Lyn Brooking v Celestite Pty Ltd T/A Zebra Kids Child Care

[2014] FWC 1559

[2014] FWC 1559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lyn Brooking
v
Celestite Pty Ltd T/A Zebra Kids Child Care
(U2013/16231)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 MARCH 2014

Application for unfair dismissal remedy - termination at the initiative of the employer - bullying allegations - resignation.

[1] Mrs Brooking lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) on 26 November 2013. In that application, she asserted that her employment with Celestite Pty Ltd T/A Zebra Kids Child Care had been terminated at the initiative of the employer and that this dismissal was unfair. In this decision I have referred to the employer as Celestite and the Child Centre as the Zebra Centre.

[2] Celestite objected to the matter proceeding to conciliation on the basis that Mrs Brooking was not dismissed, and sought that the issue of whether she had been dismissed should be determined at the outset. The application was referred to me for this purpose.

[3] Mr Mossman, of counsel sought permission to represent Celestite. The issue of whether a grant of permission pursuant to s.596(2) should be made was considered at a telephone hearing on 23 January 2014. At this hearing, I granted permission to Mr Mossman pursuant to s.596(2)(a) on the basis that I was satisfied that his representation of Celestite would enable the matter to be dealt with more efficiently. My decision took into account the extent to which the question of termination of employment at the initiative of the employer has the potential to be a complex matter. I also took into account that the Directors of Celestite were involved in discussions with Mrs Brooking shortly before the cessation of her employment and hence the involvement of an independent representative would assist in the efficiency with which the matter could be considered. Finally, Mrs Brooking did not oppose a grant of permission. This grant of permission was qualified by my invitation to Mrs Brooking to seek clarification from me about procedural issues and/or request an opportunity to obtain professional advice.

[4] I also note that I referred both parties to the Full Bench decision in O'Meara v Stanley Works Pty Ltd 1 (O’Meara) and provided both parties with a copy of this decision to assist in the preparation of their respective positions.

[5] The question of whether Mrs Brooking was dismissed was the subject of a hearing in Adelaide with a video-link to Brisbane on 21 and 26 February 2014. Mrs Brooking represented herself at this hearing.

The Background

[6] Before summarising the evidence of the various witnesses in this matter I have briefly set out the background to the application.

[7] Celestite operate childcare centres. Mrs Brooking worked at the Zebra Centre from mid-2012. She was specifically involved in the co-ordination of an Early Intervention programme (EI Program) designed to assist children with some learning difficulties. That program attracted specialist government funding. Mrs Brooking received at least one award for her EI Program work. Ms Cranwell was appointed as the manager of the Zebra Centre in August 2013. Mrs Brooking did not have a good working relationship with Ms Cranwell.

[8] Mrs Brooking, together with various managers and the Directors of Celestite, met on 1 November 2013. Following this meeting Celestite formally responded to the matters raised by Mrs Brooking and detailed its position regarding future working arrangements at the Zebra Centre. Mrs Brooking resigned her position two days after receiving this advice.

The evidence

[9] Mrs Brooking's evidence went to her work at the Zebra Centre, including operational difficulties she had with Ms Cranwell. She detailed her attempts to address these issues and her recollections of the meeting with the Zebra Centre Manager Ms Cranwell and with Ms Dean who has overarching responsibility for the Zebra Centre and other Centres. Mrs Brooking also detailed her recollection of the meeting she had with Celestite personnel and its owners on 1 November 2013. Her position was that Celestite’s failure to act to address her concerns about being bullied by the Zebra Centre manager, her concerns about operational issues impacting on her work function, together with the behaviour of Mr Tyrrell, one of the owners, at that 1 November 2013 meeting, and the failure of Ms Dean to debrief her relative to that meeting, left her with no option other than to resign.

[10] Mrs Brooking’s evidence went to confirm the value of the EI Program and her commitment to it.

[11] Ms Button was formerly an employee of Celestite at the Zebra Centre. Her evidence went to her close working relationship and her observations of the dysfunctional relationship between Mrs Brooking and the Zebra Centre manager, Ms Cranwell. Ms Button also gave evidence about the impact this had on Mrs Brooking and her assessment that both she and Mrs Brooking were bullied. Ms Button resigned her employment after Mrs Brooking left the Zebra Centre.

[12] Ms Lease was a parent with children at the Zebra Centre. Her evidence went to her friendship and high professional regard for Mrs Brooking. She observed a substantial change in Mrs Brooking’s disposition after Ms Cranwell commenced as the Zebra Centre manager and gave evidence about Mrs Brooking’s difficulties in working with Ms Cranwell. Not long after Mrs Brooking left the Zebra Centre, Ms Lease ceased to use it.

[13] Ms Dean is the Celestite South Australian Manager. Her evidence went to her management involvement with Mrs Brooking, the structure and the funding of the EI Program and the management arrangements at the Zebra Centre, including the appointment of Ms Cranwell. Ms Dean’s evidence detailed her understanding of differences between Mrs Brooking and Ms Cranwell and the steps she took to address these differences and Mrs Brooking’s bullying claims. Ms Dean arranged the meeting with the Celestite Directors on 1 November 2013 to both better inform the Celestite Directors about the EI Program and to facilitate communication between Mrs Brooking and Ms Cranwell. She gave evidence about the conduct of that meeting and the subsequent Celestite consideration of the requests Mrs Brooking made about her future work functions and arrangements.

[14] Mr Georgeson, Mr Tyrrell and Mr Brown are directors of Celestite. Their evidence was consistent. It went to their support of the EI Program and the extent to which the meeting on 1 November 2013 was to enable the provision of information about that program to be shared and provided to them. Their evidence also went to concerns that, in terms of the Zebra Centre, not long before that meeting they became aware that the EI Program funding did not cover all of the associated operational costs. Their evidence went to how this issue was discussed at the meeting together with various requests about equipment, management changes and operating approaches made by Mrs Brooking. These witnesses gave consistent evidence about their support for the continuation of the EI Program and how their concerns about some of the changes proposed by Mrs Brooking went to ensuring that the manner of delivery of the EI Program did not financially disadvantage the Zebra Centre. Their evidence was also consistent in relation to the conduct of the meeting on 1 November 2014, and, particularly, Mr Tyrrell’s behaviour.

[15] Ms Bloffwitch works at another nearby Celestite centre. She is also involved in the delivery of a program which differs from the EI Program. She was asked by Mr Brown to attend the meeting on 1 November 2013 and her evidence went to the advice she provided at this meeting.

[16] Ms Cranwell’s evidence went to matters associated with the operation of the Zebra Centre, including the operation of the EI Program and her dealings with Mrs Brooking. Ms Cranwell attended the 1 November 2013 meeting. Her evidence was that, while she disagreed with some of the positions being put by Mrs Brooking she was asked at the meeting to allow Mrs Brooking to put her position to the Directors.

[17] Some four days later, Ms Cranwell was given a copy of the Celestite Board’s response to matters raised by Mrs Brooking and provided this to Mrs Brooking on 5 November 2013. Her evidence was that Mrs Brooking was away sick on at least some of the following days and then resigned on 7 November 2013. Her evidence went to the issues and difficulties Ms Brooking's resignation created at the Zebra Centre.

Findings

[18] Section 385 of the FW Act establishes dismissal as an essential prerequisite for unfair dismissal. Section 386 states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

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

(b) the person was an employee:

(i) to whom a training arrangement applied; and

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

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

(c) the person was demoted in employment but:

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

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

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

[19] The concept of termination of employment at the initiative of the employer has been dealt with at length by the Fair Work Commission and its predecessors. The Full Bench decision in O'Meara v Stanley Works Pty Ltd provided a comprehensive summary of the principles in decisions dealing with this concept.

“[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as 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’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[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. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. 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.”

[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 to 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.

The merits of the appeal

[24] In this case the appellant wrote a letter on NUW letterhead resigning from his employment. It is not a situation of a ‘heat of the moment’ reaction, but rather one that appears to have been taken at least with the opportunity of obtaining advice. The letter referred to a long-standing concern that management did not take health seriously, drew attention to injuries which had been sustained and indicated that his apprehension of further injury had led to his resignation. The letter went on to state that there were certain people who were dangerous and should be cautioned and that the appellant had no alternative but to resign.”

[20] Full Benches of the Fair Work Commission in Victorian Association for the teaching of English Inc v Debra de Laps 2 and Kylie Bruce v Fingal Glen Pty Ltd3 have noted amendments to the legislative provisions which applied when O’Meara was determined but concluded that these changes did not alter the relevance of the test in O’Meara and the authorities which it endorsed, for the purposes of s.386 of the FW Act.

[21] Consequently, as I foreshadowed to the parties at the outset, I have adopted and applied this approach.

[22] On the material before me, I have concluded that Mrs Brooking was a highly competent and committed early childhood educator. This is clear from the evidence of Ms Dean and is consistent with Mrs Brooking’s own evidence and that of Ms Button and Ms Lease. I have also concluded, on all the evidence, that she did not have a positive working relationship with Ms Cranwell. The evidence neither permits nor requires a finding of fault in this respect. However, that evidence does not establish that the relationship was beyond repair. In this respect, I have noted that Ms Dean had, and was continuing to take steps to improve the relationship. Indeed I am satisfied that the meeting on 1 November 2013 was, at least in part, such a step. I am not satisfied that Mrs Brooking’s allegations of bullying behaviour, on the part of Ms Cranwell are made out. Mrs Brooking asserts that this bullying was in the form of the volume or tone of voice of Ms Cranwell or potentially, more broadly in her dealings with Mrs Brooking. Irrespective of this, Mrs Brooking has not established that Ms Cranwell’s behaviour represented actions which were either intended to bring the employment relationship to an end, or had the probable result of doing so. In reaching this conclusion I have noted that Mrs Brooking’s allegations of bullying were investigated by Ms Dean who concluded that she was satisfied that Mrs Brooking was not singled out or bullied by Ms Cranwell. 4 Further, I accept Ms Dean’s evidence that, after Mrs Brooking advised that she was uncomfortable working with Ms Cranwell, she spoke with both persons and concluded that they were both reasonable but simply differed.5 Further, Ms Dean acknowledged after meeting again with Mrs Brooking, that the relationship between her and Ms Cranwell “needed work”,6 that both persons were important to Celestite and that further efforts would be needed to address the relationship between them.

[23] Mrs Brooking asserted that operational matters, within the control of Celestite, contributed to other issues in forcing her to resign. In this respect she referred to a range of issues, including rostering and the standard of child care. The evidence of Ms Dean and that of Ms Cranwell confirms that Celestite management took various steps to address operational issues raised by Mrs Brooking and that these steps were neither intended nor capable of being described as having the probable effect of concluding Mrs Brooking’s employment. These matters included signage on doors and specific child care issues

[24] I have specifically addressed the rostering issues as Mrs Brooking expressed substantial concern at the effect on her work program, of rostering changes. In this regard I am not satisfied that roster changes occurred in a fashion intended to disrupt Mrs Brooking’s work or that those changes had the probable effect of bringing to an end Mrs Brooking’s employment. It appears clear, on the evidence before me, that Ms Cranwell established, and on occasion, changed rosters to reflect her assessment of what was needed in the overall Zebra Centre.

[25] The evidence of Ms Button and Ms Lease, whilst highly supportive of Mrs Brooking, does not establish conduct directed at bringing the employment relationship to an end. Their evidence was limited to observations associated with the EI Program rather than the operation of the Zebra Centre as a whole. Their evidence was also heavily reliant on information provided to them by Mrs Brooking.

[26] I have concluded that Mrs Brooking's work in the EI Program was highly regarded, was promoted by Celestite and was well respected by clients. Ms Dean’s evidence 7 was that:

“Lyn, I wanted this program to continue, that’s where I was coming from. There is no way in the world that I wanted anything else, and I wanted everybody to be on the same page and understanding just exactly what we have and move forward.”

[27] Mrs Brooking’s concern about her relationship with Ms Cranwell and about the effect of operational issues on the EI Program could have been better and more actively managed and addressed. A more appropriate management approach may have stopped Mrs Brooking from resigning. However, the test for consideration of whether Mrs Brooking resigned or was dismissed is quite different and requires actions on the part of the employer that were either intended or had the probable result of bringing the employment to an end. The test does not involve an assessment of whether a business could have been better managed.

[28] I have accepted the evidence of Ms Dean and the Celestite Directors that the manner in which the EI Program work was undertaken impacted on the financial standing of the Zebra Centre because the EI Program funding did not meet all of the costs associated with the full-time allocation of resources to that program.

[29] The meeting of 1 November 2013 was arranged to brief the Celestite Directors on the detail of the EI Program. It also provided them with the opportunity to discuss issues associated with funding that were specific to the Centre. I am satisfied that, from the outset Celestite acknowledged Mrs Brooking's award winning achievements and indicated that the meeting was to inform the Directors about the EI Program. Somewhat as a surprise, Mrs Brooking tabled a series of requests relative to her role. Notwithstanding that I am satisfied that the Directors did not expect this, they gave her a fair opportunity to say what she thought should apply with respect to the operation of the Zebra Centre in the future. Mrs Brooking proposed changes to her role and to reporting arrangements. I do not consider that either the Directors, nor Celestite managers at that meeting, behaved in a manner that made Mrs Brooking's position untenable. The stated purpose of the meeting was both legitimate and fair. It was not any form of disciplinary meeting and despite the requests made by Mrs Brooking, I am satisfied that it was conducted fairly. The evidence about the conduct of the meeting differs, but to the extent of those differences, I prefer the consistent evidence of the Directors, Ms Dean, Ms Cranwell and Ms Bloffwitch to that of Mrs Brooking. I am not satisfied that any of the meeting participants, and particularly Mr Tyrell behaved in a bullying manner which was intended, or had the probable effect of bringing the employment relationship to an end. It is clear that Mrs Brooking advocated for approaches to the future operation of the Zebra Centre which she felt were most appropriate. The Directors and Management quite properly listened to her position and later considered it.

[30] I am not convinced that Celestite took steps to change either the program or management structures in a manner which was intended or had the probable consequence of forcing Mrs Brooking to resign. In fact, the evidence of the Directors and the correspondence they forwarded to Mrs Brooking on 5 November 2013 8 enthusiastically endorses the EI Program. That correspondence notes cost issues associated with the EI Program and endorses the role of the Zebra Centre Manager Ms Cranwell in overseeing the entirety of the Zebra Centre’s operations. That correspondence continued to set out the Celestite Board’s position in rejecting what it saw as the unsustainable operational and management changes requested by Mrs Brooking. It concluded by stating:

“Lyn, we want Zebra Kids to succeed, and we want the EI Program within Zebra Kids to continue to succeed. Unfortunately your suggestions cost more, reduce training, and conflict with our need to manage the existing program to increase efficiencies and limit losses.

We support the EI program and its outcomes, but our priority is to manage the existing program in a way that improves efficiency and enables us to accurately forecast its future effects on its host, Zebra Kids.

You might not have realised the further effects of the EI Program on Zebra Kids. I trust you now appreciate the wider picture, and will work with us to ensure that the EI program remains an effective part of the operation of Zebra Kids.”

[31] I accept that at, or shortly after the meeting with the Celestite Board of Directors, Mrs Brooking requested that Ms Dean debrief her on the meeting. Ms Dean indicated that this would occur after the Board deliberations on the change proposals put by Mrs Brooking. I consider that was a reasonable position. The Board’s conclusions were provided to Mrs Brooking late on 5 November 2013. Mrs Brooking resigned on 7 November 2013. I do not consider that the absence of contact from Ms Dean over that time can reasonably be said to be conduct which was intended to bring the employment relationship to an end or had the probable effect of doing so.

[32] Mrs Brooking’s resignation was forwarded by an email which stated:

“Alison,

I am disappointed in the outcome for the EI program. I hereby tender my resignation effective immediately.

A formal letter will be supplied,

Regards

Lyn Brooking”

[33] Mrs Brooking did not provide further formal advice. Neither the correspondence subsequently forwarded to her about employment termination details, nor the material sent out to Zebra clients, confirms any intention on the part of Celestite to terminate the employment arrangement. Further, I do not consider that Ms Dean was under any personal obligation to respond to this resignation advice. Lastly, there is no basis upon which I could conclude that Celestite’s reticence to replace Mrs Brooking demonstrated an intention to terminate her employment.

[34] There is nothing in the behaviour of the Celestite management disclosed to me which was either intended to bring Mrs Brooking's employment to an end, or had the probable result of doing so.

[35] Mrs Brooking elected to conclude her employment of her own volition. It may be that she concluded that the Board position diminished her capacity to operate effectively in terms of the EI Program but practical management constraints on professional service delivery are an economic reality in many employment situations. Mrs Brooking did not resign on an impulse but rather made her resignation decision in a timely fashion. I cannot discern any pressure on her to resign as distinct from normal and operational management decisions made by Celestite. Some of those decisions were clearly made in response to demands made by Mrs Brooking.

[36] Mrs Brooking had alternatives in that she could have worked within the framework established by the Directors. To the extent that Mrs Brooking remained concerned about her interaction with Ms Cranwell or operational concerns, or indeed, if she remained concerned about her perception of Mr Tyrell’s conduct at the meeting on 1 November 2013, she could have continued to address those matters with Ms Dean, or she could have taken action under the relevant dispute resolution procedures applicable to her employment. Instead, she chose to resign. That resignation is very much short of a situation where she had no effective or real choice but to resign. It is considerably short of a situation where the actions of Celestite were either intended to bring the employment relationship to an end, or had the probable effect of doing so.

[37] Accordingly, I have concluded that Mrs Brooking was not dismissed. She elected to resign, and while her reasons for doing so may be perfectly understandable in that they reflected her concerns about the management and operation of the Celestite Zebra Centre and her frustrations in relation to the manner in which she wanted to operate the EI Program, they do not reflect the absence of other alternatives which were clearly open to her.

[38] For these reasons Mrs Brooking's application must be dismissed. An Order [PR548384] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

L Brooking on her own behalf.

C Mossman counsel for the respondent.

Hearing details:

2014.

Adelaide (and Video-link to Brisbane):

February 21, 26

 1   PR973462

 2   [2014] FWCFB 613

 3   [2013] FWCFB 5279

 4   Transcript sound file, 26 February 2014, 10:21 am

 5   Transcript sound file, 26 February 2014, 9:54:10 am

 6   Transcript sound file, 26 February 2014, 9:58 am

 7   Transcript sound file, 26 February 2014, 10:39:46 am

 8   Exhibit B3, Attachment E

Printed by authority of the Commonwealth Government Printer

<Price code C, PR548383>