Mrs Ann Clark v Australian Red Cross Blood Service

[2013] FWC 3301

[2013] FWC 3301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Ann Clark
v
Australian Red Cross Blood Service
(U2012/10194)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 MAY 2013

Application for unfair dismissal remedy - Jurisdiction - Dismissal not at the initiative of the employer - Applicant resigned.

Background

[1] Ms Ann Clark has made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by the Australian Red Cross Blood Service (Red Cross). The application is met with a jurisdictional objection on the ground that Ms Clark was not dismissed as defined in s. 386 of the Act. This decision deals with the jurisdictional objection.

[2] The essential facts are not in dispute and can be briefly stated. Ms Clark was employed by Red Cross from 11 April 2007 until 23 October 2012. On that date, Ms Clark was asked to come to the office of Ms Linda Taylor, Donor Centre Manager. Ms Taylor handed Ms Clark a letter headed: “RE: Performance Concerns”. The letter outlines concerns about Ms Clark’s conduct at work, in particular in relation to treating donors, customers and staff fairly and with respect. The letter requests that Ms Clark attend a meeting with management on 29 October to discuss these issues, and invites her to bring a support person.

[3] There was a discussion between Ms Taylor and Ms Clark in relation to the letter, during which Ms Clark resigned her employment. Ms Clark’s evidence was that she said: “I’ve really had enough you can have my resignation.” According to Ms Taylor, Ms Clark said: “You know what Linda, I resign.” Both Ms Taylor and Ms Clark agreed that Ms Clark then tore up the letter that Ms Taylor had handed to Ms Clark and dropped it on Ms Taylor’s desk.

[4] Ms Taylor told Ms Clark that she needed to put her resignation in writing, and Ms Clark left the meeting, returning in a short period of time with a handwritten letter of resignation in the following terms: “To Whom it may concern I resign as of today 23 October 2012. I take any leave I may have owing in lieu of notice.” Ms Clark then left the workplace saying that she would not be back.

Issues in dispute

[5] There were a number of issues in dispute. Evidence was given for Red Cross by Ms Taylor 1 and Ms Jennifer Anderson2, Senior Human Resources Consultant. Ms Clark gave evidence on her own behalf.3 The relevant evidence can be summarised as follows.

[6] A staff meeting was held by Red Cross on 19 October 2012, for the purposes of discussing roster arrangements involving a change of hours. According to Ms Taylor and Ms Anderson, the conduct of Ms Clark during the meeting indicated that she was not happy with the proposed changes. Ms Anderson said that Ms Clark displayed combative body language and rolled her eyes at various suggestions made at the meeting. Ms Taylor said that Ms Clark was argumentative with the Donor Services Manager and complained about insufficient time to keep donors fully informed on the processes.

[7] Ms Clark said that the meeting on 19 October was robust with many staff members asking questions and expressing their dismay at the changes. Ms Clark agreed that she did roll her eyes and shake her head because management did not want to listen to issues.

[8] Ms Taylor said that following Ms Clark’s conduct at the meeting, she consulted with the Human Resources department of Red Cross in relation to commencing a formal performance management process. Ms Taylor said that she had previously held two informal discussions with Ms Clark in relation to complaints about her conduct and an argument that Ms Clark had with Ms Taylor in front of donors. The letter handed to Ms Clark on 23 October 2012 was drafted, and Ms Clark was requested to attend a meeting for the purpose of giving her the letter.

[9] Ms Clark said that on the morning of 23 October, she emailed Ms Taylor to see whether two applications for single days of annual leave which she had made had been approved. Earlier applications made by Ms Clark had not been approved. Ms Clark said that when she went to Ms Taylor’s office she believed that the purpose of the meeting was to discuss her leave applications, and that she was stunned when presented with the letter.

[10] Ms Clark said that when she was handed the letter she was hurt and annoyed, and believed that it was just leverage to get her out or shut her up after the meeting on Friday 19 October. Ms Clark also said that: “So knowing the outcome from a previous ‘Formal Discussion’ meeting and how humiliating they are and that you are presumed guilty and sentenced beforehand, I decided ‘not again’.” Ms Clark said that she visited her doctor on 25 October who gave her a medical certificate covering the period from 24 October to 7 November 2012.

[11] Ms Clark contends that she was forced to resign her employment and that her resignation was instigated and initiated by Red Cross, knowing how she would respond. Ms Clark’s evidence is that she had felt bullied and intimidated over the years and had been subjected to pretty personal and professional slights while working for Red Cross. Ms Clark conceded that she had not complained about these matters prior to her resignation.

[12] Under cross-examination, Ms Clark said that there was no threat to terminate her employment during the discussion with Ms Taylor on 23 October, and that most people had formal discussions before their employment was terminated by Red Cross. In response to a question about whether Ms Taylor stated on 23 October, that there was a chance that Ms Clark’s employment would be terminated at the proposed meeting on 29 October, Ms Clark said: “Of course not.”

[13] Ms Clark also agreed that she sent an email to all employees before leaving the workplace on 23 October, in the following terms:

“Sorry I couldn’t say goodbye to anyone but I resigned today because Linda requested I have a formal reprimand about my general behaviour to staff...I didn’t make the grade. Goodbye and good luck.” 4

Ms Clark also agreed that the email did not mention that she was forced to resign but maintained that the implication was there.

[14] In response to a question from the Commission, Ms Clark said that she resigned because she formed the view that the proposed meeting on 29 October 2012 would be humiliating, and agreed with the proposition that she did not want to be in an unpleasant situation. Ms Clarke also said that she believed that she would have lost her job before too long, because a formal meeting meant that she was being watched by management of Red Cross.

[15] Red Cross corresponded with Ms Clark on 24 October, accepting her resignation and indicating that outstanding leave entitlements would be paid to her. It appears that initially, a decision was made to deduct a two week notice period from Ms Clark’s accrued annual leave, in line with the request in her letter of resignation.

[16] On 31 October 2012, Red Cross corresponded with Ms Clark confirming receipt of the medical certificate, and advising that a decision had been made to reinstate the notice period payment that was withheld, and to reimburse funds and to allow Ms Clark to utilise accrued sick leave to cover this period. The letter indicated that this decision had been made notwithstanding that:

● “On the 23rd October 2012 you resigned from your position at the Edward Street Donor Centre. In your resignation letter you directed the Blood Service to use any outstanding leave owing to you as your notice period.

● On the 23rd October 2012 you forwarded an email from your Blood Service email address to all Edward Street Donor Centre staff advising that you had resigned from your position at the Donor Centre and would be leaving immediately.

● Since resigning from your position at the Edward Street Donor Centre on 23rd October 2012, you retrospectively presented to the Blood Service a medical certificate indicating that you have a medical condition that inhibits you from working the notice period of your resignation, contrary to detail provided in your resignation letter.”  5

[17] Ms Clark said that notwithstanding this correspondence, the additional two weeks wages was not paid until January 2013, following intervention by the Fair Work Ombudsman. Ms Anderson said that this was an error, which was rectified.

[18] Ms Clark said in her witness statement that she did not report bullying and harassment during her employment. Under cross-examination, Ms Clark agreed that she had undertaken training in bullying and harassment which included information on reporting an incident. In response to the proposition that she had not reported any incidents of bullying and harassment during her employment, Ms Clark said that she did make a report of bullying in 2009 and was told by the Human Resources Manager in 2008 or 2007 but was told: “Hard luck. Get on with it.” 6 Ms Clarke agreed that she did not include this information in her witness statement, notwithstanding that she had been represented by an industrial advocate in relation to her unfair dismissal application, since November 2012.

[19] Ms Clark also said in her witness statement that she had a discussion about workplace bullying with the Department of Workplace Health and Safety on 25 October 2012, and filed a complaint with the Department which she delivered by hand to an office in Lutwyche, on 2 November 2012. Red Cross maintained that the complaint was not made until 14 November 2012, and showed Ms Clark an email from the Department confirming the lodgement date.

Legislation

[20] Legislative provisions relevant to the question of whether a person has been dismissed, are as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

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

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

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

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

386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

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

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

(b) the person was an employee:

(i) to whom a training arrangement applied; and

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

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

(c) the person was demoted in employment but:

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

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

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

[21] By virtue of s.386, a person has been dismissed for the purposes of s.385, where employment is terminated by the employer or the person was forced to resign as a result of conduct or a course of conduct engaged in by the employer. As the Industrial Relations Court of Australia held in Mohazab v Dick Smith Electronics 7:

“...a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship...plainly an important feature is that the act of the employer results directly or consequentially in the termination of employment and the employment relationship is not voluntarily left. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” 8

[22] There are cases where it has been held that a resignation given when an employee is distressed or in the heat of the moment, is a dismissal in circumstances where the employee seeks to retract the resignation soon after it is given and the employer refuses to accept the retraction. 9 An employee who is given the option of resigning or going through an unpleasant performance management process, where the employer has indicated that the outcome will be dismissal, so that the employee is forced to resign, has also been held to be a dismissal.10 It is also the case that an employee who resigns and cannot establish any conduct on the part of the employer that constitutes repudiation of the contract, has not been dismissed.11

[23] However, as a Full Bench of the Australian Industrial Relations Commission observed in O’Meara v Stanley Works Pty Ltd 12there is a need for the line distinguishing conduct that leaves an employee no real choice but to resign from employment and conduct that cannot be held to cause a resignation to be a termination at the initiative of the employer, to be closely drawn and rigorously observed.13 The Full Bench in O’Meara went on to state that the finding that a termination of employment was at the initiative of the employer requires that there be some action on the part of the employer which is either intended to bring the employment relationship to an end or has the probable result of bringing the employment relationship to an end.14

Conclusions

[24] After considering the evidence and submissions of the parties, I have reached the conclusion that Ms Clark was not terminated on the employer’s initiative or forced to resign her employment because of a course of conduct engaged in by her employer. There is no evidence upon which I could be reasonably satisfied that Ms Clark was bullied or intimidated or that she made any complaint about these matters during the course of her employment. Given that this allegation was a central part of her case, and that she was represented in these proceedings and at the point her witness statement and outline of submissions was filed in the Commission, the failure to place any evidence to support the allegation is surprising.

[25] There is no evidence that Ms Clark was distressed when she resigned her employment or that she resigned in the heat of the moment. Rather the evidence establishes that Ms Clark decided that she did not wish to participate in a meeting to discuss concerns that Red Cross had about her performance because Ms Clark felt humiliated and did not want to participate in the meeting. This is not a case where the outcome of the meeting about performance was pre-determined so that Ms Clark could reasonably have believed that if she went to the meeting she would be dismissed. It is also not a case where Ms Clark was told that she should resign as an alternative to being dismissed following a performance management process. Ms Clark concedes that she was not told that the meeting could lead to her dismissal, and that she knew that it was not consistent with Red Cross’ policy to dismiss an employee following a first meeting about workplace performance.

[26] I accept that a case where an employee is pressured into resigning on the basis that the only other option is to go through a process where the outcome is inevitably dismissal, will have a sound basis to argue that he or she was forced into resigning. I do not accept that an employee who has an option to go through a process, which may or may not result in disciplinary action including dismissal, and decides to resign to avoid an unpleasant situation, has been forced to resign. The employee in that case, does have a choice - resignation, or participation in a disciplinary or performance management process. Where the employee in such circumstances elects to resign to avoid a performance management or disciplinary process, the resignation is not a dismissal.

[27] The conduct of Ms Clark, which is not in dispute, is totally at odds with that of an employee who has been forced to resign. After being handed a letter which in no way suggests that her employment was in jeopardy, Ms Clark responded by tearing up the letter and dropping it on the desk of the manager who had given it to her. Ms Clark then told that manager, in unequivocal terms that she was resigning from her employment. When Ms Clark was told that if she wished to resign, she should do so in writing, she left the room and returned with a written letter of resignation.

[28] Having given her written resignation to her employer, Ms Clark sent an email to her former work colleagues informing them that she had resigned, and left the workplace. Ms Clark took no steps to retract her resignation or to indicate that she felt she had been forced to resign, other than making an application for an unfair dismissal remedy.

[29] I am also of the view that in requesting that she be allowed to use annual leave to cover a two week notice period, Ms Clark was indicating that she was well aware that the employer would be entitled to withhold two weeks of her wages, because she had resigned without notice. There is also no valid basis for Ms Clark to complain about the fact that the two weeks of annual leave was not reimbursed until January 2013, in circumstances where Red Cross allowed her to use sick leave instead of annual leave to cover the notice period. Red Cross was under no obligation to agree to this request and I accept that the explanation for the delay in implementing the agreement was an error rather than a deliberate action.

[30] Ms Clark was not dismissed, and accordingly the Fair Work Commission has no jurisdiction to deal with her application for an unfair dismissal remedy. I uphold the jurisdictional objection made by Australian Red Cross Blood Service and dismiss the application of Ms Ann Clark for an unfair dismissal remedy in U2012/10194. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr K.J. Law on behalf of the Applicant.

Ms S. Baker, Ms S. Smith, Mr S. Bosse and Ms J. Anderson on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

April 19.

 1   Statement of Linda Clark - Exhibit 1.

 2   Statement of Jennifer Anderson - Exhibit 2.

 3   Statement of Ann Clark - Exhibit 3.

 4   Transcript of Proceedings 19 April 2013 PRN 292.

 5   Exhibit 1 Annexure F.

 6   Transcript of Proceedings 19 April 2013 PRN 316.

 7 (1995) 62 IR 200

 8   Ibid at 205-206.

 9   Ngo v Link Printing Pty Ltd (1999) 46 AILR ¶ 4-135.

 10   Little v Petfood Processors (WA) Pty Ltd [2010] 5753.

 11   Gunnedah Shire Council v Grout (1995) 134 ALR 156; Richardson v Inghams Enterprises Pty Ltd [2008] AIRC 1117.

 12   Print 973462, 11 August 2006.

 13   ABB Engineering Construction Pty Ltd v Doumit Print N6999, 9 December 1996.

 14   O’Meara v Stanley Works Pty Ltd PR973462.

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