Mr Daniel Packer v BananaCoast Community Credit Union Ltd T/A BCU
[2016] FWC 2853
•10 MAY 2016
| [2016] FWC 2853 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Packer
v
BananaCoast Community Credit Union Ltd T/A BCU
(U2016/4264)
COMMISSIONER HUNT | BRISBANE, 10 MAY 2016 |
Application for relief from unfair dismissal – jurisdictional objection – whether Applicant dismissed.
[1] On 3 February 2016, Mr Daniel Packer lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) through which he sought relief with respect to the cessation of his employment with BananaCoast Community Credit Union Ltd (BCU).
[2] There is no dispute that Mr Packer’s employment ended with BCU at some date in January 2016. What is in dispute is whether Mr Packer resigned his employment through words and actions over three days in early January 2016, or whether BCU terminated Mr Packer’s employment in mid-January 2016.
[3] BCU’s position is that it did not dismiss Mr Packer, and submits to the Fair Work Commission (the Commission) Mr Packer resigned his employment. If BCU’s position is accepted, Mr Packer is not able to pursue the application and it must be dismissed.
[4] The matter was heard before me in Noosa on 21 April 2016. Ms Louise Hogg of Australian Business Lawyers sought permission to appear for BCU. Mr Packer did not oppose leave being granted for Ms Hogg to appear as a lawyer. I determined that the request for a grant of permission was approved pursuant to s.596(2)(a) of the Act on the basis that I was satisfied that legal representation of BCU would enable the matter to be dealt with more efficiently, taking into the complexity of the evidence and submissions before the Commission.
[5] In reaching this conclusion I took into account that Ms Shelley Lantry, Human Resources Manager was the instructing officer of BCU, and was also a witness in the matter. Whilst a respondent witness appearing as an advocate in a matter is not in and of itself unacceptable or unusual, in the circumstances I considered it would be of assistance for the efficient running of the hearing for BCU to be represented by Ms Hogg.
[6] Permission was given for Ms Lantry to remain in the court room for part of Mr Packer’s evidence, however at a relevant time, Ms Lantry was directed by me to leave the court room when Mr Packer’s evidence traversed email correspondence between Mr Packer and Ms Lantry.
Background
[7] Mr Packer commenced employment with BCU on 19 May 2015 as a Mobile Business Development Manager on the Sunshine Coast. Mr Packer’s duties were largely based on him securing home loan customers and promotion of BCU. Mr Packer’s evidence is that during his employment with BCU he secured four home loan customers.
[8] There is no suggestion that Mr Packer’s performance during 2015 was unsatisfactory.
Mr Packer’s workplace concerns
[9] Mr Packer’s evidence is that on Friday, 18 December 2015 by hand he wrote in his diary a telephone exchange with his manager, Ms Ondrea Kingston, Area Manager, Sunshine Coast. Mr Packer did not produce his diary in evidence, but stated that his wife had typed his diary notes and included the typed diary note in his evidence.
[10] Mr Packer produced the typed diary note to allege that he was having workplace concerns and grievances with Ms Kingston. I cannot find with any certainty that the diary note was made contemporaneously by Mr Packer on 18 December 2015. In any event, the diary note records some concern Mr Packer has with respect to the uncertainty of which BCU branch he is required to work out of the following week – Maroochydore or Noosaville – and alleged grumbling by Ms Kingston of her workload without the support of other BCU managers.
[11] Mr Packer records at 5.20pm that day:
“DP – Phoned OK at 5.20pm as arranged. OK doesn’t answer the call, left a message and still doesn’t return call.”
[12] It is reasonable to assume that Mr Packer’s written account of this telephone call at 5.20pm was made after 5.20pm, when taking into consideration the text:
“….and still doesn’t return call.”
[13] Some period of time would have had to have elapsed for Mr Packer to conclude that his telephone call had not been returned.
[14] A second typed diary note was produced by Mr Packer dated 21 December 2015. The diary note records:
“Received an email from OK stating she was too sick on Friday to answer call and has spent the entire weekend in bed. File I had taken off me in name of BARR and have had concerns with, as discussed with Sharon Gough on 17/012/15 @ 10.50am, has now appeared on my desk over the weekend. Signs on the window have been reprinted and replaced. Sickness email just another lie.”
Medical condition
[15] On 21 December 2015, Mr Packer attended the Tewantin Medical Centre and saw Dr Lakemond. A medical certificate was issued to Mr Packer. Dr Lakemond declared Mr Packer unfit for work from 22 December 2015 until and including 4 January 2016.
[16] Dr Lakemond provided Mr Packer with a written referral to the Mary Street Wellness Centre stating:
“Thank you for seeing Mr Daniel Packer, aged 44 yrs, who has become rather anxious and depressed related to work stress.
He believes he has been set up by his ceo and fears retrenchment. He experiences high levels of anxiety, is not sleeping well, forgetful and emotional
For your further management please.”
[17] BCU’s evidence is that on 22 December 2015 at 9.28am, Mr Packer sent an email to Ms Lantry titled ‘Sick leave’ and attached the medical certificate declaring him unfit for work until and including 4 January 2016. Mr Daryl Parmenter, General Manager was copied by Mr Packer into the email. Mr Parmenter replied to Mr Packer’s email at 12.26pm with the following:
“Thanks Daniel
Let me know if you need anything
Regards Daryl”
Mr Packer’s attendance at work on 4 January 2016
[18] Mr Packer attended for work on the morning of Monday, 4 January 2016 despite his medical certificate declaring him unfit for attendance at work on this date. Mr Packer’s evidence is that he attended for approximately 45 minutes at BCU’s Maroochydore store. He had a brief discussion with a female employee and collected his laptop before leaving.
[19] When asked to explain his attendance at work on this day, Mr Packer answered:
“I was feeling better. I got up in the morning and I felt like I wanted to do something.” 1
[20] Mr Packer’s evidence is that he continued to work for the entirety of that week. It was put to him in cross-examination that attempts were made by various BCU managers throughout the week of 4-8 January 2016 to contact him and he did not return calls.
[21] Mr Packer’s evidence is that during the week 4-8 January 2016, his mobile phone was diverted at the initiative of BCU. Mr Packer denied knowledge of missed calls or telephone messages on his mobile phone. It is Mr Parmenter’s evidence that he made calls to Mr Packer on 4, 5 and 6 January 2016.
[22] It was put to Mr Packer that BCU had attempted to contact Mr Packer’s wife on 6 and 8 January 2016, inquiring as to Mr Packer’s whereabouts, with a voicemail message left on at least one occasion. Mr Packer’s evidence is that his wife did not communicate these two telephone calls to him. 2
[23] Mr Packer acknowledged that the only telephone communication he had with any person, including customers or potential customers during the week 4-8 January 2016 was with Ms Bianca Pichaloff, Support Manager on 8 January 2016. 3 Mr Packer had called to speak with Mr Parmenter.
[24] Ms Lantry’s evidence is that various managers had made her aware by 7 January 2016 that attempts to contact Mr Packer had been unsuccessful. During the afternoon of 7 January 2016, emails were exchanged by Ms Lantry and Ms Kingston, with a decision made to restrict Mr Packer’s access to the IT system. Ms Lantry’s evidence in cross-examination is that she requested system and phone diversions on 8 January 2016. 4
Telephone conversation – 8 January 2016
[25] Ms Pichaloff’s evidence is that she answered Mr Parmenter’s telephone on 8 January 2016. Mr Packer asked to speak with Mr Parmenter, and Ms Pichaloff was aware that Mr Parmenter had been attempting to speak with Mr Packer during the week. Ms Pichaloff’s account of the telephone conversation is as follows:
Packer: I am suffering from a medical condition. I am taking medication and I am staying with my mum because she is a trained nurse. She is looking after me.
Pichaloff: Is everything okay?
Packer: I am not sure. I will make it okay.
Pichaloff: So what’s going on?
Packer: I will return all my equipment, keys and uniform to the Maroochydore store on Monday.
Pichaloff: Is everything okay?
Packer: I am not sure I will make it. Tell Daryl that I will not trash the equipment or anything. I will bring it all back on Monday.
Pichaloff: I will tell him you are bringing it all in Monday.
Packer: Make sure you tell him that I will not trash anything. Tell him that.
Pichaloff: I will tell him that.
Packer: Okay. Daryl needs to know that I will not trash the equipment. I will just call Daryl myself on Monday.
[26] Ms Pichaloff’s evidence is that she was very confused by the comments made by Mr Packer during the telephone call. It was Ms Pichaloff’s impression that Mr Packer was resigning his employment given he had stated to her that he would be returning all BCU equipment, keys and uniform.
[27] Ms Pichaloff telephoned Mr Parmenter and informed him of the telephone call. Her evidence is that she was concerned with statements made by Packer that he would not trash the equipment and he would return it to the Maroochydore store on the following Monday.
[28] At 3.11pm on 8 January 2016, Ms Pichaloff emailed Mr Lyndon Kingston, CEO to report the telephone call she had earlier had with Mr Packer. Ms Pichaloff’s email to Mr Kingston largely reflects her evidence of the conversation at paragraph [25]. The email includes:
“He just wanted to let Daryl know that he was not going to ‘trash’ the equipment he had and that he will drop it all back Monday – he said this over 3 times. He also mentioned keys to the stores and uniforms.”
[29] Mr Kingston replied to Ms Pichaloff later that day thanking her for the information and musing, “This is all very strange.” Mr Kingston determined that it would be preferable to organise a courier to pick up the equipment, keys and uniform and said this had been organised previously where there were concerns for an individual’s state of mind.
[30] Mr Kingston confirmed a security guard should be organised for the Maroochydore store for the following Monday and “….most likely the week.”
Telephone conversation – 11 January 2016
[31] Mr Parmenter’s evidence is that on the morning of Monday, 11 January 2016, Mr Packer called his telephone. There was a conversation to the following effect:
Packer: I am very unwell. I will return my uniform and equipment to the Noosaville store.
Parmenter: Are you okay?
Packer: I’m not well. I don’t know how I will go.
Parmenter: Don’t worry about going in to the Noosaville store to drop your things off. I will arrange a courier to pick up the equipment and save you the hassle.
Packer: That would be good. I would only be a nuisance. I wish you all the best for the future.
Parmenter: Are you really okay? Is everything alright?
Packer: I’m just not well. Thanks for everything.
[32] Later that day Mr Parmenter sent an email to Ms Lantry as follows:
“Hi Shelley
Could we please put the following email on Daniel packer’s file.
FILE NOTE:
Daniel Packer contacted me on Monday 11th January after numerous missed calls and messages.
Daniel advised me that he is not well and was going to return all bcu property to the Noosaville store on the 12/1/2015.
I advised Daniel not to worry about it and that I would organise a courier to come and collect the property and return to Ondrea.
He was ok with this and said he would only be a nuisance anyway (not sure on what this meant)
I asked him what was going on and he kept saying “I’m not well and thanks for everything and good luck in the future”
Call was then terminated.
Regards Daryl”
[33] Mr Packer’s evidence of the conversation with Mr Parmenter is as follows:
“On 11th January 2016 I spoke to the General Manager Daryl Parmenter in regards to the Area Manager Ondrea Kingston’s dysfunctional behaviour and how it was impacting my ability to do my job due to work stress. I told Daryl that I had diary entries and emails as evidence to her behaviour and that I would post such evidence to him. I also mentioned to Daryl at this time that it appeared I had been locked out of both my phone and computer. I said “do you want me to go to either Maroochydore or Noosaville branch so it could be sent back to Coffs Harbour to be fixed.” He responded “it would be easier for you if we sent a courier to your house to collect all BCU items”. I received a message on my phone at 4.02pm on the same day saying “I need you to do a resignation letter”. No such letter was written on my behalf.”
[34] Mr Packer’s third diary note entry purportedly made on 11 January 2016 states:
“Just had a phone conversation with Darryl (GM) where I stated that I was struggling with current work situation and had evidence as per email from OK. Darryl said to send to him.
Offered my willingness to attend Noosaville or Maroochydore Store, Darryl’s response “It would be easier for you if we sent a courier to collect BCU items.”
(4.02pm)
Voice message left on private mobile from Darryl saying: “I need you to do a resignation letter.””
[35] Mr Parmenter denies having any conversation with Mr Packer with respect to Ms Kingston, and denies Mr Packer communicated that he would send to Mr Parmenter diary entries and emails relating to concerns he was having with Ms Kingston.
[36] Mr Parmenter’s evidence is that he called Mr Packer on his mobile phone later that day and left a voice message. The message left was:
“Hi Daniel. I am confused about what is happening. Are you resigning? If so, I will need a resignation letter.”
Items posted - 12 January 2016
[37] On 12 January 2016 at 11.36am, Mr Packer sent to Mr Parmenter a text message:
“As requested posted today.”
[38] Mr Parmenter’s evidence is that he understood that to mean Mr Packer had posted to him a letter of resignation. Mr Packer’s evidence is that he had (and in fact did) post to Mr Parmenter a small number of emails concerning Ms Kingston.
[39] Mr Parmenter replied to Mr Packer’s text message with the message:
“Thanks Daniel. The courier should be there between 2.30 – 3.30pm today.”
Courier collects BCU items – 12 January 2016
[40] It is not disputed that on 12 January 2016, a courier attended Mr Packer’s home. Mr Packer’s evidence is that when the courier arrived, the only items he had ready to give to the courier were the mobile phone and laptop. 5
[41] The fourth diary note made by Mr Packer dated 12 January 2016 indicates he had a conversation with the courier. The diary notes describes some confusion as to the completion of a form and where the items would be sent. Mr Packer’s diary note does not detail any confusion with respect to which items should be returned.
[42] During the hearing I asked Mr Packer how it is the courier came to be in possession of the uniform and keys. Mr Packer responded that it was the courier who said she had to get the (BCU) uniforms and keys from Mr Packer. 6
[43] When I asked Mr Packer how he obtained his uniforms to hand them to the courier, he answered, “I went upstairs and grabbed them all out of the cupboard. They were just five shirts.” 7Mr Packer later recalled there were three BCU pants in addition to the five BCU shirts.
[44] I asked Mr Packer if he thought to make a call to anybody [to inquire why it is he had to return his uniform]. Mr Packer responded, “I started to. As soon as Daryl left that message that I should fill out a resignation letter, I knew that my goose was cooked. I knew that this was the way it was going.”
Emails of 14 January 2016
[45] On 14 January 2016, Mr Packer sent to Ms Lantry an email titled ‘Termination Enquiry’. The email stated that Mr Packer considered BCU had terminated his employment, and sought an explanation as to why his employment was being terminated.
[46] Ms Lantry replied stating Mr Packer had not been terminated. Ms Lantry’s communication with Mr Packer on 14 and 15 January 2016 included references to Mr Packer informing BCU he wished to drop off BCU equipment, and him being unwell. Part of Ms Lantry’s email to Mr Packer is reproduced below:
“I am aware that you have called Bianca, and have had text communication with Daryl – but it is not clear if you are fit for work. We are awaiting further information from you.”
[47] I asked Mr Packer during the hearing what he understood Ms Lantry’s email message to mean. Mr Packer replied, “Well she is saying that I haven’t been terminated, so I took the view that BCU were going to run with the story that I had resigned.”
[48] I put a number of questions to Ms Lantry with respect to her communication with Mr Packer, and what, if anything he might have said might have changed BCU’s mind that he had resigned his employment. Ms Lantry’s evidence was that if Mr Packer had communicated that there had been a misunderstanding, that he was not well, and had obtained a medical certificate, she would have made representations to senior managers for reconsideration of Mr Packer’s apparent resignation. Ms Lantry’s evidence is that there was no medical certificate to cover this period of time, and noting that Mr Packer had “resigned and that was the position that he had returned all of his equipment, including his uniform and his keys, back on the 12th, I had nowhere to go.” 8
19 January 2016
[49] On 19 January 2016, Mr Packer emailed Mr Parmenter and Ms Kingston. The email is titled, “Great News!” and is reproduced below:
- “Hi Ondrea, Hi Darryl,
Great News! Even though my uniforms, laptop, 4G internet, keys and phone have been taken off me, HR have confirmed I am still part of the team.
Over the next 4 days I will be doing flyer deliveries in the local shopping centers and also plan to do a drop around the cooloola coast area, as I have had some success.
As I do not have a working mobile phone at the moment, I will check in via this email address, at lets say, 5.20pm Friday.
Regards,
Daniel Packer”
Mobile Business Development Manager – Sunshine Coast
[51] Mr Packer responded to Mr Hill on 5 February 2016, including the following:
“Your letter of 19 January 2016 is incorrect factually and at law. I never tendered my resignation and Daryl Parmenter has misrepresented the factual history and communications with myself, and taken advantage of my confusion with a view to terminate my employment.”
Findings
[52] Section 386 of the Act states:
“386 Meaning Of Dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[53] Mr Packer confirmed during the hearing that the only issue for the Commission to determine is whether there was a termination of his employment on the employer’s initiative. Mr Packer confirmed there was no requirement to determine s.386(1)(b) on the basis that Mr Packer states he did not resign his employment. 9
[54] Mr Packer can only pursue this application for unfair dismissal if the Commission is satisfied that he has been dismissed by BCU. In order to reach a conclusion about whether Mr Packer was dismissed within the meaning in s.386 of the Act, I have reached a number of conclusions on the evidence before me.
[55] I have concluded that Mr Packer was suffering a medical condition from 22 December 2015. This is supported by Mr Packer’s absence from work from this date and the medical certificate and referral of Dr Lakemond.
[56] There had not been any concerns with respect to Mr Packer’s performance of his work, or any performance management of Mr Packer by his manager, Ms Kingston.
[57] Mr Packer’s evidence is that he continues to suffer from a medical condition. In evidence, Mr Packer provided a medical certificate citing a diagnosis of reactive depression, with incapacity to work or study 15 January 2016 to 30 April 2016, with a prognosis of 3-12 months.
[58] Mr Packer should not have attended for work on Monday, 4 January 2016, due to his medical certificate declaring him unwell to attend on this day. Despite Mr Packer’s evidence that he performed work all of that week, I find Mr Packer did not perform any work, other than his brief attendance on the morning of 4 January 2016.
[59] On the evidence before me, Mr Packer had been declared unfit for work between 22 December 2015 and 4 January 2016. He was again declared unfit for work between 15 January 2016 and 30 April 2016. Mr Packer was not seen by a doctor between 22 December 2015 and 15 January 2016.
[60] Telephone and system diversions were not activated until 8 January 2016 at the earliest, and I find Mr Packer did not answer his mobile phone or return phone calls between 4 and 8 January 2016. Many BCU employees and managers were concerned for his welfare. Ultimately, phone calls were made to his wife in an attempt to have Mr Packer contact BCU. Mr Packer’s evidence is that phone calls made to his wife were not reported to him by his wife.
[61] I accept the evidence of Ms Pichaloff with respect to the telephone conversation she had with Mr Packer on 8 January 2016. Ms Pichaloff’s concern for Mr Packer’s welfare was justified.
[62] I do not accept Mr Packer said that the “equipment was trashed.” I find Mr Packer repeatedly informed Ms Pichaloff that he would not “trash the equipment.”
[63] I find Mr Packer did say to Mr Pichaloff he would return all equipment, keys and uniform to the Maroochydore store. This is a very important issue. This is the first indication Mr Packer gave to BCU that he was preparing to terminate his employment by resignation.
[64] I accept Ms Pichaloff sent an email shortly thereafter describing the conversation with Mr Packer. Mr Packer does not have contemporaneous notes of this conversation, and there is no reason to doubt the factual content of Ms Pichaloff’s email account of the conversation.
[65] I accept the evidence of Mr Parmenter with respect to the telephone conversation he had with Mr Packer on 11 January 2016.
[66] I do not accept Mr Packer complained to Mr Parmenter about Ms Kingston during the telephone conversation. The concerns Mr Packer purportedly had with Ms Kingston can be reasonably described as trivial and contradictory to other evidence given by Mr Packer. The emails Mr Packer posted to Mr Parmenter on 12 January 2016, largely deal with Mr Packer not knowing from which store he was to work (in December 2015), and impolite grumblings by Ms Kingston of other BCU managers.
[67] If Mr Packer felt this way about Ms Kingston in December 2015, causing him to obtain a medical certificate to take effect on 22 December 2015, there is no explanation as to why he would not raise this with Mr Parmenter on his return to work on 4 January 2016. Mr Parmenter repeatedly called Mr Packer on the mobile phone during the week of 4 January 2016, and Mr Packer failed to answer the phone or return phone calls.
[68] Having accepted Mr Parmenter’s account of the telephone conversation on 11 January 2016, I find Mr Packer did inform Mr Parmenter that he wished to return his uniform and equipment. Mr Parmenter made polite and appropriate inquiries as to Mr Packer’s health and well-being. I find Mr Packer’s following statement is satisfaction of his intent and willingness to resign his employment and end the relationship with the employer:
“I would only be a nuisance. I wish you all for the future”.
and
“I’m just not well. Thank you for everything”.
[69] That being said, if Mr Packer had decided against the return of the BCU equipment, including keys and uniforms, it would be open to find that the words expressed by Mr Packer on 8 and 11 January 2016 could not be relied upon, without a further event, to constitute a resignation of employment.
[70] The determinative act to confirm Mr Packer resigned his employment is the handing over of keys and uniforms and a 4G device to the courier on 12 January 2016. I find Mr Packer had informed Ms Pichaloff and Mr Parmenter that he would return all of the BCU equipment. He then did so.
[71] Mr Packer’s evidence is that he only did so at the behest of the courier attending his house. I do not accept that. Mr Packer’s evidence is that he went upstairs to obtain all of his items of uniform, returned downstairs and placed shirts and pants in a box containing the laptop and phone. I determine Mr Packer did this of his own volition, having foreshadowed the return of these items during conversations of 8 and 11 January 2016.
[72] I accept Mr Packer sent to Mr Parmenter a small number of emails complaining about Ms Kingston, and he did that the morning of 12 January 2016. It does not explain why Mr Packer packaged all of the BCU equipment into a box and handed this to the courier attending his house.
[73] The Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Limited v Doumit [Print N6999, 9 December 1996] stated:
“... for purposes of the proceedings at first instance, it is for the applicant employee to establish that there was a termination at the initiative of the employer.
...
The principles applicable to determining whether in particular circumstances there has been a termination at the initiative of the employer have been considered by the Industrial Relations Court in a number of cases. In that Court, and in this Commission, the unanimous decision in Mohazab v Dick Smith Electronics (No. 2) (supra) has been adopted as an accurate statement of the primary principles. ... Plainly, a decision whether there has been termination at the initiative of the employer must depend upon the facts and circumstances of the particular case. Because each case depends on the facts established, we are not persuaded that any good purpose is served by seeking to identify refinements to the broad statements made in Mohazab. We consider the relevant principle is sufficiently summarised in a recent decision of a Full Bench on another section 170ECA appeal about the principle crystallised in Mohazab:
“That principle is that for a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign.”
Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”
[74] I am unable, on balance, to come to the view, objectively judged, that BCU’s actions or conduct resulted directly or consequentially to the return of the BCU items once held by Mr Packer. It was Mr Packer who foreshadowed to two BCU employees the return of these items. They were ultimately collected by an independent courier, and Mr Packer made no inquiries with BCU as to why it would be (surprisingly) necessary to return BCU keys and uniform.
[75] It is Mr Packer’s evidence that during the telephone conversation with Ms Pichaloff, he complained the telephone and laptop were trashed, as in broken, and needed to be sent away for repair. There is no evidence before the Commission as to how Mr Packer would continue to perform work from 11 January 2016 if his communication devices were in for repair.
[76] The conversation with Mr Parmenter was, according to Mr Packer, largely a complaint by Mr Packer as to Ms Kingston’s management and organisation, together with a reference to the phone and laptop not working. Again, there is no evidence before the Commission as to suggestions by Mr Packer to Mr Parmenter as to how and where Mr Packer would perform work from 11 January 2016 if the phone and laptop were sent to Coffs Harbour for repair.
[77] If the telephone conversation between Mr Parmenter and Mr Packer had been largely to discuss Mr Packer’s dissatisfaction with Ms Kingston, and reporting faulty equipment, upon hearing Mr Parmenter’s voice mail message requesting a resignation, it would have been a startling request. Mr Packer did not make any inquiry as to why Mr Parmenter was requesting a resignation letter from him.
[78] Mr Packer’s recollection of each of the phone conversations is not accepted. I find the conversations took place as described by Ms Pichaloff and Mr Parmenter respectively. To make a finding that the phone conversations occurred as Mr Packer submits, there would necessarily have been some conspiracy of BCU in misrepresentation of contemporaneous emails on both 8 and 11 January 2016, together with a direction to the courier to ensure Mr Packer returned all BCU items, including uniforms and keys.
[79] If the conversations Mr Packer participated in had simply been about returning faulty equipment, a request by a courier to return BCU uniforms and keys would ordinarily invite an inquiry to BCU to discuss this extraordinary request.
[80] I find Mr Packer did not make such inquiry because he had foreshadowed the return of all BCU items, and on the courier’s attendance at his house, willingly returned all items, concluding his employment with BCU at this time, at his initiative.
Conclusion
[81] I find that there was no termination of Mr Packer’s employment pursuant to s.386(1)(a) or (b). As a consequence, there has been no dismissal for the purposes of s.385 of the Act. The Respondent’s jurisdictional objection is upheld and accordingly the application for relief pursuant to s.394 of the Act must be dismissed.
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