[2018] FWC 1109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Mr Michael Cox
(AB2017/190)

DEPUTY PRESIDENT ASBURY

BRISBANE, 23 APRIL 2018

Application for an order to stop bullying – Jurisdictional objection on the grounds that the applicant is no longer employed - Whether applicant resigned – Whether resignation was validly rescinded – Whether employment ended other than by resignation – Finding that employment relationship has ended – Finding that contract of employment has ended – Finding that there is no reasonable prospect that applicant will be at work in the future – Application has no reasonable prospects of success – Application dismissed .

OVERVIEW

[1] Mr Michael Cox applies under s.789FC of the Fair Work Act 2009 (the Act) for an order to stop bullying against Tweed Health for Everyone Pty Ltd T/A Tweed Health for Everyone Superclinic and four persons named in the application. Mr Cox asserts that as provided in s.789FC(1) of the Act he is a worker who reasonably believes he has been bullied at work. Tweed Health for Everyone Pty Ltd (THE) objects to the application asserting that Mr Cox is no longer employed by the Company. This decision deals with that objection.

[2] THE operates a Superclinic located at Tweed Heads providing primary healthcare for the Tweed Community with the major focus on general clinical practice. There are three directors of THE – Dr Diane Blanckensee, Dr Jennifer Soden and Dr Austen Sterne. The three directors have equal shares in the Company and hold one unit each. The spouses of Dr Sterne and Dr Blanckensee are involved in the business as beneficiaries of a trust and are not directors of the Company. Mr Cox commenced employment as the Chief Executive Officer of THE on Monday 10 October 2016.

[3] The Superclinic is staffed by a total of 76 employees and contractors. The employees are administrative staff. The contractors are General Practitioners and other allied health professionals who rent rooms and other space from THE under a landlord and tenant arrangement whereby the tenant pays THE an agreed percentage of gross income. The relationship between the directors of THE is troubled and at the time this application was heard, there was litigation in the Supreme Court involving the three Directors. Essentially Dr Blanckensee and Dr Soden are in dispute with Dr Sterne. Dr Sterne supports Mr Cox in his application for an order to stop bullying and has aligned himself with Mr Cox against his co-directors in relation to that application. Dr Blanckensee and Dr Soden jointly constitute majority shareholders and unit holders in THE. As will become evident the relationship between the three directors is a complicating factor in determining the issue in dispute in this case.

[4] It is asserted by THE that Mr Cox resigned his employment on 7 March 2017 and that the resignation was accepted by Dr Blanckensee and Dr Soden. Mr Cox contends that if he did resign his employment the resignation was given in the heat of the moment at a time when he was distressed due to bullying conduct engaged in by Dr Blanckensee and Dr Soden. Accordingly the resignation was not a manifestation of his personal autonomy. Mr Cox further contends that he withdrew his resignation in a telephone discussion with Dr Sterne who, acting with actual, implied or ostensible authority for THE, accepted the withdrawal and agreed that Mr Cox would take a period of sick leave. It is common ground that the purported acceptance of the withdrawal of Mr Cox’s resignation was not communicated to Dr Blanckensee or Dr Soden before they purported to accept the resignation.

[5] THE asserts that Dr Sterne had no authority to accept the withdrawal of Mr Cox’s resignation or to approve him being on sick leave and that Mr Cox and Dr Sterne knew that this was so. THE further asserts that if Mr Cox’s employment did not end through resignation on 7 March 2017, it ended nonetheless by repudiation, frustration or termination by THE evidenced by the conduct of the parties after 7 March 2017. Further complicating the matter is the fact that Mr Cox made a claim for workers’ compensation which was approved. Mr Cox’s application for a bullying remedy was heard in November 2017 and at that time he had been absent from the workplace since March 2017.

[6] Mr Cox gave evidence on his own behalf. 1 Evidence in support of Mr Cox was also given by Dr Sterne. A statement for Dr Sterne was not tendered in advance of the hearing and he gave oral evidence. Under cross-examination, Dr Sterne was shown a signed statement that he had prepared in relation to this matter at the request of solicitors previously acting for THE.2 Dr Sterne was also shown an unsigned statement prepared by the previous solicitors and said that he had refused to sign that statement on the basis that it did not accurately reflect what he had told the person who took the statement.3 Dr Sterne agreed that he prepared the signed statement and sent it to THE’s previous legal representatives with an instruction that he would not accept any amendments.

[7] Evidence in support of the jurisdictional objection was given by Dr Blanckensee, 4 Dr Soden5 and Ms Alana Flohr (Practice Manager).6 Statements made by the following persons were also tendered without objection:

● Ms Tracey Foster, Midwife for contractor to THE 7;
● Ms Amy Stroud, Operations Manager and Chief of Clinical Operations for Coastal Comupter Medics 8;
● Ms Karina Grimaldi, employee of THE 9; and
● Ms Regan Bruce, employee of THE 10.

[8] A significant amount of evidence in the form of statements, emails and other correspondence was placed before the Commission. Given that Mr Cox asserts that his resignation was not voluntary as a result of the bullying and harassment he alleges it has been necessary to consider the working environment in which the relevant events occurred. In doing so I have not made findings about the allegations made by Mr Cox and the counter allegations made by Dr Soden and Dr Blanckensee against Mr Cox. It has also been necessary to consider events after 7 March 2017 in order to determine whether Mr Cox is still employed or whether his employment has ended by some means other than resignation.

[9] Generally I did not find Mr Cox to be a reliable witness. Mr Cox’s antipathy to Dr Blanckensee and Dr Soden and his support for Dr Sterne, coloured his evidence. Mr Cox displayed a propensity to exaggerate and to put a spin on his evidence about events that was patently inconsistent with the evidence of his own witness Dr Sterne, in order to support his case. On a number of issues, Mr Cox’s evidence disingenuous to say the least. While it is clear that Dr Soden and Dr Blanckensee also have antipathy towards Mr Cox and Dr Sterne I found their evidence to be consistent and credible nonetheless.

ISSUES FOR DETERMINATION

[10] An order to stop bullying can only be made in circumstances where the Commission is satisfied that a worker has been bullied “at work” by an individual or a group of individuals and there is a risk that the worker will continue to be bullied “at work” by the individual or group. It has been established that where the employment of an applicant for an order to stop bullying has ended, the Commission has no power to make such an order if there is no risk that the worker will continue to be bullied at work. In such circumstances an application for an order to stop bullying will have no reasonable prospects of success and may be dismissed pursuant to s. 587 of the Act.

[11] For the purposes of determining whether an application for an order to stop bullying should be dismissed on the basis that employment has ended, it is irrelevant how employment ended. This can be contrasted with unfair dismissal cases where the Commission has jurisdiction only when a person has been dismissed either because the person’s employment has been terminated at the initiative of the employer or the person has resigned but was forced to do so because of conduct engaged in by the employer. 11 In considering whether a person has been dismissed at the initiative of the employer for the purposes of an unfair dismissal application, the Commission is dealing with the question of whether the employment relationship has been terminated at the initiative of the employer rather than whether the contract of employment has been terminated.

[12] In cases referred to in these proceedings, where applications for orders to stop bullying have been dismissed because employment has ended, it has been the employment relationship that has been found to have ended so that there is no risk that bullying will continue. In Shaw v Bank of Queensland 12 the applicant had been dismissed by the employer. The applicant in that case argued that his dismissal was invalid. In dismissing the application for an order to stop bullying, Deputy President Gostencnik held that even if the allegation that the dismissal was invalid or in breach of the applicant’s employment contract was accepted, the dismissal ended the employment relationship and the application for an order to stop bullying had no reasonable prospects of success.13

[13] His Honour went on to observe that the applicant in that case had not contended that the employer engaged in conduct that amounted to a repudiation of the contract of employment and that he elected to keep the contract on foot and that there was no evidence of conduct of the applicant that he had made such an election and continued to treat the contract of employment as ongoing or that he notified the employer that he was doing this. 14

[14] In Linn v Woolworths Limited Pty Ltd 15the applicant had resigned her employment but maintained that she had been forced to do so. In circumstances where the applicant had not filed any application challenging the ending of her employment and there were no proceedings on foot that might lead to reinstatement, Commissioner Lee held that the application for an order to stop bullying should be dismissed on the basis that there was no risk that the applicant would continue to be bullied at work. In Bassanese16the applicant had been dismissed and had made an application for an unfair dismissal remedy under s. 394 of the Act. The application for an order to stop bullying was held in abeyance until the unfair dismissal application was determined. The applicant was found to have been unfairly dismissed and an order for compensation was made. Commissioner Hampton subsequently dismissed the application for an order to stop bullying on the grounds that it had no reasonable prospects of success. In doing so Commissioner Hampton referred to his earlier decision in G.C.17where it was held that:

“…where an applicant will no longer be at work with the relevant individual or group, and there is no reasonable prospect of that occurring in some capacity as a worker in the future, in almost all cases it will not be possible for an applicant to demonstrate the future risk requirement. This requires a consideration of the particular circumstances of the parties including the potential to return to the workplace in some capacity as a worker.” 18

[15] Given that Mr Bassanese’s unfair dismissal application did not lead to reinstatement, Commissioner Hampton held in that case, that there was no basis upon which a further relevant risk of bullying conduct might arise. I agree with the approach adopted by Commissioner Hampton to the effect that for an order to stop bullying to be made by the Commission there must be a reasonable prospect of the applicant for such an order being at work in some capacity in the future.

[16] In the present case, Mr Cox has proceeded on the basis that he is still employed by THE contending that:

● his resignation was of no effect because it was not voluntary; or
● Dr Sterne acting with actual, implied or ostensible authority accepted a rescission of the resignation; and
● THE has taken no subsequent step to terminate Mr Cox’s employment.

[17] THE has proceeded on the basis that the employment relationship ended with the resignation of Mr Cox or with the acceptance of the resignation by Dr Blanckensee and Dr Soden. Alternatively THE contended that Mr Cox’s employment ended by repudiation, frustration or dismissal. It was not made clear whether this contention was in respect of the employment relationship or the employment contract. I have dealt with both questions. I have taken this approach on the basis that the primary question I am required to determine is whether there is a risk that the bullying conduct complained of by Mr Cox will continue in the future and that in order to find that there is such a risk, there must be a reasonable prospect that Mr Cox will return to work. If the employment relationship has ended but the contract of employment remains on foot, it is necessary to consider whether there is a reasonable prospect that Mr Cox will be at work in the future. If there is no reasonable prospect of this Mr Cox’s application for an order to stop bullying must be dismissed.

[18] In deciding whether the employment relationship and/or the contract of employment have ended for the purposes of the present case, I am not required to decide whether Mr Cox was dealt with fairly, reasonably or lawfully. I am also not required to find whether Mr Cox’s allegations that he has been bullied have any substance. What is required to be determined is simply whether there is any reasonable prospect that Mr Cox will be at work in some capacity at THE in the future. If the employment relationship and/or the contract of employment between Mr Cox and THE has ended, the circumstances in which this occurred are relevant only for the purposes of determining the question of whether there is any future risk that the bullying conduct alleged by Mr Cox will continue into the future. The question I am required to determine does not affect the rights of the parties to litigate other matters relevant to the employment relationship elsewhere.

[19] In summary, the issues for determination are:

1. Whether Mr Cox resigned his employment; or
2. If Mr Cox resigned his employment, whether Dr Sterne had authority to accept the withdrawal of the resignation; or
3. Whether the employment relationship between Mr Cox and THE remains in effect; or
4. Whether the contract of employment between Mr Cox and THE is still on foot; and
5. Whether there is a reasonable prospect that Mr Cox will be at work at THE in the future.

EVIDENCE

The working environment prior to 7 March 2017

[20] In order to determine whether Mr Cox resigned his employment on 7 March 2017 it is necessary to also consider the context in which the events on that date occurred. As previously noted Mr Cox commenced employment on 10 October 2017. The relationship between the directors was troubled before Mr Cox’s arrival and continued to be so. Dr Blanckensee and Dr Soden state that they have worked harmoniously together for 23 years and grown their medical practice from a three GP practice to a large multi-disciplinary clinic. Dr Sterne joined the practice in 2001 and became an associate in 2006, and in 2011, the three directors won the tender for the establishment of the Tweed Superclinic.

[21] It is not clear when the relationship between the three directors broke down. The evidence of Dr Sterne is that the breakdown commenced in 2013. It is clear that the breakdown had already occurred by the time that Mr Cox commenced employment on 10 October 2016. This is evidenced by the fact that within a few days of commencing employment, Mr Cox was presented with complaints of bullying by Dr Sterne’s wife who was a dietician working as a contractor to THE and by Dr Sterne. It is not necessary to detail the complaints. It suffices to note that they alleged bullying by Dr Soden and others, including the former CEO and the former Practice Manager.

[22] In his new role as CEO, Mr Cox set out to deal with the complaints. To this end, Mr Cox obtained quotations from two external companies in relation to conducting an investigation. At a meeting of the Board in October 2016, it was agreed that the investigation would be conducted by a particular company and that Mr Cox would act as a “liaison officer”. An investigator provided by that company was engaged. Mr Cox drafted the terms of reference and maintains that they were settled by the Board. There is a dispute about an additional item being added to those terms. It is not necessary to determine this issue. There is also a dispute about the extent of Mr Cox’s role in drafting a letter to all staff about the investigation and how it would be conducted which it is not necessary to decide.

[23] According to Mr Cox, it was made clear to the board that neither the complainants nor those against whom the complaints were made could initiate contact with the investigators and that all communications with the investigators were to go through Mr Cox. The terms of reference drafted by Mr Cox pose questions including whether there is sufficient evidence for legal proceedings to be issued against former employees and whether compensation should be payable to those who have made the complaints. The investigator’s obligations include that: “The investigator is not at liberty to disclose the contents of this complaint either internally or externally unless in direct contrast (sic) to the investigation.”

[24] Mr Cox said that issues arose with the investigation because Dr Soden approached the investigators directly seeking information that had been provided to them by the complainants, in direct contravention of the protocol that he had established. In late January 2017 Mr Cox received an email from Dr Soden alleging that the investigation was flawed and that she was withdrawing her participation. Mr Cox also states that in email correspondence in January 2017 Dr Soden alleged that the investigation was neither impartial nor independent and copied her correspondence to all Directors. Further, Dr Soden accused Mr Cox of being offensive. Mr Cox said that he referred Dr Soden’s complaints to Dr Blanckensee as “Complaints Director” but Dr Blanckensee decided not to investigate the issue.

[25] Mr Cox also said that around this time it was reported to him that Dr Soden was criticising him and his handling of the investigation. As a result Mr Cox sent an email to the Directors and Non-Executive Committee members stating that: “…I feel that the target on ones back is getting bigger and measures are underway to have me removed from office…”. 19

[26] On 9 February 2017 an extraordinary general meeting was held of all Directors. Also in attendance were the spouses of Dr Sterne and Dr Blanckensee who were variously referred to as non-executive members of the Board. At that meeting, Mr Cox detailed what he alleged were breaches of the investigation protocol. The minutes of that meeting tendered by Mr Cox indicate that Mr Cox suggested that “his own position be placed on the agenda…to establish a vote of confidence in Mike’s ability to manage the company across all domains and to direct the business interests of the organisation.” 20 The minutes reflect that the vote of the three directors was: “unanimous in Mike’s ability.” The minutes also reflect that Dr Soden had issues with the terms of reference of the investigation and the manner in which it was proposed to be conducted and was refusing to participate in the investigation.

[27] Mr Cox said that in the period leading up to the meeting Dr Soden ignored, undermined and belittled him causing him to be upset, stressed and uncertain in his role. Further, Mr Cox states that he was informed by various General Practitioners who were potential witnesses in the investigation, that Dr Soden and Dr Blanckensee had approached them and warned them not to participate in the investigation.

[28] Dr Sterne’s evidence about the meeting on 9 February 2017 was that Mr Cox placing an item on the agenda in relation to a vote of confidence related to his position as a whole and not just to Mr Cox’s role in the investigation. Prior to placing this item on the agenda, Mr Cox told Dr Sterne that he was concerned about being harassed in the workplace and felt that he was walking around with a target on his back.

[29] Dr Soden said that she obtained legal advice about the terms of reference for the investigation drafted by Mr Cox and her issue with those terms of reference was that the investigator was not qualified to give an opinion on legal matters and compensation. Dr Soden also said that she wanted to be provided with a copy of the allegations and to understand which of the allegations she was required to respond to before providing her statement to the investigator. Dr Soden asserted that Mr Cox and Dr Sterne were including matters in the investigation which went beyond the allegations of bullying and harassment.

[30] Dr Soden tendered a email correspondence with Mr Cox in which her issues with the investigation were discussed. In one chain of emails Mr Cox purports to give advice to Dr Soden about her obligations as a medical practitioner and a company director and Dr Soden responds indicating that she finds these comments offensive. In the final email in the chain sent at 7.39 am on 3 February 2017, Mr Cox states that he considers that Dr Soden has made a formal complaint about him (notwithstanding an earlier email wherein Dr Soden states that she is not making a formal complaint and does not wish to do so) and that he would like to leave early to “seriously consider my future within this organisation.” 21

[31] Mr Cox also gave evidence about an exchange with a doctor (who is named in Mr Cox’s application as an alleged bully), in which Mr Cox asserts that on Wednesday 1 March 2017 he was verbally and physically threatened. Mr Cox reported this incident to Dr Blanckensee as she was the Director responsible for complaints. Mr Cox states that Dr Blanckensee failed to investigate the matter properly; did not follow correct protocols; and did not interview Mr Cox. Mr Cox also states that in a discussion with Dr Blanckensee about the incident on 2 March Dr Blanckensee put up her hands as if he was making a big deal about nothing, causing Mr Cox to state to Dr Blanckensee: “How dare you dismiss this.”

[32] The doctor against whom Mr Cox made a complaint, made a counter complaint and denied the allegations made by Mr Cox. Dr Blanckensee states that she investigated both complaints and determined not to accept Mr Cox’s version of events and to take no further action. Dr Blanckensee’s decision was made after listening to a recording made by the doctor involved in the incident and concluding that Mr Cox’s version of events was not substantiated. Dr Soden also tendered an email from Mr Cox to the doctor involved in this incident dated 6 March 2017, stating that complaints of bullying, harassment and misconduct including defamation had been made against the doctor and advising that he would be contacted by the investigator about attending an interview. Dr Soden said that this doctor had not previously been involved in the bullying complaint that was being investigated. I have made no finding in relation to the validity of either complaint and it is not necessary that I do so. It is sufficient to note that Dr Soden’s evidence suggests that Mr Cox was using the investigation for ulterior purposes and that Mr Cox’s evidence is that he was aggrieved by the manner in which Dr Blanckensee dealt with his complaint. These matters are part of the factual matrix against which the events of 7 March 2017 occurred.

[33] Mr Cox also asserted that in a discussion on 6 March 2017, Dr Blanckensee called him “a misogynistic male bastard” causing Mr Cox to be very offended. Dr Blanckensee denied that she called Mr Cox a “misogynistic male bastard” and said she would not use this term as it is a tautology. Dr Blanckensee said that she told Mr Cox that his behaviour could be perceived as misogynistic. 22 I make no finding about whose version of events I accept in relation to this matter. It is sufficient to note that some form of the term “misogynist” was used by Dr Blanckensee and that Mr Cox was aggrieved by this.

Events of 7 March 2017

[34] A weekly meeting of the Board of THE was held on 7 March 2017. Mr Cox states that in previous months there had been regular criticism directed at him by Dr Blanckensee and Dr Soden at these meetings. Mr Cox also states that in a discussion at the meeting about the investigation, Dr Soden and Dr Blanckensee yelled at him and Dr Blanckensee stood over him yelling aggressively. Mr Cox said that he was so distressed by the way he was being spoken to and the lack of support he was receiving that he said words to the effect: “I don’t wish to be part of this. Dr Blanckensee has called me a misogynistic male bastard yesterday. I’ve had enough of this treatment. I’m leaving.” Mr Cox then collected his things and left the meeting in a distressed state.

[35] Dr Sterne said that at the meeting of 7 March 2017 Dr Blanckensee was irate with Mr Cox and was berating him about a letter that had been provided to staff in relation to the investigation. Dr Blanckensee told Mr Cox that the letter was badly drafted and that it was causing unrest. Mr Cox maintained that the letter had been drafted by the investigators and he had been told to distribute it unaltered. Dr Sterne said that the meeting of 7 March 2017 had concluded at approximately 10.40 am before Mr Cox walked out.

[36] Dr Blanckensee’s evidence was that at the Board meeting on 7 March 2017, she expressed concern about a letter emailed to staff by Mr Cox informing them of the investigation into the bullying allegations made by Dr and Mrs Sterne. Dr Blanckensee said that staff had expressed concerns about the tone of the email. According to Dr Blanckensee, Mr Cox became angry, stood up and said: “I have had enough of this. I am fed up with the whole place and I am leaving.” Mr Cox then gathered his belongings and walked out of the meeting room. Dr Blanckensee said that Mr Cox’s demeanour and statement led her to believe that he was resigning and this view was also based on the previous Board meeting of 9 February 2017 where Mr Cox’s actions and lack of impartiality had been called into question. Ms Flohr said that Mr Cox said: “I don’t wish to be a part of this. Dr Blanckensee has also called me a misogynistic male bastard yesterday. I have had enough of this treatment. I am leaving.”

[37] In relation to her concerns about the investigation, Dr Soden said that she took the terms of reference to a solicitor for the purposes of obtaining advice. The advice she received was that the investigator was not qualified to give legal advice or determine whether compensation was appropriate and that those matters should be removed from the terms of reference. Dr Soden raised her concerns about this issue with Mr Cox but he did not alter the terms of reference. Dr Soden was also advised that because there were various other people accused of bullying and harassment, Dr Soden should not provide statements but wait until the investigator determined which allegations required a response from her. In relation to the letter that was the subject of a discussion between Mr Cox and Dr Blanckensee at the meeting on 7 March 2017, Dr Soden said that the letter could be intimidating because it does not state who made the allegations and who it is about. The letter was tendered by Dr Soden along with an email expressing concern about it, received by Dr Soden from a staff member. 23

[38] Dr Soden also said that the meeting on 7 March 2017 was a routine management meeting. Mr Cox seemed disengaged and quiet which was out of character and excused himself for ten minutes during the meeting without explanation. At the end of the meeting there was a discussion about the investigation during which Mr Cox raised his voice and told Dr Blanckensee that she had contaminated the investigation. Mr Cox jumped up and said words to the effect that: “All I have done is the best for this business and tried to make you money and all I get called is a misogynistic bastard” and then stormed out of the meeting.

[39] Mr Cox said that after leaving the meeting he was shaken and upset and went to his office and while still in a distressed state, sent two emails to Dr Sterne as the “Staff Director”. According to Mr Cox, the first email informed Dr Sterne about activities that had taken place that he considered illegal and the second email asked Dr Sterne to invoke the “separation clause” in his contract because he could not endure the personal attacks on his character. The email asking that the separation clause be invoked was tendered by Dr Blanckensee. It was sent at 10.54 am on 7 March 2017 from Mr Cox’s personal email address and is in the following terms:

“Dear Austin

As staff partner I would kindly ask that you invoke the separation clause in my contract of employment.

Over the past few months I have been exposed to constant bullying and harassment in the workplace. I have stood by and witnessed accusations about yourself using threatening behaviour toward another director for just making eye contact.

The final straw came last week when I nearly had my face rearranged by a contractor, physically threatened and this was dismissed by Diane Blanckensee. To add insult to injury, two days later she refers to me as a misogynistic male.

I’m very sorry, I can no longer endure these personal attacks on my character.

I intend to file immediately with work cover Australia for being forced from my job.” 24

[40] Mr Cox said that after sending the emails he picked up his personal laptop that he always takes with him when he leaves the building and attended a site meeting across the road with a builder and then drove to another location at Terranora to check on the progress of a new site under construction, before going home in a distressed state.

[41] At 12.35 pm on 7 March 2017, Dr Sterne responded to Mr Cox’s email expressing his regrets that Mr Cox had been put into the position he was in and making a number of comments about bullying and harassment on the part of Dr Soden and Dr Blanckensee. Dr Sterne’s email concludes with the following statement:

“Your integrity and retention as CEO in this organisation is essential for the business to become a successful and ethical practice. Retaining you in this organisation is in the best interests of this business. I personally request that you reconsider your departure from this business.” 25

[42] Mr Cox’s evidence about his actions after leaving the workplace on the morning of 7 March 2017 is that he returned at 1.15 pm to collect his reading glasses. Mr Cox states that at the same time he dropped off the keys to his office so that staff could access and use his work space while he was away. Mr Cox states that he did not offer any comments to staff as he was too upset and embarrassed to talk about how he was feeling.

[43] A witness statement made by Ms Regan Bruce was tendered by THE without objection. 26 Ms Bruce states that on 7 March 2017 Mr Cox came into the administration area between 2.00 pm and 2.30 pm. Mr Cox was wearing different clothes than he had been wearing that morning. Mr Cox dropped his staff lanyard with security keys and office fob onto the desk. Ms Bruce asked Mr Cox: “Is that it?” Mr Cox responded saying: “Yep, see you later”. Mr Cox then walked past Ms Grimaldi and said goodbye to her. Ms Grimaldi confirmed Ms Bruce’s evidence in her statement, also tendered without objection.27

[44] Ms Stroud provided a statement which was tendered without objection 28. In that statement Ms Stroud said that she contacted Mr Cox by telephone at 4.18 pm on 7 March 2017 to discuss a project. Ms Stroud said that Mr Cox told her that he did not want to talk about work because he had just walked out. Ms Stroud states that she thought that Mr Cox meant that he had left for the day and apologised for calling during non-working time. Mr Cox responded by stating that he had left his position due to confidential reasons. Ms Stroud confirmed this discussion by email to Ms Flohr at 9.40 am on 9 March 2017.

[45] Under cross examination, Mr Cox agreed that at the meeting on 7 March 2017 he stated in the presence of three directors of THE on 7 March 2017: “I’m leaving” but maintained that he meant that he was leaving to go to another meeting. 29 That meeting was a budget meeting with a builder across the road from THE in relation to a THE project. Mr Cox agreed that after 2.00 pm he placed the keys to his office, his security fob and lanyard on Ms Bruce’s desk but maintained that he did this so others could access his office while he was away. Mr Cox said he did not know whether there were master keys or who else had keys to his office. Mr Cox said he could not recall whether he had changed his clothes because he was climbing all over a building site.

[46] Mr Cox also said that he left his keys when he departed from the workplace on the afternoon of 7 March 2017 because he had made a medical appointment by then and thought he would not be back that day or the day after. Mr Cox agreed that he would generally not leave his keys behind on an afternoon when he was feeling unwell.

[47] Ms Flohr said in response to a question from the Commission that there are at least four sets of keys that would allow access to Mr Cox’s office and that it was unusual for a staff member commencing a period of sick leave to hand in keys before leaving the workplace. Ms Flohr states that on the instruction of Dr Soden and Blanckensee, Mr Cox’s email account at THE was cut off at or around 4.00 pm on 7 March 2017 and tendered an email to the Company IT provider sent at 3.43 pm containing that instruction. 30

[48] Mr Cox and Dr Sterne also gave evidence about a series of telephone discussions between them on the afternoon and evening of 7 March 2017. Mr Cox said in his written statement that Dr Sterne called him at home at around 3.30 pm on 7 March 2017 and told Mr Cox that invoking the separation clause was not an option and that Dr Sterne was not accepting any form of resignation from Mr Cox. According to Mr Cox, Dr Sterne further stated that Mr Cox had done nothing wrong and that Dr Sterne wanted him to return to work as soon as he could. Mr Cox states that he responded to Dr Sterne by saying that he was upset and too distressed to return right now and needed some time to think about it.

[49] Mr Cox also said in his written statement that after taking time to think, Mr Cox decided that he wanted to remain working at THE but given his stress and upset, needed to see a doctor before returning to work. Mr Cox said that in a further conversation with Dr Sterne at 7.00 pm on 7 March 2017, Mr Cox told Dr Sterne that he had decided to stay on and had made doctor’s appointment for Monday 13 March 2017. Mr Cox states that he told Dr Sterne he would return to work when he was certified as fit. Dr Sterne responded by saying that this was fine and that Mr Cox should provide a medical certificate and return to work as the CEO when he was ready.

[50] Dr Sterne described the first conversation on 7 March 2017, after he read Mr Cox’s email in relation to invoking the separation clause, as follows:

“He was clearly very distressed and upset. He told me that he was heading home and to pack all his stuff, because he lives in Tweed in the week and back in the Sunshine Coast at weekends. So he said he was going back to pack up, and he seemed to be saying he'd had enough; he was upset that he was being forced out of the business. It was difficult to really have a conversation as such, just because he was really angry about it. So I was really phoning up to see how he was, just to make sure that he was - - - ”. 31

[51] At 3.28 pm on 7 March 2017, Dr Sterne forwarded to Dr Blanckensee and Dr Soden, the email he received from Mr Cox at 10.54 am on that day. Dr Sterne’s covering email states that he has spoken to Mr Cox who is furious at being forced out of a job he loves and is upset and packing up his apartment. The email further states that Dr Sterne has asked Mr Cox to reconsider but this does not seem to be an option. The email concludes with a statement that: “I will let you work it out from here, but I want to be fully informed about what transpires.” 32 In response to the proposition that he delegated authority to deal with Mr Cox’s situation to Dr Soden and Dr Blanckensee by stating in an email of 7 March sent at 3.28 pm that he would let them work it out from that point, Dr Sterne said that he asked them to be involved in the situation.

[52] In relation to whether he recalled later discussions with Mr Cox on the afternoon of 7 March 2017, Dr Sterne said:

“Yes, it was over a number of phone calls. Initially I was just listening to what he had to say, just really to make sure that he was okay. As I said earlier, he needed to calm down and he just needed time to do that, and I was aware - in his email he talks about the bullying. I was concerned for the business as well, because he was asking for me to invoke his exit clause, but at the same time he was saying that he was feeling he was being forced out of the business, and so my concerns were also that our business was being put at risk as well for litigation. So it was important that not only did we care for Michael and how his health was but also to ensure that he didn't feel that he was being forced out of the organisation. So if he was going to resign then he needed to be aware that it was not because he was being forced out because he didn't want to work there - and he was just unclear. He was clearly unhappy with what had been happening, but we needed closure on that, and I couldn't really accept that as being a resignation when he was so upset.” 33

[53] Dr Sterne said that by 8.00 pm Mr Cox had calmed down and said in a telephone conversation at that time that he had thought about things and was going to see a GP and take time off as sick leave. Dr Sterne understood from that conversation that Mr Cox was not leaving the business. Dr Sterne confirmed that he did not understand that Mr Cox was going to take sick leave instead of resigning until 8.00 pm on 7 March when this was discussed in a telephone conversation. 34

[54] Mr Cox said that notwithstanding that his witness statement only referred to a conversation with Dr Sterne at 3.30 pm, there had been other conversations with Dr Sterne on 7 March 2017. Mr Cox also said that he did not tell Dr Stern he was packing up his apartment to return to the Sunshine Coast as he was cleaning his apartment. Mr Cox disputed that the first communication he had advising that he not resigned was at 4.57 pm on 8 March when he sent an email to Dr Sterne advising that he was not fit to return to work.

[55] Mr Cox also said that he had not resigned when he emailed Dr Sterne requesting that Dr Sterne invoke the separation clause in his contract, but had given THE the opportunity to invoke the separation clause in his contract. 35 Mr Cox denied that he told Dr Sterne that he was not returning to THE. In response to the proposition that after leaving the meeting on 7 March and on 8 March he had had no contact with Dr Blanckensee or Dr Soden, Mr Cox said that he sent various emails to the organisation but had not conducted any telephone conversations. Mr Cox agreed that all his emails during this period were with Dr Sterne and said that Dr Sterne was the “staff partner”.

[56] Mr Cox also said that when he wrote the email at 10.54 am on 7 March 2017 in relation to invoking the separation clause in his contract, he was stating that if the Directors of THE wanted to exercise the option to remove him from his duties then they were free to do so. 36 In relation to his statement in that email that he intended to take action as a result of being forced from his job, Mr Cox said that he felt he was unduly removed and forced out of the Company and had done nothing to incite dismissal.37 Mr Cox said that after sending that email he had many conversations with Dr Sterne during the day about his health and how he was feeling. Mr Cox said that by 4.00 pm on 7 March 2017 he had made an appointment with his GP and told Dr Sterne that he had done so in a telephone conversation around this time. Mr Cox also said that by 7.00 pm he had confirmed to Dr Sterne that he would be returning to his job.38

Events following 7 March 2017

[57] At 1.00 pm on 8 March 2017, an emergency Directors’ meeting was held between Dr Soden and Dr Blanckensee. Evidence in relation to this meeting was given by Dr Blanckensee in her Supplementary Witness Statement. 39 Ms Flohr also attended the meeting and took the minutes. Ms Flohr’s handwritten notes of the meeting were tendered.40 The minutes tendered by Dr Blanckensee indicate Dr Sterne was “away sick”. The minutes also record that the following decisions were taken:

● To send an email to staff confirming Mr Cox’s resignation;
● To put the investigation into bullying allegations by Dr Sterne and Mrs Sterne on hold;
● Domains put in place by Mr Cox will no longer be in place; and
● All decisions are to be approved by two directors moving forward. 41

[58] At 1.29 pm on 8 March 2017 an email was sent to all staff of THE by Dr Soden and Dr Blanckensee informing staff that: “Michael Cox is no longer in the employ of THESC.” The email invited staff to approach one of the Directors if they had any concerns. 42

[59] At 4.57 pm on 8 March 2017 Mr Cox sent an email to Dr Sterne in the following terms:

“Dear Dr Sterne,

With regret, I must advise you as staff partner that due to the stress, bullying and harassment that I have been subjected to, I feel I am not fit enough to return to duties at this moment in time.

I have a GP appointment scheduled for Monday 11.00 and I will be able to provide you with a certificate for this work related illness.” 43

[60] Dr Sterne responded to Mr Cox’s email at 8.36 pm on 8 March 2017 stating that he was pleased that Mr Cox had decided to stay with THE and wishing him a speedy recovery. The email from Dr Sterne also states that Dr Sterne looks forward to receiving a medical certificate from Mr Cox. 44 At 8.47 pm on 8 March 2017, Dr Sterne sent an email to Dr Blanckensee, Dr Soden, Mr Cluer and Mrs Sterne advising that Mr Cox has notified Dr Sterne that he is on sick leave and will provide a medical certificate. The email goes on to express concern at the advice to staff that Mr Cox was no longer employed by THE and that this could be seen as a pre-meditated dismissal of someone on sick leave and a breach of employment law.45 Dr Sterne agreed that he did not send an email to Dr Blanckensee or Dr Soden between the email of 3.28 pm on 7 March 2017 confirming that Mr Cox had resigned his employment and the email of 8.47 pm on 8 March 2017 stating that Mr Cox had not resigned his employment and was taking sick leave.

[61] At 5.32 pm on 9 March 2017 Dr Sterne sent an email to Dr Blanckensee and Dr Soden stating that it was a mistake to inform the entire practice that Mr Cox was no longer employed and attaching an email that Dr Sterne proposed to send to all staff “shortly” to correct this misunderstanding. 46 At 5.37 pm on 9 March 2017, Dr Sterne sent an email to all staff stating that there has been a miscommunication and that Mr Cox had not left the business but is on sick leave. The email also states that Dr Sterne had not received a letter of resignation from Mr Cox and had not been consulted about release of Mr Cox from his duties and as such he remains an employee.

[62] At 5.36 pm on 9 March 2017 Dr Soden sent an email to Dr Sterne, copied to Dr Blanckensee, stating that as a Director of THE Dr Soden does not condone the sending of the email to all staff by Dr Sterne and that he will require approval by a majority of Directors before sending the email. 47 Dr Sterne said he had already sent his email to all staff before he received Dr Soden’s email.

[63] Dr Soden’s evidence was that the email to staff advising that Mr Cox had left employment was sent at 1.29 pm on 8 March 2017, some 24 hours after Mr Cox had left the workplace and after Dr Sterne had confirmed that Mr Cox was not returning. Dr Soden and Dr Blanckensee maintained that they were not aware that Dr Sterne had purported to allow Mr Cox to take sick leave and to rescind his resignation and that Dr Sterne had no authority take either of these steps. In relation to Dr Sterne’s email expressing disappointment that decisions in relation to Mr Cox were taken without full Board approval, Dr Soden states that any decision made by her and Dr Blanckensee in relation to informing staff that Mr Cox was no longer employed by THE, was made with full majority director and unit holder approval, while decisions of Dr Sterne were unilateral and not made with the approval of the majority.

[64] Further, Dr Soden asserted that Mr Cox clearing out his office and returning to the Sunshine Coast and making no attempt to contact the practice for at least three days or notify of sick leave, was a clear indication that Mr Cox had resigned. On 9 March 2017, solicitors acting for Dr Soden and Dr Blanckensee sent a letter by email to Dr Sterne advising that they were acting for Dr Soden and Dr Blanckensee as majority shareholders for THE and that:

● Mr Cox had demonstrated an intention to no longer be bound by his contract of employment and had in effect resigned;
● Mr Cox’s actions had been accepted as resignation and staff advised accordingly;
● Dr Sterne did not advise that Mr Cox was on sick leave until 8.47 pm on 8 March 2017 – after staff had been notified that Mr Cox had left employment;
● Mr Cox’s resignation was effective from 7 March 2017 and he would not be reinstated.

[65] The letter informs Dr Sterne that all decisions going forward must be made with the joint written consent of two directors pending a resolution of the current company structure at a future meeting of members and that domains are suspended. 48

[66] Dr Soden also tendered an email sent by Mr Cox at 1.51 pm on 10 March 2017 addressed to the three Directors entitled “Email to the Board.” The email states that:

“In writing, I have been informed by some of my dear colleagues that I have been dismissed from my duties without any legal process taking place. Furthermore, several colleagues have been pleased to informed (sic) me that correspondence is in circulation that confirms my return. In response I welcome their support.

However, if you wish to terminate my contract I am prepared to help you. In return I will not follow through with any legal (sic) against Tweed Health and Ausjendia. In return I shall be seeking the following:…”

[67] After setting out financial amounts sought to be paid as a lump sum, tax free and within the guidelines of the ATO, the email goes on to state:

“If I have your agreement by Friday 17:00, then I am happy to provide you with a letter of resignation. Otherwise I will be returning to my duties or filing for damages under the Fair Work Act.” 49

[68] Mr Cox also sent a letter to the Board on 10 March 2017 making a number of allegations about his treatment. At the top of the letter is a Mooloolaba address. The allegations set out in the letter include:

● Accusing Dr Blanckensee of workplace bullying and “calculated aggression” against Mr Cox and other colleagues;
● A split on the Board is a result of Dr Blanckensee’s behaviour;
● Dr Blanckensse is undermining the “Hypocritical” oath and the guidance issued by APHRA;
● Mr Cox recommends that the Board request Dr Soden and Dr Blanckensee to participate in the investigation and that they are “stood down” as directors and contractors until the investigation has run its course;
● Mr Cox’s “walk out of a meeting” was caused by verbal abuse directed at him by Dr Blanckensee;
● Mr Cox thought it best to return his keys to the office during his absence so individuals could access his office and so that he was not “framed for any wrong doing whilst on this forced sick leave”;
● Mr Cox is happy to meet with the remaining board to discuss his complaint and try to find a solution forward, but on the condition that Dr Soden and Dr Blanckensee are excluded (although Mr Cox is happy to meet with all other directors and for non-executive directors to be present);
● If Dr Soden and Dr Blanckensee remain in breach of the APRHA code of conduct, ASIC and the Institute of Directors and continue with their behaviour Mr Cox will report this matter to the appropriate authorities.

[69] The letter to the Board of 10 March 2017 concludes with the following statement:

“Finally, if my removal from office has begun, without my letter of resignation, then I would suggest that you instigate a discussion with me at your earliest convenience.” 50

[70] Dr Soden and Ms Flohr stated that Mr Cox was paid for the hours that he worked in the week prior to leaving the workplace on 7 March 2017 and his accrued annual leave. Mr Cox’s accrued annual leave was paid to him on 21 March 2017 and according to Dr Soden, Mr Cox has not returned that amount.

[71] On 10 April 2017, solicitors acting for THE sent a letter to Mr Cox stating that it is understood that Mr Cox claims he did not resign his employment and that he has wrongfully dismissed or forced out of his employment. The letter asserts that Mr Cox resigned his employment on 7 March 2017 and rejects his claims for payment of certain amounts set out in an email of 13 March 2017. There is no email in evidence dated 13 March from Mr Cox claiming payments. I assume that the email referred to in the letter is the email from Mr Cox sent on 10 March 2017 51 or that there was a further email sent by Mr Cox on 13 March making the same or similar claims. In relation to Mr Cox’s claims, the letter goes on to state:

“It has come to the Superclinic’s attention that you continue to hold yourself out as holding the position of CEO of the Superclinic. As you are no longer employed by the Superclinic, it is misleading to hold yourself out to the be the CEO and you have no authority to do so. You are requested to desist from such conduct.

The Superclinic reserves the right to pursue any course of action against you that may arise as a result and recover any damages for any financial loss and/or damage caused by your actions. Please confirm that you will refrain from holding yourself out to be CEO of the Superclinic.
…
We note that you have continued to correspond with the Superclinic directly. As previously discussed, all correspondence referable to your employment should be forwarded to our firm as we are the Superclinic’s lawyers. In the circumstances, it is inappropriate for you to be corresponding directly with any staff member or director of the Superclinic.
...
We confirm that you have ignored our requests for all correspondence to be sent to our firm. Should you continue to do so, any correspondence sent to any staff member or director of the Superclinic directly will not be responded to. Accordingly we trust that you will address all future correspondence regarding your claim to our firm…”. 52

[72] Under cross-examination Mr Cox said that he could not recall seeing the letter dated 10 April 2017. In response to a question from the Commission about whether he had received the letter Mr Cox said:

“Well, I can't confirm to it that I got this letter. I did recall receiving a letter from Moray Agnew asking me to refrain from using the word or the title of CEO for Tweed Health. I do recall that letter because it was extremely disturbing at the time. Now, since March I'm under quite a lot of medication, so in response to that when you're suffering from severe anxiety as I am I tend not even to look at posts.” 53

[73] Mr Cox was also shown an email sent by him to Dr Sterne on 14 May 2017. The email sets out in tabular form, a summary of topics covered by 20 emails that Mr Cox states have been sent to Dr Sterne and his colleagues between 7 March and 8 May 2017 and requests an immediate update on the current status quo. 54 All but two of the emails are indicated as being addressed only to Dr Sterne. One email said to have been sent on 22 March 2017 to all directors is summarised as complaining about emails being ignored; disconnection from company emails; loss of pay; and open letter to the Board.

[74] Emails sent on 4 and 6 April 2017 to Dr Sterne by Mr Cox are said to have been about topics including: “Seeking clarification on whether one is still employed” and asking why an employment separation certificate had not been issued to Mr Cox after Dr Blanckensee’s email of 7 March 2017 informing staff that Mr Cox had ceased employment with THE. There are also emails referred in Mr Cox’s tabular list complaining about Ms Flohr advising various persons and organisations that Mr Cox is no longer employed by THE.

[75] The tabular list of emails also indicates that three emails were sent to Dr Sterne in relation to employment related matters after the letter from THE’s lawyers was sent to Mr Cox on 10 April 2017 – on 19 April, 24 April and 8 May 2017. 55 In response to a question from the Commission, Mr Cox said that when he was seeking clarification on whether he was still employed Mr Cox was concerned about whether that was the case. However, Mr Cox maintained that while he was concerned about his employment status, he believed that he was still employed and maintained that belief at the point this application was heard in November 2017.56

[76] Mr Cox agreed that he was sent monies by THE but said there was no pay slip attached and he did not know what those monies were for. In response to the proposition that he kept the money, Mr Cox said that he was not asked to return it. Mr Cox also disputed that he was sent payslips. Mr Cox said he queried the amounts paid into his bank account because they did not represent his usual salary. In response to questions from the Commission, Mr Cox agreed that he had not been paid by THE after 21 March 2017 and said that he had queried this. Mr Cox also said that shortly after 21 March 2017 he was being paid by CGU Insurance under New South Wales Workers’ Compensation legislation. In oral submissions, Mr Cox’s legal representative said that Mr Cox received workers compensation payments in August 2017 and that these were backdated to 7 March 2017.

[77] After stating that he had never received payslips and in particular that he had not seen the payslips appended to the supplementary statement of Dr Soden evidencing that on 21 March 2017 he was paid for twelve hours work 57 and accrued annual leave,58 Mr Cox was shown an email sent from his private email address to Dr Sterne on 21 March at 1.59 pm, attaching one of those payslips and stating that:

“I have noted that despite being on work related sick leave, my salary falls far short of that which was expected…I would welcome an immediate response as to why my salary has no sick leave attached.”

[78] Mr Cox said he remembered elements of the email of 21 March 2017 but did not remember sending it or attaching the payslip. Dr Sterne agreed that he received the email from Mr Cox dated 21 March 2017 wherein Mr Cox complains that his salary falls short of what is expected despite being on work related sick leave. Dr Sterne said that he forwarded that email to Ms Flohr on the same date and asked that she respond to it at her earliest convenience. There is no evidence that either Dr Sterne or Ms Flohr responded to the email.

The structure of THE

[79] Dr Blanckensee gave evidence about the structure of THE in a supplementary statement made on 25 September 2017. 59 Dr Blanckensee’s evidence is that THE has three Directors: Dr Soden, Dr Sterne and Dr Blanckensee who constitute the Board. Those persons are the same shareholders who hold shares on trust for each of their family trusts. The Directors hold one vote per share. All decisions are made by the Directors in a simple majority except for defined decisions which require a unanimous decision such as removing a Director or shareholder. The Company was registered in December 2010 with all three Directors in place.

[80] Dr Blanckensee agreed that Mr Cox proposed the idea of domains for each Director. According to Dr Blanckensee, it was not agreed that each Director would have the authority to make unilateral decisions without the consent of the other Directors. Dr Blanckensee tendered an email from Mr Cox dated 19 October 2016 wherein he stated in relation to the domains:

“These are not hands-on roles as such, they are designed to allow the partnership to oversee process and check that the work is being done as directed by the Board. Mike will still retain Operational Management and Leadership but the director(s) roles are more overaching…”. 60

[81] The email also states that the Staff Role: “manages the process of staff planning, budgets, appointment, recruitment and performance management”. Dr Blanckensee also tendered the Board meeting notes of 25 October 2016 where it was decided that Dr Sterne would select the IT and Staff domains, Dr Soden would select finance and clinical and Dr Blanckensee would select complaints handling, training, quality improvement and premises. 61 Dr Blanckensee said that the directors had responsibility for investigating issues in their domains and suggesting proposals for the board to vote on, with the majority making a decision.

[82] Dr Blanckensee maintained that at no time was it ever the case that each Director had autonomous delegated authority over their domains as alleged by Mr Cox. Such authority is expressly rejected by Dr Sterne in his email to Dr Soden and Dr Blanckensee sent on Thursday 9 March at 5.32 pm wherein Dr Sterne expresses his disappointment than an email stating that Mr Cox had ceased employment was distributed without his prior approval or any form of consultation with the full board. According to Dr Blanckensee, as Mr Cox was the author of the protocol, he was fully aware of this as was Dr Sterne.

[83] Dr Blanckensee also pointed to the email sent by Dr Sterne on 7 March 2017 wherein he states, in relation to Mr Cox: “I will let you work it out from here but I want to be fully informed as to what transpires” as evidence of Dr Sternes’ acceptance that he was not solely responsible for dealing with Mr Cox’s resignation. Further, Dr Blanckensee asserted that in addition to not having authority to unilaterally accept the rescission of Mr Cox’s resignation, Dr Sterne did not have authority to accept Mr Cox’s sick leave request in lieu of resignation. By the time Dr Sterne purported to allow Mr Cox to do this, Mr Cox’s resignation had been accepted by the majority of directors. The decision to communicate the resignation to staff was taken by Dr Soden and Dr Blanckensee holding the majority voting rights as directors and shareholders of THE, as evidenced by the minutes of the emergency Director’s meeting on 8 March 2017.

[84] Dr Blanckensee also tendered emails sent by Mr Cox to Dr Sterne and others on 24 November 2016 and 23 January 2017 62 indicating that Mr Cox had divided the Board into specific business areas and domains for which individual directors would “assume responsibility”.63 Dr Blanckensee said that changes to the operation of domains as expressed in this email had been made without her consent or that of Dr Soden. Dr Blanckensee disputed that the domains operated in the manner asserted by Mr Cox and said that at no time had they been altered since the meeting of 25 October 2016. In oral evidence to the Commission, Dr Blanckensee said that while each Director had responsibility for a domain, they had an advisory role to the Board and the Board would make decisions on proposals made by the Director responsible for the domain. An example given by Dr Blanckensee was the appointment of registrars which was undertaken by the Board or the majority of the Board.

[85] Mr Cox states that at the time of his appointment, decisions were made by either the Board or the Board and non-executive committee members. The Board comprised three members – Dr Blanckensee, Dr Soden and Dr Sterne. According to Mr Cox, the members of the non-executive committee were himself as the CEO, Mr Cluer (the partner of Dr Blanckensee) and Mrs Sterne (the wife of Dr Sterne). Mr Cox also states that shortly after his appointment as CEO he proposed that rather than all Directors having to meet to decide all issues, different Directors would be given responsibility and authority in “domains”. Mr Cox said that this was accepted and the Board gave “responsibility and authority” to Dr Sterne for Staffing and IT matters.

[86] In support of his assertion that the domains had been implemented by the Board, Mr Cox tendered minutes of a Board meeting held on 25 October 2016. The minutes record the following:

“Management Responsibilities

Mike had asked the partners to select a domain(s) for areas of interest or responsibility with the practice.

Conclusions

Diane: Complaints Handling, Training, Quality Improvement and Premises.

Jenni: Finance and Clinical,

Austin: IT, Staff.

Governance and audit will be shared by all.

Action Items

All Staff to be advised.

Mike to meet with partners as and when required.” 64

[87] Dr Sterne agreed that the Board of THE is constituted by the three partners who are directors. There is also a non-executive board which includes shareholders. Dr Sterne said that Mr Cox was the first CEO and that a previous Operations Manager had been asked to leave THE. All three Directors had made that decision. In relation to the domains, Dr Sterne said that it was agreed that each Director would work autonomously in a domain and would report back to the Board with regular meetings.

[88] In relation to the domains, Dr Sterne said that the Board of Directors of THE resolved that they would be established and that Dr Sterne was in charge of staff. Dr Sterne agreed that there is nothing in the constitution of the Company in relation to domains and that there is no shareholders agreement for the Company.

[89] Mr Cox said that he is aware of the constitution of the Company and that there are outstanding matters between the three partners. In response to the proposition that there is no shareholders agreement for the Company, Mr Cox said that there is an unsigned agreement, but then conceded that there is no shareholders agreement. Mr Cox also agreed that the Board of THE appointed him, notwithstanding that Dr Sterne had contacted him to advise that he had been appointed as CEO.

CONSIDERATION

Whether Mr Cox resigned his employment on 7 March 2017

[90] I am satisfied that Mr Cox resigned his employment on 7 March 2017. The evidence establishes a work environment in which Mr Cox was unhappy. The investigation into bullying allegations made by Dr and Mrs Sterne, which Mr Cox took carriage of shortly after the commencement of his employment, was causing considerable angst in the workplace. It is also clear from the evidence that shortly after commencing employment, Mr Cox was feeling insecure about his future with THE. At the weekly Board meeting on 9 February 2017, Mr Cox placed an item on the agenda that was effectively a vote of confidence in his continuation in the position of CEO. While the Directors expressed confidence in Mr Cox, it is clear that Dr Soden and Dr Blanckensee had issues with Mr Cox’s performance and Mr Cox was aware that this was the case. Whether Mr Cox’s evidence or that of Dr Blanckensee is accepted the term “misogynist” was used in a discussion between them on 6 March 2017.

[91] Mr Cox can also have been in no doubt that Dr Soden and Dr Blanckensee were concerned about the manner in which he was dealing with the investigation into the bullying allegations made by Dr and Mrs Sterne. I note that the concerns held by Dr Soden and Dr Blanckensee with the manner in which the investigation was being carried out have some validity. The letter informing staff about the investigation tendered by Dr Soden 65 is poorly drafted, and whether Mr Cox drafted it or not, I have no doubt that it caused concern as evidenced by the email also tendered by Dr Soden from a staff member. It also appears that the parameters of the investigation were constantly changing. Further, it is entirely reasonable that Dr Soden would have wanted to have details of allegations before she responded and to have been informed about which allegations she was responding to. Regardless of the reasonableness or otherwise of the issues that Dr Blanckensee and Dr Soden had with the investigation, it is clear that they articulated them forcefully and Mr Cox did not take kindly to either the concerns or the manner in which they were conveyed to him.

[92] At the point that Mr Cox attended the Board meeting on 7 March 2017 two of the three Directors of THE, who together comprised the majority of shareholders and unit holders, had significant issues with his performance in his role as CEO. Regardless of whether he accepted the validity of the concerns, Mr Cox was in no doubt about the views of Dr Blanckensee and Dr Soden. Whether Mr Cox left during or after the Board meeting, it is not in dispute that Mr Cox said words to the effect that he was leaving and that he was fed up with the manner in which he had been treated.

[93] Mr Cox’s evidence to the effect that he was leaving to attend another meeting, rather than indicating an intention not to return, was unconvincing and I do not accept it. Mr Cox did not just leave the Board meeting in a distressed state and absent himself from the workplace. Before leaving the workplace, Mr Cox went to his office and sent an email at 10.54 am asking Dr Sterne to invoke the separation clause in his employment contract. On Dr Sterne’s evidence, the board meeting concluded at around 10.40 am. In my view it is significant that notwithstanding Mr Cox’s evidence that he sent the email to Dr Sterne from his office at THE, he used his private email address to do so. The resignation email is a considered communication and does not bear any resemblance to the communication of a person who acting involuntarily.

[94] I do not accept Mr Cox’s evidence to the effect that the email sent at 10.54 am was an offer to THE to terminate his employment. It was not a conditional resignation which required acceptance in order to bring employment to an end. There was nothing conditional about the email. Mr Cox was giving notice of his resignation which was capable of acceptance. It was only in later correspondence on 10 March 2017 that Mr Cox sought to disavow the resignation and offered to resign on certain terms, that there was any reference to conditions being placed on the resignation. Dr Sterne took the email of 7 March 2017 as a resignation and responded to it accordingly, although he later said he was concerned that acceptance of the resignation would expose THE to a claim by Mr Cox for constructive dismissal.

[95] It is also the case that Mr Cox’s legal representative accepted in both written and oral submissions that sending the email was an act of resignation, albeit that it was sent only to Dr Sterne. 66 In an exchange with the Commission during the hearing, Mr Cox’s legal representative said that on his instructions, Mr Cox accepted that the email was a resignation.67 Mr Cox’s oral evidence was at odds with this submission and I do not accept it.

[96] Further support for the proposition that Mr Cox resigned his employment is that at or around 2.00 pm, Mr Cox returned to the office and left his office keys, security fob and lanyard on Ms Bruce’s desk before leaving. While what Mr Cox said and the clothing he was wearing was in dispute, it was not in dispute that Mr Cox left those items on Ms Bruce’s desk. I did not find Mr Cox’s evidence about why left his keys and security fob at the workplace convincing. Firstly Mr Cox said that other staff needed to access his office. When asked how many sets of keys were in existence which would allow access to his office, Mr Cox said that he did not know. Mr Cox also said that he wanted to give other staff an opportunity to use his workspace similar to “hot desking” arrangements that had been in place at his former workplace and referred to a shortage of desk space and that people used his office while he was away. Ms Flohr’s uncontested evidence is that there were at least four sets of keys that could have been used to access Mr Cox’s office if that had been required.

[97] A further reason given by Mr Cox for leaving his keys at the workplace was that he had made a medical appointment for 13 March 2017 and would not be back for some days and did not wish to be accused of inappropriately accessing the office while he was on leave. That statement was also unconvincing. Mr Cox made no reference to the medical appointment in his email to Dr Sterne of 10.54 am or in his initial witness statement in these proceedings. The proposition that Mr Cox knew that he would be taking a period of work related sick leave when he left the workplace at 2.00 pm on 7 March 2017 is at odds with his evidence about discussions with Dr Sterne on the afternoon and evening of 7 March and with Dr Sterne’s evidence on this point, and I do not accept it.

[98] At 3.28 pm on 7 March 2017 Dr Sterne sent an email to Dr Blanckensee and Dr Soden stating that Mr Cox considers that he has been forced out of employment and that Dr Sterne has been unable to convince Mr Cox to reconsider. Dr Sterne also states that Mr Cox is packing up his apartment in preparation for a move back to the Sunshine Coast. Dr Sterne’s evidence is that it was not until a telephone conversation with Mr Cox at 8.00 pm on 7 March 2017 that Mr Cox stated that he was going to take time off and see a doctor. Dr Sterne said that he was pleased to hear this. Mr Cox’s evidence is that the conversation with Dr Sterne about the medical appointment took place at around 4.00 pm on 7 March 2017. The email from Mr Cox to Dr Sterne stating that the medical appointment had been made was not sent until 4.57 pm on 8 March 2017. In my view that email is self-serving, stating as it does that Mr Cox will be able to provide a certificate for “this work related illness” in advance of any opinion from a doctor that he was suffering from such an illness. I also note that Mr Cox conceded in cross-examination that he would not generally leave his keys behind on an afternoon when he felt unwell.

[99] I accept that Mr Cox did attend a doctor at some point given that he made a successful claim for workers’ compensation. However, it is highly improbable that Mr Cox made an appointment to see a doctor before he left the workplace at 2.00 pm on 7 March 2017 and even more improbable that this is why he left his keys and security fob on Ms Bruce’s desk. Mr Cox’s evidence about the keys and the medical appointment is indicative of his propensity to put a spin on events in an attempt to support his case and I do not accept it.

Whether Mr Cox’s resignation was forced

[100] It was contended for Mr Cox that in accordance with the principle in Gunnedah Shire Council v Grout 68(Grout), Mr Cox’s resignation at 10.54 am on 7 March 2017 was of no effect because it was brought about at a time of extreme pressure and confusion for him. Grout involved consideration of whether a contract of employment was brought to an end by the resignation of an employee or by the employer’s acceptance of the resignation. At first instance, Moore J found that the contract of employment was not brought to an end by the resignation and remained on foot, but that the employer had taken action that amounted to either termination of the employment (as distinct from the contract of employment) or an unaccepted repudiation of the contract of employment. Importantly the issue in Grout was not whether employment had ended, but rather whether it had ended at the initiative of the employee or the employer. This is the central issue in cases involving allegations of forced resignation or constructive dismissal. Such cases generally do not involve any question about whether a resignation is of no effect, absent consideration of whether some conduct of the employer – such as forcing the resignation or accepting it in circumstances where there is ambiguity or where the resignation is involuntary because of some special circumstance pertaining to the employee – brought the employment to an end.

[101] If there is a principle established in Grout (or the decision of Moore J at first instance 69) so that the question of whether a resignation was involuntary can be determined in isolation from the further question of whether the acceptance of such a resignation brought employment to an end, it is not applicable in the present case. I am not satisfied that Mr Cox was placed in a position where he had no option but to resign or that he was forced to do so. I accept that Mr Cox was angry and upset about his treatment or his perception of how he had been treated. I also accept that Mr Cox felt that he was being dealt with in this manner because of his role in the investigation. While it is arguable that the concerns Dr Soden and Dr Blanckensee had about the way in which the investigation was being conducted were reasonable, I accept that Mr Cox took great umbrage at those concerns and clearly perceived them as a direct attack upon his integrity.

[102] However, I am unable to accept that the conduct of Dr Soden and Dr Blanckensee at the Board meeting on 7 March 2017 and in the weeks preceding that meeting, resulted directly or consequentially in Mr Cox resigning his employment so that he had no real choice but to resign. Further, there is insufficient evidence upon which I could be satisfied that Mr Cox was affected by a medical condition so that his conduct in leaving the meeting and sending an email resigning his employment was involuntary.

[103] The email Mr Cox sent to Dr Sterne at 10.54 am on 7 March 2017 from his private email address resigning his employment by requesting that Dr Sterne invoke the separation clause in his contract, was clearly a resignation. Dr Sterne understood the email to be a resignation. Mr Cox then left the workplace returning only to drop his keys and security fob on Ms Bruce’s desk. Thereafter Mr Cox went to his unit at Tweed Heads and – on the evidence of Dr Sterne – started packing to return to the Sunshine Coast where he had lived on weekends during the period of his employment with THE. I note that correspondence from Mr Cox on 10 March 2017 had a Sunshine Coast address as Mr Cox’s address for return correspondence. Mr Cox’s evidence that he was cleaning his unit at Tweed Heads rather than packing was not convincing. I accept Dr Sterne’s evidence that Mr Cox told Dr Sterne that he was packing up his unit at Tweed Heads and returning to the Sunshine Coast, and that this contributed to Dr Sterne’s view that Mr Cox had resigned his employment.

[104] During the afternoon and evening of 7 March 2017, Mr Cox had a number of discussions with Dr Sterne. While I accept Dr Sterne’s evidence that Mr Cox was angry and felt that he had been forced from his job, there is insufficient evidence upon which I could find that Mr Cox was not acting of his own free will so that the resignation was involuntary. Anger and disappointment are not sufficient to establish that a resignation was not voluntary. Dr Sterne concluded that Mr Cox had resigned and forwarded Mr Cox’s resignation email to Dr Soden and Dr Blanckensee at 3.28 pm on 7 March 2017 telling them that he would let them work it out. The concerns that Dr Sterne later expressed about the acceptance by Dr Blanckensee and Dr Soden of Mr Cox’s resignation and that THE could be exposed to an assertion by Mr Cox that he had been constructively dismissed, does not change the fact that Mr Cox resigned.

[105] In any event if Mr Cox was constructively dismissed by the acceptance of a forced or involuntary resignation, his employment ended at the point when that acceptance occurred. On the evidence of Dr Soden and Dr Blanckensee, Mr Cox’s resignation was accepted by them and the resignation communicated to all staff at 1.29 pm on 8 March 2017. Dr Soden and Dr Blanckensee constituted the majority of the Board of THE. I accept that Dr Soden and Dr Blanckensee moved with great haste to accept the resignation and I have no doubt they were delighted to receive it. However, it is clear that they did so before being advised of the purported acceptance of the withdrawal of the resignation by Dr Sterne. It is also the case that even if there was evidence of some inappropriate conduct on the part of Dr Blanckensee and Dr Soden with respect to accepting Mr Cox’s resignation with undue haste knowing that it was forced – which there is not – that conduct ended the employment relationship between THE and Mr Cox.

The purported retraction of Mr Cox’s resignation

[106] There are cases where it has been held that there is a duty to clarify an ambiguous resignation 70 and that resignation in the heat of the moment can be withdrawn in special circumstances if this is done swiftly71. As previously noted however, those cases are about whether a termination in such circumstances was at the initiative of the employer rather than whether the employment relationship has ended simpliciter.

[107] While I do not accept that Mr Cox was forced to resign or that he did so involuntarily, I do accept that Mr Cox resigned in the heat of the moment at a point where he was extremely angry and was in an invidious position, between three Directors of THE who were in dispute. While it is apparent that Mr Cox’s conduct in involving himself in the dispute between the directors of THE contributed to the position he was in, it was nonetheless a difficult position. I also accept that Dr Sterne purported to allow Mr Cox to withdraw his resignation and to instead proceed on sick leave. It is therefore necessary to determine whether Dr Sterne had actual, implied or ostensible authority to accept a withdrawal of Mr Cox’s resignation.

[108] I do not accept that Dr Sterne had actual authority to accept the withdrawal of Mr Cox’s resignation. In my view, Mr Cox’s evidence about Dr Sterne’s authority as “staff partner” was an overstatement. Dr Sterne is not the staff partner of THE, but rather is one of three Directors of the Company. Dr Sterne has a single vote on any decision made by the Board. The domains were not intended to be areas of unilateral authority and I accept the evidence of Dr Soden and Dr Blanckensee in this regard. The proposition that Dr Soden or Dr Blanckensee handed unilateral power to Dr Sterne to hire and fire or to make decisions about ongoing employment of staff is contrary to the evidence and is highly improbable given the poor relationship between Dr Sterne and the other Directors which existed at the time the domain arrangement was implemented.

[109] The domains were simply areas where each Director could make recommendations to the Board in relation to a range of issues within their particular domains. As is clear from the explanation provided by Mr Cox to the Board in relation to domains as set out in the email he sent to the three Directors on 19 October 2016, Dr Sterne’s domain of staff was limited to the process of staff planning, budgets, appointments, recruitment and performance management and did not extend to the significant matter of the termination of the CEO of the Company. Further, as Mr Cox informed the partners in that email, the roles were to oversee process and check that work was being done as directed by the Board. 72

[110] The minutes of the Board meeting of 25 October 2016 where the domain arrangements were adopted, also do not reflect the significant change which would have been brought about if those arrangements were to operate in the manner contended for by Mr Cox. The minutes simply reflect that: “Mike asked the partners to select a domain(s) for areas of interest or responsibility within the practice.” That such a change would have been significant is reflected in the fact that the decision to dismiss the previous Operations Manager was taken by all three Directors as was the decision to employ Mr Cox.

[111] I do not doubt that Mr Cox (and possibly Dr Sterne) sought to promulgate their version of how domains operated. This is evidenced by the emails tendered by Dr Blanckensee dated 24 November 2016 and 23 January 2017 73 which overstate Mr Cox’s authority and that of Dr Sterne with respect to staffing. Significantly, neither Dr Soden nor Dr Blanckensee is copied into either email. I accept Dr Blanckensee’s evidence that at no time after 25 October 2016 when the domain arrangements were put into place, was an alteration of their operation contended for by Mr Cox agreed to by the Board. As CEO Mr Cox must have known that this was the case.

[112] For these reasons I do not accept that Dr Sterne had actual authority to accept a retraction of the resignation given by Mr Cox on 7 March 2017. I also do not accept that Dr Sterne had implied authority to make such a decision. Dr Sterne was one of three Directors with an equal vote in management decisions. It is not reasonably necessary for the performance of Dr Sterne’s functions as a Director that he have implied authority to make unilateral decisions in relation to such a significant matter as the ongoing employment of the CEO of the Company.

[113] Further, I do not accept that Dr Sterne had ostensible authority to accept the retraction of Mr Cox’s resignation and to decide that instead Mr Cox would be permitted to take sick leave. The concept of ostensible authority is one that operates in the context of contract law and refers to situations where a reasonable third party would understand that an employee of company has authority to act in the circumstances and to make binding decisions on behalf of the company. This will be the case even if the employee had no actual authority to act in a particular way, provided a reasonable assumption is created in the mind of the third party. 74 The assumption must be induced by conduct upon which the third party acts to its detriment.75 A third party cannot rely on ostensible authority where that party has no basis for upon which to reasonably believe that he or she is contracting with a party who has authority to enter into a contract, or where the nature of a transaction puts the third party on notice.76

[114] Applying that principle in the present case, I do not accept that Mr Cox could have reasonably believed or assumed that Dr Sterne had the authority to accept the retraction of his resignation. Mr Cox’s insistence on referring all of his employment issues to Dr Sterne is a further instance of placing a spin on events to support his case.

Whether the employment of Mr Cox ended by other means

[115] Even if my conclusions that Mr Cox’s resignation was voluntary and that Dr Sterne had no authority to accept its rescission are wrong, I would conclude that the employment relationship and the contract of employment between Mr Cox and THE has ended. If Mr Cox’s resignation was involuntary and of no effect, or vitiated by the fact that it was given in anger, the conduct of Dr Soden and Dr Blanckensee in accepting the resignation is sufficient to constitute a dismissal of Mr Cox. Similarly, if Dr Sterne had authority to accept a rescission of Mr Cox’s resignation, the conduct of Dr Blanckensee and Dr Soden in convening an emergency board meeting to terminate that authority and maintaining that Mr Cox had resigned regardless, is also sufficient to constitute a dismissal of Mr Cox. In both instances the conduct of Dr Soden and Dr Blanckensee would have ended the employment relationship between Mr Cox and THE.

[116] The following matters also evidence that the employment relationship and the contract of employment between Mr Cox and THE has ended. The terms of Mr Cox’s resignation email are partisan and indicate his support for Dr Sterne and his antipathy towards Dr Blanckensee and Dr Soden. The resignation email also indicates that Mr Cox accepts that Dr Blanckensee and Dr Soden have bullied Dr Sterne before any investigation has been conducted. By 4.00 pm on 7 March 2017, Mr Cox’s work email account had been disconnected and Mr Cox referred to this fact in subsequent emails sent from his private email account. Mr Cox sent some 20 emails to Dr Sterne from his private email account between 7 March 2017 and 8 May 2017 seeking responses to questions including about the status of his employment. 77 On 10 March 2017 Mr Cox corresponded with all Directors stating that he had been informed by his colleagues that he had been dismissed. There is no evidence that Dr Sterne or the other Directors responded to any of these emails. The tone of many of those emails – particularly the email to the Board sent on 10 March 2017 – is highly derogatory of Dr Soden and Dr Blanckensee. It is improbable that Mr Cox could have written such emails if he had some intention of returning to his position.

[117] Mr Cox was not paid by THE after 21 March 2017 when he received an amount for accrued annual leave and 12 hours worked before he left the workplace. I do not accept Mr Cox’s assertion under cross-examination that he did not understand what the payment was for because he had not received pay slips. That assertion was shown to be false evidenced by the fact that Mr Cox forwarded a pay slip to Dr Sterne on 21 March 2017 querying why he had not been paid his salary and for the sick leave he claimed to have been taking. By 4 April 2016 Mr Cox was seeking clarification about whether he was still employed and there is no evidence that such clarification was ever provided. Mr Cox did not receive workers compensation payments until August 2017 and I can only wonder at how he could have believed that he was still employed when he had not been paid since 21 March 2017 and his many emails seeking clarification of his employment status had been ignored.

[118] If there was any doubt about Mr Cox’s employment status, it was removed by the letter from lawyers acting for THE dated 10 April 2017 and sent to Mr Cox, stating that Mr Cox’s employment had ended by resignation and that Mr Cox should cease to hold himself out as the CEO of THE. The letter of 10 April 2017 confirmed that Mr Cox’s resignation had been accepted. Regardless of the circumstances in which the resignation had been given, or its effect, or whether the resignation was capable of acceptance, the acceptance of the resignation was a repudiation of the contract of employment between Mr Cox and THE and was sufficient to end the employment relationship.

[119] I do not accept that Mr Cox did not receive the letter or that he did not read it. Mr Cox said in his evidence that he remembered aspects of the letter, in particular that he should not hold himself out as CEO of THE. Mr Cox displayed a tendency in his evidence to state that he could recollect only parts or elements of correspondence which did not assist his case. Mr Cox’s evidence that he was not paying attention to correspondence during this period is also at odds with twenty emails he sent to Dr Sterne including two emails to all Directors of THE during the period from 7 March and 8 May 2017 complaining about his treatment. Those emails contain a great deal of detail and span the period both before and after 10 April when the letter was sent to Mr Cox by legal representatives for THE. Mr Cox’s application for an order to stop bullying was filed on 31 March 2017. There is no evidence that Mr Cox responded to the letter of 10 April 2017 by asserting that he remained in employment. It is not contended that by filing his application for an order to stop bullying that Mr Cox has refused to accept the repudiation of his contract of employment or elected to keep the contract on foot.

[120] By 10 April 2017, the majority of the Board of the Company accepted Mr Cox’s resignation and caused a letter to be sent to Mr Cox confirming that he is no longer employed by THE and should cease to hold himself out as CEO. It is highly improbable that Mr Cox will return to work in the future given that the majority of the Board consider that he is not employed. There is no evidence that the constitution of the Board will change in the future. The improbability of the proposition that Mr Cox will return to work in the future is illustrated by Mr Cox’s letter to the Board on 10 March 2017 wherein he states that he refuses to meet with Dr Blanckensee and Dr Soden but will meet with the remaining board including directors and non-executive directors. There are no non-executive directors, and absent Dr Blanckensee and Dr Soden the only remaining director is Dr Sterne. Short of storming the barricades, it is highly improbable that Mr Cox can return to work with THE against the wishes and express advice of the majority of the Company’s directors, communicated to Mr Cox by the letter of 10 April 2017, or that he has an employment relationship or an existing contract of employment with the Company.

[121] Whether the employment relationship ended by resignation or by the conduct of Dr Blanckensee and Dr Soden in countermanding the purported acceptance by Dr Sterne of the rescission of Mr Cox’s resignation, or by repudiation on the part of Dr Soden and Dr Blanckensee of Mr Cox’s contract of employment, Mr Cox is no longer employed by THE. If Mr Cox has a remedy for the manner in which he has been dealt with by THE, it is not an application for an order to stop bullying. Such an application has no reasonable prospects of success on the basis that Mr Cox is no longer at work with the persons he alleges have bullied him and there is no reasonable prospect that he will be at work with those persons in the future.

CONCLUSION

[122] I am satisfied that there is no basis to make an order to stop bullying and that the application by Mr Cox for such an order has no reasonable prospects of success. Accordingly, I have decided to exercise my discretion to dismiss Mr Cox’s application under s. 587(1)(c) of the Act. An order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr K Brandon for Mr Cox.

Mr G J Radcliffe of counsel instructed by Noble Law.

Printed by authority of the Commonwealth Government Printer

1 Exhibit A1 – Witness Statement of Mr Michael Cox; Exhibit A2 – Further Witness Statement of Michael Cox.

2 Exhibit R13.

3 Exhibit R12.

4 Exhibit R16 – Statement of Dr Diane Blanckensee; Exhibit R17 – Supplementary Witness Statement of Dr Diane Blanckensee.

5 Exhibit R18 – Witness Statement of Dr Jennifer Soden; Exhibit R19 – Supplementary Witness Statement of Dr Jennifer Soden.

6 Exhibit R21 Statement of Alana Flohr; Exhibit R22 Supplementary Statement of Alana Flohr.

7 Exhibit R23 Affidavit of Tracey Foster.

8 Exhibit R24 Affidavit of Amy Stroud.

9 Exhibit R25 Affidavit of Katrina Grimaldi.

10 Exhibit R26 Affidavit of Regan Bruce.

11 Fair Work Act 2009 .s. 386(1).

12 [2014] FWC 3408.

13 Ibid at [5].

14 Ibid at [6].

15 [2017] FWC 2947.

16 [2015] FWC 3513.

17 [2014] FWC 6988.

18 Ibid at [166]

19 Exhibit R16 Annexure “K”.

20 Exhibit A1 Annexure “MC-3”.

21 Exhibit R18 Annexure “JMS-14”.

22 Transcript 2 November 2017 PN1219 – 1220.

23 Exhibit R18 Annexure “JMS-18”

24 Exhibit A3; Exhibit R18 Annexure “JMS-24”.

25 Exhibit R2.

26 Exhibit R25.

27 Exhibit R25.

28 Exhibit R24.

29 Transcript 2 November 2017 PN133.

30 Exhibit R21 Statement of Alana Flohr Annexure “AF-2”.

31 Ibid PN550.

32 Exhibit R3.

33 Transcript 2 November 2017 Ibid at PN556.

34 Ibid PN974 and PN978.

35 Ibid PN207.

36 Ibid 2017 PN411.

37 Ibid PN412.

38 Ibid PN418.

39 Exibit R17.

40 Exhibit R22 Annexure “AF-3”.

41 Exhibit R17 Annexure “DJB-6”.

42 Exhibit R4.

43 Exhibit R18 Annexure “JMS-24”.

44 Ibid.

45 Ibid.

46 Ibid.

47 Ibid.

48 Exibit R18 Annexure “JMS-25”.

49 Exhibit R18 Annexure “JMS-26”

50 Ibid Annexure “JMS-27”.

51 Exibit R8 Annexure “JMS-7”.

52 Exhibit R15.

53 Transcript 2 November 2017 at PN1024.

54 Exhibit R14.

55 Ibid.

56 Transcript 2 November 2017 PN0132-1035.

57 Exhibit R19 Annexure “JMS-34”.

58 Ibid Annexure “JMS35”.

59 Exhibit R17

60 Exhibit R17 Annexure “DJB-2”.

61 Ibid Annexure “DJB-3”.

62 Ibid Annexure “DJB-4”.

63 Ibid Annexure “DJB-4”.

64 Exhibit A2 Annexure “MC9”.

65 Exhibit R18 Annexure “JMS-22”.

66 Submissions of the Applicant filed

67 Transcript 2 November 2017 PN241.

68 (1995) 62 IR 150.

69 (1994) ICIR 143; 57 IR 243.

70 Ngo v Link Printing Pty Ltd Dec 771/99 M Print R7005 per McIntyre VP, Marsh SDP and Harrison C at [12].

71 Birrell v Australian National Airlines Commission [1984] 9 IR 101.

72 Exhibit R17 Annexure “DJB-2”.

73 Ibid Annexure “DJB-4”.

74 Story v Advance Bank Australia Ltd (1993) 31 NSWLR 772.

75 Pacific Carriers Ltd v BNP Paribas (2004) 208 ALR 213.

76 Northside Developments Pty Ltd v Registrar General and Others (1990) 93 ALR 385.

77 Exhibit 14.