenged in relation to her illness on 15 May 2016;
5. baseless allegations were made against her at the meeting on 11 August 2016 and the way the meeting was conducted;
6. Ms Thompson had a template resignation letter ready for her signature;
7. McLeod Rail’s failure to pay her lawful sick leave entitlements and re-credit her annual leave. 14
[10] Ms Coughlan accepted that she sent the text messages to her partner prior to the meeting stating that she was quitting. She said she did so because she was feeling utterly desperate. She felt her position was untenable and she was being left with no option but to resign. 15
[11] Ms Coughlan denied that there were any incidents in which she reacted negatively to performance matters. 16
[12] Ms Coughlan said that whilst she was working on the Tasmanian project she participated in a phone hook up with Ms Thompson and others about an upcoming project. Ms Coughlan felt excluded from the conversation. She also felt that Ms Thompson ignored her. 17 She was upset after the call and felt that she was being blamed for things that had gone wrong on the Tasmanian project.18 Because she felt ill she left work and was off ill until 31 May 2016. Ms Coughlan was not paid sick leave but was paid annual leave. She disputed this and sent various emails to McLeod Rail to have this corrected.19
[13] Ms Coughlan said that when she returned to work she was ignored by other staff. 20 She said that staff would discuss matters with Mr Ian O’Brien, the Rail Track Supervisor, which they should have discussed with her.21 She was told by Mr O’Brien that he would be supervising the Cardinia project. She said Mr O’Brien told her that this was because Ms Thompson had told him that she didn’t know if she would still be at the company. She took this to mean that Ms Thompson was planning to dismiss her.22
[14] Ms Coughlan said that in June and July she was excluded from crucial meetings and not consulted about matters she would have previously been responsible for. 23 She said she attempted to meet with Ms Thompson but Ms Thompson would not meet with her.24 Ms Coughlan was absent from work from 11 July 2016 to 25 July 2016 on annual leave.25
[15] She said when she returned to work she continued to be ignored. 26 She was placed on night shift on the Cardinia project on or around 9 August 2016, however she was not in charge of this project, Mr O’Brien was. She said she felt demoted.27
[16] On 11 August 2016 prior to the disciplinary meeting Ms Coughlan met with Mr Fitzsimons and Mr O’Brien. She said she was told she would report to Mr Fitzsimons who would report to Ms Thompson. She formed the view that Mr Fitzsimons was going to take over her management duties. 28
[17] During the discussions at this meeting, she complained that Mr Fitzsimons did not look at her and when answering her questions would look at Mr O’Brien. 29 It was after this meeting that Ms Coughlan sent a text message to her partner about quitting.
[18] In oral evidence, Ms Coughlan was taken through a job description for Mr Fitzsimons’ position. She identified a number of duties which were the same as her responsibilities. 30 In cross examination, Ms Coughlan agreed that she had met Mr Fitzsimons that morning for the first time and that he was the Construction Manager. She had not seen his position description until after her dismissal.31
[19] Ms Coughlan gave evidence that in October 2015 she had been asked by Ms Thompson to sit in on a disciplinary meeting with another staff member. She said Ms Thompson told her that she wanted to get the staff member to resign as she needed to leave the business. In that meeting Ms Thompson had the staff member’s personnel file in front of her and Ms Thompson raised her concerns about the employee’s performance. During the meeting Ms Thompson gave the employee a pro forma resignation letter to sign. It was in the same terms as the document Ms Thompson gave her to sign. The employee signed the resignation. 32
Evidence of McLeod Rail
Ms Mary Thompson
[20] On 11 August 2016, Ms Thompson met with Ms Coughlan. Ms Thompson described this as a disciplinary meeting. She wanted to discuss a range of issues with Ms Coughlan including conduct, performance, attendance, punctuality and record keeping. 33 She acknowledged that Ms Coughlan had no prior knowledge about the purpose of the meeting. Also in attendance at the meeting was Mr Fitzsimons who had commenced work on 5 August 2016 and who was Ms Coughlan’s new manager.34
[21] Ms Thompson said that Ms Coughlan was unco-operative, angry and defensive. 35 Ms Coughlan asked her “what is going on” and was crying at one point. She said that she tried to get the meeting back on track and that she remained calm, professional, respectful and courteous during the meeting.36
[22] Ms Thompson said that five minutes into the meeting Ms Coughlan said words to the effect “give me your bit of paper” and “just get me your bit of paper. I’m out of here.” Ms Thompson understood the reference to the bit of paper was a reference to a template resignation letter. 37
[23] Ms Thompson said that she responded by saying that she needed to put some things to her. She said that after about ten minutes she accepted Ms Coughlan’s intention to resign and handed her a blank resignation letter which Ms Coughlan signed and walked out of the meeting. She then went and collected her things and told other staff that she had resigned. 38
[24] Prior to leaving, Ms Coughlan asked a young graduate to delete everything on her work phone. However that was unsuccessful and when the phone was turned on, the following text messages sent at 8:17 am that morning were found:
Message 1. New guys fucked can’t look at me and talk has to look at the boys.
Message 2. I’m quitting. 39
[25] Ms Thompson denied organising the meeting to orchestrate Ms Coughlan’s resignation. 40 She wanted Ms Coughlan to acknowledge the issues and work through them. She believed she could get Ms Coughlan re-engaged.41
[26] Ms Thompson said that this is not the first time Ms Coughlan reacted badly to having performance issues raised. She said that on one or two occasions she raised minor performance matters with Ms Coughlan informally and she said words to the effect of “I’m over this” and dramatically thrown her office and car keys down on a desk or table and stormed out of the office for perhaps a few hours, for the rest of the day or more.” 42
[27] Ms Thompson denied having Ms Coughlan’s personnel file with her. She said she had a HR file which contained codes of conduct and disciplinary policies. 43
[28] Notes taken by Ms Thompson at the meeting were tendered. Those notes recorded the following:
Lara repeatedly said “Where is this going?”
MT said “There are things I need to put to you.”
Lara said “What do you want me to do, sign a resignation letter? Give it to me and I’ll sign it.”
MT handed Lara a blank letter, Lara signed + left the room immediately.
[29] Ms Thompson accepted that when Ms Coughlan made these comments she did not tell her that she did not want her to resign. 44
[30] Ms Thompson denied ignoring Ms Coughlan in the period after 31 May 2016. Ms Thompson said she was absent from the office for 25 days and Ms Coughlan was away from the office for 40 days in the period between May and August. 45 She said that they were infrequently in the office together.46 She denied ignoring Ms Coughlan when they were both in the office together.47 She denied excluding Ms Coughlan from meetings and said Ms Coughlan excluded herself from most meetings.48 She accepted that Ms Coughlan was not consulted about matters that she would normally have been consulted about and could see why Ms Coughlan would feel that she had been sidelined.49 However she denied she was deliberately excluded.50
[31] Ms Thompson accepted that there was a dispute about Ms Coughlan’s sick leave and that Ms Coughlan had raised this with McLeod Rail on various occasions. While she could not recall seeing Ms Coughlan’s email of 4 July sent to her she accepts that she did not reply to it and she should have responded. 51
[32] Ms Thompson accepted that there had been no disciplinary issues raised with Ms Coughlan prior to her resignation and no warnings had been issued. 52
[33] Ms Thompson denied employing Mr Fitzsimons to replace Ms Coughlan. She said she filed this position to find someone who can be the CEO of the company as the previous CEO had stood aside from the role in October 2015. 53 She accepted that Mr Fitzsimons was not employed as CEO.54
Mr Brian Fitzsimons
[34] Mr Fitzsimons gave evidence that he attended the meeting on 11 August 2016. Mr Fitzsimons said that Ms Coughlan was asked if she wanted a support person present and she declined. Mr Fitzsimons said that Ms Thompson sought to raise a number of performance issues with Ms Coughlan but she interjected and asked where this was going. Ms Thompson told her that there were a number of issues to be discussed and attempted to continue with the meeting. Ms Coughlan again asked where this was going and then suddenly said “that’s it I’m out of here, give me a paper to sign as I’m out of here, I’m done.” 55
Mr Matthew Dunstan
[35] Mr Matthew Dunstan, Ms Thompson’s son, is employed by McLeod Rail. Ms Coughlan used Mr Dunstan’s conduct as one example of an employee raising issues with Mr O’Brien that should have been raised with her. 56 Mr Dunstan denied the allegation and said he often called Mr O’Brien about work matters and that he did not call Ms Coughlan as often as she was often unavailable or would not take his calls.57 Ms Coughlan also accused Mr Dunstan of ignoring her.58 He denied ignoring her but he said he found her unapproachable in the weeks leading up to her resignation.59
Submissions of Ms Lara Coughlan
[36] It was submitted that I should find that at the meeting on 11 August 2016, the following exchange occurred:
Lara Coughlan: Where is this going?
Mary Thompson: There are things I need to put to you.
Lara Coughlan: What do you want me to do, sign a resignation letter? Give it to me and I’ll sign it. 60
[37] Within seconds Ms Thompson handed Ms Coughlan a pre-prepared resignation letter. It was submitted that these facts established that McLeod Rail engaged in action that had the probable result of bringing the employment to an end. 61
[38] It was submitted that Ms Coughlan was asking Ms Thompson if McLeod Rail wanted to continue employing her and Ms Thompson’s failure to respond to the question or to give any indication that McLeod Rail wanted to continue the employment, instead handing her a resignation letter, had the probable result of bringing the employment relationship to an end. 62
[39] It was also submitted that the conduct was intended to bring the employment to an end. 63
[40] It was further submitted that the context of the meeting strengthens this contention. It was submitted that Ms Coughlan was aware that Ms Thompson had followed a similar strategy in getting another employee to resign. 64
[41] Further, it was submitted that McLeod Rail had failed to afford Ms Coughlan all her entitlements and had failed to resolve the dispute over these entitlements. It was submitted that the failure to resolve this underpayment was “inimical to the continuance of the Applicant’s employment.” 65
[42] It was submitted that Ms Coughlan was ignored and ostracised in the lead up to the meeting. It was submitted that Ms Coughlan’s evidence about Ms Glenda Naudi and Ms Marilena Ventra’s conduct was unchallenged and as neither of these persons was called an adverse inference should be drawn that their evidence would not assist McLeod Rail. 66
[43] It was submitted that I should find that Ms Coughlan had been excluded from her usual work and had her duties reduced and that this was “inimical to the continuance of the Applicant’s employment.” 67
[44] It was submitted that Ms Thompson questioned Ms Coughlan’s integrity in relation to taking sick leave. The questioning of Ms Coughlan’s honesty in face of a medical certificate was also inimical to the employment relationship. It was submitted that this conduct damaged the relationship of trust and confidence between Ms Coughlan and McLeod Rail. 68
[45] It was submitted that the employment of Mr Fitzsimons without communicating with Ms Coughlan about how this would impact on her role was also inimical to the ongoing employment relationship.
Submissions of McLeod Rail
[46] McLeod Rail submitted that the meeting held on 11 August 2016 was called to discuss serious concerns about Ms Coughlan’s performance. It was submitted that there was no inevitability that the meeting would end in the termination of Ms Coughlan’s employment. There was no mention of this happening until Ms Coughlan unilaterally decided to tender her resignation. 69 It was submitted that Ms Coughlan had decided to resign her employment prior to the meeting.70
[47] McLeod Rail submitted that Ms Coughlan was not forced to resign but she chose to resign. It was said she had other options. 71
[48] It was submitted that Ms Coughlan faced no ultimatum and she had no reason to believe dismissal was imminent. 72 She had had no warnings; there had been no due process; she was not on the cusp of dismissal.73
[49] It was submitted that viewed objectively Ms Coughlan had other options. She could have continued her employment or she could have continued with the meeting and seen what happened. 74
[50] It was submitted that Ms Thompson’s notes disclose that the meeting was about ways to improve Ms Coughlan’s performance. 75
[51] It was submitted that there was nothing in the evidence given by Ms Coughlan that the other employee she referred to was forced to resign. All that the evidence established was that another employee resigned in a disciplinary interview. 76
[52] It was submitted that there is no authority for the proposition that McLeod Rail should have resisted Ms Coughlan’s resignation. 77
[53] It was submitted that there was an insufficient evidentiary basis to conclude that Ms Coughlan was ignored and ostracised. 78 It was submitted that in the previous three months Ms Coughlan had been away from the office for a significant period of time, as had Ms Thompson. It was accepted that tension had developed and that this needed to be resolved.79
[54] It was submitted that Ms Coughlan had an obligation to raise her concerns, about her role being usurped and the conduct of Ms Thompson and other employees, with Ms Thompson and she didn’t. It was also submitted that she could have raised these concerns at the meeting on 11 August 2016. It was accepted by Ms Thompson that the lines of communication could have operated better but this did not mean that Ms Coughlan had no option but to resign. 80
[55] It was submitted that Ms Coughlan, at the time of her resignation, had not seen Mr Fitzsimons’ job description. She knew he was employed as a construction manager which was a different job to hers. It was submitted that if she was concerned about her job being eroded she could have discussed this with Ms Thompson. 81
[56] It was submitted that there was little evidence of Ms Coughlan’s integrity being questioned about taking sick leave. 82
[57] It was submitted that there was little evidence that the meeting on 11 August 2016 was conducted in anything other than a professional, courteous and fair manner. She was asked if she wanted a support person and she declined. 83
[58] It was submitted that there was no prepared resignation letter at the meeting ready for her to sign. The template was only produced after she asked for it. 84 It came from the HR files and it was not prepared for her to sign.85
[59] It was submitted that the notion that she resigned because of the refusal to pay sick leave should be rejected. Ms Coughlan had not raised this issue since early July. 86
[60] McLeod Rail rejected the submission that when all these factors are considered in context that Ms Coughlan was left with no choice but to resign. It was submitted that the only reason Ms Coughlan’s employment ended was because she asked to resign. 87
Was Ms Coughlan forced to resign because of conduct or a course of conduct engaged in by her employer?
[61] The test for constructive dismissal was considered by the Full Bench in Kylie Bruce
v Fingal Glen Pty Ltd (in liq): 88
“[13] The test of constructive dismissal in the context of the unlawful termination provisions of the Industrial Relations Act 1998 was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v Huxley Marketing Pty Ltd (Rheinberger). The commonly quoted statement of principle in Mohazab is that:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”.
[14] It is important that this passage be read in the context of the judgment as a whole. It is clear that the requirements set out by the Full Court in the passage quoted are necessary, but not sufficient, to establish that employer action constitutes constructive dismissal.
[15] These principles of constructive dismissal have been applied to the unfair dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the Australian Industrial Relations Commission in Pawel v Advanced Precast Pty Ltd (Pawel)and ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering), and we accept the Applicant’s submission that those decisions are relevant to any consideration of s.386(1)(b) of the Act.
[16] In Pawel the Full Bench said that:
“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee...”
[17] In ABB Engineering, the Full Bench said that:
“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.”
[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:
“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be 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. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. 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 appellant had no effective or real choice but to resign.” [Footnotes not reproduced]
[62] I will adopt the approach of the Full Bench in determining this matter.
[63] I am not satisfied that Ms Coughlan was forced to resign because of conduct or a course of conduct by McLeod Rail.
[64] I do not accept that characterisation of the meeting that was submitted by Ms Coughlan. Ms Coughlan’s own evidence does not support a finding that when Ms Coughlan asked Ms Thompson if she wanted her to resign, that Ms Thompson immediately provided her with a resignation letter.
[65] Her evidence established that there was discussion about her being difficult to manage. There was then discussion about the Tasmanian job and about a day when Ms Coughlan did not attend work in the morning because she was ill. Ms Thompson questioned whether she had attended work. Ms Thompson rejected Ms Coughlan’s suggestion that the boys on site would confirm she had been at work. Ms Coughlan told her that she had sent her text messages that day and she should check them. Ms Coughlan said that Ms Thompson said that she had not provided reports about the incident that had taken place in Tasmania and she also suggested that Ms Coughlan and the others had made up a story. Ms Coughlan said she said she was not going to sit there and listen to her making up stories and asked her if she wanted her to quit job. She said to her “I know you have the piece of paper there that you want me to sign it where is it?” There is no suggestion in that evidence that Ms Thompson immediately handed Ms Coughlan a resignation letter. The conversation continued and Ms Coughlan then said “I am not listening to you anymore” and then said “give me the piece of paper you want me to sign.” Ms Thompson gave her the pro forma resignation letter.
[66] I accept Ms Thompson’s evidence that she had with her a HR folder. I do not accept that the pro forma resignation letter had been pre-prepared. I accept Ms Thompson’s evidence that this was one of the documents in the folder.
[67] Ms Thompson did not jump at Ms Coughlan’s suggestion that she give her the resignation letter. She attempted to continue with the matters she wished to discuss with Ms Coughlan. Had Ms Coughlan not asked for the resignation letter I am satisfied that the meeting would have continued.
[68] I not satisfied in the circumstances that Ms Thompson was required to reassure Ms Coughlan when she indicated that she did not wish to continue the discussion and asked for the resignation letter. However, on Ms Coughlan’s own evidence, the first time she asked for the resignation letter, Ms Thompson tried to change the topic and divert Ms Thompson from taking the action she proposed. It was only after she asked for it again was it provided to her.
[69] I accept that producing the letter when asked the second time had the probable result of bringing the employment to an end. So much was recognised by Ms Thompson who said that she didn’t want to give her the letter because she knew Ms Coughlan would sign it and leave. 89
[70] However Ms Coughlan’s submission makes the same erroneous approach discussed by the Full Bench in O’Meara.
[71] This is a classic “but for” argument. Had Ms Thompson not handed Ms Coughlan the resignation letter it is put she would not have resigned. Had Ms Thompson told Ms Coughlan that she did not want her to resign she would not have resigned. This ignores the context of the meeting.
[72] Ms Coughlan went into this meeting having already foreshadowed to her partner that she intended resigning. Ms Thompson wanted to have a difficult conversation with Ms Coughlan. Ms Coughlan did not wish to continue the conversation after a very short period of time. Ms Coughlan asked for a letter of resignation to be given to her. She did so at least twice on her own evidence.
[73] Ms Coughlan did not have to ask for the resignation letter and did not have to sign the resignation letter. She could have asked for the meeting to be adjourned so that she could get a support person to be present with her. She could have listened to the issues Ms Thompson wished to raise and responded to them at the time or if she was not able to respond at the time she could have asked for more time to respond. If she thought Ms Thompson was trying to get her to resign she could have waited until the resignation letter was presented to her.
[74] My conclusion is not altered by the other factors relied upon by Ms Coughlan.
[75] Even accepting that Ms Coughlan had witnessed another employee resigning, and accepting that Ms Thompson had told Ms Coughlan that she wanted the employee to resign, this does not support a finding that Ms Thompson was engaged in the same process here. There is no evidence that Ms Thompson wanted Ms Coughlan to resign. Her evidence on this point was clear. Further, there was no evidence of the reasons for the other employee’s resignation. Further, just because Ms Thompson may have wanted this employee to resign does not mean that this employee resigned for that reason.
[76] Further, I do not accept that the failure of McLeod Rail to resolve Ms Coughlan’s dispute about her sick leave claim meant that Ms Coughlan had no choice but to resign. This matter should have been resolved and Ms Thompson should have responded to Ms Coughlan’s July email. Ms Coughlan did not pursue this matter further until after her dismissal. By itself, it could not be said that this conduct forced Ms Coughlan to resign.
[77] I am also not satisfied that being ignored in the workplace by two employees forced Ms Coughlan to resign. Given she was not cross examined on this evidence I accept that she was ignored. However there is no evidence that McLeod Rail had any knowledge about this conduct. Ms Coughlan did not make a complaint to Ms Thompson about the conduct. While I accept Ms Coughlan’s evidence that she sought a meeting with Ms Thompson and no such meeting was organised, there was no evidence that she in any telephone messages or emails advised Ms Thompson of her concerns. I do not accept that Ms Thompson ignored and ostracised Ms Coughlan. I accept Ms Thompson’s evidence that both she and Ms Coughlan were absent from the office for significant periods during the relevant time. There was insufficient evidence for me to conclude that Ms Thompson in fact ignored and ostracised Ms Coughlan.
[78] I accept that Ms Coughlan was excluded from some meetings. So much was conceded by Ms Thompson. I am not satisfied that her duties were reduced. Ms Coughlan complained that Mr O’Brien, a Rail Supervisor, was given responsibility for the Cardinia job. There was insufficient evidence for me to conclude that assigning this work to Mr O’Brien constituted a reduction in Ms Coughlan’s duties.
[79] I do not accept that Ms Thompson questioned Ms Coughlan’s integrity in relation to taking sick leave. What was questioned was whether Ms Coughlan attended the site in Tasmania after being sick in the morning. While Ms Thompson had on her list of matters to discuss with Ms Coughlan her sick leave, this topic and the many other topics Ms Thompson wished to discuss, were not discussed because of Ms Coughlan bringing the meeting to a close by resigning. Ever if I accept that Ms Thompson had formed the view that Ms Coughlan made spurious sick leave claims, Ms Coughlan was not aware of this at the time she resigned so it cannot have contributed to her decision to resign.
[80] I accept that Ms Thompson doubted whether Ms Coughlan attended work at the Tasmanian site when she had been ill in the morning. It was also clear that Ms Thompson did not accept Ms Coughlan’s explanation. However this dispute was unable to be resolved in the meeting because of Ms Coughlan’s reaction to the discussion.
[81] I do not accept that Mr Fitzsimons’ appointment as the new second in charge without consultation with Ms Coughlan meant that she had no choice but to resign. Ms Thompson’s evidence was that there was a gap in the leadership of the company caused by the standing aside of the CEO. While there was some overlap in the responsibilities of Mr Fitzsimons and Ms Coughlan, I do not accept that he was employed to do Ms Coughlan’s role. I do not accept that there was any obligation on McLeod Rail to consult with Ms Coughlan prior to Mr Fitzsimons’ appointment. Mr Fitzsimons had only commenced work on 5 August 2016 and he had only met Ms Coughlan for the first time on the morning she resigned. At the time of her resignation Ms Coughlan had not seen Mr Fitzsimons’ job description, nor had any clear understanding of his role. It is therefore difficult to see how Mr Fitzsimons’ employment forced Ms Coughlan to resign when she did.
[82] I have found that none of the matters relied upon by Ms Coughlan in isolation could be found to have forced her to resign.
[83] I have considered the cumulative effect of the matters relied upon. Clearly there were issues in this workplace that were not dealt with appropriately. It is clear that Ms Thompson had, instead of discussing the performance issues as they arose, kept a list of matters and decided to deal with all the issues at one time. This resulted in matters which Ms Coughlan had thought were resolved i.e. the issues with the Tasmanian job, being raised again three months later. It is not surprising that this was upsetting for her. Further it is clear that issues such as the dispute over the payment of her sick leave were left to fester. It is also clear that some decisions, like the decision to appoint Mr O’Brien to supervise the Cardinia job and the decision to appoint a new construction manager were not clearly explained to Ms Coughlan.
[84] It is clear from Ms Coughlan’s evidence that she had taken leave because she was stressed at work. Clearly some of that stress was caused by the conduct of other employees. Upon her return to work she felt things had not changed. She was also concerned about her role, given Mr O’Brien was in charge of the Cardinia project. After meeting Mr Fitzsimons she sent a text to her partner saying she was going to resign.
[85] I accept that some of Ms Coughlan’s complaints were legitimate and that contributed to her decision to resign. However it cannot be said, when viewed objectively, that she was forced to resign. My decision may have been different, if having raised these matters formally with McLeod Rail, the conduct complained of continued. However at the time of the meeting the only matter Ms Coughlan had raised formally with McLeod Rail was the issue in relation to her sick leave where she was asking that her annual leave be re-credited.
[86] For the reasons set out above, I do not consider that any of the actions of McLeod Rail, either individually or collectively, when viewed objectively were intended to bring the employment relationship to an end nor, when viewed objectively, would they probably have the effect of bringing the employment to an end.
[87] Accordingly, I find that Ms Coughlan was not forced to resign because of conduct or a course of conduct engaged in by McLeod Rail and hence her application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Y. Bakri of Counsel for the Applicant.
R. Millar of Counsel for the Respondent.
Hearing details:
2017.
Melbourne:
6 and 7 February.
1 Section 386(1)(b) of the Fair Work Act 2009 (Cth)
2 Exhibit A1 at [36]
3 Ibid
4 Ibid at [37]
5 Ibid at [38]
6 Ibid at [39]
7 Ibid at [40]
8 Ibid at [41]
9 Ibid at [42]
10 Ibid at [43]
11 Ibid at [44]
12 Ibid at [45]
13 Ibid at [46]
14 Ibid at [47]
15 Ibid at [67]
16 Ibid at [68]
17 Ibid at [22]
18 Ibid at [23]
19 Ibid at [24]-[25]
20 Ibid at [26]
21 Ibid
22 Ibid at [27]
23 Ibid at [28]
24 Ibid
25 Ibid at [29]
26 Ibid at [30]
27 Ibid at [31]-[32]
28 Ibid at [33]
29 Ibid at [35]
30 Transcript PN 114-133, 146-174 and Exhibit A7
31 Ibid PN 355-360
32 Exhibit A1 at [50]-[52]
33 Exhibit R2
34 Ibid
35 Ibid
36 Ibid
37 Ibid
38 Ibid
39 Ibid
40 Transcript PN 830
41 Exhibit R2
42 Ibid
43 Transcript PN 878 - 879
44 Ibid PN 862 and 872
45 Ibid PN 895
46 Ibid PN 912
47 Ibid PN 897
48 Ibid PN 900
49 Ibid PN 901-902
50 Ibid PN 905
51 Ibid PN 941-946
52 Ibid PN 960
53 Ibid PN 1018-1019
54 Ibid PN 1023
55 Exhibit R6
56 Exhibit A1 at [15]
57 Exhibit R5
58 Exhibit A1 at [26]
59 Exhibit R5
60 Outline of closing submissions at [9]
61 Ibid at [11]
62 Ibid at [13]-[14]
63 Ibid at [15]
64 Ibid at [17]
65 Ibid at [18]-[22]
66 Ibid at [21]
67 Ibid at [22]
68 Ibid at [23]
69 Submissions of McLeod Rail at [4]
70 Ibid
71 Ibid at [7]
72 Transcript PN 1420
73 Ibid
74 Ibid PN 1423-1424
75 Ibid PN 1424-1427
76 Ibid PN 1435-1439
77 Ibid PN 1440
78 Ibid PN 1442
79 Ibid PN 1443
80 Ibid PN 1444-1454
81 Ibid PN 1455
82 Ibid PN 1456
83 Ibid PN 1463
84 Ibid PN 1464
85 Ibid PN 1469
86 Ibid PN 1470
87 Ibid PN 1478-1481
88 [2013] FWCFB 5279
89 Transcript PN 871
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