Ljiljana Mutavdzic v Netball WA (Inc)
[2022] FWC 2978
•2 DECEMBER 2022
| [2022] FWC 2978 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ljiljana Mutavdzic
v
Netball WA (Inc)
(C2022/5970)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 2 DECEMBER 2022 |
Application to deal with contraventions involving dismissal
Dispute
Ms Ljiljana Mutavdzic (the Applicant) was employed by Netball WA (Inc) (the Respondent) as the Governance and Compliance Coordinator. Having started work with the Respondent on or around 21 March 2022, she was employed on a full-time basis and assisted to build the capacity of the Respondent’s regional offices, coordinated, delivered, and administered services to the Respondent’s members, and was the point of contact for complaints.[1]
In June 2022, the Applicant was assigned two external complaints to deal with. Both were from external netball clubs. The Applicant’s Line Manager, a Ms Smith, was purportedly conflicted from dealing with the complaints and therefore the Chief Executive Officer (CEO) of the Respondent, a Ms Hansen, became involved in the complaints process. Briefly stated, during the July period, the Applicant formed the view that Ms Hansen had questioned her ability to manage the external complaints, was undermining her management of them, and was marginalising her in her work.[2]
The Applicant decided to lodge a grievance about Ms Hansen’s treatment noting that Ms Hansen was undermining her work and was interfering in the complaints management process.[3] On 28 July 2022, the Applicant emailed her complaint to Ms Hansen, copying in Mr Chandler, Executive Manager of Human Resources, Ms Smith, and a Mr Lindsay.
From 2 to 5 August 2022, the Applicant took leave and towards the end of the day on 5 August 2022, Ms Dunn, Human Resources Manager of the Respondent, contacted the Applicant requesting that she attend a meeting in the office on the Monday to discuss her probationary period.
At the meeting on Monday, 8 August 2022, the Applicant, Ms Dunn and Ms Smith were in attendance. The Applicant recalls being informed that the Respondent had decided to terminate her employment and when asked whether it was because of her grievance, Ms Dunn and Ms Smith were said to have confirmed that was the case. The Respondent, however, asserts that the Applicant said the words ‘I’ll make this easy for you’ and handed over a written resignation letter to Ms Dunn, who accepted it.
The Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent’s objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[4] Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[5] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from her employment within the meaning of s 386(1)(a) or/and (b) of the Act.
The short answer to that question is that the Applicant was not ‘dismissed’ by the Respondent but resigned voluntarily.
Background
2.1 Employment as a Governance and Compliance Coordinator
The Applicant came to her role with the Respondent having had an extensive work history. That work history included:
a) Complaints Analyst for the Department of Mines Industry Regulation and Safety;
b) Investigator for the Australian Securities and Investments Commission;
c) Compliance and Risk Analyst for the AMP Group;
d) Private consultancy in Australian Financial Services Licensees Complaints, Compliance and Risk Management services; and
e) ASIC approved Responsible Manager on the AXF Asset Management Australian Financial Services Licence.[6]
The Applicant said that she had been surprised that the Respondent offered her the role because she did not have a sports background and was too senior (in terms of experience) for the role.[7]
The Applicant’s employment was governed by an employment contract which stated that her employment was subject to a six-month probationary period.[8]
As noted, Ms Smith, Stakeholder Manager, was the Applicant’s Line Manager.[9] Ms Smith reported that over the course of the Applicant’s employment, she found the Applicant to be keen and attentive to detail.[10]
Ms Smith held the view that the Applicant understood policy, had good investigative skills, and was thorough in her role.[11]
2.2 Events leading up to the Applicant’s complaint
The Applicant was assigned the external complaints from the netball clubs on 8 July 2022.[12] She considered it was her job to manage the external complaints.[13] The Applicant noted that whilst the usual course would have been for Ms Smith to work with her in managing the complaints, Ms Smith had declared a conflict of interest and as such, according to the Applicant, she was not permitted to be involved in the process.[14]
Given Ms Smith’s conflict of interest, Ms Hansen became involved in the complaints process.[15]
The Applicant said that she had a long telephone conversation with Ms Hansen on 15 July 2022 in which she updated Ms Hansen on the progress with the external complaints and she discussed with Ms Hansen the formation of a Management Committee.[16]
During the telephone conversation with the Applicant, Ms Hansen was said to have made the comment that Ms Smith ‘needed to step up’, and when asked by the Applicant whether Ms Hansen was happy with her performance, Ms Hansen informed her that she was doing a wonderful job.[17]
The Applicant further noted that during the telephone conversation, Ms Hansen had informed her that whilst Ms Smith was conflicted, she could still provide the Applicant with advice on the processes and procedures for handling complaints.[18] The Applicant said that she responded to Ms Hansen by informing her that she was very experienced in dealing with complaints that were far more complex than the matter before her and that the Respondent’s constitution and Grievance Policy were very simple.[19] The Applicant said that she reassured Ms Hansen that that she was following the correct processes and procedures and detailed the resources available to her for dealing with the external complaints.[20] The Applicant sent Ms Hansen an email the following day summarising the conversation.[21]
The Applicant said she approached Ms Dunn on 19 July 2022 to express her concerns about Ms Hansen.[22] The Applicant reports that she informed Ms Dunn that she was confused about Ms Hansen’s comments and actions.[23] The Applicant said she asked for advice on how to proceed with Ms Hansen.[24] According to the Applicant, Ms Dunn informed her that she was not the only one experiencing this problem with Ms Hansen and suggested that she speak to Mr Chandler about it.[25]
The Applicant spoke to Mr Chandler that same day about her concerns regarding the direction the external complaints were moving because she was receiving conflicting messages from Ms Hansen.[26] The Applicant said that Mr Chandler referred to the ‘Hansen effect’, explaining it was a term that staff used to describe the experience of dealing with Ms Hansen, and also suggested that she should keep things brief with Ms Hansen.[27]
The Applicant explained that there was email correspondence about the progress of the external complaints in the period between 20 July 2022 and 26 July 2022.[28]
Ms Smith confirmed that over a series of emails and conversations between 20 and 26 July 2022, Ms Hansen decided how the external complaint was to be handled.[29] Attached to Ms Smith’s witness statement was Annexure JS-2, which set out Ms Hansen’s correspondence of 20 July 2022. It read:
Hi Lilly & all,
Lilly - further to the below as we have previously discussed I will assist in identifying the right people to be on this tribunal/panel. I think it will be one internal and 2 externals. Sue G & Suzanne L are simply names I’ve mentioned, and it is unlikely to be both of them. I’m leaning towards Suzanne given she’s the NWA integrity officer.
What I have requested and haven’t yet received (earlier email which I can resend if needed), is the names of the individuals who assist with the GIG WANL Tribunal – noting I understand this tribunal normally handles on court issues, but I can’t see why we can’t use the same people. In addition, I have also reiterated that I think it’s important that we include someone who is an ex-magistrate or lawyer.
David/Jo/Garry – can you please provide the details of the individuals we use for this tribunal by COB Thursday 21st July at the latest?
Thanks,
Simone
Simone Hansen – Chief Executive Officer, Netball in WA
In later correspondence, Ms Hansen sent the following email dated 26 July 2022, time stamped 7:38PM:
Hi all,
In relation to setting up a panel to review these matters, we will use the members who currently sit on the WANL Tribunal who generally hear complaints that relate to ‘on court’ issues and one internal staff member.As such my recommendation is:
Suzanne Lennon - NWA Integrity Officer
Elsma Morello
Robert ShawNoting none of these individuals are retired judges/lawyers and we will see if we can identify
someone in the future who can form part of this panel who has that background.Jo & David – I need you both to take a key leadership role in assisting to resolve this complaint, in particular in assisting with the establishment of the panel, process involved for the panel to follow etc. I’m fine if you provide guidance to Lilly on what information to provide, the steps to take, but Lilly is new to the business and will need assistance to work through this. David, I know you have been involved in the complaint up to this point, but you still need to remain involved, and Jo I understand there is a conflict with your daughter and I’m not asking you to be involved in the details or the decision-making process but instead with providing guidance and support with the process that needs to be followed and getting this put into motion.
As you’re aware my attempt to return to work today was unsuccessful (due to poor health) but I’m hoping tomorrow is different. I have a meeting for 12pm to 5pm that is a must for me to attend. I am happy to take a call on this after 10am tomorrow morning or tomorrow evening so we can progress this matter. I will also call Robert & Elsma and see If they’d be happy to be involved in this matter – I’ll only be providing a high-level overview and then passing on to David/Lilly/Jo etc to progress further. As such David/Jo/Lilly – it would ideal if you could make it a priority to meet as a group tomorrow morning to discuss implementation of the panel and next steps
David – please ensure I receive an sms update tomorrow on where you guys are up to on the above. Noting I am not expecting any contact be made tomorrow with the Rangers/Demons on this issue, just ensuring that internally we know what and how for next steps.
Thanks,
Simone
Simone Hansen – Chief Executive Officer, Netball in WA
The Applicant said that she was confused and upset by Ms Hansen’s email time stamped 7:38PM on 26 July 2022.[30] The Applicant said that whilst Ms Smith and Mr Lindsay were conflicted out of handling the complaint, Ms Hansen wanted them to be involved.[31] Further, she considered that Ms Hansen’s email suggested that she was insufficiently competent to handle the complaint.[32] The Applicant said she found this offensive.[33] The Applicant continued that she was confused about Ms Hansen’s micro-managing of the process by involving three conflicted members of staff.[34]
The Applicant stated she received a call from Ms Smith on 27 July 2022 in which Ms Smith asked her whether she felt unsupported by her. The Applicant said that she informed Ms Smith that this was not the case because Ms Smith should not be involved in the matter at all as she had a declared conflict, and as it was, she was totally comfortable handling the complaint as it was relatively simple.[35] The Applicant, however, noted that she informed Ms Smith she was feeling frustrated and stressed by Ms Hansen and she did not know what Ms Hansen wanted. According to the Applicant, Ms Smith informed her that Ms Hansen’s management style was to ‘divide and conquer’.[36]
Ms Smith gave evidence that on 27 July 2022, she had a telephone discussion with Ms Hansen regarding the concerns she had about the way in which the Applicant was managing the complaint.[37] Ms Smith said that following that conversation, she sent an email to Ms Hansen copying the Applicant, Mr Lindsay and another colleague, setting out what was discussed in the conversation.[38]
The Applicant recalled a meeting being held on 28 July 2022 at 12.00PM, in which Ms Smith and Mr Lindsay were in attendance.[39] The Applicant explained that the three had met on the instruction of Ms Hansen.[40] According to the Applicant, at the meeting, the attendees discussed their confusion about why the meeting was necessary given Ms Hansen had said she was going to contact external parties.[41] The Applicant said that Ms Smith asked her to write a summary of the meeting, which she did, and then emailed herself a brief file note to summarise the conversation.[42]
The Applicant detailed becoming increasingly confused, frustrated, and stressed by Ms Hansen’s involvement in the process.[43] The Applicant observed that Ms Hansen was involving staff in the complaint process who were affected by conflicts of interest and she did not understand why she was doing that.[44] The Applicant said that despite her best efforts to communicate with Ms Hansen on the phone and by email, Ms Hansen did not tell her why she was taking the action she was.[45]
As noted, the Applicant lodged a grievance on 28 July 2022 regarding her treatment by Ms Hansen.[46]
2.3 Probationary meeting
On 5 August 2022, the Applicant said she received a missed call at 6:06PM from Ms Dunn, who left a text message checking in on her.[47] The Applicant said she thought it odd to receive a call from Ms Dunn on a Friday evening whilst she was on leave, so she returned Ms Dunn’s call that evening.[48] The Applicant stated that in the phone call, Ms Dunn asked her to attend the office on Monday to discuss the Applicant’s probation and on the Applicant mentioning the grievance (presumedly about Ms Hansen), Ms Dunn informed the Applicant to the effect that the grievance would also have to be dealt with.[49] The Applicant said she agreed to meet with Ms Dunn.[50]
Ms Dunn confirmed that on 5 August 2022 at around 5.40PM, she called the Applicant to conduct a welfare check and to tell her about the upcoming probationary ‘check in’ meeting.[51] At the hearing, Ms Dunn conceded that she did not refer to the meeting as a ‘check in’ as referred to in her evidence.
Ms Dunn further explained that she had called the Applicant from her car as she works in an open office space and wanted to keep the conversation confidential.[52] Ms Dunn said the Applicant mentioned an email that she had sent to the CEO during the previous week, and although she was not part of the email chain, she understood it to be the email dated 28 July 2022, which she was aware of but had not seen.[53] Ms Dunn said that that she informed the Applicant that they could discuss it in the probationary meeting, but the main point of the call was to really check in on the Applicant.[54] In concluding the discussion, Ms Dunn informed the Applicant that she would be sent a letter regarding the probationary meeting over the weekend.[55]
After the conversation with Ms Dunn, the Applicant believed that it was possible that the Respondent would terminate her employment on the Monday or advise her that she would not be employed beyond her probationary period.[56] The Applicant disclosed that she considered she might be dismissed because Ms Dunn had called her instead of her Line Manager, Ms Smith, Ms Dunn was from Human Resources, the phone call was placed on a Friday evening, and she had mentioned her grievance to Ms Dunn and Ms Dunn’s response was not one of surprise but rather an acknowledgement that the grievance would need to be dealt with.[57]
The Applicant said that when she arrived at work on Monday, 8 August 2022, she found an email Ms Dunn had sent to her on the Sunday. It attached a letter which outlined that a discussion was to be held about the Applicant’s probation.[58] The Applicant said she responded to the email and confirmed her attendance at the meeting.[59] It is uncontroversial that on 8 August 2022, the Applicant replied to Ms Dunn’s email confirming her attendance at the probationary meeting.[60]
Referring to Ms Dunn’s email of the Sunday, the Applicant said it reinforced her suspicion that the Respondent was likely to terminate her employment.[61] Fearful that following the meeting she was to be unemployed and humiliated, she wrote a resignation letter to bring into the meeting.[62]
In respect of the email sent on the Sunday, Ms Dunn stated she was at work on Sunday, 7 August 2022, because the Respondent was hosting the Gold Industry Group Western Australia Netball Grand Finals.[63] Ms Dunn said whilst at work, she sent the Applicant the letter inviting her to the probationary meeting.[64]
Present at the probationary meeting were Ms Dunn, Ms Smith, and the Applicant.[65] The meeting took place at 3:00PM on Monday, 8 August 2022.[66]
The Applicant said that Ms Dunn commenced the meeting by stating that the Executive Team and the CEO had met at some point prior to the meeting and had decided to terminate the Applicant’s employment.[67] The Applicant said that she asked if it was because of her grievance of 28 July 2022, to which Ms Dunn and Ms Smith were said to have confirmed that was the reason.[68]
The Applicant said she asked Ms Dunn and Ms Smith whether the Respondent was able to terminate her employment without showing cause.[69] The Applicant stated that Ms Dunn advised her that because she was in the probationary period, the Respondent did not have to show cause and as such there was nothing she could do.[70] The Applicant said that at that point, she said ‘Kate, let me make this easy on you’ and then proceeded to hand Ms Dunn her resignation letter.[71] The Applicant said she had no reason to doubt the accuracy of Ms Dunn’s information.[72]
Ms Dunn gave a markedly different account to the Applicant. Ms Dunn gave evidence that she opened the meeting by thanking the Applicant for attending and asked if she had read and understood the letter sent on 7 August.[73] Ms Dunn stated that the Applicant confirmed that she had read and understood the letter and that she did not need a support person.[74]
Ms Dunn said that before she could discuss anything further, the Applicant said words to the effect of ‘let me make it easy for you’, handed her a resignation letter, and said that she was resigning.[75] It was Ms Dunn’s evidence that whilst slightly taken aback, she thanked the Applicant and informed her that the Respondent would accept her resignation.[76] Ms Dunn said that she did not open the resignation letter until after the meeting, having accepted it at face value.[77]
It was Ms Dunn’s account that the Applicant said that she was happy to work out her notice period, which would be another week.[78] Ms Dunn said that she thanked the Applicant but stated that it was in everyone’s best interests that she finish work on that day and that the Respondent would pay her in lieu of the required notice period.[79] Ms Dunn continued that she told the Applicant to let her know when she had cleared her personal belongings from her desk and that she would come with her to collect her building fob and parking pass from her car.[80]
Ms Dunn noted that it was at this point that the Applicant expressed that she believed that the Respondent was going to terminate her employment on that day.[81] Ms Dunn said that she explained to the Applicant that all they had wanted to do was discuss a few issues and concerns regarding her work but since she had resigned, there was no need.[82] Ms Dunn said the Applicant responded by stating that the Respondent’s CEO did not like her and expressed her view that her grievance was what triggered the meeting.[83] Ms Dunn said she responded by informing the Applicant that during an employee’s probationary period, an employer can terminate without cause, but noted that the Respondent had accepted her resignation.[84]
It was Ms Dunn’s view that the meeting was calm and relatively relaxed.[85] Ms Dunn commented that Ms Smith and the Applicant went on to chat about a couple of complaints relating to a few ‘WANL clubs’ and their complaints processes.[86]
Ms Dunn said that after the meeting, she checked on the Applicant who had by now cleared out her belongings.[87] It was Ms Dunn’s evidence that she helped the Applicant carry her things to her car, retrieved from the Applicant her parking pass, and then wished the Applicant well.[88]
Ms Smith, who was also in attendance at the meeting, recalls that at the commencement of the meeting, the Applicant questioned the timing of the meeting given that she was on leave and noted having been called on Friday.[89] Ms Smith said that Ms Dunn replied to the Applicant’s question by informing her that the call on Friday was a welfare check.[90] Ms Smith said that the Applicant then explained that she felt that the meeting was called due to the grievance email she had sent to Ms Hansen and any actions from this (presumedly the meeting) would be because of the CEO.[91] Ms Smith stated that Ms Dunn responded to the Applicant’s remark by saying something along the lines of ‘any actions that [were] taken were organisational and made by the CEO and the Executive Management team’.[92]
Ms Smith gave evidence that the Applicant then said something to the effect of ‘let me make this easy for you’ and handed her resignation letter to Ms Dunn.[93] Ms Smith said that Ms Dunn accepted the Applicant’s resignation, and then the Applicant asked whether Ms Smith had been happy with her work and whether she would provide a reference.[94] Ms Smith said that she informed the Applicant that she had been happy with her work and would provide a reference.[95]
With respect to working out her notice period, Ms Smith confirmed that the Applicant had offered to work out her notice and that Ms Dunn informed her that she was not required to do so.[96] Ms Smith said that Ms Dunn informed the Applicant that she could finish up that day and take her time sorting out her desk.[97]
Ms Smith detailed that the Applicant brought up that if she had not resigned and been terminated that it could not happen without cause.[98] Ms Smith said that Ms Dunn replied to the Applicant that as she was still in her probationary period, that did not apply.[99]
According to the Applicant, she was advised that Ms Hansen wanted her out of the office that day.[100] Feeling humiliated and indignant that she had been dismissed like employees who have had their employment terminated for serious wrongdoing, the Applicant said she took her resignation letter back because she wanted to think about how she handled this matter.[101] Ms Smith and Ms Dunn do not report that the Applicant took the resignation letter back.
The Applicant said that she did not know her rights at law and given the CEO and Executive had decided to terminate her employment immediately, she decided the best thing to do was to give her resignation letter back to Ms Dunn and send an email to Ms Hansen and the Board with her resignation, inclusive of reasons.[102]
Ms Smith noted that that the Applicant apologised for placing undue pressure upon Ms Smith and Ms Dunn, but she felt that she had to do what was best for her at the time when she had so much going on with family.[103]
The resignation letter dated 8 August 2022 was typed out on the Respondent’s letterhead. It read:
Dear Jo
It has been a real pleasure to work for you and the team at Netball WA.
Netball WA are incredibly lucky to have your expertise and dedication and I have enjoyed working with you. It has been difficult starting a new job and working from home, but I think we have managed well.
Thank you for your help and believing in me. This is not how I intended things to turn out at all, at my interview I met three fantastic people, Liz Booth, Kate Dunn, and yourself and was happy to be collaborating with people of your passion and ilk in women's sport.
However due to the recent events concerning the WANL Club grievance, specifically the ongoing mismanagement by the CEO, documented in an email to her on 28 July 2022, I refuse to work in a toxic work environment she creates irrespective of her being the CEO. Organisational culture starts with the CEO and cascades downwards.
It is a form of disrespect and passive bullying the way Simone operates. It is also touches on the new Work Health and Safety laws and an abuse of power, to frustrate a processes and staff.
I believe I have dealt with the matter professionally, diligently and have shown Simone respect towards her, and the position, she holds, Simone has provided verbal feedback to me that I am doing a wonderful job and your email dated 27 July 2022, confirms that I did follow processes.
It is unacceptable to be dealing with a complaint and to listen to my CEO make disparaging comments about my direct line manager, at a time you are running a camp in the Northwest, supervising children and are conflicted to deal with this complaint, a fact Simone was always aware of. Irrespective of Simone’s views, it is inappropriate to share those views about you with me at any time.
I understand from speaking to numerous members of staff, at all levels they too have difficulties with her management style.
As you know complaints can be exceedingly difficult to deal with and I do not think having a CEO with Simon’s management style will be helpful to me going forward, especially in a child safeguarding complaint, which are serious and have consequences for the complainant and organisational reputation. These complaints are difficult for all parties involved. I must remain calm, clinical, compassionate, and follow a processes, if these processes are frustrated by the CEO my job becomes very difficult.
Jo, personally I wish you and the fantastic staff at Netball WA the absolute best in your personal and professional lives.
Life is just too short to be working in a toxic environment created by people in power. Sadly, it happens too often, and staff suffer needlessly. It is simply not sufficient to give a brochure to staff referring them to an Employee Assistance Program. Change only happens when people stand up and speak up.
I hope my resignation letter, a direct but honest approach leads to such a change for Netball WA staff. I am a small cog in this wheel but in the 4 months I have been here that is my observation. It is not a coincidence that I am not the only person who has resigned over the WANL matter, it is part of a bigger picture.
I would normally make my resignation effective immediately, I value my time and energy.
However, as I have respect for you and the staff, I will agree on a date with you. I will be happy with either outcome.
Ms Dunn confirmed that at around 4:02PM later in the day, the Applicant copied her into an email which attached a copy of the resignation letter the Applicant had given to her earlier as well as an article titled ‘the Neuroscience of Trust’ and another titled ‘Organisational Justice and Leadership Behaviour Orientation as Predictors of Employees Job Satisfaction: Evidence from Croatia’.[104]
Ms Dunn added that later that same day, at around 8:11PM, the Applicant copied her into a further email sent to a few others and the Respondent’s Board, where she again attached her resignation letter and articles.
Dear Netball WA Board
Please find my attached resignation and the reasons for that resignation.
I bring this to your attention because I believe this is a systemic problem within Netball WA and I did in fact lodge a grievance directly to the CEO of Netball WA. Her response was to terminate my employment during my probationary period.
I am in a fortunate position because I do not need to work, but rather I do want to work. However others in Netball WA are not so lucky and I do feel that staff are under considerable strain working under the current CEO's management style.
I can assure you I am neither bitter or twisted about leaving and this has nothing to do with my performance and any such allegations I can defend with documented evidence, it is purely that I refuse to be bludgeoned by the CEO and told her so in an email sent to her on 28 July 2022.
Naturally her response was to cut my probationary period short without any cause, I am entitled to lodge a grievance about the way I am being treated. It is the law, and new Work Health and Safety laws are very strong on the treatment of staff including any kind of bullying. This alone is a very big mistake.
Simone consistently frustrates processes and procedures and in a grievance situation, this is a dangerous course to take.
I can assure you I am not alone in my views. However I am more outspoken than most and that is because I can afford to be but it is not just for staff to be treated badly by someone in a position of power.
Staff at NWA work very hard to deliver services and staff are leaving or under enormous
pressure as a direct result of her decisions. And if you lodge a grievance you will have your employment terminated.
I draw this to your attention because I value all the staff at NWA and the organisation for you to consider what is the appropriate course of action.
I am not seeking anything. I am happy not to work for an insecure and frustrating CEO.
Feedback is a 360 degree process in any organisation. However all is not well at Netball WA and that is a shame because staff work so very hard and are passionate about their work at every level, it is not confined to one staff member or one level. It's a systemic problem and that is my experience and perception in the 4 plus months since working there.
I am a huge advocate for a workplace that is fair and non toxic and organisational justice and attach research for you consideration.
If you would like to discuss with me directly please do not hesitate to contact me on 0407 190 790 and I would be happy to discuss the issues I bring to your attention.
If not I have done what I believe is the right thing to do…[105]
The Applicant gave evidence that the only reason she handed a resignation letter to the Respondent was to try and avoid the embarrassment and humiliation of being terminated and turfed out, on what she was told were the instructions of the CEO.[106] The Applicant continued that the reality of the situation was that the Respondent was the one that ended the employment.[107]
The Applicant noted that on 10 August 2020 at 10:40AM, Ms Dunn sent her a text message in relation to the Respondent’s Whistle Blower Policy.[108] The Applicant said that she had not asked Ms Dunn to send that to her and that it had been sent out of the blue.[109]
Ms Dunn, however, said that her text message to the Applicant, which included a link to the Respondent’s Whistle Blower policy, was not unsolicited. Ms Dunn explained that there had been a phone conversation between the Applicant and herself around the internal grievance policy, and that she had informed the Applicant that she would send what the Respondent had, and the Whistle Blower Policy was the closest alignment she found.
When it was suggested to Ms Dunn that after having sent the Whistle Blower Policy to the Applicant, the Applicant then asked if the Respondent had a grievance policy, Ms Dunn again noted to the effect that her text message had not been unsolicited.
2.4 The Applicant’s submissions
The Applicant relies on two arguments to defeat the Respondent’s jurisdictional objection.
The first is that the Respondent terminated the Applicant’s employment on 8 August 2022 because the Applicant’s resignation letter was incapable of ending the relationship. The Applicant contends that by the time she had announced to the Respondent that she was resigning, the Respondent had already terminated her employment.
The second argument is premised on the concession that the Applicant did resign but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Returning to the first argument, the Applicant argues that if the Commission accepts her account of what occurred on 8 August 2022, then it must follow that the Respondent terminated her employment and the jurisdictional objection must be dismissed. In those circumstances, the Applicant observes that there would be no need for the Commission to deal with the Applicant’s second argument.
It is the Applicant’s view that essentially the issue is a ‘who done it issue’. That is, who ended the relationship between the Applicant and the Respondent. The Applicant continued that in circumstances where there are three witnesses and their evidence is all slightly different, the Commission must work out the preferred evidence. The Applicant highlighted the following issues with the evidence of Ms Dunn and Ms Smith:
a) Ms Dunn had detailed her duties in her witness statement, including interpreting the Act and drafting contracts, but in cross examination it was established that her evidence regarding the drafting of contracts was false;
b) Ms Dunn said that Ms Smith had wanted to call the meeting and had no recollection of Ms Hansen wanting to call the meeting. However, Ms Smith said she had asked Ms Dunn for a probationary meeting (but did not know when it would be scheduled), and that Ms Hansen had also requested a probationary meeting for the Applicant and communicated that to Ms Dunn;
c) Ms Dunn took notes of the meeting on 8 August 2022 and acknowledged that those notes were below standard, in terms of what one would expect of a Human Resources Manager;
d) all three witnesses (inclusive of the Applicant) agreed that the Applicant asked whether the Respondent could terminate her employment without cause (albeit there is disagreement about when it was said in the discussion) and all three witnesses agree that a response was provided, which was that during the probationary period, the Respondent can terminate without cause, yet Ms Dunn’s notes made no mention of this part of the discussion and therefore not much credence can be placed upon the notes;
e) whilst all three witnesses recall the meeting lasting for 40 minutes, Ms Dunn gave evidence that she stopped paying attention at various parts of the meeting about what was being said, therefore a question arises whether her recollection of the meeting was accurate;
f) Ms Dunn’s second set of notes in the form of Annexure KD-6 are dated 8 September 2022, just under a month after the ‘termination meeting’ happened, and no explanation was provided regarding the date being later than that of when the meeting took place;
g) Ms Dunn’s notes could be read out in three minutes, and yet the meeting lasted 40 minutes;
h) Ms Smith gave evidence that she did not find out about the meeting until either Sunday or the Monday and therefore what could be inferred is that Ms Smith had very little to do with the organisation of the meeting;
i) there was a point in the discussion between Ms Smith and the Applicant where Ms Smith informed the Applicant, ‘Lily, you need to do what’s best for you’. In circumstances where Ms Smith knew that the Applicant was not sure about whether to hand a resignation letter over or not, there is no other reason that Ms Smith would utter those words other than to encourage the Applicant to put in her resignation; and
j) when taken to Annexure KD-6, Ms Smith and Ms Dunn, who had previously noted that they had not spoken to each other about their evidence after the proceedings were lodged, admitted that Ms Smith had forwarded to Ms Dunn certain emails, which in the Applicant’s view amounted to collusion.
Regarding the Applicant’s second argument, she relies on the following:
a) whilst in her probationary period, the Applicant complained to Ms Hansen on 28 July 2022 (via email) about how Ms Hansen was treating her in the workplace;
b) on Friday, 5 August 2022, while on a period of leave, the Applicant received a phone call from Ms Dunn. Having missed the call, she called Ms Dunn back, and during the call, Ms Dunn advised the Applicant that the Respondent wanted to meet with her on Monday to discuss her probation;
c) following the phone call on 5 August 2022, the Applicant understood that it was possible that the Respondent would terminate her employment on the following Monday, or would advise her that she would not be employed beyond her probationary period;
d) on 7 June 2022, Ms Dunn sent an email with an attached letter to the Applicant, the letter instructing the Applicant that she was required to attend a ‘probation review meeting’ to discuss her probationary period and her ongoing employment with the Respondent. The Applicant read this email when she arrived at work on 8 August 2022;
e) the Applicant’s evidence is that Ms Dunn’s email reinforced her suspicion that the Respondent was likely going to terminate her employment; and
f) at the start of the meeting on 8 August 2022 at 3:00PM, Ms Dunn advised the Applicant that the Executive Team and the CEO had decided to terminate her employment and the reason was because of the Applicant’s complaint dated 28 July 2022.
2.5 The Respondent’s submissions
The Respondent’s position can be distilled as follows:
a) the Applicant was not dismissed but resigned and as such, her employment was not terminated at the Respondent’s initiative;
b) the Respondent appropriately accepted that resignation in circumstances where the Applicant made it clear and unambiguous; and
c) the resignation was neither forced nor did it occur in the heat of the moment.
As to whether the Respondent ended the employment relationship, the Respondent submits that it relies on Ms Dunn’s recollection of the meeting which was:
a) the meeting was convened for the clear and unambiguous purpose of discussing the Applicant’s performance during her probationary period with a view to discuss her ongoing employment;
b) during the meeting, the Applicant tendered her resignation both verbally and in the form of a letter without invitation and without any suggestion by either Ms Dunn or Ms Smith that her employment would be terminated;
c) this occurred before any subsequent discussions regarding termination of employment (which were again initiated by the Applicant);
d) the resignation letter was typed, printed and signed prior to the Applicant attending the meeting and without any representations from the Respondent stating that her employment would be terminated;
e) Ms Dunn accepted the resignation and reaffirmed this on more than one occasion during the meeting; and
f) at some point after the Applicant had communicated her resignation, and it was accepted by Ms Dunn on behalf of the Respondent, the Applicant expressed her view that her employment was going to be terminated:
i.the expression of this view by the Applicant was the first time the question of termination at the Respondent’s initiative was raised; and
ii.Ms Dunn responded to this by re-stating the purpose of the meeting from the perspective of the Respondent being that it was a probationary meeting to discuss the Applicant’s performance and conduct as is the ordinary course where an employee is on probation.
The Respondent further submitted that its version of events should be preferred in circumstances where it is supported by contemporaneous documentary evidence being:
a) the invite that was sent to the Applicant for the meeting set out the purpose of the meeting and its intent to discuss ongoing employment;
b) the Applicant attended the meeting with her resignation letter ready, printed, and signed on what can only be characterised as an unsupported assumption based on her perception of the purpose of the meeting and not any representation made by the Respondent;
c) Ms Dunn maintained contemporaneous notes of the meeting which set out the chronology of the discussion and demonstrates that it was the Applicant who tendered her resignation prior to any substantive discussions taking place, while also demonstrating that it was the Applicant who initiated any discussion about termination;
d) the Applicant followed up her verbal and written resignation with not one, but two emails;
e) the first of those emails makes no mention of a termination at the initiative of the Respondent;
f) the second email makes a brief but unsupported allegation that the Applicant’s employment was terminated by a person not present at the meeting (being the CEO) in circumstances where the Applicant cannot identify any representation by the CEO to support the allegation, while simultaneously affirming that she voluntarily resigned and is not working by choice; and
g) both emails attached lengthy articles setting out research and analyses in workplaces to press her disgruntlement with the Respondent while demonstrating that her decision was well considered, deliberate, and unambiguous.
The Respondent submitted that it has been held that an employer is generally able to treat a clear and unambiguous resignation as a resignation.[110]
The Respondent submitted that there is no action on its part that can be said to have intended to bring the Applicant’s employment to an end. The Respondent’s evidence demonstrates that:
a) the Applicant was on probation;
b) legitimate concerns arose in relation to her conduct;
c) the Respondent sought to raise those concerns with her as part of a probationary meeting;
d) at all material times, the Respondent demonstrated genuine and legitimate concern for the Applicant’s welfare;
e) the Applicant, in her materials, admits that she had, in fact, been asking for and expecting that probationary meeting to be convened; and
f) there was no action that the Applicant can point to that suggests that the Respondent did anything to force her resignation.
The Respondent submitted that its conduct was both reasonable and customary. At the time that the Applicant resigned, she was nearing five months of service. In circumstances where the Applicant’s probationary period was nearing an end, it was entirely reasonable for the Respondent to convene a meeting with the Applicant to review her performance to date, before her probationary period concluded.
The Respondent added that what was clear from the Applicant’s material is that she was disgruntled with certain actions of the Respondent’s CEO. However, the Respondent considered that this did not provide a reasonable basis for a finding that her resignation was forced.
Consideration
3.1 Relevant principles
Central to the consideration in this case is the operation of s 386(1) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. However, that section is relevant for present circumstances. The word ‘dismissed’ is defined in s 12 of the Act as having adopted the meaning in s 386. Section 386 reads:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[111] in the following terms:
[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.[112]
While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan (City of Sydney RSL) gave further consideration to the operation of s 386(1)(a), expressing:
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[113]
The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).[114] This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that the Act had retained the use of the phrase and that the judgment in Mohazab remained good authority as to the connotation of that formula.[115]
While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[116] Furthermore, while a termination of employment may involve more than one action, it is important to ask oneself what was the critical action or actions which constituted a termination of employment.
3.2 Termination at the Respondent’s initiative
The determination of whether the Respondent terminated the Applicant’s employment hinges greatly on the evidence of the three witnesses and an assessment of their credibility.
Essentially, the Applicant’s account of the 8 August 2022 meeting was significantly disparate to the accounts provided by Ms Dunn and Ms Smith. Whilst the Applicant asserts that shortly after being asked whether she was happy to proceed with the meeting, Ms Dunn advised that the Executive Team and the CEO had decided to terminate her employment, Ms Dunn gave evidence that having asked the Applicant whether she understood the letter of 7 August 2022, whether she wanted a support person, and whether she had accessed the Employee Assistance Program, the Applicant said words to the effect, ‘let me make it easy for you’, and proceeded to hand to Ms Dunn her resignation letter.
Ms Smith similarly gives evidence that the Applicant tendered her resignation shortly after the commencement of the meeting by stating to the effect, ‘let me make this easy for you’.[117] Albeit Ms Smith recalls the Applicant having noted at the start of the meeting that she felt the meeting was called due to the grievance email to Ms Hansen and that Ms Dunn responded along the lines that action with regard to that would come from the CEO and Executive Management team.[118]
Briefly stated, I have found that Ms Dunn and Ms Smith were credible witnesses. I have accepted their evidence. In my view, it was spontaneous, candid, and believable. Understandably, the Applicant went to great pains to explain why the Commission should not be persuaded by the evidence of Ms Dunn and Ms Smith.
First, the Applicant attempted to impugn the evidence of Ms Dunn by drawing attention to Ms Dunn’s evidence as to her duties. That evidence included that Ms Dunn interpreted the Act and drafted contracts. However, in cross examination, it was established that rather than drafting the contracts, Ms Dunn ‘templated employment contracts’, and rather than ensuring terms and conditions of employment were consistent with relevant legislation, Ms Dunn liaised with a legal team (presumedly, to ensure that the contract was compliant with legislation). I say presumedly because when Ms Dunn attempted to answer the question regarding consistency with legislation, she was interrupted by Counsel who advised her the question asked of her was a yes or no question, the question being to the effect:
So, you accept what you've said in paragraph 1C of your statement about your role includes ensuring terms and conditions within the contract are consistent with relevant legislation is wrong.
To which Ms Dunn responded, as noted:
I would say it's liaising with a legal team to ensure that the contract…
Ms Dunn’s concessions regarding her duties and responsibility were, I think, quite appropriate, and were really neither here nor there. Reference in Ms Dunn’s witness statement to drafting employment contracts and variations and ensuring terms and conditions are consistent with relevant legislation, whilst not specifying that Ms Dunn worked from a standard template and obtained legal advice with a view to ensure consistency with legislation, did not indicate that Ms Dunn’s evidence could not be believed or was in some way not veridical.
It is timely to address at this juncture the Applicant’s proposition that by asking Ms Smith to send some emails to her and Ms Smith doing so, Ms Dunn had engaged in collusion with Ms Smith.
Ms Dunn explained that having been asked by lawyers Jackson McDonald for the emails in question, she was unable to locate them in the ‘sent’ items in her inbox. She therefore asked Ms Smith to ‘resend it back’. Prior to this disclosure in cross examination, Ms Dunn had been asked by Counsel whether she had discussed the case with Ms Smith in the lead up to the preparation of her witness statement. Ms Dunn responded that she had not (discussed the case with Ms Smith) and that she had been instructed that they were not allowed to discuss it. When it was suggested by Counsel that Ms Dunn, Ms Smith and Mr Chandler worked together to collate the evidence that they thought would be needed to defend the case, Ms Dunn responded in the affirmative. However, she denied colluding with other witnesses.
The Applicant has relied upon a single email of 1 September 2022 to press that there had been collusion. As indicated by the Respondent’s Counsel, the date appears to be a few days after the Respondent was notified that the Applicant had made her application in the Commission. At that time, the legal representatives who were acting for the Respondent had, according to Ms Dunn, asked for material to be gathered. It is not apparent that submissions or witness statement had been prepared at that point, but rather the Respondent was trying to put material together in order to respond to the contentions advanced in the application. In such circumstances I share the Respondent’s view that the allegation of collusion cannot be supported and should be rejected.
The Applicant pointed to Ms Dunn and Ms Smith holding incongruous accounts in respect of who was the driving force behind the meeting of 8 August 2022. The Applicant pointed to Ms Dunn citing Ms Smith wanted the meeting, and Ms Smith having indicated that whilst she had asked for a meeting, she did not know when it would be, and that she believed Ms Hansen had communicated the need for a probationary meeting to Ms Dunn. According to Counsel for the Applicant, this evidence indicated that Ms Smith had very little to do with the organisation of the meeting and effectively the directive had come from Ms Hansen.
The evidence of Ms Dunn and Ms Smith was similar to the extent that both were in agreement that at some point, Ms Smith had informed Ms Dunn that a probationary meeting was required for the Applicant. From the evidence adduced, I have found that the impetus for the meeting was the near conclusion of the Applicant’s probationary period and the need to discuss with the Applicant, or to provide, some feedback regarding her performance. The Applicant pointed to the probationary meeting taking place after the Applicant had made her complaint about Ms Hansen, however Ms Smith clarified in her evidence that whilst the probationary meeting was arranged after the Applicant’s complaint, it was nevertheless the case that the Respondent had to have the meeting anyway. Whether the directive to hold the probationary meeting had come from Ms Smith or Ms Hansen, it is apparent that the purpose of the meeting was to discuss the Applicant’s probation and ongoing employment. In this respect, I consider that nothing turns on the difference in Ms Dunn’s and Ms Smith’s narratives.
I further observe that the Applicant in her email of 8 August 2022 to Ms Dunn and Ms Smith, whilst confirming her attendance at the probationary meeting, noted ‘…it is a meeting I have been expecting and asked for some time ago’.[119] In her evidence at the hearing, the Applicant explained that she had asked for the probationary meeting because she was planning on buying a car and she was not going to buy one if the Respondent did not plan to keep her on, and that she had been with the Respondent long enough to see where some of its processes had significant weaknesses (presumedly and understandably the Applicant sought to communicate this to her Line Manager).
The notes taken by Ms Dunn were a source of contention. The Applicant pointed to the incorrect date on Ms Dunn’s typed file note in Annexure KD-6, how Ms Dunn’s written notes were so succinct that they could not have possibly recorded the entirety of the meeting, and that Ms Dunn gave evidence of lapses in concentration (or not paying attention) during certain parts of the discussion.
Turning to the latter criticism first, in her written witness statement, Ms Dunn notes that in the meeting on 8 August 2022, Ms Smith and the Applicant proceeded to chat about a couple of complaints relating to WANL clubs and their complaints processes, and at this point she just listened to most of the conversation as she was not privy to the full extent of the complaints.[120] In cross examination, Ms Dunn noted again that she did not pay too much attention to some of the club issues that had been happening because she was not privy to the situation at hand. Counsel for the Applicant then asked whether there were parts of the meeting on 8 August 2022 where Ms Dunn was not paying attention. Ms Dunn responded that the meeting had ended as far as she was concerned and clarified that she did not understand the intricacies of the conversation around which club was involved and the who and the what. Counsel for the Applicant submitted that Ms Dunn’s evidence was that she stopped paying attention at various parts of the meeting about what was being said and that this undermined her credibility. I have found that not to be correct.
In her evidence, Ms Dunn recalled that after the Applicant had handed over her resignation letter and she had clarified for the Applicant that the Applicant was not required to work out her notice period and could clear her personal belonging from her desk, and after she responded to the Applicant’s assertion that Ms Hansen did not like her and her grievance triggered the meeting and the Respondent could not terminate her employment without cause, that a discussion between Ms Smith and the Applicant took place about complaints between some WANL clubs. It was clear that it was only this aspect of the conversation that Ms Dunn did not contribute to and paid less or no attention to. It was evident at this point that Ms Dunn considered the ‘meeting’ aspect regarding the resignation had concluded. It was not the case that Ms Dunn stopped paying attention at various parts of the meeting – and in this respect Counsel’s submission was ill-founded.
However, regarding Ms Dunn’s written file note at Annexure KD-6, I have placed little weight on such evidence given the unexplained date, which was near a month after the meeting on 8 August 2022.
In respect of the handwritten note at Annexure KD-5, it must be acknowledged that this is Ms Dunn’s account of the meeting. Further, the file note is not purported to have recorded the entirety of the meeting. I observe that neither Ms Smith nor the Applicant were called upon in the meeting to sign the file note as being a truthful and accurate account of the contents of the meeting. Clearly, had this step been taken, the weight attributed to the file note would have been far greater than the weight now accorded to it.
However, the evidence of the Applicant warrants attention regarding Ms Dunn’s handwritten note of the meeting on 8 August 2022. The Applicant gave evidence that she observed Ms Dunn taking handwritten notes in the meeting. Regarding those notes, the Applicant stated that she could see Ms Dunn’s notes in the meeting, and that those notes did not reflect those which were in Ms Dunn’s witness statement. The Applicant said in cross examination that there had only been about three or four jots made (in the notes). When asked whether she could precisely see what Ms Dunn was writing, the Applicant responded to the effect that she had ‘full and clear vision’. Whilst the Applicant may have had full and clear vision, she did not answer the question asked. I do not believe the Applicant’s evidence that she could see the precise content of Ms Dunn’s notes and I am not persuaded by the Applicant’s evidence that the handwritten notes Ms Dunn placed in her witness statement differ to those that she took at the meeting. In light of this and Ms Dunn’s evidence, I find that Ms Dunn’s notes are a contemporaneous record of Ms Dunn’s account of part of the meeting and constitute an account of the meeting that is not dissimilar to the evidence of Ms Smith.
Turning to the evidence of the Applicant, when it was proposed to the Applicant that neither Ms Dunn nor Ms Smith confirmed or made any indication that they wanted to ‘terminate you’, the Applicant responded that this was emphatically incorrect. The Applicant continued that Ms Dunn and Ms Smith did not want to terminate her, but they were instructed to terminate her by Ms Hansen. As with other evidence of the Applicant, and on this point, I refer to the inferences arrived at by the the Applicant about what to make of Ms Dunn’s call on a Friday night, Ms Dunn’s email and letter of 7 August 2022, and the turn of phrase used in the letter of 7 August 2022 – ‘discuss your probation period and your ongoing employment’, the Applicant appears to speculate in the absence of any probative evidential basis. In this respect, I found that the Applicant’s answers to some questions damaged her credibility as a witness.
It is an indubitable fact that prior to the meeting on 8 August 2022, the Applicant prepared her resignation letter that morning and proceeded to send herself some emails that she considered pertinent, presumedly from the Respondent’s email system. The Applicant also gave evidence that prior to the meeting on 8 August 2022, she looked for the Respondent’s grievance policy (the internal grievance policy).
Pausing briefly on the Respondent’s grievance policy, Ms Dunn gave evidence that the Applicant had asked her for a copy of such policy, but she had sent to the Applicant a copy of the Respondent’s Whistle Blower Policy via text, as the Respondent did not have a live grievance policy. The Applicant suggested that the text message from Ms Dunn was unsolicited and was provided without a request having been made for it. Again, I prefer the evidence of Ms Dunn, particularly given the Applicant had spoken of trying to locate a grievance policy prior to the meeting on 8 August 2022.
To continue, I have found that more likely than not, the evidence of Ms Dunn and Ms Smith is a truthful and accurate account as to what occurred at the meeting on 8 August 2022. The Applicant tendered her resignation letter at the commencement of the probationary meeting and it was accepted by Ms Dunn. As to the Ms Smith’s comment in the meeting that the Applicant was to do ‘what was best for her’, I do not consider on any objective level that such words imparted encouragement for the Applicant to resign, but instead were indicative of Ms Smith’s acknowledgement that the Applicant was free to make a decision that was best suited to her and in her interests.
Whilst there was discussion about whether the Respondent could terminate the Applicant’s employment without cause, I am not persuaded that such discussion ensued after Ms Dunn had informed the Applicant that the Executive Team and Ms Hansen had decided to dismiss her.
Following the meeting on 8 August 2022, at 4:02PM, the Applicant sent an email attaching her resignation letter and two articles. The subject line read ‘RESIGNATION – Lilly Mutavdzic’. No mention was made by the Applicant of having had her employment terminated by the Respondent, at this stage.[121] This was within an hour of the meeting having taken place.
It was not until later that evening, on 8 August 2022, the Applicant then emailed several recipients, including Ms Hansen, Ms Dunn and Ms Smith, advising that her resignation was attached to the email as were her reasons for her resignation, and that the response of Ms Hansen to her complaint had been to terminate the Applicant’s employment during her probationary period. I consider that the Respondent’s contention that the Applicant’s position is effectively a retrospective reconstruction of what occurred in the meeting of the 8th of August, unsupported by any of the objective material available, is not absent merit given that the Applicant’s first email attaching her resignation (notwithstanding she had already provided it to Ms Dunn in the meeting) made no mention of having had her employment terminated by the Respondent.
Furthermore, the email dated 8 August 2022 time stamped 11:23PM from the Applicant to several recipients manifests apparent inconsistency in the Applicant’s account as to what occurred. Statements in the email are that the Applicant’s resignation is attached with reasons, that the Applicant had her employment terminated by Ms Hansen and thereafter the Applicant proceeds to state: ‘I am in a fortunate position because I do not need to work, but rather I do not want to work’.[122]
Considering the evidence given, I have found that the Applicant voluntarily resigned from her position. Furthermore, I do not consider it to be the case that the Applicant resigned in the heat of the moment such that her resignation could not be characterised as voluntary, because she was in a state of emotional distress or confusion in the meeting on 8 August 2022.
Before the meeting, at 3.00PM on 8 August 2022, the Applicant had prepared her resignation letter – a typed letter on the Respondent’s letterhead. She had spent time sending to herself pertinent emails and had conducted a search of the Respondent’s resources for a grievance policy. The evidence is such that the Applicant tendered her resignation proximal to meeting’s commencement and thereafter those in attendance continued dialogue for a further 40 minutes or there abouts. There was no evidence that suggested that the 40 minutes of the meeting, or even part of, was consumed by the Applicant having responded in a manner of emotional distress. In fact, Ms Dunn and Ms Smith’s evidence suggests to the contrary. It is difficult to marry discourse pertaining to WANL complaints between Ms Smith and the Applicant, to circumstances where the Applicant purportedly had tendered a resignation in the heat of the moment.
3.3 A forced resignation
In light of the findings reached, it should be evident that I do not consider that the Applicant had no choice but to resign. A resignation is considered forced where the employee can show that the employer took action with intent (or had the probable result) of bringing the relationship to an end.[123]
The Applicant was markedly dissatisfied with Ms Hansen’s input into the management of the netball complaint and raised a complaint about the same. Having viewed the direct evidence adduced showing that input (the two emails set out at paragraphs [23] and [24]), on an objective level, I am not persuaded that they are inappropriate or out of place given the context of what was occurring.
The Applicant’s complaint about Ms Hansen, the Respondent’s steps of arranging a probationary meeting via the telephone call placed by Ms Dunn on 5 August 2022 and the letter sent by Ms Dunn on 7 August 2022, do not lead to a conclusion that the Respondent had pre-determined to dismiss the Applicant and, in the circumstances, the Applicant had no choice but to resign.
The line distinguishing conduct that leaves an employee no real choice but to resign,
from an employee resigning at their own initiative is a narrow one and one that must be ‘closely drawn and rigorously observed’.[124] Based on the evidence before the Commission, it is plain that the Applicant’s choice was not so negated such that resignation was inevitably the only recourse she had at the probationary meeting. I have found that the Applicant chose to resign. The Applicant had, over the course of 5 – 8 August 2022, formed her own narrative as to the Respondent’s intent, foreshadowing that the Respondent either meant to dismiss her or not to have employed her past the probationary period. However, from an objective perspective, it was not open on the evidence to find that this was the case.
Conclusion
On all of the facts and evidence before the Commission, I have concluded that it was quite clearly the discretion of the resigning employee, the Applicant, which gave rise to the termination of employment.
The conduct of the Respondent was not such that there was an intention of bringing the employment to an end or that termination of the employment was the probable result of its conduct such that the Applicant had no effective or real choice but to resign.
The application is therefore dismissed. An Order[125] is issued to this effect.
DEPUTY PRESIDENT
Appearances:
Mr C Fogliani for the Applicant.
Mr T Makamure for the Respondent.
Hearing details:
2022.
Perth (by video):
23 November.
[1] Witness Statement of Ljiljana Mutavdzic (Mutavdzic Statement) [3].
[2] Ibid [15], [18].
[3] Ibid [19].
[4] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37.
[5] Ibid 602 [51].
[6] Reply Witness Statement of Ljiljana Mutavdzic, [1] (Reply Mutavdzic Statement).
[7] Ibid [3].
[8] Witness Statement of Kate Dunn [4] (Dunn Statement).
[9] Witness Statement of Joanne Smith [2] (Smith Statement).
[10] Smith Statement (n 9) [7].
[11] Ibid.
[12] Mutavdzic Statement (n 1) [5].
[13] Ibid.
[14] Ibid [6].
[15] Ibid [7].
[16] Ibid [8].
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid [9].
[22] Ibid [10].
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid [11].
[27] Ibid.
[28] Ibid [12].
[29] Smith Statement (n 9) [11].
[30] Mutavdzic Statement (n 1) [13].
[31] Ibid.
[32] Ibid.
[33] Ibid.
[34] Ibid.
[35] Ibid [14].
[36] Ibid.
[37] Smith Statement (n 9) [12].
[38] Ibid.
[39] Mutavdzic Statement (n 1) [17].
[40] Ibid.
[41] Ibid.
[42] Ibid.
[43] Ibid [18].
[44] Ibid.
[45] Ibid.
[46] Ibid [19].
[47] Ibid [21].
[48] Ibid [22].
[49] Ibid.
[50] Ibid.
[51] Dunn Statement (n 8) [9].
[52] Ibid.
[53] Ibid [10].
[54] Ibid.
[55] Ibid.
[56] Mutavdzic Statement (n 1) [23].
[57] Ibid.
[58] Ibid [24].
[59] Ibid.
[60] Dunn Statement (n 8) [13].
[61] Mutavdzic Statement (n 1) [25].
[62] Ibid.
[63] Dunn Statement (n 8) [11].
[64] Ibid.
[65] Mutavdzic Statement (n 1) [26].
[66] Dunn Statement (n 8) [14].
[67] Mutavdzic Statement (n 1) [27].
[68] Ibid.
[69] Ibid [28].
[70] Ibid [29].
[71] Ibid [28].
[72] Ibid.
[73] Dunn Statement (n 8) [15].
[74] Ibid [16].
[75] Ibid [18].
[76] Ibid.
[77] Ibid.
[78] Ibid [19].
[79] Ibid.
[80] Ibid [20].
[81] Ibid [21].
[82] Ibid.
[83] Ibid [22].
[84] Ibid [23].
[85] Ibid [25].
[86] Ibid [24].
[87] Ibid [26].
[88] Ibid.
[89] Smith Statement (n 9) [21].
[90] Ibid.
[91] Ibid [22].
[92] Ibid [23].
[93] Ibid [24].
[94] Ibid [25], [26].
[95] Ibid.
[96] Ibid [30].
[97] Ibid.
[98] Ibid [32].
[99] Ibid.
[100] Mutavdzic Statement (n 1) [29].
[101] Ibid [30].
[102] Ibid [31].
[103] Smith Statement (n 9) [31].
[104] Dunn Statement (n 8) [27].
[105] Ibid annexure KD-9.
[106] Reply Mutavdzic Statement (n 6) [10].
[107] Ibid.
[108] Ibid [12].
[109] Ibid.
[110] Ngo v Link Printing Pty Ltd (1999) 94 IR 375, 377 [12], citing Minato v Palmer Corporation Ltd (1995) 63 IR 357, 361‒2 (Murphy JR), citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).
[111] (2017) 271 IR 245 (Bupa).
[112] Ibid 268–9 [47].
[113] (2018) 273 IR 126, 129–30 [10] – [11].
[114] (1995) 62 IR 200 (Mohazab).
[115] (2016) 262 IR 221, 228 [23].
[116] Mohazab (n 114) 205.
[117] Smith Statement (n 9) [24].
[118] Ibid [23].
[119] Mutavdzic Statement (n 1) annexure LM-6.
[120] Dunn Statement (n 8) [24].
[121] Ibid annexure KD-8.
[122] Ibid annexure KD-9.
[123] O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100, [23].
[124] Doumit v ABB Engineering Construction Pty Ltd (Australian Industrial Relations Commission, Munro J, Duncan DP and Commissioner Merriman, 9 December 1996).
[125] PR747779.
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