Mrs Karen Fisher v Andergrove Van Park T/A Merson Properties Pty Ltd

[2014] FWC 3405

[2014] FWC 3405

FAIR WORK COMMISSION

DECISION

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

Mrs Karen Fisher
v
Andergrove Van Park T/A Merson Properties Pty Ltd
(U2013/17210)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 27 MAY 2014

Summary: application for an unfair dismissal remedy - whether applicant dismissed - medical emergency.

[1] Ms Karen Fisher (“the Applicant”) has made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy arising from her dismissal by Andergrove Van Park T/A Merson Properties Pty Ltd (“the employer”).

[2] The Applicant performed office duties as a casual employee for the employer at the park between October 2011 and 2 December 2013.

[3] The Applicant contends that on Monday 2 December 2013 she telephoned Ms Phillipa Merson (who is the owner of the business) one hour before her shift commenced to ask for time off owing to a family medical emergency involving her son.

[4] The Applicant claims that Ms Merson responded by saying:

If you don’t come in to work today you will have no job to come back to.

[5] The Applicant says that she explained her situation to Ms Merson and apologised. But Ms Merson was said to have replied only with the words to the effect that she had nothing more to say to her. And with that Ms Merson was said to have hung up the phone.

[6] The Applicant went on to say that:

I felt forced into making a decision but clearly Phillipa made it for me as I was not able to go into work and Phillipa saying I would have no job to come back to and having nothing more to say to me and ended of the call. I was never given a written or verbal warning about my employment and I did not give a written or verbal resignation to my employer.

[7] The Applicant claimed that she had been a loyal and honest employee over the course of her two years as an employee and that this had been demonstrated by the employer giving her an almost $100 bonus each week for over a year.

[8] On the basis of this evidence the Applicant claims that she was dismissed by her employer because she was unavailable to perform her usual duties owing to a family emergency.

[9] The Applicant claims that so far as Ms Merson informed her that she would have no job to come back to if she did not present at work that she (the Applicant) had been dismissed (given that she was not able to avoid responsibilities in respect of the family medical emergency).

[10] Ms Merson’s evidence suggested that a more complex context than advanced by the Applicant.

[11] Ms Merson explained that a longer term view of the Applicant’s behaviour was necessary in order to appreciate the circumstances in which she found herself when the Applicant approached her for time off. Ms Merson claims that she arrived at the caravan park at about 3:30 PM on Saturday afternoon, 30 November 2013.

[12] Following discussions with the on-site manager (Mr Bruce Dunkley), the office was closed at approximately 5 PM. Ms Merson indicated that Mr and Mrs Dunkley were taking leave from the following day and would not be available to perform their functions.

[13] After the office was closed Ms Merson enjoyed a glass of wine, so she claimed, with Mrs Dunkley and the Applicant. The Applicant had been performing office duties that day.

[14] Ms Merson claims that over the course of the convivial meeting the Applicant evinced a “jovial mood” and commented to the effect that she “was ready to party all night”.

[15] Ms Merson claims that on the Monday morning she received a telephone call from the Applicant in which the Applicant stated:

I’m having one of those days.

[16] The Applicant went on to say, according to Ms Merson, that she couldn't come in to work owing to her son’s circumstances. Her son was ill, Ms Merson claimed the Applicant informed her. Ms Merson claimed the Applicant did not mention that her son was suicidal.

[17] Ms Merson enquired as to whether the Applicant could come in to work if only for an hour. But the Applicant indicated she had no availability whatsoever.

[18] Ms Merson conceded that she was feeling “very panicked” as Mr Dunkley was away and Ms Cathrine Cook, another administrative assistant working in the office, was shortly to take two weeks leave, which would leave her without any office administration. Ms Merson herself had no ability to conduct the office work, particularly so in relation to managing the reservations system. The Monday of each week was also the busiest day of the week for the park, Ms Merson contended.

[19] Ms Merson said she expressed unease at the Applicant’s request and indicated that she had been placed her in a difficult position. She then pressed the Applicant:

Why didn’t you ring Catherine?

[20] The Applicant had already confirmed in the previous week that Ms Cook was unavailable on the Monday.

[21] Ms Merson then said that Ms Fisher went silent and after a period stated words to the effect that:

I won’t be back to work.

[22] Ms Merson then stated:

Then I accept your resignation.

[23] And with that Ms Merson ended the telephone conversation abruptly (noting too that she had a customer in the office with her at the time).

[24] Ms Merson claimed that the Applicant had discussed with Ms Cook, that she was experiencing issues with her son who was attempting to rehabilitate from drug use. As a consequence, it was claimed that Ms Cook was approached by the Applicant to cover her shift on Saturday 30 November 2013.

[25] As it was, the Applicant did not ultimately require Ms Cook to work that shift and she (the Applicant) worked the shift herself. The Applicant contacted Ms Cook, so it was said, on Sunday 1 December 2013, and enquired as to whether Ms Cook could work her shift that day. Ms Cook covered the Applicant’s shift that day as a consequence. Ms Cook had indicated to the Applicant that she could not cover the Applicant’s shift the following day, Monday 2 December 2013 as she had an engagement in the morning.

[26] The gist of the Respondent’s concerns was that the Applicant had been aware of her predicament from the prior Thursday but had made no effort to communicate those circumstances to Ms Merson or Mr Dunkley to give them some indication at least of the potential interruption to her availability in the coming days. The wider evidence (as led by Ms Cook) in this case was that shift changes were usually subject to management approval.

[27] Ms Merson therefore claimed that:

Had the opportunity been given to me to discuss her situation I would have been happy to work through the matter and come to a mutually suitable arrangement to cover the period in question thereby avoiding the outcome that has now eventuated.

[28] Ms Merson claims that it would have been possible to provide the Applicant with some flexible arrangements over the course of the week and for herself to have undergone some training to allow her to perform the essential office tasks in the Applicant’s absence.

[29] Ms Merson’s evidence in these regards did not take into account that the development on Monday 2 December 2013 in the Applicant’s son’s health was unanticipated and was an unforeseen development (although it reasonably emerged from her son’s known drug issues).

[30] Ms Merson complained that the Applicant had had conducted herself without regard to the business needs. In this respect, Ms Merson claimed that the Applicant would seek to change shifts at short notice, nominate her preferred working days without negotiation and exclude others. Mr Dunkley gave evidence in relation to the Applicant’s unwillingness to perform certain data entry processes (such as in putting weekend sales data into the computer system), which was only rectified when he proposed replacing her. Mr Dunkley also stated that the Applicant requested to work a public holiday which was traditionally worked by managers and that “this brought on a near tantrum declaring that she (Karen) would decide which day she would work.”

Consideration

[31] The initial matter that I need to determine is whether the Applicant resigned her employment at her own initiative or whether she was dismissed by her employer.

[32] An employee who has resigned his or her employment cannot be taken to have been dismissed for the purposes of s.385 of the Act.

[33] Here the Applicant contends that the words of the Ms Merson to her in the telephone conversation of Monday 2 December 2013, were a sufficient indication that the Respondent no longer required her services and that she was dismissed.

[34] The Respondent argues, to the contrary, that Ms Merson’s words were not as claimed and did not have the intent, regardless, to dismiss the Applicant The Respondent contends that the Applicant resigned her employment at her own initiative and was not forced to do so for reason of the conduct, or course of conduct, engaged in by the Respondent.

[35] A resignation in such a context is a dismissal for the purposes of s.386(1)(b) of the Act, which provides as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

[...] 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

[36] The verb that is used in s.386(1)(b) of the Act (“forced”) suggests that the employer’s course of conduct must have, in some manner, compelled the employee to have resigned their employment, such that the employee had no reasonable alternative choice but to resign from their employment.

[37] The Full Bench in O’Meara v Stanley Works Pty Ltd (“Re: O’Meara”) remains the relevant authority in this respect, despite it being decided under the Workplace Relations Act 1996 as it was prior to being amended by the Workplace Relations Amendment (Work Choices) Bill 2005.

[38] Specifically, the Full Bench decision in Re: O’Meara was based upon the legislation prior to the introduction of s.642(4) of the Workplace Relations Act 1996 in March 2006, and therefore before the current legislative provision under s.386(1)(b) of the Act. Although there are some differences between the relevant provisions of the Workplace Relations Act 1996 and the current Act, I do not think that these differences affect the relevance of the decision to the current provisions.

[39] In Re: O’Meara, the Full Bench stated relevantly as follows:

“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” [My emphasis].

Consideration

[40] This matter turns on an assessment of the credit of the two parties concerned. There are no other witnesses to the direct telephone conversation in question. There are no contemporaneous notes or memoranda.

[41] It is true that both parties had little to gain from the cessation of their relationship. The Applicant lost her employment at a critical time, and it has taken her a good while to obtain new employment since. And Mrs Merson lost an employee skilled in the park’s reservation system at a time when she was operating with reduced staff (with Ms Cook going on leave for a few weeks and Mr Dunkley away for a lengthy period).

[42] But having heard the witnesses, it is Ms Merson’s evidence that suggested to me a more credible scenario. It seems to me more likely that the Applicant took offence to Ms Merson’s questioning approach to her announcement of her unavailability, and after a short period of silence stated that she wouldn’t be coming back to work at all. Ms Merson thereafter accepted the Applicant’s resignation.

[43] Ms Merson’s narrative is more dense than that of the Applicant. It appeared to me upon the hearing of the respective constructions of the conversation to be more authentic or natural as a consequence. The Applicant’s narrative in my view is too simplistic in the context, and is suggestive of contrivance for that reason.

[44] Indeed, I think if Ms Merson had been informed that the Applicant was unavailable for work because her son had attempted suicide, the matter would have taken a different course. Ms Merson did not strike me as a person who would look past such a claim and merely advance her own business interests.

[45] Further, I do not think that Ms Merson’s emotional reaction to the news that the Applicant’s son was suicidal would have been to have felt panicked about how her business was going to operate in the Applicant’s absence.

[46] And further still, I do not think that Ms Merson would have pressed the Applicant to come into work, if only for an hour, if the Applicant had just informed Ms Merson that her son had attempted suicide. It was an agreed fact that this question was asked.

[47] The Applicant’s reason for her absence was compelling. But it does not appear on the evidence to me that she conveyed that reason to Ms Merson. Perhaps, as the Applicant suggested elsewhere in her evidence, she preferred to keep such matters between herself and her trusted friends.

[48] The Applicant’s claim, therefore, requires me to accept that Ms Merson would have expressed complete and utter indifference in the face of an extremely challenging emotional claim by the Applicant. I think this is an unlikely scenario on the balance of probability. This is because the Applicant’s claim takes the evidence too far beyond the ordinary realm of human reaction. Ms Merson did not strike me - though her evidence - as a personality type so removed from the ordinary range of reaction. Indeed, the incidental evidence shows Ms Merson to have displayed some generosity towards other persons at the expense of the business, which underscores my observations.

[49] It is somewhat idle to speculate, then, what the Applicant’s motivation might have been in resigning her employment. It may have been a moment of poor judgment arising from the stressful emotional situation in which she found herself situation, made worse by Ms Merson’s questioning disposition to her announcement of her unavailability. But if it was, it was always available to her to communicate with her employer a short time later to advise of her actual disposition and withdraw her resignation. That did not happen here.

[50] Perhaps, as an alternative proposition, the Applicant may have used the wrong words in a state of confusion brought about by the emotional intensity of the situation in which she found herself, and mis-communicated her intentions. But if this were so, having heard Ms Merson’s words towards the end of the conversation in which she (Ms Merson) accepted the Applicant’s resignation, it would have been reasonable for her to have contested this, or at least to have sought subsequent clarification.

[51] Generally, I cannot discern the root cause of the Applicant’s conduct, and it is not necessary that I do so. I need to determine only if the Applicant was dismissed (as the Act defines it) at the initiative of Ms Merson.

[52] And on this score, I do not discern in the evidence I have heard reason to conclude that Ms Merson dismissed the Applicant at her own initiative, or, by the course of her conduct, forced the Applicant to resign her position. As a consequence, there has been no dismissal for the purposes of s.385 of the Act, and the application must be dismissed as a consequence.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K. Fisher, Applicant

Ms P. Merson, of the Respondent

Hearing details:

Brisbane (and by telephone)

2014

19 May

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