Miss Amanda Ross v KD Johns and Co Pty Ltd

[2013] FWC 5374

[2013] FWC 5374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Amanda Ross
v
KD Johns & Co Pty Ltd
(U2013/6358)

COMMISSIONER WILLIAMS PERTH, 19 AUGUST 2013

Termination of employment.

[1] This matter involves an application made by Miss Amanda Ross (Miss Ross or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent to this application is KD Johns & Co Pty Ltd (KD Johns or the respondent).

[2] The applicant’s position is that Mr Keith Johns the Managing Director of the respondent terminated her employment during a meeting on 23 January 2013.

[3] The respondent’s position is that Miss Ross voluntarily resigned from her employment in a letter handed to Mr Johns on 24 January 2013.

Background

[4] The respondent provides specialist tax advice and services to private clients and public companies in Western Australia. The respondent has four directors and approximately 18 professional and administrative staff.

[5] Miss Ross was first employed in 2007 as an Administrative Assistant and after approximately 2 years was promoted to the position she held until earlier this year being that of Administration Supervisor.

[6] Prior to her employment ending Miss Ross was working part-time four days per week. Miss Ross was also studying part-time at Edith Cowen University. She was expecting to have completed a Bachelor of Communication in the next 12 months.

[7] On 23 January 2013 the Managing Director of the respondent Mr Johns rang Miss Ross and asked her to come into his office.

[8] The evidence of Miss Ross and Mr Johns is at odds on the detail of what was discussed at this meeting.

[9] The next day 24 January 2013 Miss Ross handed Mr Johns a letter. Whilst there is some dispute as to the actual wording of the letter, the letter did give notice that Miss Ross wished her final work date with the respondent to be Friday, 1 February 2013.

[10] The same day Miss Ross emailed a number of work colleagues advising them that she was giving her resignation that day.

[11] Mr Johns that afternoon sent an email to all the respondent’s staff advising them that Miss Ross would be leaving the firm to pursue opportunities evolving from her course of study.

[12] On Thursday, 31 January 2013 at 5.05 p.m. Miss Ross emailed Mr Johns asking that he “...provide a letter indicating the nature of my employment termination for my records?”

[13] Early the next day Friday, 1 February 2013 Mr Johns by return email suggested Miss Ross use a copy of the email he had sent to staff.

[14] On 1 February 2013 the respondent had a morning tea for Miss Ross where she was presented with a leaving gift and Mr Johns made a brief speech thanking her for her contribution. Later that day a lunch with other employees was held for Miss Ross’s departure.

[15] Miss Ross did not suggest to anybody between 23 January 2013 and her employment ending on 1 February 2013 that she had been dismissed by the respondent.

[16] The applicant’s evidence is that in the meeting on 23 January 2013 after discussing concerns he had about her performance Mr Johns terminated her employment and said that the situation was an opportunity for her to get a job in her field of study. Miss Ross says Mr Johns told her that she should hand in a letter of resignation and that it would be in her best interests and easier if she told everyone she had resigned.

[17] Consequently for the applicant it is submitted that her actions the next day and over the following week were in accordance with Mr Johns suggested pretence that she was resigning and do not alter the fact that he had terminated her employment.

[18] The respondent’s position is that in the meeting on 23 January 2013 Mr Johns after discussing concerns he had about her performance said that if she wanted to pursue marketing as a career in line with her studies he could put her in contact with clients of the respondent who work in the advertising industry. Mr Johns says Miss Ross then suggested she might choose to resign and he replied that he would support her in finding a role she was genuinely interested in elsewhere. The meeting concluded with Mr Johns suggesting Miss Ross reflect on their discussions and she think about her career options and what she wanted to do. Mr Johns’ evidence was that at no time did he indicate he was dismissing or terminating her. Consequently when Miss Ross the next day submitted to him a letter giving notice that she wished her last day to be Friday, 1 February 2013 she was voluntary resigning.

[19] For the respondent it is submitted that the applicant’s actions through to 1 February 2013 were consistent with her having voluntarily resigned.

The legislation

[20] The following sections of the Act are relevant to this matter.

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“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.”

The witness evidence

Miss Ross

[21] Miss Ross says her duties as the Administration Supervisor involved administration and payroll. Her time was mainly spent reporting to Mr Johns and managing the administration team. She was also the Personal Assistant for both Mr Johns and Ms Martina Crowley. She shared an office with Ms Crowley who would sometimes assist her with payroll calculations.

[22] Mr Johns at times mentioned there were mistakes with some things she did and that some things were not done on time. In the six months before her employment ended Mr Johns commented more frequently, every one to two weeks, about urgency issues with some of her work and that she needed to be on her toes.

[23] A few weeks before her employment ended she approached a client of the respondent, The Brand Agency, about a work placement for a ‘professional placement’ unit as part of her university course.

[24] Around 21 January 2013 a Ms Jacqui Peachey came into the respondent’s office. She had previously been employed with the respondent but had left two or three years ago. Ms Peachey however continued to do the respondent’s bookkeeping and Miss Ross was in regular contact with her regarding the respondent’s accounts.

[25] Ms Peachey told her she was looking for two additional days of work per week.

[26] On 23 January 2013 Mr Johns rang Miss Ross and ask her to come into his office. The conversation lasted 30 minutes.

[27] Mr Johns had her personal file.

[28] He said to her that they had touched on her performance before and some of the issues the respondent has been having regarding urgency of some tasks and careless mistakes.

[29] He then said there is the situation with Ms Peachey who already does the accounts and he said that it would make sense for Ms Peachey to take on her accounts component and keep all of this in-house.

[30] Miss Ross says she was finding it hard to get her head around what he was saying.

[31] According to Miss Ross Mr Johns said he didn’t want her to get the two issues confused the first issue being her performance and the second issue being the structure of in-house administration.

[32] At this point Miss Ross said she got upset and teary.

[33] Mr Johns said to her that she knew her position wasn’t what she should be doing anyway considering what she was studying and it seemed as though her role is not really a job she wants to be in.

[34] Miss Ross says Mr Johns said she needed to understand it’s the nature of the economy and that people are losing their jobs constantly and it’s what’s going on in the industry at the moment. He kept repeating himself and saying how it was in her best interest.

[35] Miss Ross says Mr Johns said she will have no problem finding work and that he has contacts such as The Brand Agency who he can refer her on to and he would make sure he did the right thing by her.

[36] Miss Ross says Mr Johns said to her “Do you know what I’m getting at?”

[37] At this point Miss Ross says she became pretty upset and couldn’t say much. She said to Mr Johns that she was just trying to get her head around what he was trying to say.

[38] Miss Ross then said words to the effect of:

“I understand basically what you are saying is that I don’t have a position here anymore.”

[39] Her evidence was that Mr Johns replied:

“Yeah, I understand but really it is in your best interests and look at this as an opportunity to find a job in the area in what you are studying.”

[40] He told her that she was absolutely employable and should not be concerned about getting another job.

[41] Miss Ross asked him how they were going to go about this.

[42] Miss Ross says Mr Johns said words to the effect of:

“The way we go about this is we need you to put in a resignation letter stating your final day, but you can go away and decide how long you will need.”

[43] She asked what they should do about telling staff.

[44] Mr Johns said words to the effect of:

“Don’t worry about that. We will go about this in the easiest way. We will just tell them you are leaving because you’ve chosen to pursue opportunities in your field of study.”

[45] He continued by saying “it would be in your best interests and easier if you tell everyone you resigned to pursue other opportunities”.

[46] Miss Ross says that Mr Johns at that point said that she should just try and get her head around it and that they could talk about it tomorrow and that she should work out how long it will take her to hand over her role and what needs to be done before she leaves.

[47] Miss Ross says Mr Johns said:

“Look Amanda, use this as an opportunity, it was inevitable you would be leaving eventually anyway and we will make sure we do the right thing by you.”

[48] He said that they could talk about it tomorrow and other staff need not know until she got her head around it.

[49] She left the meeting saying okay that she would come and speak to him tomorrow. She did not feel angry or bitter but was just upset.

[50] Her evidence is that after the meeting she accessed a resignation letter on her work computer she had previously typed for a friend. She edited this with further details, printed it, signed it and took it home with her.

[51] At home she decided that it probably was not a good idea to draft a “resignation letter” when she hadn’t resigned. So she drafted a new letter informing Mr Johns of her final day and saved this on a USB. She threw away the first letter she had printed at work.

[52] The next day 24 January 2013 she printed the second letter from her USB using her work computer. She signed it and handed it to Mr Johns.

[53] Before that however she had spoken to Ms Crowley in their shared office.

[54] Miss Ross said to Ms Crowley “Obviously you are aware of what’s happening”. Ms Crowley replied yes and asked how she felt about it.

[55] Miss Ross says she told her that it came as a shock but she guessed in the long term it would have happened anyway. Ms Crowley said “It’s in your best interests and you will have no problem whatsoever finding employment. The Brand Agency, being one of our clients, we can easily refer you on to them”. Ms Crowley said that they would do everything they can to find her a new job.

[56] Later that morning she sent a number of emails to her work friends explaining she was resigning as Mr Johns had said she should. She told everyone that she had resigned to pursue other opportunities consistent with what Mr Johns had told her she should do.

[57] After her conversation with Ms Crowley, Miss Ross went into Mr Johns’ office and told him she thought she would be able to hand over her role by the following Friday, 1 February 2013. She handed him a copy of her letter. She then thanked him for having her over the past five years. Mr Johns said that they would make sure they helped her in her endeavours and appreciated what she had done for the respondent to date.

[58] Some days later she says she filed this letter which had remained on Mr Johns’ desk in her personal file.

[59] After her employment ended Miss Ross attended an interview at The Brand Agency on 4 February 2013 and a second interview on 11 February 2013. She was not offered a position however.

[60] In cross-examination Miss Ross concedes her recollection of the discussion on 23 January 2013 with Mr Johns was not word for word and that she was emotional at the time and was very confused 1.

[61] Miss Ross agrees that at no time during the meeting on 23 January 2013 did Mr Johns say that she was dismissed, or that she was terminated, or that she would be terminated if she did not resign 2.

[62] Miss Ross remained adamant that Mr Johns however had dismissed her from her employment.

[63] In regard to the existence of two notice letters Miss Ross gave conflicting evidence.

[64] When shown one letter 3 and asked whether she gave this to Mr Johns she said that she couldn’t confirm that for sure and that there were various versions of the letter4.

[65] However when later shown the other letter 5 she repeated again there were different versions of the letter but this time on 24 January 2013 she was adamant that this was the letter she had handed to Mr Johns6.

Mr Johns

[66] The evidence of Mr Johns was that following the formal performance review of the applicant in June 2012 she had failed to improve on the areas of concern that were then raised with her and that overall her performance had declined considerably.

[67] The details of the performance shortcomings Mr Johns was concerned about are not relevant to the determination of this matter.

[68] Mr Johns says that in early January 2013 Mr Johns met with Ms Crowley and they agreed he should meet with Miss Ross on an informal basis to provide initial feedback about these performance concerns prior to any potential formal review or performance management process.

[69] His evidence was that they had invested a considerable amount of time and effort into developing Miss Ross over the past five years and preferred that she would rise to the challenge and improve her performance.

[70] On 23 January 2013 Mr Johns asked Miss Ross to come to his office. He raised with Miss Ross further concerns about her performance in what he said was a reasonable and fair manner. He says there was no one else present because this was an informal meeting and he simply wanted to flag to Miss Ross that he was not happy about her performance.

[71] He mentioned to Miss Ross that Ms Peachey, an ex-employee of the respondent who is an experienced Tax Manager and Accountant whom normally services external clients, was returning to Perth and was looking for work. His evidence was that he made Miss Ross aware of this because of her role as the Payroll Officer. His evidence was that this had nothing to do with the concerns he had about Miss Ross’s performance. Under cross examination he denied that the fact that Ms Peachey subsequent to Miss Ross’s departure had taken over some of her payroll duties demonstrated he intended to replace Miss Ross with Ms Peachey. Mr Johns explained that Ms Peachey is a very experienced Accountant and is far more valuable to the respondent as an Accountant doing billable work for external clients rather than doing the administration role that Miss Ross had.

[72] During the discussion with Miss Ross Mr Johns referred to her personal file and the previous written performance evaluations from June 2012. He explained to her that her current levels of performance could not be sustained and he warned her that her performance and attitude would need to improve if she wished to progress with the respondent.

[73] Miss Ross became upset at the meeting but did not disagree with his assessment of her performance.

[74] Mr Johns says that he told Miss Ross she appeared to be disinterested in her role and in reply she advised him that her future and passion was in her chosen field of study being marketing and communications.

[75] Mr Johns says that in response he in good faith suggested to Miss Ross that if she did want to pursue marketing as a career he could put her in contact with The Brand Agency a client of the respondent with whom he has a close relationship.

[76] Mr Johns said Miss Ross was interested in this possibility and they discussed The Brand Agency and its relationship with the respondent and its excellent reputation in the advertising industry. Mr Johns says at this stage he was unaware that Miss Ross had in fact already been seeking a placement with The Brand Agency and she did not tell him this at the time.

[77] Miss Ross suggested that if after further consideration she decided she was not interested in continuing her career with the respondent and chose to resign she could probably transition her role within a week or two to the other administration staff and Ms Peachey.

[78] Mr Johns says he explained he was not aware of Ms Peachey’s availability and that his priority was in any event to set Ms Peachey up with client work.

[79] Mr Johns’ evidence was that he did agree with Miss Ross that if she resigned she could look to transition over the following week and the respondent would pay her three weeks pay in lieu of notice but that they may require her to assist with the transition during that three week period.

[80] His evidence was that at the conclusion of the meeting he suggested Miss Ross reflect on their discussions and think about her future career options and what she wanted to do. He advised her that if she did not wish to continue with her role with the respondent he could support her in finding a role that she was genuinely interested in.

[81] Mr Johns says at no point did he terminate Miss Ross’s employment nor threaten to terminate her employment at this meeting or at any other time. Mr Johns specifically denies telling Miss Ross that she no longer had a position at KD Johns. He says he simply asked her to think about whether she wished to continue in her employment because it was clear she was not interested in her role and wanted to pursue other career opportunities.

[82] The following day 24 January 2013 around lunchtime Miss Ross came into Mr Johns’ office and gave him a letter giving him notice of her final work date. She mentioned to him she was pleased to have made a decision and would now pursue opportunities suited to her course of study.

[83] Mr Johns provided a series of documents as part of his evidence these included an email from Miss Ross to Ms Diana Raso on Thursday, 24 January 2013 7 in which Miss Ross says:

“Thought I’d let you know that I’m giving my resignation today!

I had a chat to Keith and I really want to focus on getting an internship/job with an Ad agency or something similar. I’m not driven by my role here anymore, and really want to do something I’m passionate about. I was going to give four weeks notice, but he said they are currently constructing a role for Jacqui for when she comes back, which suits them anyway. So he has asked if I can train her in what I do and then I can basically leave once all is done (probably end of next week). But I still get paid out four weeks which is awesome

Keith and Martina both said they’re going to put in a good word for me at Brand Agency and see if they can offer me something.

So.... End of an era !!!!

P.s. please don’t tell anyone at this stage as I haven’t given Keith my letter yet.”

[84] Later that day at 2.11 p.m. the applicant sent a further email to Ms Raso and c.c. to Ms Laura Cameron which says:

“Haha awww... I guess it was inevitable, it feels like the right time in terms of being my last year of uni etc... and I feel really bogged down in this job so I really just want the opportunity to move on hey.

And thanks babe I’ll come visit you and Laura for lunch don’t worry! And we’ll have to keep in touch cause we won’t have the same workplace to keep us together any more

Yeah Jac’s only just moved back and is looking for work so all kind worked in together... As for when she’ll be coming back here I’m not sure but I think that's the plan...”

[85] Again later that day at 3.18 p.m. Miss Ross sent the following email to Ms Cameron:

“Haha you’re too cute!

Year when Keith and I were talking about it yesterday it was a bit weird and a bit emotional haha but all good now

Feels right, I think it’s the right move...

Yeah Jac will probably take over all of accounts + payroll and maybe some client work.

Will miss you girls so much I bet the new workplace girls will hate me!!”

[86] That day Mr Johns sent an email to all staff with the subject of “Amanda” which read as follows:

“Amanda has advised she will be leaving the firm to pursue opportunities evolving from her course of study being the Advertising/PR industry.

Amanda has been with us for over 5 years and has always been a very dedicated and conscientious worker. She has conducted a number of very important administrative roles from her junior days until now as Administration Supervisor.

We wish Amanda every success in the future and we look forward to staying in touch.”

[87] The two versions of the letter from Miss Ross to Mr Johns notifying him of her final work date in terms of the relevant first paragraph read as follows:

Letter 1:

“I wish to give formal notice of my final work date as Administration Supervisor with KD Johns & Co. Despite my employment contract to comply with four weeks notice, I request to finish on Friday, 1 February 2013 if possible.”

and,

Letter 2:

“As requested, I give formal notice of my final work date as Administration Supervisor with KD Johns & Co. I request to finish on Friday, 1 February 2013.”

[88] Both letters then continue with albeit differently worded expressions of thanks to Mr Johns and Ms Crowley for their support and wishing them and their family the best for the future.

[89] In his oral evidence Mr Johns explained that if he had terminated the employment of Miss Ross or believed there was any acrimony surrounding her departure he would have taken “damage control” measures to safeguard the respondent’s interests. In the case of Miss Ross this would have involved restricting her access to the respondent’s bank accounts and requiring her to hand over the key to the personnel filing cabinet. His evidence was that because she had not been terminated and had resigned he did not take any such action.

[90] Under cross-examination Mr Johns rejected the suggestion that it was always intended that the meeting on 23 January 2013 with Miss Ross would involve her being terminated by him.

[91] He was not shaken on his evidence that he had at no time terminated Miss Ross’s employment.

Ms Crowley

[92] Ms Crowley also gave evidence for the respondent. Ms Crowley is a Director of the respondent.

[93] Ms Crowley shared an office with Miss Ross and her evidence was that she saw many incidences of errors in Miss Ross’s work and was aware of the performance issues that Mr Johns was concerned about.

[94] In early January 2013 she says that she and Mr Johns discussed the concerns they had about Miss Ross’s performance.

[95] It was agreed that Mr Johns would meet Miss Ross to address those performance issues on an informal basis prior to more formal action being taken.

[96] On 24 January 2013 Ms Crowley asked Miss Ross how her meeting with Mr Johns had gone. Ms Crowley’s evidence was that Miss Ross told her she was going to resign and follow a new career in communications.

[97] Ms Crowley’s evidence was that she then told Miss Ross that should she need assistance with introductions to firms she could assist with this through her contacts with The Brand Agency who are a client of the respondent. Miss Ross did not suggest during the conversation that she had been dismissed or forced to resign.

[98] Under cross-examination Ms Crowley was adamant that there was no intention that the meeting between Mr Johns and Miss Ross was to terminate the employment of Miss Ross.

[99] Ms Crowley was unshaken in her evidence that the next day Miss Ross had told her that she was going to resign.

Ms Raso

[100] The statutory declaration of Ms Raso was of little relevance in my view and the respondent chose not to call Ms Raso so she could be cross-examined, a course of action that was readily available to them regardless of her being out of the country at the time of the hearing.

The applicant’s submissions

[101] For the applicant it is submitted that Miss Ross was terminated on 23 January 2013.

[102] The only response filed to the application by the respondent is to allege that the applicant was not dismissed.

[103] The applicant’s evidence is unequivocal; her employment was terminated by Mr Johns.

[104] The applicant was told by her boss Mr Johns to tell people she had resigned. She did so because she had been told to, and because she did not want to affect her chances of future employment or work placements. One of the major opportunities for future employment or work placement was with a client of the respondent.

[105] She was told to hand in a letter of resignation but she did not do so.

[106] The applicant had no reason to resign. She had no job to go to. She has been unemployed until recently.

[107] The applicant was not given any valid reason for her dismissal and no opportunity to address any such reason. She was not given the opportunity to have a support person. She had been employed for more than five years and was given no formal warnings and her performance reviews were positive.

[108] It appears likely that the employment was terminated to make room for another employee who had recently moved back to Perth and who did, in fact, take over her role immediately upon the applicant's departure.

[109] The applicant seeks compensation in the circumstances.

The respondent’s submissions

[110] The respondent’s submits a person is “dismissed” if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative: section 386(a), of the Act; 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: section 386(b), of the Act.

[111] In her unfair dismissal application, the applicant claimed that she was “notified verbally of the dismissal”. The applicant therefore claims that she was dismissed in accordance with section 386(a), of the Act.

[112] The applicant does not claim that she was forced to resign in accordance with 386(b), of the Act.

[113] The respondent contends that the applicant voluntarily resigned from her employment with the respondent on 24 January 2013. The applicant submitted a resignation letter to the respondent, dated 24 January 2013, confirming her resignation.

[114] In support of its submission that the applicant voluntarily resigned from her employment, the following issues are relevant:

(a) The applicant applied for jobs with outside marketing/advertising companies before she resigned from her employment with the respondent, demonstrating that she was clearly looking for other opportunities.

(b) The applicant confirmed her resignation by letter to the respondent dated 24 January 2013. This is clear evidence of the applicant’s intention to resign from her employment with the respondent.

(c) The applicant claims that the resignation letter she submitted to the respondent is a different version than that which is in the respondent’s possession. This is denied, but in any event, it is clear from both letters that the applicant terminated her employment by giving the respondent notice of termination. In both versions of the letter, the applicant expressed her gratitude for the opportunity that the respondent had provided to her, and she wished the respondent all the best for the future. This is not consistent with the applicant’s argument that she was dismissed in acrimonious circumstances.

(d) The applicant advised other employees of the respondent that she was resigning from her employment to pursue opportunities in the area of marketing/advertising.

(e) The applicant’s resignation letter thanked the respondent for all the opportunities it had provided to her. This is not consistent with the applicant believing that she had been dismissed by the respondent. Had the respondent dismissed the applicant, it is logical to conclude that she would not have included such positive sentiments in her resignation letter.

(f) The applicant confirmed to Ms Raso that she modified her resignation letter, only after her parents advised her that she had been unfairly dismissed. Clearly, the applicant did not believe that she had been dismissed at the time that she resigned.

(g) The applicant processed the termination of her employment on the respondent’s payroll system, confirming that she had voluntarily resigned.

(h) There is no documentation to support the applicant’s claim that she was dismissed.

[115] The respondent has shown clear evidence that it had reasonable grounds upon which to hold an informal performance management meeting with the applicant. The applicant herself admits that she was addressed directly by the respondent in this regard. The respondent did not act unreasonably in holding this meeting with the applicant.

[116] The respondent has provided a clear explanation of Ms Peachey’s role in the company. There is no evidence to support the applicant’s claim that she was “dismissed” to make room for Ms Peachey. Ms Peachey’s role was different to that of the applicant’s.

[117] Based on all the above, the respondent submits that there is no merit in the applicant’s claim, as the applicant’s employment was not terminated on the employer’s initiative, in accordance with the provisions of section 386(a) of the Act. The applicant voluntarily resigned from her employment because she was seeking other employment opportunities and because she did not wish her performance to be managed.

[118] It is submitted that the applicant has been unable to lead evidence of any significance or weight which would displace the weight of the significant documentary evidence provided by the respondent.

[119] In addition, it is also submitted that the applicant’s evidence is not credible, as is it not supported by the documentary evidence disclosed. In contrast, the respondent’s witnesses have shown themselves to be reliable and credible, as their evidence is supported by the documentary evidence. The respondent’s witness evidence should therefore be preferred.

[120] The weight of evidence demonstrates the applicant voluntarily resigned from her employment and that her employment was not terminated by the respondent, as alleged or at all.

[121] The applicant’s claim should therefore be dismissed.

Consideration

[122] In this case there is a direct conflict between the two key witnesses Miss Ross and Mr Johns regarding the meeting of 23 January 2013.

[123] There is also a conflict between the evidence of Miss Ross and Ms Crowley as to their discussion on the morning of 24 January 2013 about the meeting between Miss Ross and Mr Johns the previous day.

[124] Some of the other evidence is inconclusive. Evidence in this category is the existence of various job applications Miss Ross had drafted. Whilst the existence of these is pointed to by the respondent in support of their position that Miss Ross was on the verge of leaving her employment which is consistent with her later decision to voluntarily resign in my view the existence of these applications is in no way determinative on this. There is no prohibition on employees whilst in employment actively seeking work elsewhere and in this case it was well understood that Miss Ross was likely to seek out a job in line with her studies at some point in the future. Miss Ross in any event explained each of these letters as being either drafts she didn’t send or were ones for positions that would not have required here to leave the respondent (e.g. internships), or were applications sent after 23 January 2013.

[125] Similarly the evidence of text messages, one sent by Ms Raso to the applicant asking if everything was okay immediately after Miss Ross had met with Mr Johns and the applicant’s reply that evening that “all was good now” are not helpful. This is because both Miss Ross and Mr Johns agree that during their discussion on 23 January 2013 Miss Ross at times became upset. This text exchange does not cast any light on the actual discussions between the applicant and Mr Johns in this private meeting.

[126] The other documentary evidence, including the emails sent by the applicant to other employees on 24 January 2013 explaining she had resigned and was feeling very positive about the future, the letter the applicant provided to Mr Johns notifying him that her last day would be Friday, 1 February 2013 (which ever version is considered) and the email sent by Mr Johns to all staff advising that Miss Ross was leaving to pursue roles in line with her studies are all consistent with the respondent’s position that the applicant voluntarily resigned. However of course they are also consistent with Miss Ross’s version of events, that these were all part of the pretence which Mr Johns proposed that she tell everyone she had resigned.

[127] The only documentary evidence that supports the applicant’s position is her own email late on Thursday, 31 January 2013 requesting that Mr Johns provide her with a letter indicating the nature of her “employment termination”. Mr Johns’ response however is equally supportive of his version of events.

[128] The fact that the applicant appeared to participate positively in a farewell morning tea and a farewell lunch and at no time suggested to any of the respondent’s staff that she had been dismissed by Mr Johns and that her departure was anything other than a voluntary resignation is consistent with the respondent’s position that the applicant voluntarily resigned but can also be seen as consistent with the applicant’s explanation of the agreed pretence Mr Johns suggested.

[129] In this application the onus rests on the applicant to demonstrate certain facts on the balance of probabilities. The first of these, and in this case the central question, being that her employment was terminated on the initiative of the employer. This is not a case, as is provided for in section 386(1) (b) of the Act, where an applicant agrees they resigned but argues their resignation was not voluntary but in fact was forced upon them because of the employer’s conduct.

[130] What is submitted on behalf of the applicant is that the termination of the employment relationship was the result of Mr Johns telling her she no longer had a position. The fact that she and Mr Johns agreed to publicly pretend that her dismissal was a resignation does not turn a dismissal at the employer’s initiative into a different legal character; it remains the case that the respondent dismissed the applicant 8.

[131] Considering the documentary evidence there is no hint in the applicant’s emails to other staff members whom she was friendly with that she was doing anything other than voluntarily resigning. In fact her emails to them go well beyond the minimum statements that would be necessary to maintain her and Mr Johns’ pretence, if it was the case that she was leaving reluctantly having been dismissed. Miss Ross accepts that she voluntarily typed and sent these emails to her friends and no one forced her to do so 9. Miss Ross also processed her own departure through the respondent’s payroll system including identifying the reason for termination as “...voluntary resignation”. Assumedly such detail in the payroll system is not readily available to other staff.

[132] There is no independent documentary evidence that supports the applicant’s position that she was terminated at the initiative of Mr Johns and her apparent resignation was merely a pretence. Miss Ross’s own email to Mr Johns on 31 January 2013 has little weight coming from the applicant herself and nearly a week after the 23 January 2013 discussion when it may be she was having second thoughts about her situation.

[133] Returning to the witness evidence, Mr Johns is an experienced Manager however in his evidence at times he was quick to speculate about events that were not within his knowledge in order to support his case or in order to criticise the applicant’s actions. This does not necessarily mean that Mr Johns was not being truthful in his evidence. His reactions in this way may be explained simply by the irritation he would be likely to feel if in fact the applicant had voluntarily resigned and was now pursuing this application which from his perspective would be groundless.

[134] Ms Crowley’s evidence importantly was that she and Mr Johns had discussed how to deal with the performance concerns they had with Miss Ross. Her evidence was that it was not the intention that Miss Ross be dismissed during the meeting that Mr Johns was to have with her.

[135] Ms Crowley’s evidence also was that the morning after Miss Ross had met with Mr Johns Miss Ross told her she was going to resign and follow a new career in communications. Ms Crowley’s evidence was that she understood that this was Miss Ross’s personal decision.

[136] Miss Ross’s evidence about this discussion was that she said to Ms Crowley that obviously Ms Crowley was aware of what was happening. In saying this Miss Ross clearly believed Ms Crowley was aware of what Mr Johns was going to discuss during the meeting with her the day before, or at least that Ms Crowley was aware of what had occurred. Miss Ross’s belief is consistent with the fact that Ms Crowley is a Director of the respondent.

[137] Consequently I am satisfied that if it was intended Mr Johns terminate the employment of Miss Ross during the 23 January 2013 meeting that Ms Crowley would have been aware of that in advance. Further if it was not the intention for Mr Johns to terminate Miss Ross’s employment during his discussion with her but this did in fact occur I believe it would be more likely than not that he would have advised Ms Crowley of this unplanned development. There is however no evidence that at any time Ms Crowley was aware that Mr Johns had terminated the employment of Miss Ross during their discussion on 23 January 2013.

[138] There is also no evidence that Ms Crowley was aware of the pretence that Miss Ross says Mr Johns had proposed during her meeting with him. It would be likely that Miss Ross would feel some discomfort or unease at times keeping up this pretence with the other staff throughout her last week of employment. Miss Ross shared an office with Ms Crowley and apart from Mr Johns Ms Crowley was the only person that Miss Ross, on her own evidence, believed was aware of what was really happening 10. There is no evidence that Miss Ross ever discussed or mentioned the pretence she was maintaining throughout this week to Ms Crowley.

[139] The onus is on Miss Ross to prove her case. The key evidence in support of Miss Ross’s case is her evidence regarding the discussions she had with Mr Johns during their meeting on 23 January 2013. The evidence of Miss Ross and Mr Johns are in direct conflict on whether he told her she no longer had a position, and so dismissed her, and then suggested she pretend she had resigned or whether he asked her to consider her future and then the following day she voluntarily notified him of her resignation.

[140] The evidence of Miss Ross is also in conflict with that of Ms Crowley as to whether the following day on 24 January 2013 Miss Ross told Ms Crowley she had resigned or not.

[141] All of the actions of Miss Ross from 24 January 2013 through to the end of her employment were consistent with her having voluntarily resigned.

[142] This is a difficult matter which is finely balanced given the limited evidence on the critical point.

[143] My conclusion is it is more likely than not that the evidence of Mr Johns and Ms Crowley about their discussions with Miss Ross on 23 and 24 January 2013 respectively is correct. I decline to accept Miss Ross’s contrary versions of both of those discussions.

[144] That being the case my finding is that during the meeting on 23 January 2013 between Mr Johns and Miss Ross, Mr Johns did not tell Miss Ross that she no longer had a position and so did not terminate the employment of Miss Ross. Rather I am satisfied that the discussion between them concluded with Miss Ross having an opportunity to consider her situation and deciding what she wanted to do and that the following day she voluntarily advised Mr Johns of the last day she would work and as such voluntarily resigned her employment.

[145] For completeness there is no evidence that demonstrates that Miss Ross was forced to resign because of the respondent’s conduct or course of conduct. In addition I accept that the following day Miss Ross, understanding that Ms Crowley was “...aware of what was happening” told Ms Crowley that she was going to resign.

[146] There was much debate between the parties regarding the existence of two different letters both of which Miss Ross agrees she drafted, both being letters to Mr Johns notifying him of her last date of work. In my view it is not important in this matter to determine which of these letters was provided by Miss Ross to Mr Johns given the wording was very similar in terms of the first paragraph which in both cases gave notice of Miss Ross’s final date of work.

[147] With respect to the effect of the letter, considered in the context of the discussion I have found Mr Johns had with Miss Ross the day before she handed it to him and in circumstances where Miss Ross had already explained to some other work colleagues she was going to resign the letter clearly was a resignation letter.

Conclusion

[148] Mr Johns is an experienced Manager. Miss Ross was a relatively junior employee and considerably younger than Mr Johns. The meeting on 23 January 2013 was at his initiative. Mr Johns raised the complaints he had about Miss Ross’s performance and it was he whom suggested that her real interests lay in a career elsewhere based around her studies. On his evidence, which I have accepted, he encouraged Miss Ross to reflect on her situation and her future and suggested he could assist her find a job elsewhere to further her career.

[149] Given his experience Mr Johns would appreciate that to resolve what he saw as the unsatisfactory situation with Miss Ross there were some advantages for the respondent in Miss Ross resigning rather than the alternative of him proceeding down a performance management path potentially resulting in dismissal. Given this context Mr Johns may have exaggerated the likelihood of Miss Ross being able to obtain a position elsewhere in line with her studies that would further her career and he may have exaggerated the extent to which he would be able to facilitate that. If that was the case Miss Ross may later have felt that Mr Johns manipulated her by encouraging her to believe that resigning was a better option for her than in reality it was. Reasonable minds may differ when considering Mr Johns’ actions however what occurred definitely fell well short of Mr Johns forcing Miss Ross to resign. The applicant’s resignation was not objectively the probable result of Mr Johns’ conduct. The applicant could quiet easily have advised Mr Johns she wished to stay on in her job and perhaps looked for other positions whist she remained there as she had been doing already.

[150] It may well be that Miss Ross having resigned and believing Mr Johns would help her get a position to advance her career based on her studies, later realised there was no guarantee of this and so became disillusioned with her decision as her departure date became imminent.

[151] Even if this characterisation of what occurred on 23 January 2013 and in the week following is correct that does not change the fact that Miss Ross had a choice to remain in her employment or to leave. I am satisfied Miss Ross chose to voluntarily resign her employment and indicated this by providing the letter to Mr Johns on 24 January 2013 notifying him of the date she wished to finish. Mr Johns did not terminate Miss Ross and the circumstances here do not amount to Miss Ross being forced to resign by the respondent’s conduct; she could have chosen to remain in employment if she wished.

[152] In conclusion I am not satisfied that the applicant was terminated at the initiative of the employer. Miss Ross was not dismissed by the respondent and as such is unable to make this application which will now be dismissed.

[153] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

T Lethbridge, solicitor for the applicant.

B Greensides, representative for the respondent.

Hearing details:

2013.

Perth:

July 29.

 1   Transcript at PN428 and PN449.

 2   Ibid., at PN418 to PN420.

 3   Exhibit R1, attachment M.

 4   Transcript at PN463.

 5   Exhibit R1, attachment Q.

 6   Transcript at PN493.

 7   Exhibit R1, attachment K.

 8   For a similar situation see [2011] FWA 8903 at paragraphs [30] to [32].

 9   Transcript atPN450 to PN462.

 10   Exhibit A1 atparagraph 101.

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