Morris v Allied Express Transport - [2016] FCCA 1589

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORRIS v ALLIED EXPRESS TRANSPORT PTY LTD

[2016] FCCA 1589

Catchwords:
INDUSTRIAL LAW – Workplace rights under the Fair Work Act 2009 (Cth) – whether the applicant was denied compassionate leave under s.105 – whether the applicant was dismissed as a result of exercising a workplace right – applicant failed to provide evidence of the reason for taking compassionate leave – applicant not dismissed by respondent under s.386(1) – application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.18A

Fair Work Act 2009 (Cth), ss.12, 104, 105, 107, 340, 341, 342, 386(1), pts.3-1, 3-2

Cases cited:
Fair Work Ombudsman v FL Press Pty Ltd [2015] FCCA 1578
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] 233 CLR 115; HCA 61
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] 166 CLR 623; HCA 23
Mendicino v Tour-Dex Pty Ltd [2010] FWA 9114
Mihajlovic v Lifeline Macarthur (2014) 241 IR 142
Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200
Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875
Shevill v Builders Licensing Board [1982] 149 CLR 620; HCA 47
Zaps Transport (Aust) Pty Ltd v PJG Warehousing & Distribution Pty Ltd [2016] NSWCA 97

Applicant:

JASMINE MORRIS

Respondent:

ALLIED EXPRESS TRANSPORT PTY LTD (ABN 20 001 787 962)

File Number:

SYG 2264 of 2015

Judgment of:

Judge Smith

Hearing date:

29-30 March 2016 & 14 April 2016

Date of Last Submission:

14 April 2016

Delivered at:

Sydney

Delivered on:

5 July 2016

REPRESENTATION

Counsel for the Applicant:

Dr J Lucy

Solicitors for the Applicant:

John F Morrissey & Co

Counsel for the Respondent:

Mr B Miles

Solicitors for the Respondent:

Pendlebury Workplace Law

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2264 of 2015

JASMINE MORRIS

Applicant

And

ALLIED EXPRESS TRANSPORT PTY LTD (ABN 20 001 787 962)

Respondent

REASONS FOR JUDGMENT

The applicant was first employed by the respondent (“Allied”) as a casual warehouse assistant in December 2009. She was promoted to the role of sales executive in January 2011 and then in 2014 was promoted to the senior sales role of National Business Development Manager. Throughout her employment she was known as Jess Smith.
In April 2015 the applicant’s grandfather became seriously ill and he died on 1 May 2015. On that day the applicant took compassionate leave.
On Friday, 12 June 2015 the applicant requested compassionate leave to be taken on Friday, 19 June 2015 in order to attend a memorial service for her late grandfather. On Monday, 15 June 2015 she submitted a leave request form for the compassionate leave.
The applicant took sick leave from Tuesday, 16 June 2015 until Thursday, 18 June 2015 inclusive. In the afternoon of Thursday, 18 June 2015 the applicant spoke to her manager, David Petrie, who informed her that she was required to attend work at 8am the following day.
The following morning on 19 June 2015, the applicant attended the workplace and was told that the evidence that she had provided concerning the memorial service, that is, a death notice, was insufficient. There was then a meeting with the applicant conducted by a number of senior managers including the chief executive officer of Allied Express, Colin McDowell. There is some dispute in the evidence about what occurred at that meeting; for present purposes it is sufficient to note the following.
During the meeting Mr McDowell gave the applicant a final warning letter signed by the managers. The applicant refused to sign the warning letter and, to put it neutrally, there followed a dispute between her and Mr McDowell. Ultimately, the applicant was told to leave the premises and she did so. There is no evidence as to whether she attended a memorial service for her grandfather, but it is clear that she did not return to work until 29 June 2015 and then only in order to return Allied’s property held in her possession.
The applicant claims that Allied dismissed her during the meeting on 19 June 2015 because she proposed to exercise a workplace right, namely, to take compassionate leave. She says that this conduct constituted a contravention of s.340 of the Fair Work Act2009 (Cth) (“FW Act”) and claims compensation for, amongst other things, loss of income.
Allied argues that the applicant had no entitlement to compassionate leave, was not dismissed and, in the alternative, that if she was dismissed it was not because she proposed to take compassionate leave.
There are three issues in the proceedings:
i)whether the applicant had a workplace right, namely, the right to take compassionate leave on 19 June 2015;
ii)whether Allied dismissed the applicant; and
iii)if Allied did dismiss the applicant, whether the dismissal was because the applicant proposed to take that compassionate leave.
For the reasons that follow each of those issues are to be resolved against the applicant and the proceedings are to be dismissed.

Relevant legislative provisions

Part 3-1 of the FW Act provides for general protections in the workplace for employees.
Section 340, which is found in Pt.3-1, relevantly provides that a person must not take adverse action against another person because the other person has or has not exercised a workplace right or proposes to exercise a workplace right.
An employer takes “adverse action” against an employee if, relevantly, the employer dismisses the employee: s.342(1), item 1. There is no issue that Allied was an employer and the applicant was its employee.
There is an issue between the parties as to the meaning of the word “dismisses” in s.342(1) of the Act. It is convenient to deal with that issue later in these reasons.
A person has a “workplace right” if, relevantly, the person is entitled to the benefit of a workplace law: s.341(1). A “workplace law” includes the FW Act.
Section 104(c) of the FW Act provides that an employee is relevantly entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when a member of the employee’s immediate family dies. An employee must give his or her employer notice of the taking of compassionate leave soon as practicable: s.107.
Importantly, an employer can require the employee to give evidence if it is given notice in accordance with s.107. The relevant provision is s.107(3) which provides:
(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
…
(c)if it is compassionate leave - the leave is taken for a permissible occasion in circumstances specified in subsection 105 (1).
Section 105 relevantly provides:
(1)An employee may take compassionate leave for a particular permissible occasion if the leave is taken:
…
(b) after the death of the member of the employee’s immediate family or household referred to in section 104.
An employee who does not comply with the notice and evidence requirements of s.107 is not entitled to take compassionate leave: s.107(4).
The relevant effect of these provisions may be summarised as follows. If a member of an employee’s immediate family (which includes a grandparent) dies, that employee:
a)is entitled to 2 days of compassionate leave;
b)may take that leave after the death of the family member;
c)must give notice to the employer as soon as practicable of the taking of leave;
d)if required by the employer, must give the employer evidence that would satisfy a reasonable person that the leave is taken:
i)for a permissible occasion (ie the death of the family member); and
ii)after the death of the family member.
e)If the employee does not produce such evidence when required, he or she is not entitled to take compassionate leave.
For present purposes it is necessary to examine the requirement summarised in [20(d)(i)] above. The import of that requirement is that, if evidence is required by the employer, there is no automatic right to 2 days leave for any reason at all. The leave has to be for the death. The natural meaning of the word “for” in that context is “as a consequence of” or “by reason of”. For example, a pair of shoes might be worse for wear[1]. That means that there must be some evidence of that causal connection if required by the employer. It is unnecessary to determine the precise nature or strength of that connection; however, it is clear that, given the breadth of the word “for”, that the nature will vary according to the circumstances. In my opinion, so too will the evidence required to satisfy a reasonable person of that connection. For example, very slight evidence may be required for leave taken on the day of the family member’s death, particularly if the employee was especially close to the family member.
[1] Oxford online dictionary
As will be seen, the applicant in this case was required to give Allied evidence that the leave on 19 June 2015 was for her grandfather’s death but she did not do so. In those circumstances she was not entitled to take compassionate leave on 19 June 2015 and did not have a workplace right on that day. For that reason, even if she was dismissed by Allied, that dismissal was not because she proposed to exercise a workplace right, Allied did not contravene s.340 of the FW Act and the application must fail.
That conclusion makes it unnecessary to consider the remaining issues; however, as they can be dealt with fairly briefly and it is, in any event, necessary to explain the factual foundation for the resolution of the first issue, I will deal with those issues.
It is first necessary to set out the relevant facts.

Relevant facts

The applicant commenced working for Allied on 9 December 2009 as a casual dock hand and obtained a permanent position as a customer services officer in May 2010. She moved into a sales role in early January 2011 in which she reported either directly to Michelle McDowell, the general manager of Allied, or to sales managers who, in turn, reported to Ms McDowell.
Ms McDowell gave evidence that the applicant was initially successful in her new role and that she worked hard and was tenacious. However, Ms McDowell said that by the beginning of 2014 senior management had become concerned about the applicant’s performance.

Warning letter 30 May 2013

Some aspects of the way in which the applicant behaved in the workplace are evident from a number of warning letters issued to her. In the first such letter, dated 30 May 2013, the author noted that when the applicant was questioned about her whereabouts (after failing to attend an onsite visit) she continued to argue with management in a “very strong, defensive, and aggressive manner”. The letter indicated that such behaviour would not be condoned or tolerated and that in order to rectify the conduct problem the following would occur:
When given direction from senior management this is not to be questioned. When senior management challenge you regarding any topics you are to deal with it in a professional manner and not get defensive, state your case professionally, and then if in disagreement, accept the companies [sic] position.
The applicant acknowledged the receipt of that warning by signing the letter and dating it.

Warning letter 2 September 2013

On 2 September 2013 the applicant was given a further warning letter that noted that the applicant had shown disregard to direction given to her by her manager. The applicant refused to sign this letter.

December 2013 incident

There was an incident in mid-December 2013 that sheds further light on the way in which senior management at Allied viewed the applicant’s general conduct. The applicant had made an agreement with Colin McDowell, the chief executive officer of Allied, that her sales commissions would be banked into a Christmas Club account and would not be released until the applicant was placing a deposit on a property.
Ms McDowell gave evidence about the following events. On 16 December 2013 the applicant approached Mr McDowell on a number of occasions seeking to release the money from the account. As Mr McDowell was engaged with an urgent matter, the applicant then approached Ms McDowell for the release of the money saying that she wanted to buy a house and that she had an appointment with her bank manager and accountant. Ms McDowell asked the applicant to have either her accountant or her bank manager call Mr McDowell to confirm the exact details of what was required. The applicant refused to do that. Later in the day the applicant then explained that she wanted to have the funds released to pay out her car loans.
On Thursday, 19 December 2013 the applicant continued to call Ms McDowell about the release of the funds until 8pm in the evening. The following day the applicant went into Ms McDowell’s office and began screaming at her for the release of the money. That continued for about an hour after which the applicant eventually indicated that she wanted to buy Christmas presents. She followed Ms McDowell around the building screaming and in the end Ms McDowell advanced her $1000 and asked the applicant to leave the building immediately. The applicant did so and then went on annual leave for two weeks. On return to work the applicant apologised to Ms McDowell for her behaviour.
The applicant did not deny Ms McDowell’s evidence about the events in December 2013, although she added a number of matters including that she had told Mr McDowell that she needed the funds in her own account to show that they were hers.
I accept Ms McDowell’s evidence about those events.
Ms McDowell’s evidence was that by the middle of 2014 senior management had become even more concerned about the applicant’s performance as she had not recorded any new business in 33 of the past 34 weeks. That evidence was consistent with contemporaneous documentary evidence and I accept it.

File note 31 October 2014

A file note dated 31 October 2014 refers to a discussion between the applicant and Colin McDowell. The note relevantly stated:
Jess has been under pressure of recent times to perform in her role. She has not been active and has not been focused for some weeks and as a result her lack of performance is now showing up in her sales results. Yesterday she was missing from work and arrived at work today with a sun tan from the beach.

Leave request March 2015

In January 2015 the applicant asked for a week’s annual leave to be taken in March when she had just finished two and a half weeks of annual leave. According to Ms McDowell, she was told that such leave would be outside the company’s guidelines. The applicant then told Ms McDowell that she wanted to go on a cruise with her mother and this was the only time her mother could get off work. Ultimately the applicant was given permission to take annual leave; however, when she returned from leave she revealed to Ms McDowell that she had not gone on the cruise with her mother but rather with her boyfriend. The applicant did not deny this evidence and I accept it.

Applicant’s grandfather’s death April 2015

In April 2015 the applicant’s grandfather was seriously ill. In the week of 27 April 2015 the applicant advised Ms McDowell that her grandfather was gravely ill and in palliative care at Concord Hospital. On Wednesday, 29 April 2015 she left work during the afternoon to visit him. The applicant’s grandfather passed away in the morning of 1 May 2015 and the applicant did not attend work on that day.
There was a private cremation ceremony for the applicant’s grandfather at some time in May which the applicant did not attend.

Applicant’s scheduled client appointments June 2015

Mr McDowell gave evidence that on Friday, 12 June 2015 he spoke to the applicant in relation to the number of appointments that she had scheduled for the following week. His evidence was that she told him that she had 13 appointments scheduled. This evidence was corroborated by John Richardson, the Administration Manager of Allied who was present during the conversation. Mr McDowell said that on the following Monday, 15 June 2015 he checked the number of appointments in the applicant’s diary for the week and noted that she only had 4 appointments. At that point he resolved to issue her with a warning letter over the incident when she was next in the office.
The applicant’s evidence was that she told Mr McDowell that she had 3 appointments for the following week. It is unnecessary to resolve any dispute about the conversation that took place on 12 June 2015. I accept that by that time senior management in Allied, including the Chief Executive Officer and managing director, were seriously concerned about the applicant’s performance at work. I also accept that early in the following week Mr McDowell had resolved to give the applicant a warning letter expressing those concerns. I will explain my conclusions on the credibility of each of the witnesses in due course. Presently it is only necessary to say that I accept Mr McDowell was an honest witness and where his evidence conflicts with that of the applicant, I prefer his.

Request for compassionate leave 19 June 2015

On 12 June 2015 the applicant had asked her immediate supervisor, David Petrie, for permission to take one day’s leave the following Friday in order to attend a memorial service for her late grandfather. She was told to complete a request form and she did so on the following Monday.
The applicant was absent from work on sick leave from Tuesday, 16 June 2015 until she returned on the morning of Friday, 19 June 2016. As no complaint is made by the applicant about Allied’s treatment of that fact, there is no need to examine it in any detail.
On Wednesday, 17 June 2015 Ms McDowell spoke to the applicant by telephone at around midday. After speaking briefly about the applicant’s illness, there was the following exchange:
Ms McDowell: Are you coming in tomorrow?
Applicant: Yes.
Ms McDowell: You have asked for time off on Friday, and you need to bring to work some evidence of the service Friday.
Applicant: Can my mum or grandmother just call you?
Ms McDowell: No, it needs to be something in writing.
Applicant: Ok, I will bring something.
The following day the applicant sent to Mr Petrie a doctor’s certificate and a copy of the newspaper death notice for her grandfather. According to the applicant’s evidence, she then received an email from Mr Petrie in the following terms:
Thanks Jess, have you got something that indicates the date of the memorial service.
The applicant said that she responded by email as follows:
No I don’t, it’s a private event for close family wanting to attend. More than happy to get my mum to call after she finishes work.
The applicant says that she then received an email from the personal assistant to Ms McDowell in the following terms:
Unfortunately Jess there has been inconsistencies in the past when asking for time off outside the guidelines. You need to find something to support this event occurring. Also as per discussion with Michelle when we receive this information we can allow you time off to attend the event but not the full day.
Later on the same day the applicant had another conversation with Mr Petrie in the following terms:
Mr Petrie: I do need you to come in to work tomorrow morning though at 8am, regarding your bereavement leave. Management want to speak with you.
Applicant: We were having a family ceremony for my Grandfathers ashes and I need to be in the city around 10.30 – 11 am.
Mr Petrie: Yes, it won’t take long. You need to come in for this Jess.
The applicant went to work the following morning and met with Mr Petrie at approximately 8:30am. According to the applicant they had the following conversation:
Mr Petrie: Jess, can you come back to work this afternoon?
Applicant: No, I told you that David. I am taking bereavement leave.
Mr Petrie: Well, you need to give us evidence.
Applicant: I know that, and I’ve given you what evidence I need to give under the Fair Work Act. I am entitled to 2 day’s bereavement leave provided I give suitable evidence. I took one day when my grandfather died last month.
Mr Petrie: What does the Act say is suitable evidence?
Applicant: A death notice or a funeral notice or a statutory declaration. I’m happy to give you a statutory declaration if you want.
Mr Petrie: No, that won’t do.
Applicant: Well what else can I give you David, a photo of us with the ashes?

This last comment was clearly facetious, nevertheless, Mr Petrie ultimately told the applicant that a photo as suggested would be acceptable. In response the applicant said:
Are you joking David? That is the most disrespectful thing you could ask of me.

File note 19 June 2015

In a file note dictated by Mr Petrie later on the morning of 19 June 2015 there are the following statements about this conversation between the applicant and Mr Petrie (without alteration):
Jess had previously requested time off for today (Friday 19.06.15), to attend her Grandfathers memorial service. I asked if she was able to provide some evidence that the memorial service is on today? Jess said it was a family thing, she asked if I wanted video or a photo, I advised we would like a photo. She said that was disrespectful but she would comply with that. Whilst this conversation was taking place Jess was mumbling and making it known of her frustration and anger.
…
I said okay, will you be coming back today after the memorial service, and she said words to the effect “you have got to be joking, I have just had a memorial service for my grandfather and will be with my family, your joking”. She then said that she is entitled to 2 days bereavement leave and she has only had 1, and that she needed to provide a death certificate or a statutory declaration and this was her entitlement under the Fairwork Act.
…
In his evidence Mr Petrie attempted to distance himself from that diary note saying that, although it was part of his practice to prepare such file notes, it was “not a particularly truthful one, in that I drafted it to accord with what I knew the Respondent wanted me to state.” Mr Petrie never particularised the aspects in which the file note was inaccurate or not particularly truthful and gave the evidence without having seen a copy of the file note since 19 June 2015. By contrast, Mr Richardson gave evidence that Mr Petrie had dictated the file note to him and that he had typed it and sent it to him for any corrections. The email by which Mr Richardson sent the draft file note to Mr Petrie was in evidence and supports Mr Richardson’s claim. Mr Petrie’s response was that the only correction was the spelling of his name. This fact also undermines Mr Petrie’s evidence that he had written the file note rather than having dictated same to Mr Richardson. The file note represents a contemporaneous record of the events on 19 June 2015 and I accept it to be an accurate record of those events.

19 June 2015 meeting

In any event, the file note is to a large extent consistent with the applicant’s evidence as to the conversations with Mr Petrie in the morning of 19 June 2015 and I accept the effect of the words spoken was as set out above.
It is at this point of the narrative that the parties’ versions of events diverge. It is common between the parties that the following occurred: first, Mr McDowell and Mr Richardson went into the office where the applicant and Mr Petrie were. Mr McDowell then gave a final letter of warning to the applicant. There was at least one raised voice after this and, as a result, Ms McDowell and Craig Hurst, the Chief Operating Officer of Allied, both entered the room. Mr Hurst told the applicant to leave and she did so. She did not return to work that afternoon and only returned briefly on 29 June 2015 in order to return property belonging to Allied.
The applicant’s version of events is as follows.
When Mr McDowell entered the room he had an extremely angry look on his face and aggressively placed a letter in front of the applicant and said: “Read this and sign it and come back to work this afternoon.” He then said to her: “Look who has signed the bottom.” The applicant did so, and noticed that it had been signed by Mr Richardson, Mr Hurst, and Mr McDowell.
The applicant then started to read the letter and Mr McDowell shouted at her: “Don’t be so rude; how dare you not listen to me when I am talking to you.” The applicant replied: “You told me to read the letter and sign it, and come back to work this afternoon.” The applicant then read the letter and said: “I’m not signing that now.”
The applicant said that she was extremely upset by this stage and asked for a copy of the letter, however this request was refused. Mr McDowell said: “I am not giving you a copy of this letter until you sign it.”
The applicant said that during these exchanges Mr McDowell was yelling and screaming at her and was about 10 - 30cm away from her face yelling and spitting all over her face. She said that she felt threatened and intimidated as he was so close to her.
The applicant then says that the following exchange took place:
Mr McDowell: Your behaviour this week has been disgraceful.
Applicant:I’ve been out sick Colin, I’m sorry that I was sick.
Mr McDowell: You lied to me too. I asked you last Friday how many appointments you had for the week and you said 14. I checked, and you had none.
Applicant:No Colin, that was the previous Friday.
Mr McDowell: Are you saying I am lying? Stop arguing with me. I don’t want you to work for me anymore, it’s too hard. Just get out of the office now.
Applicant:That’s fine, can I have a copy of that letter before I leave?
Mr Hurst then entered the office from the room next door and said words to the following effect: “Jess, this is private property. If you do not leave, we will call the police and you will be arrested.”
Ms McDowell then came out of her office and said words to the following effect: “Get out; we do not want you here anymore.”
The applicant then asked again for a copy of the letter and told Mr McDowell that her solicitor would contact him for a copy. Mr McDowell opened the door and she walked out.
Mr Petrie gave evidence for the applicant. He said that during his meeting with the applicant he went to the office next door where Mr McDowell was and, although he does not recall precisely what was discussed, said that he said that the applicant would be leaving work to attend a memorial service for her grandfather. He recalls that Mr McDowell became extremely agitated, stood up and shouted “I’m going to fix this.” He said that Mr McDowell then arranged for a letter to be prepared which was to be given to the applicant.
Mr Petrie’s evidence was that when Mr McDowell and Mr Richardson entered his office where he was with the applicant, Mr McDowell was extremely agitated and instructed the applicant in a forceful tone to “Sign it!” He recalls that the applicant asked Mr McDowell for a copy of the letter and he responded that she could not have one until she signed it and that the applicant yelled words to the effect that she would not sign the letter.
Mr Petrie said that Mr McDowell was agitated and aggressive and it seemed that he had lost control of his temper. He said that Mr McDowell continued screaming at the applicant in a loud volume to “Get Out!” At that point Mr Hurst came into the office and said: “Jess, you’re now trespassing. You need to get out or we’ll have to call the police.”
Nicholas Fistar, an employee of Allied at the time, gave evidence that his office was approximately 15 meters away from the other offices and although he did not hear much of what was transpiring, he did hear certain things being stated in a raised voice. He recalled the applicant stating “Can I have a copy of that?” although he did not know what she was referring to. He also recalled hearing Mr Hurst say: “That’s Company Property Jess… we can call the police… you can be arrested.” He also recalled the applicant asking: “But what have I done? What have I done?” This evidence is not particularly helpful. Mr Fistar did not know the context of what was being said and, although he heard raised voices, he certainly did not hear very much of the conversation.
There were five witnesses of the events on that day who gave evidence for Allied. The first was Kristy Palmer, an account manager at Allied. On the morning of 19 June 2015 Ms Palmer saw the applicant in an office with a closed-door speaking to Mr McDowell. She said that after a couple of minutes she could hear the applicant raise her voice very loudly, basically shouting and then the office door opened and Mr McDowell asked the applicant to leave. She said that Mr McDowell asked the applicant to leave a number of times but she kept screaming out and acting erratically. Ms McDowell then came out of her office and also asked the applicant to leave. Ms Palmer found the applicant’s behaviour to be intimidating, threatening and aggressive.
Mr Richardson gave the following version of events. Mr McDowell indicated to him that the applicant was to be issued with a final warning letter concerning her sales performance and the issue of her not making or recording details of the required 16 sales appointments per week in the sales management system. Mr Richardson was told to get the letter prepared so that Mr McDowell could issue it as soon as possible. Mr Richardson then prepared the final warning letter and it was signed by Mr McDowell, Ms McDowell, Mr Hurst and himself. The terms of the letter are set out further below at [89].
Mr Richardson and Mr McDowell then entered Mr Petrie’s office where the applicant and Mr Petrie were seated. Mr McDowell told the applicant that he was not happy with her sales performance and the fact that she had told him on the previous Friday that she had 13 appointments scheduled for the week whereas that was not the case.
During the ensuing discussion the applicant said in an arrogant manner to Mr McDowell words to the following effect: “That conversation was the week prior and I had 3 appointments scheduled.” Mr McDowell replied: “No, that is not correct, it was the week before and you lied to me.” The applicant then started to argue the point with Mr McDowell and kept saying to him in a loud voice: “You are wrong”. The applicant’s manner and tone were very rude and disrespectful to Mr McDowell.
At that point, Mr McDowell placed the warning letter on the desk in front of the applicant and said: “please read this letter and sign it, and please ensure you return to the office this afternoon after the service is completed.” The applicant then said: “I am not signing that”. She was asked again by Mr McDowell to sign the letter but again refused.
Mr McDowell then picked the letter up off the desk, handed it to Mr Richardson and asked him to place the letter in the applicant’s file. Mr McDowell said to the applicant to leave the office, to go to the service and that she was required to return to work in the afternoon following the conclusion of the service. The applicant however did not make any attempt to get up to leave and again requested that she be given a copy of the letter. She was told that the letter was going on file and that if she signed the letter she could have a copy. The applicant asked again for a copy of the letter in a raised voice and Mr McDowell said that he was not going to give it to her and that she should leave the office. The applicant made no effort to leave and was again making a request to be given the letter. The conversation was going around in circles and both parties were using raised voices at each other.
Mr Hurst and Ms McDowell then both entered the office and Mr Hurst instructed the applicant to leave and said that if she did not leave as requested she would be trespassing. The applicant was still arguing and yelling that she wanted a copy of the letter as she was leaving the office. Ms McDowell then asked her to leave the building and she and Mr Richardson then followed the applicant to the front door. The applicant was yelling as she was leaving the building that she was contacting her solicitor. Ms McDowell said for her to please just leave the building.
Mr McDowell’s version of events was as follows. He asked Mr Richardson to draft a warning letter about the applicant’s poor performance and when that was done arranged for three managers to sign it. He said this was designed to show the applicant the seriousness of her poor performance and her dishonesty to him in relation to her appointments.
After the letter had been prepared and signed, Mr McDowell entered Mr Petrie’s office with Mr Richardson and he walked into the far corner of the office and stood approximately 3 metres away from where the applicant was sitting. He said he was not angry at the time but that he was serious. He spoke to the applicant about her lack of sales performance and about her telling him that he she had 13 appointments which he had later discovered was in fact only four appointments. The applicant then said words to the effect:
When I told you I had 13 appointments, I was talking about the week prior.
Mr McDowell said: “No, it was quite clear when we spoke that we were talking about the appointments for the coming week Jess not the one before.” He then put the warning letter on the table in front of the applicant and asked her to read and sign it. He said: “This is a warning letter in relation to your performance, your lack of sales, and the fact that you tell me you have appointments that you don’t have.”
He also said: “I know you have the scattering of the ashes service to go to now, so go and I’d like to see you back in the office this afternoon after it’s finished”.
In response to this, the applicant picked up the letter, read it and slammed it back on the desk saying defiantly: “I am not signing it”. Mr McDowell again suggested that the applicant should sign the letter, and she refused. There was then the following exchange:
Mr McDowell: Jess you should leave and go to the service now, and come back this afternoon.
Applicant: John [i.e. Mr Richardson] can I have a copy of the letter?
Mr McDowell: Jess, I am the one speaking to you on this matter, you should address me if you have a question. You can have a copy of the letter once it’s signed, but if you are not intending to sign it, like you have said, then you should leave and go to the service.
The conversation then started to go around in circles, the applicant became increasingly aggressive and raising her voice asking for the letter and Mr McDowell refusing. At that stage Mr Hurst entered the room and said: “Jess you need to leave the office now.” At that point the applicant stood up and began to leave but still continued to yell that she wanted a copy of the letter.
Ms McDowell then said: “Enough Jess, just go.”
Mr McDowell said that there were many meetings which ended up with the applicant yelling. He said that she raised her voice and sometimes he raised his. However he denied that he was ever 10cm to 30 cm from her face as he was standing in the corner of the office 3 metres away, standing against the wall for most of the meeting, until the point when he moved over to get the letter off the table. He also denied saying that he did not want the applicant to work for him anymore and denies that there was any mention of any arrest. While Mr McDowell admitted that he did raise his voice at the applicant and was telling her to leave the office, he denied that he had lost control of his temper and was not shouting and screaming as alleged by the applicant and Mr Petrie.
Ms McDowell said that on the morning of 19 June 2015 Mr Petrie came into her office and told her that the applicant had not brought with her any evidence to substantiate the memorial service occurring on Friday. Mr McDowell then entered her office and they all discussed the applicant’s performance over recent weeks. Mr Richardson and Mr McDowell went into Mr Petrie’s office to issue the warning letter to the applicant.
A short time later Ms McDowell could hear the applicant yelling from Mr Petrie’s office refusing to sign the letter that had been presented to her. Ms McDowell was not surprised by that as the applicant had had a long history refusing to sign anything issued to her by the company.
Ms McDowell then heard Mr McDowell ask the applicant to leave the building and the applicant refusing to do so. The applicant’s tone, manner and behaviour were spiteful, insolent and disrespectful.
Ms McDowell then considered from the tone and volume of the applicant’s voice that the incident was escalating and so she left her desk and went to Mr Petrie’s office. She had reached the door of the office at the same time as Mr Hurst. Mr Hurst and Ms McDowell then asked the applicant to leave the office. Ms McDowell did not recall the exact words used by Mr Hurst but she did recall that he asked the applicant at least on three occasions and the applicant refused to do so and started yelling at both Mr Hurst and Ms McDowell. Ms McDowell then said “Enough Jess, just go.”
The applicant eventually left the office, proceeded to the exit door and continued to scream, shouting that her solicitor would be in touch with them.
The file note prepared by Mr Petrie on 19 June 2015 shed some light on the most probable version of events. The relevant part of that file note states:
…
Colin and John then attended a meeting in my office with Jess, where Jess was presented with a warning letter.
Jess responded in a belligerent fashion to the warning letter and to reasonable comments made by Colin to Jess. This saw the incident escalate to the point where Jess was requested to leave the office to attend the memorial but to return in the afternoon, she continued to respond in a belligerent fashion, to the point that Craig Hurst and Michelle McDowell felt compelled to enter the office to intervene. Jess finally left the office at around 9.30am after repeated requests to leave. Jess had refused to sign the warning letter but did not indicate any reason for not signing it.

Contents of the final warning letter dated 19 June 2015

Before setting out my conclusions on all of this evidence, it is necessary finally to set out the terms of the letter which was handed by Mr McDowell to the applicant. Omitting formalities it read:
Allied express are extremely unhappy with both your sales performance and your behaviour within our business. These matters have been discussed with you previously, and this is the last occasion on which this business will have this conversation with you.
In particular:
1.Your sales performance has been disgraceful for an extended period of time, which has previously been brought to your attention. The business has endeavoured to help you improve this position, however you continue to not do what you are told, and your alternate actives continue not to be successful.
2.You have been asked on numerous occasions to ensure that you have 16 appointments per week. You have continually failed to meet this target. Additionally, you continue to not be honest and transparent about why this has not occurred and you continue to not record these appointments in SAM [an electronic management system] as requested.
3.You have been asked on numerous occasions to be truthful, and non-argumentative in your conversations with management. This continues to not be the situation. In particular, senior management will not tolerate your continuing behaviour of being evasive, untruthful, changing your version of the events and unreasonably defending your position. This type of behaviour is time consuming, frustrating and immature.
Your performance in relation to the above is unacceptable and will not be condoned or tolerated by this company, and is considered a very serious matter. Allied Express are to see an immediate improvement in all of the above areas. Should this not occur, it will lead to your position with Allied Express being terminated.
Your performance will be reviewed on an ongoing basis over the next 1 month.
There was then a space for employee comments in relation to the letter and a space for signature by the applicant “in acknowledgement of receiving this warning.” The letter was signed by Mr Richardson, Mr McDowell, Ms McDowell and Mr Hurst and dated 19 June 2015. It was not signed by the applicant.

Cross examination of witnesses at the hearing

All of these witnesses were cross-examined. Although Mr Petrie appeared to be making every effort to give truthful answers, there were two matters of concern in his evidence under cross-examination. First, he was asked on a number of occasions whether the applicant was yelling. Although he ultimately conceded that she was, he appeared to be attempting to avoid making the concession. On a number of occasions he said that she was speaking “directly and assertively” and that she was not the loudest in the room. These attempts by Mr Petrie to downplay the applicant’s conduct at the meeting on 19 June 2015 left me with the impression that he coloured his evidence so that it suited the applicant or, perhaps, went against the respondent.

Similarly, he resisted giving evidence that the file note of the events was prepared by Mr Richardson in spite of the contemporaneous email exchange between him and Mr Richardson which left no doubt that that was the case. For example, it is extremely unlikely that he would have misspelt his own name whereas, according to his own email, that was the only correction that Mr Petrie made to the draft file note.
Although it was, in the big picture, not an important point, in combination with his attempts to distance himself from the file note and to understate the conduct of the applicant at the meeting, that leaves me to conclude that where Mr Petrie’s evidence is different to that of other witnesses I give it less weight.
Although the applicant’s evidence is, to a large extent, consistent with the evidence of the witnesses for Allied, I found that she was not overall an impressive witness. First, she adopted Mr Petrie’s use of the word “assertive” when describing her demeanour throughout the meeting. She had not done so in her affidavit evidence and I consider that it is probable that she was influenced by having heard his evidence before being cross-examined herself.
Secondly, when pressed upon details of the meeting she did not give direct answers to the questions asked of her and, at least on one occasion, changed her evidence. For example, she said that she wanted a copy of the letter to take to her legal representative whereas, in her first affidavit affirmed 29 January 2016, she said that she wanted to “take a copy of the letter to review the contents before signing the letter”.
Thirdly, she gave evidence that her reply affidavit affirmed 21 March 2016 had contained a response to everything she denied in the evidence of Allied’s witnesses. However, in spite of that and although she had not denied some of the evidence of Allied’s witnesses in her reply affidavit, when confronted with some of that affidavit evidence in cross-examination she did deny it.
Fourthly, some of her evidence was simply implausible. All of the evidence, oral, affidavit and contemporaneous business records point to the conclusion that the applicant was, at the very least, assertive and feisty, if not aggressive, in her dealings with senior management at Allied. She was warned about her conduct in writing on a number of occasions. In light of all her previous conduct it seems to me, very unlikely that when presented with a final warning letter the applicant would have been merely assertive and gone quietly. This conclusion is fortified by the way in which she gave evidence under cross-examination. She was defiant and prickly, quick to justify her own actions and to give extended explanations when the questions did not require it.
By contrast, I found each of Mr Richardson, Mr McDowell, Ms McDowell, and Mr Hurst to have made every effort to give evidence of their honest recollections of the events. Significantly, I find that the version of events given by those witnesses was more consistent with the contemporaneous documents. In light of that, where there was any inconsistency, I prefer the evidence of the witnesses for Allied.
For those reasons, I find that at no time during the meeting was the applicant told that she was no longer wanted at Allied or that, if she did not leave, she would be arrested. I find that, while it is most likely that Mr McDowell raised his voice, as stated by Mr Richardson, that was as a result of the applicant’s response to receiving the letter which was aggressive, stubborn, irrational and, given her position in the firm, insolent. I find that the applicant screamed and yelled at the senior management and acted unreasonably in refusing to acknowledge receipt of the final warning letter. The applicant was told on a number of occasions by Mr McDowell to leave the office to go to her grandfather’s memorial service. Ultimately, Mr Hurst told her to leave and that if she did not, she would be trespassing and the police would be called. The applicant then left, but it was on the clear instruction that she was to return to work in the afternoon upon completion of the memorial service.
I also find that the applicant had been requested to provide evidence that the leave she proposed to take on 19 June 2015 was “for” the death of her grandfather and that she never provided any evidence of that nature. The notice of her grandfather’s death which she did produce to Allied certainly did not answer that description.
I return then to the narrative.

Events after the 19 June 2015 meeting

On 22 June 2015, the following Monday, the applicant did not attend work and did not communicate with anyone at Allied in relation to her whereabouts. Shortly before 11am on that morning Mr Richardson emailed the applicant a letter requesting her to attend a meeting on the following day to explain her conduct on 19 June 2015. That conduct was summarised in the letter as:
(i)being argumentative in relation to her performance;
(ii)refusal to sign the letter or to provide any response;
(iii)belligerent, arrogant and insolent attitude towards the CEO;
(iv)badgering the CEO; and
(v)refusal to leave the office.
The applicant replied to that letter by email received at 5:25pm the same day. She referred to the direction to attend a meeting at the office on the following day and stated:
…
You will appreciate that this is an unusual direction, given that my employment was terminated by Mr McDowell last Friday 19 June. Indeed, you were present when this occurred.
The applicant then asked for arrangements to be made so that she could return to Allied in order to return the company property in her possession and asked when she would receive a final pay, in particular, her commissions together with a breakdown of same.
The applicant did not attend work on 23 June 2015.
Mr Richardson replied to the applicant’s letter by email dated 24 June 2015 indicating that the company did not accept that it had terminated her services but stating it was clear that the relationship had come to an end.
On Monday 29 June 2016 the applicant attended Allied’s offices to return the company mobile phone and laptop that she had. She was given a letter by Mr Richardson which stated that the final payment was available and that she would be paid upon receipt by Allied of a signed copy of the letter. The applicant refused to sign the letter, took personal effects from a desk and left the offices for the last time.

Consideration

Issue one: did the applicant have a workplace right to take compassionate leave in 19 June 2015?

The first issue in the proceedings is whether the applicant had a workplace right, namely an entitlement to take compassionate leave on 19 June 2015. For the reasons that I have set out at [21] above, in light of my finding that Allied requested evidence from the applicant in accordance with s.107 of the FW Act and that she failed to provide that evidence, she did not have any such workplace right at that time. As that asserted right was the cornerstone of the applicant’s case, the failure to establish it means that her case must fail.

Issue two: did Allied dismiss the applicant on 19 June 2015?

The second issue is whether or not the applicant was dismissed by Allied on 19 June 2015. The facts are, as I have found, that the applicant was told to leave the premises in order to attend her grandfather’s memorial service but with the direction to return later that same afternoon.
The applicant argued that the conduct of senior management of Allied was such that she was dismissed on 19 June 2015. She says that the meaning of the term “dismissed” for the purposes of the FW Act is that found in s.386 (1). That section provides:
(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.
(Emphasis in original)
The applicant submitted that 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: Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200 at 205; Mihajlovic v Lifeline Macarthur (2014) 241 IR 142 at [12] – [14] and [17].
In respect of sub-s.386(1)(b) the applicant submitted that she was forced to resign because of the current conduct engaged in by Allied, in other words she was constructively dismissed. The relevant test is whether the employer’s conduct intended or had the probable effect or result of bringing the employment of the relevant employee to an end, such that the employee effectively had no choice but to resign: Mendicino v Tour-Dex Pty Ltd [2010] FWA 9114 at [9].
In the alternative the applicant argued that the word “dismisses” in s.342 includes a reference to the employer’s repudiation of the employment contract.
Allied argued that the provisions of s.386 were of no relevance to the determination of the issues before the court. It relied on the decision of Judge Cameron in Fair Work Ombudsman v FL Press Pty Ltd [2015] FCCA 1578. In that case, his Honour said, at [231]:
The respondents referred in their submissions to Wilkie v National Storage Operations Pty Ltd where dismissal was discussed by reference to s.386 of the FW Act. However, I cannot agree that that provision has any relevance to present considerations. Specifically, s.386 is found in the particular context of unfair dismissals, over which this Court has no jurisdiction, and sets out a definition of dismissal which is expressly related to the circumstances in which a dismissal may be found by the Fair Work Commission to have been unfair. That section should not be understood to have determinative significance to circumstances beyond unfair dismissal.
The applicant on the other hand argues that that decision is inconsistent with the earlier decision of Judge Whelan in Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875 at [189] – [190]. However, her Honour’s comments in that passage were restricted to the meaning of s.386(1) rather than whether that definition applied equally to the word “dismisses” in s.342. For that reason I see no tension in the reasoning between the two cases.
For the reasons that follow I do not need to resolve this issue. I note, however, that my tentative view is that the applicant is correct. Section 12 of the FW Act provides relevantly that “In this Act:… dismissed: see section 386.” Giving some leeway to account for the fact that the FW Act appears to be drafted in so-called plain English, it is clear that, for the purposes of the Act the meaning of the word “dismissed” is to be found in s.386. The fact that s.342 uses another form of the verb (“dismisses”) does not matter: see s.18A Acts Interpretation Act1901 (Cth) which provides:
In any Act where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
Thus, subject as to there being some contrary intention, the meaning of “dismisses” is to be determined by reference to s.386(1) of the FW Act. With respect to Judge Cameron, I cannot see the expression of such a contrary intention merely in the fact that s.386 appears in Pt.3 - 2 of the FW Act which deals with matters in respect of which this Court has no jurisdiction. Further, it appears from his Honour’s reasons that s.12 of the FW Act was not brought to his attention.
The applicant’s submission was that she was in effect forced to resign because of the conduct engaged in by Allied, that is that she was constructively dismissed. Alternatively, she argues, Allied repudiated the contract of employment. I will deal with the repudiation first.
The term repudiation is used in a number of different senses. A person can repudiate a contract either by being unwilling or unable to perform their contractual obligations, that is, that by evincing an intention to no longer be bound by the contract, or by stating that they intended to fulfil the contract only in a manner substantially inconsistent with their obligations and in no other way: Shevill v Builders Licensing Board [1982] 149 CLR 620; HCA 47 at 625-626 (Gibbs CJ); Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] 166 CLR 623; HCA 23 at 634, 647-648, 658; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] 233 CLR 115; HCA 61 at [44]; Zaps Transport (Aust) Pty Ltd v PJG Warehousing & Distribution Pty Ltd [2016] NSWCA 97 at [3].
Here, Allied did neither of those things. Critically, the whole course of events including the meeting on 19 June 2015 was set in motion by the delivery to the applicant of a warning letter. The terms of that letter are important. It is pellucid that the letter was in fact an expression of Allied’s willingness to continue the contract of employment rather than its desire to immediately no longer be bound by it or to act in a way which was substantially inconsistent with its obligations under it. Further, Mr McDowell expressly told the applicant to return to work after she had been to her grandfather’s memorial service. Otherwise, the heat in the meeting was substantially that created by the applicant.
Those two matters also satisfy me that the conduct of the senior managers of Allied was not such that the applicant had no choice but to leave. In my view, it was the applicant’s choice that she did not return to work either on the Friday afternoon or the following week when directed.
For those reasons, Allied did not dismiss the applicant in any sense of that word.

Issue three: if Allied dismissed the applicant, was it because she proposed to exercise a workplace right?

The third issue is whether Allied dismissed the applicant because she proposed to exercise a workplace right. As I have said, this issue does not arise because there was neither the workplace right nor a dismissal. In any event, even if there were, I am not satisfied that any dismissal was for the reason posited. Briefly, I am satisfied that the actions taken by the senior managers in preparing, presenting and asking the applicant to sign the warning letter were driven solely as a response to the applicant’s poor work performance and attitude towards her managers. The actions of the senior managers, namely Mr McDowell, Ms McDowell and Mr Hurst in telling the applicant to leave was in a direct response to her aggressive and insolent conduct. What the managers did must be seen in context. One part of that context that appears to have been overlooked in the applicant’s case is that she had asked for and still wanted to leave work in order to attend a memorial service for her grandfather. Nobody was stopping her from doing that. Indeed, the repeated request that the applicant leave the office was in line with that request even though she had not produced the evidence requested by her managers.
For those reasons the application must be dismissed.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 5 July 2016