[2017] FWC 354

FAIR WORK COMMISSION

DECISION

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

Mrs Valmai Hardwick
v
National Australia Bank Ltd T/A National Australia Bank
(U2016/9969)

COMMISSIONER SPENCER

BRISBANE, 19 JANUARY 2017

Application for relief from unfair dismissal – jurisdictional objections – filed out of time – extension of time sought, resignation tendered, 38 years service, long service leave paid

Introduction

[1] This determination relates to an application made by Mrs Valmai Hardwick (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of her employment from National Australia Bank Ltd (the Respondent/Employer) was harsh, unjust and/or unreasonable. The Respondent in this matter has raised two jurisdictional objections, firstly, that the application has not been filed with the Fair Work Commission (the Commission) within the statutory time limit of 21 days and secondly, that there was no termination at the initiative of the employer, that is, the Applicant resigned. The Applicant has applied for an extension of time. This decision relates to the extension of time issue, and whether or not a dismissal by the Employer occurred.

[2] Directions were set by Senior Deputy President Drake for the filing of submissions and evidence in relation to the jurisdictional objection. The matter was further allocated to the Commission as currently constituted. Further Directions were issued for additional material to be filed by the parties. Material was filed by both parties.

[3] The Directions required the parties to confirm whether they consented to the jurisdictional objections being decided on the papers. Neither party objected to the objections being determined on the papers or sought that the Commission convene a hearing in relation to the objections. A Full Bench of the Commission in the Decision of Lewis v Altus Traffic Pty Ltd 1dealt with procedural fairness, where a matter involved contested facts.

[4] Section 397 of the Act states:

“397 Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”

[5] Accordingly, after consideration of the written submissions and the above Full Bench decision, by consent a determinative conference by telephone (given the geographical location of the parties) was held on 20 December 2016. The conference was recorded and the parties agreed that any additional information offered by the Applicant and the Respondent could be taken into consideration. Predominantly, the material provided further confirmation of matters before the Commission. The transcript was provided to the Parties with an opportunity to consider and respond, if required.

[6] The Applicant was granted permission (pursuant to s.596) for legal representation. The Applicant was represented by Ms Kate Bone, solicitor of Beckey, Knight and Elliott Solicitors, and the Respondent was represented by Ms Kerrie Murphy, Senior Consultant, Industrial Relations of the Respondent.

[7] Whilst all of the materials and evidence may not have been referred to in this decision, all of such have been taken into account.

Background

[8] The Applicant commenced employment with the Respondent on 16 January 1984. At the time the employment contract came to an end, the Applicant was employed at the Sarina Branch, as the Branch Manager.

[9] The Applicant was subjected to a behavioural investigation and was interviewed on 26 February 2016 regarding alleged complaints of bullying. The Applicant considered there was no misconduct on her behalf. This decision only deals with the jurisdictional matters under consideration.

[10] The application was filed on 3 August 2016. By way of the Form F2 application, the Applicant stated that the date she was notified of her dismissal was 10 June 2016. However, the Applicant further stated that the dismissal did not take effect until 13 July 2016, the date she received her final payments. The Respondent argued the Applicant tendered her resignation on 9 June 2016 and she was paid 4 weeks’ notice. The Applicant argued that she was constructively dismissed, from her employment.

[11] Pursuant to s.394(2)(a) of the Act, the application must be made within 21 days after the dismissal took effect. The Respondent noted that further allegations had been put to the Applicant and consequently, she tendered her resignation, prior to responding. Accordingly, the Respondent submitted that there was no termination at the initiative of the Employer.

Relevant Legislative Provisions

[12] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.” (emphasis added)

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

…

(emphasis added)

Summary of the Respondent’s Submissions and Evidence

[13] The Respondent submitted that there are no exceptional circumstances to justify the Commission exercising its discretion to extend time and to accept the application that was filed outside the 21 day time frame.

[14] The Respondent submitted that the Applicant confirmed in her statement that she resigned from her employment by email on 9 June 2016. The Respondent submitted the Applicant’s resignation was also received from the Finance Sector Union (FSU).

[15] The Respondent submitted the Applicant resigned on 9 June 2016 via email, forwarded by the FSU. The email was extracted as follows:

“9th June 2016 – 6.02pm

Laura,

I hereby tender my resignation from NAB

I have been blessed with an amazing journey over 38 years and have many fond memories of amazing staff and customers that I will treasure forever.

Thankyou

Val Hardwick”

[16] The Applicant later claimed to be uncertain of the date of ‘termination’ because she submitted “NAB did not contact me to say it accepted my resignation. NAB did not advise me of when my dismissal took effect.”

[17] The Respondent submitted that the decision to terminate the employment contract was taken at the initiative of the Applicant and that the Respondent is not required to accept or reject the resignation. The termination of employment was action taken by the employee. The Respondent met the requirement to pay the period of notice that was required by the NAB Enterprise Agreement 2014 (the Enterprise Agreement). The Respondent submitted pursuant to clause 51.2 of the Enterprise Agreement, an employee is required to give 4 weeks’ notice of termination. The following is an extract of clause 51:

“51. Termination of employment

51.1 Notice of termination by NAB

(a) In order to terminate the employment of an employee NAB must give to the
employee the period of notice in writing specified in the table below:

Period of Continuous Service Period of notice

1 year or less 1 week

Over 1 year and up to the completion of 2 weeks
3 years

Over 3 years and up to the completion of 3 weeks
5 years

Over 5 years of completed service 4 weeks

(b) In addition to the notice in sub-clause 51.1 (a), employees over 45 years of
age at the time of the giving of the notice with not less than two years
Continuous Service, are entitled to an additional week's notice.

(c) Payment in lieu of the prescribed notice in sub-clauses 51.1 (a) and 51.1(b)
must be made if the appropriate notice period is not required to be worked.
Provided that employment may be terminated by the employee working part of
the required period of notice and by NAB making payment for the remainder of the period of notice.

(d) The required amount of payment in lieu of notice must equal or exceed the
total of all amounts that, if the employee's employment had continued until the
end of the required period of notice, NAB would have become liable to pay to
the employee because of the employment continuing during that period. That
total must be calculated on the basis of:

(i) the employee's ordinary hours of work (even if not standard hours);
And

(ii) the amounts ordinarily payable to the employee in respect of those
hours, including (for example) allowances, loading and penalties; and

(iii) any other amounts payable under the employee's contract of
employment.

(e) The period of notice in this clause does not apply:

(i) in the case of dismissal for serious misconduct;

(ii) to fixed term employees at the expiration of the fixed term;

(iii) to trainees whose employment under a traineeship agreement or an approved traineeship is for a specified period or is, for any other reason, limited to the duration of the agreement; or

(iv) to casual employees.

(f) Continuous Service is defined in clause 5.

51.2 Notice of termination by an employee

(a) The notice of termination required to be given by an employee is the same as that required of NAB, save and except that there is no requirement on the
employee to give additional notice based on the age of the employee
concerned.

(emphasis added)

(b) If an employee fails to give the notice specified in sub-clause 51.1 (a) NAB has the right to withhold monies due to the employee to a maximum amount equal to the amount the employee would have received under sub-clause 51.1
(d) and the employee authorises NAB to deduct that amount.”

[18] The issue of the Applicant’s long service leave was a relevant consideration. The Enterprise Agreement also provides that an employee is entitled to long service leave if an employee has at least 10 years service but less than 15 years service with the Respondent. An employee is entitled to long service leave, unless, the employee’s employment is terminated on the grounds of ‘serious or willful conduct’. The following is an extract of clauses 43.3 and 43.4 of the Enterprise Agreement:

“43.3 Where an employee has completed:

(a) at least 10 years service with NAB, they may access a proportionate amount of long service leave on the basis of 13 weeks after 15 years service;

(b) 15 years' service with NAB and the employment ceases, the employee will be entitled to a proportionate amount of long service leave on the basis of 13 weeks after 15 years' service since they last become entitled to long service leave.

43.4 Where an employee who has completed at least 10 but less than 15 years' service
with NAB and their employment is terminated for any reason, other than by NAB for serious and wilful misconduct, the employee is entitled to a proportionate amount on the basis of 13 weeks for 15 years' service.”

[1] At the time of providing the resignation and notice the Applicant had been absent from the workplace with a medical certificate. The Respondent submitted it complied with the requirement in clause 51.2 and paid the Applicant for the period of the 4 weeks’ wages in lieu of notice in the next pay cycle. Accordingly, the Respondent argued the Applicant was paid her final pay, representing the notice period and entitlements, on the first pay cycle following her final date of employment, which was 13 July 2016.

[2] The Respondent submitted it is an established principle that where notice is paid, the employment ends on the last day of work, that is, the day notice is given. The Respondent argued the dismissal becomes effective on the day someone stops attending the place of employment (regardless of any notice period).

[3] The Respondent submitted it provided the Applicant with her final payslip and information relevant to the cessation of her employment with the Respondent on 15 July 2016 2. In this correspondence sent to the Applicant on 15 July 2016, it confirmed the resignation was effective 8 July 2016, being after the lapse of the 4 weeks notice after the resignation was tendered.

[4] The Respondent argued that the Applicant would have been aware that the payment that was made on 13 July 2016 represented the final payment, as it included payments for annual leave and long service leave.

[5] With regard to the payment of long service leave the Respondent clarified “that NAB does pay out pro rata long service leave entitlements in cases of summary dismissal is correct, however I should clarify that there is a small exception in the NAB Enterprise Agreement 2016 (clause 43.3) which states those employees who have worked for less than 15 years (but more than 10 years) will not receive a pro-rata long service leave payment if their employment is terminated for serious and wilful misconduct. This is not relevant to the current matter, however, as Ms Hardwick did not come within this exception to the general rule that NAB will pay pro-rata LSL on termination even in the case of summary dismissal. In relation to paragraph 101 of the transcript, I confirm that in Ms Hardwick’s case it would never be NAB’s position that she would lose her entitlement to a pro-rata long service leave payment as she was employed for 38 years by NAB and had an entitlement to a LSL payment upon termination”. However, the Applicant had not raised the issue of long service leave, prior to her resignation.

[6] With regard to whether exceptional circumstances existed, to warrant the extension of time, the Respondent acknowledged that the Statement of evidence provided by the Applicant does provide details of post termination issues experienced by the Applicant. The Doctor’s report on her mother’s medical status outlines the Applicant’s caring responsibilities related to her mother’s illness and the difficulties experienced with her own health. However, the Respondent submitted that a sufficient case had not been established that demonstrated that these factors, prevented the Applicant from complying with the statutory time limit.

[7] In terms of the events leading up to the resignation, the Respondent submitted in February 2016, the Respondent received a complaint from an employee alleging that the Applicant had engaged in bullying conduct.

[8] Following this, the Respondent submitted it conducted an investigation into this complaint. The Applicant was interviewed on 26 February 2016 concerning the allegations

[9] Subsequently, the Respondent submitted a further seven (7) witnesses were interviewed. The Respondent submitted based on their investigation that it substantiated eight (8) allegations of bullying by the Applicant.

[10] The Respondent submitted that on 16 March 2016, Workplace Relations Consultant Ms Fiona Lynch, delivered the investigation outcomes to the Applicant. Also present in this meeting was the Regional Executive, Ms Laura Paton.

[11] The Respondent submitted that as a result, a warning was provided to the Applicant. The letter indicated a “red” conduct gate was applied to the Applicant’s employment record, that remedial actions should be taken, and that a failure to complete those actions, could result in a further review of employment.

[12] On 19 May 2016, the Respondent submitted it received further complaints of bullying against the Applicant. The Respondent submitted it conducted an investigation into these further complaints.

[13] Given the serious nature of the allegations, the Respondent submitted it suspended the Applicant’s employment with full pay. This notification was provided in writing on 26 May 2016.

[14] The Respondent submitted that on 27 May 2016, further allegations were put to the Applicant. The allegations were provided to the Applicant in writing. This letter put the Applicant on notice that her employment was under review and a possible outcome could be the termination of her employment.

[15] The Respondent submitted that on 31 May 2016, the Applicant provided a response to the allegations.

[16] The Respondent submitted that whilst the Applicant was suspended from duty, the Respondent discovered that the Applicant had been allegedly manipulating the Respondent’s customer data base, to vary interest rates without authorisation.

[17] The Respondent submitted on 6 June 2016, those allegations of fraudulent behaviour were put to the Applicant. Present at this meeting was the Applicant, Ms Paton, Workplace Relations Adviser, Daniel Tawadros NAB Workplace Relations Consultant and the Applicant’s support person Ms Leighanne Brown, from the FSU.

[18] The Respondent submitted the Applicant was given 24 hours to respond to these other allegations.

[19] The Respondent submitted that on 6 June 2016, the Applicant provided a medical certificate stating that she was unfit for duties from 6 June inclusive to 6 July 2016.

[20] The Respondent submitted that the Applicant provided her resignation on 9 June 2016, therefore, the “termination” at the initiative of the Applicant, took effect on this day.

[21] The Respondent submitted that the period of 21 days ran from the date of resignation. The Applicant’s dismissal took effect on 9 June 2016 and her application was filed on 3 August 2016, meaning, the Respondent submitted, that it was filed 34 days out of time, in respect of the requirement of s.394(2)(a) of the Act.

[22] Mr Daniel Tawadros, Workplace Relations Consultant NAB, provided the following evidence in relation to the sequence of events leading up to and after the resignation;

“17. On 27 May 2016, Mrs Hardwick and her FSU representative Ms Brown met with Ms Paton regarding the second bullying allegations. I was also present during this meeting via telephone. During this meeting Mrs Hardwick was informed of the specific details of the second bullying allegations. The second bullying allegations were also provided to Mrs Hardwick in writing in a letter dated 27 May 2016. This letter is Attachment D.

18. The letter of 27 May 2016 referred to above, set out the specific allegations made in the second bullying complaint that were put to Mrs Hardwick during the meeting on
27 May 2016 and also stated, among other matters, as follows:
"In addition to the information you have already provided, please provide in writing any further information you would like NAB to consider. Please provide this information to me by close of business on Tuesday 31 May 2016. It is important you understand that NAB considers these matters to be serious. Your written response, in addition to all other relevant information, will be taken into account in determining the appropriate outcome. This may include disciplinary action up to and including the termination of your employment.

I would like to remind you of NAB's Employee Assistance Program (EAP). EAP is a confidential counselling service available to all NAB employees and their family members. EAP can be contacted on 1300 360 364."

19. On 31 May 2016, Mrs Hardwick provided a written response to the second bullying allegations. A copy of this response is Attachment E to these submissions.

20. On 1 June 2016, NAB became aware that Mrs Hardwick appeared to be manipulating the Respondent's customer database on a regular basis to apply interest rate reductions to a particular customer without proper authorisation for the rate reductions. This conduct was a very serious breach of well established process at NAB and also fraudulent given that:
(a) Mrs Hardwick was performing manual price reductions for a particular customer on a monthly basis for approximately 6-7 months without approval;
(b) Mrs Hardwick was attempting to conceal her actions; and
(c) Mrs Hardwick was being dishonest in the remarks placed on the internal NAB system with respect to the reasons for the price reductions. She had stated that there was "EBL approval" but there was no EBL application since 2013 (fraud allegations).

21. On 6 June 2016, the fraud allegations were put to Mrs Hardwick verbally in a meeting with Mrs Hardwick. Present at this meeting was Mrs Hardwick, her FSU representative Ms Brown, myself and Ms Paton. NAB requested a verbal response to the allegations however Ms Brown from the FSU requested that Mrs Hardwick be allowed to gather her thoughts and provide a response in writing. NAB agreed to this request and allowed Mrs Hardwick until close of business on 7 June 2016 to provide a response to the fraud allegations.

22. On 6 June 2016, Mrs Hardwick provided a medical certificate stating that Mrs
Hardwick was unfit for duties from 6 June to 6 July 2016 (inclusive). A copy of this medical certificate is Attachment F.

23. On 6 June 2016, after the meeting referred to in paragraph 21 above, Ms Brown from the FSU and I had a discussion regarding Mrs Hardwick's position. Ms Brown queried whether NAB would let Mrs Hardwick resign given the matters which had been tabled at the meeting earlier that day. I told Ms Brown that I would find out about the answer to this internally and advise Ms Brown of the answer at a later date.

24. No response to the fraud allegations was received from Mrs Hardwick by 7 June
2016 as agreed.

25. On or around 8 June 2016 or 9 June 2016, I had a further discussion with Ms Brown from the FSU via telephone. During this telephone discussion I informed Ms Brown that after considering all the factors relating to the bullying allegations, including Mrs Hardwick's written response, NAB had formed a view that Mrs Hardwick's conduct was sufficiently serious to warrant termination and that NAB would be terminating Mrs Hardwick's employment. As Mrs Hardwick had not responded to the fraud allegations, that was not considered as part of the decision to terminate the employment. I also responded to Ms Brown's earlier query about whether NAB would accept a resignation from Mrs Hardwick if Mrs Hardwick chose to resign. I informed Ms Brown that if tendered, Mrs Hardwick's resignation would be accepted.

26. I am informed by Kerrie Murphy, Industrial Relations Consultant at NAB that Mrs
Hardwick has alleged that she was told by her FSU representative that if she did not resign, workplace relations would terminate her employment and she would lose her employment benefits (including annual leave, long service leave and other entitlements). For the avoidance of doubt, I have never stated to Mrs Hardwick or her representative that Mrs Hardwick would forfeit her statutory entitlements in any circumstances. Further, to the best of my knowledge, I am not aware of any other representative from NAB making such a statement to Mrs Hardwick or her representative.

27. On 9 June 2016, at 7:33pm Ms Brown from the FSU sent an email to me attaching a written resignation from Mrs Hardwick. The email and the resignation are Attachment G. The resignation stated as follows:
"I hereby tender my resignation from NAB.
I have been blessed with an amazing journey over 38 years and have many
fond memories of amazing staff and customers that I will treasure forever.
Thank you.
Val Hardwick".

28. On 10 June 2016, I sent a copy of the resignation to Mrs Hardwicks People Leader,(ie. manager), Ms Paton and asked her to action the resignation. Although Mrs
Hardwick did not refer to providing NAB with notice of her resignation, and did not return to work for NAB any time after her resignation dated 9 June 2016, it is apparent to me that she assumed that NAB would pay Mrs Hardwick for the required notice period and therefore entered her final date of employment into the system as 8 July 2016.” 3

[23] The Respondent submitted that the application is out of time, and as such the Commission’s discretion should not be exercised, for the following reasons; the Applicant took more than 21 days to file her application, in circumstances where she resigned, therefore there can be no confusion as to when the termination took effect. The Applicant had access to and was taking advice from her legal advisers and the FSU. In the circumstances, the Respondent argued it is not plausible that she did not receive advice concerning the time she had to lodge the application.

[24] Further, whilst it was submitted that the Applicant filed material to explain this delay, there is nothing in the material that might be described as “exceptional circumstances” that completely impeded her from lodging an application in time. Regardless, if the Commission accepts the Applicant’s reasons, the Respondent submitted that a sufficient case has not been advanced to explain why the application is more than one month out of time. The Applicant resigned and she took no steps afterwards to dispute the matter with the Employer. The resignation was at the Applicant’s initiation, in circumstances where she had been subject to bullying investigations and a further claim of fraudulent conduct to which she did not respond, but tendered her resignation. It was submitted that, there is a lack of merit in the section 394 application, given the process that was followed by the Respondent, and that the Applicant tendered her resignation in lieu of responding. It also must be taken into account that the Applicant had access to representation. The Respondent also argued that it would be unfair to other Applicants, who are not represented, and who had no or limited reasons to explain the delay in making an application to the Commission, to grant an extension of time.

[25] The Respondent submitted that the Commission should not exercise its discretion to extend the time frame. The application should be dismissed for want of jurisdiction.

Summary of the Applicant’s Submissions and Evidence

[26] The Applicant’s representative sought permission for the Commission to allow a further period for the filing of the application, as detailed in the witness statement of Mrs Valmai Hardwick.

[27] The Applicant submitted she was incapable of providing her instructions to file an application within the 21 day time period as she was undertaking the care of her seriously ill mother. The Applicant provided a specialist medical report on her mother’s health situation. The Applicant also detailed that she was her primary carer.

[28] The Applicant stated in terms of matters preventing the lodgement of the application; that on 13 June 2016, she had found her mother at her home around 11.30am. She called the ambulance who took her mother to a Mackay based hospital. Her mother remained in hospital for two days. On 18 June 2016, the Applicant alleged her mother spent a few days not being able to keep down any food or liquid. Following this, the Applicant submitted that the doctors found a tumor in her bowel. After surgery, the Applicant was informed that her mother’s health condition was serious and she would be placed in palliative care in Sarina Hospital. The Applicant stated she is her mother’s only child, living in Sarina, and therefore she was the primary carer. The day the Applicant was given this news, she alleged that she had to reschedule the appointment with her solicitor as she was very concerned regarding her mother’s health. The Applicant estimated it probably took a month or more for her mother’s health to become stable.

[29] The Applicant stated that she had never experienced anything like this before and she had no idea of the future for her mother, therefore, she could not plan anything ahead of each day. The Applicant stated that the doctors were unsure of what to plan for her mother’s future.

[30] The Applicant stated that she had to arrange an appropriate home for her mother and this was arranged on 2 August 2016.

[31] Further, the Applicant submitted she was not immediately aware of her dismissal date (given the absence of a response from the Employer) and accordingly, the application may not have been made outside the 21 day time period. The Applicant stated she was unsure about when the 21 day time period began, alleging in her response that the dismissal took effect on 9 June 2016. However, she stated, in a letter from the Respondent dated 15 July 2016, it stated the resignation took effect on 8 July 2016. The following is an extract of the Respondent’s letter sent on 15 July 2016:

“Dear Valmai,

RESIGNATION

We confirm that your resignation from National Australia Bank (“NAB”) has been accepted effective 08/07/2016.

Please refer to the attached retirement report which outlines salary and leave entitlements which will be paid to you, in your final pay. Your final pay will be credited to your main salary account on the next available pay day.

The above payments will be included in your final Payment Summary for the 2016/2017 financial year.

To ensure that any future documentation such as payment summaries or additional information is sent to the correct address, please notify the People Advisory Centre (PAC) on the above telephone number if your mailing address changes after you leave NAB.

Superannuation

If you are a member of the National Bank Group Superannuation Fund, notification will be sent advising them of your resignation date from NAB. If you are a member of another superannuation fund, please advise them directly of your resignation.

Shares

Should you hold shares allocated through the employee share schemes, Computershare Plan Managers Pty Ltd will contact you directly.”

[32] The Applicant in relation to the resignation advised as follows;

“20. In response to the Respondent's submission dated 19 September 2016 and filed on 20 September 2016:
i. the Respondent states "the Applicant resigned, there can be no confusion as to when the termination took effect'. The Respondent incorrectly states the Applicant confirms in her statement that she resigned by email on 9 June 2016. The Applicant sent an email to NAB at 6.02pm on 9 June 2016 and the next business day was 10 June 2016. The Respondent firstly in writing to the Applicant stated the date of dismissal took effect from 8 July 2016, however later in the Respondent's Response it states the date of dismissal took effect from 9 June 2016. Accordingly, there is confusion as to when the termination took effect.
ii. The Respondent states "NAB submits that a sufficient case has not been advanced to explain why the application is more than 1 month out of time". On the Respondent's dates, the Application is either 34 days or 5 days out of time, depending on the dates the Respondent has provided as the date of dismissal. On the Applicant's date of dismissal, the Application is not out of time.” 4

[33] The Applicant submitted that at the time she approached her legal representatives on 8 July 2016, she was unsure whether she was still employed with the Respondent as she was receiving her regular wage and had not received any confirmation from the Respondent stating when her dismissal took effect. The Applicant submitted she believed she was being paid sick leave, as she had a medical certificate. The Applicant, however, had a FSU representative present at the final meeting on 6 June 2016, prior to the FSU also submitting her resignation to the Respondent on 9 June 2016.

[34] The Applicant submitted she spoke with Leighanne Brown, a representative from the FSU, who allegedly advised her that if she did not resign, NAB would terminate her employment and she would lose her employment benefits (including annual leave, long service leave and other entitlements). No evidence was tendered from the FSU representative to corroborate this discussion. The Respondent denied a discussion regarding long service leave occurred, and further the Respondent argued, the Commission can draw an inference on the absence of the FSU’s evidence.

[35] The Applicant submitted NAB’s action of advising the Applicant through her representative that NAB had grounds to terminate her employment, ‘directly and consequentially’ resulted in the termination of employment.

[36] The Applicant submitted she received her final pay on 13 July 2016 and immediately contacted her representative’s office. The Applicant submitted her representatives calculated the 21 day time period (as commencing on that day) and then falling due on 3 August 2016 and, therefore they ensured the application was filed on 3 August 2016.

[37] The Applicant stated it is not disputed that the Applicant tendered her written resignation to the Respondent. The Respondent had communicated its intention to dismiss the Applicant, in response to an enquiry from her representative, before the Applicant tendered her written resignation.

[38] The Applicant’s representative submitted in relation to the reason for the delay that;

“1. The Applicant was medically unfit prior to dismissal from 6 June 2016 until 7 August 2016, evidenced by two medical certificates. Her application was lodged with the Commission on 3 August 2016.

2. From 13 June 2016 to 2 August 2016 the Applicant had the day to day care of her sick Mother who was in hospital until being moved to a nursing home.
The applicant was incapable of filing an application within the 21 day time period and did file her application as soon she was able to on 3 August 2016.

3. The Applicant's difficulties were out of the ordinary, unusual or uncommon.
The Applicant did act promptly as soon as she was able to.

4. In Peter McMechan v National Roads and Motorists' Association TIA NRMA
Motoring & Services (U201616769), the Commission stated at [12]:
“For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.” 5

[39] Furthermore, the Applicant submitted that;

“16. The Commission may exercise its discretion to extend the time for making an unfair dismissal application because of considerations of medical incapacity or lack of awareness about when the dismissal took effect, stating in Ms Traie Hansen v Supported Options In Lifestyle And Access Services Ltd TIA Sofas (U2015114933), at [45]:

"Cases where extensions of time have been granted because of the considerations that arise in this case establish that the following may constitute exceptional circumstances justifying the exercise of the Commission's discretion to extend the time for making an unfair dismissal application:
• Medical or other incapacity established by probative evidence that prevents an applicant from filing an application within the 21 day time period and for the relevant period of delay; or
• Lack of awareness about when a dismissal took effect because of factors such as confusion created by the conduct of the employer or by reason of some other compelling or credible circumstance."

17. The meaning of "exceptional circumstances" was considered in Nulty v Blue
Star Group Pty Ltd 1 [2011] FWAFB 975, where the Full Bench said:
"13. In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

18. In Cheyne Leanne Nulty v Blue Star Print Group Australia Pty Ltd
(C2010/3932), after considering the matter the Commission held:
"[22] The applicant advanced that exceptional circumstances were created by a combination of her father's illness and technological and other problems associated with the lodgement of a claim with FWO.
These factors need to be examined separately and in combination.
[23] The serious illness of a close relative would often provide a basis to establish exceptional circumstances. In instances where a (potential) applicant may have been understandably preoccupied with concern and attention for a close relative who was suffering serious illness, there would usually be an understandable acceptance that matters such as the lodgement of a general protections claim might be of second or third order priority. Consequently in this instance I would be prepared to accept that a valid reason for the delay in the lodgement was established in respect to that period connected with the applicant's travel to Queensland to provide support for her sick father.
[24] However, two countervailing aspects relating to the applicant's sick father need to be considered. Firstly, the period associated with the applicant's travel to Queensland in respect of her father's sickness only accounts for at most, a 20 day period during the overall 99 day period between dismissal and the lodgement of the application in this matter. Secondly, during the period that can be directly connected to the applicant's concern for her father the applicant was able to successfully launch a variety of other claims and applications with various agencies.
[38] The reasons offered for the delay were not satisfactorily supported by the evidence. Although I would be prepared to accept that the serious illness of a close relative can provide justifiable basis for an extension of time, in this case it has become clear that factors other than the illness of the applicant's father represented the true reason for the delay in the lodgement of the claim."

19. It is acknowledged that, when the decision of Cheyne Leanne Nulty v Blue
Star Print Group Australia Pty Ltd (C2010/3932) was appealed, the
Commissioner did not grant an extension of time to file an Application.
However the principles stated are particularly apt in this case. It is submitted that this is a case where exceptional circumstances exist to extend the time for making the Application for the following reasons:

a. The serious illness of the Applicant's mother provides justifiable basis for an extension of time.

b. The period associated with caring for the Applicant's sick Mother account for the period between dismissal and the lodgement of the Application in this matter (the period is either 27 days or 5 days depending on the Respondent's date of dismissal).

c. Further, during the period that can be directly connected to the applicant's concern for her Mother the applicant was not able to take any action to dispute the dismissal.

d. The Applicant was medically incapable of filing an Application for the relevant period of delay.

e. There were a combination of factors which together were exceptional.” 6

Forced resignation

[40] The Applicant submitted there is a clear action by the Respondent in advising the Applicant, through her representative, that the Respondent had decided to terminate her employment, and by further advising the Applicant that if she resigned that resignation would be accepted, which is either intended to bring the employment to an end or has the probable result of bringing the employment to an end. The Respondent submitted that this information was communicated in response to inquiries in relation to these matters by the Applicant’s representative.

[41] The Applicant submitted that the resignation was only tendered after clear communication by the Respondent that it intended to terminate the Applicant the next day. Therefore, they argued the resignation was tendered in the circumstance where the Applicant was effectively dismissed. The Applicant provided;

“21. The Respondent has submitted at paragraph 24 in its outline of submissions:

"On or around either 8 June 2016 or 9 June 2016, the Applicant's representative Ms Brown and Mr Tawadros had a telephone discussion. Mr Tawadros informed Ms Brown that after considering all the factors relating to the bullying allegations including the Applicant's written response, the Respondent had formed a view that the Applicant's conduct was sufficiently serious to warrant termination and that the Respondent would be terminating the Applicant's employment. As the Applicant had not responded to the fraud allegations, that was not considered as part of the decision to terminate the employment. Mr Tawadros also responded to Ms Brown's earlier query about whether the Respondent would accept a resignation informed Ms Brown if the Applicant chose to resign. Mr Tawadros informed Ms Brown that if tendered, the Applicant's resignation would be accepted."

22. NAB's representative, Mr Tawadros informed Ms Brown that NAB would be terminating the Applicant's employment on either 8 June 2016 or 9 June 2016.

23. The Applicant spoke with Leighanne Brown a representative of the FSU.
Union advised the Applicant that if she did not resign, NAB would terminate her employment and she would lose her employment benefits (including annual leave, long service leave and other entitlements). The Applicant believed Leighanne Brown was concerned for the Applicant and was looking after her best interests after so many years as an employee with the Respondent. The Applicant was on sick leave.

24. NAB's action of advising the Applicant through her representative that NAB would be terminating her employment, 'directly and consequentially' results in the termination of employment.

25. Further had NAB not taken this action, the Applicant would have remained employed. The Applicant took the second bullying complaint seriously, providing a 5 page typed response to NAB, attachment E to the Statement of Daniel Tawadros. In the Applicant's last paragraph of that response states:
"In closing I would like to confirm that after 38 years I have always tried my best to treat all my staff fairly and I apologise if my communication style was taken out of context or offended anyone. Obviously with the current pressures and "new to role" staff, I can see that effective communication is something I need to work on. I am always working on my development and believe moving forward, an action plan be implemented to create the workplace that we can all participate equally in".

26. The Applicant wanted to move forward past the second bullying complaint and implement an action plan. If the Respondent had not decided to terminate the Applicant's employment, the Applicant would have remained employed: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR200, 205. 7

[42] The Applicant submitted that she disputed the Respondent’s submission that her decision to resign prior to the outcome of the investigation was her own and not forced. The investigation by the Respondent regarding the bullying complaint was complete and the Respondent decided to terminate the Applicant’s employment. The outcome of the investigation was known to the Applicant prior to her providing her written resignation. The Respondent has clearly stated in its own outline of submissions the following:

“… the Respondent has formed a view that the Applicant’s conduct was sufficiently serious to warrant termination and that the Respondent would be terminating the Applicant’s employment. As the Applicant had not responded to the fraud allegations, that was not considered part of the decision to terminate the employment.”

[43] The Applicant had yet to respond to the allegations of fraud. The Applicant relied on the case of T G Topfer v Roche Products Pty Ltd 8. In this case the Respondent was dissatisfied with the Applicant’s conduct and after an investigation decided that the appropriate course was to terminate the Applicant’s employment. Instead of terminating the Applicant’s employment, the Respondent offered the Applicant an opportunity to resign. In the current circumstances, the Applicant stated the actions of the Respondent in this matter were unequivocally intended to bring the employment relationship to an end. The Applicant did not have any choice as to whether her employment would end, only how her employment would end.

[44] The Applicant denied she made a considered decision to resign, rather than to respond to allegations of fraud and await the outcome of a disciplinary process 9. The Applicant submitted the Respondent had stated it decided to terminate the Applicant’s employment and the allegations of fraud had nothing to do with that decision. It was argued that the Respondent told the Applicant through her representative that her employment would be terminated, clearly regardless of any allegations of fraud. Further, the Applicant stated the Respondent cannot later claim that there was an on-going disciplinary process and the Applicant resigned rather than respond to the allegations. The Respondent had sought a response to the allegations of fraud, prior to responding the Applicant’s representative intervened to inquire, whether the Applicant’s resignation would be accepted.

[45] With regard to the resignation, the Applicant’s representative argued it was forced. The Applicant submitted;

“36. The Applicant relies on the decision in T G Topfer v Roche Products Pty Ltd PR973943[2006] AIRC 562; (12 September 2006). The facts are similar.

The Respondent was dissatisfied with the Applicant Topfer's conduct and after an investigation decided that the appropriate course was to terminate the applicant's employment. Rather than terminate the applicant's employment, the respondent outlined its decision to the applicant and offered him the opportunity to resign. The applicant Topfer accepted that offer and tendered his resignation in writing. Stating at [4]:
"The evidence discloses that the applicant's employment was destined to come to an end. The decision that the employment would end was the respondent's. It is also clear from the evidence that the applicant did not want his employment with the respondent to come to an end. The applicant never had any choice as to whether his employment would end, but rather the choice the respondent provided to the applicant was how the employment would end. It can safety be concluded from the evidence that but for the actions of the respondent, the applicant would have remained in the employment relationship."

37. The actions of the Respondent in this matter were unequivocally intended to bring the employment relationship to an end. The Applicant did not have any choice as to whether her employment would end, only how her employment would end.

38. The Respondent relies on Hamann v Thiess Pty ltd {2012] FWA 9473, which can be distinguished here. In that case, unlike the situation in this matter, the Applicant Hamann was told that dismissal was probable, but nothing higher than that and he exercised a choice that reflected his own interests. Here, the Applicant was told that her employment would be terminated. It was not probable, it was unequivocal. The Applicant did not want to resign, but under the mistaken belief that she would lose her employment benefits, resigned after being advised by the Respondent her employment would be terminated.

39. The Respondent states it terminated the Applicant's employment at paragraph 67 in its outline of submissions:
"The Respondent had a valid reason for termination of the Applicant's employment having found that she engaged in bullying conduct in breach of its Workplace Bullying & Harassment Policy and Code of Conduct after having received a previous warning for the same conduct recently."

40. The Applicant denies she made a considered decision to resign rather than to respond to allegations of fraud, and await the outcome of a disciplinary process as submitted at paragraph 68 in its outline of submissions. The Respondent has stated it decided to terminate the Applicant's employment and the allegations of fraud had nothing to do with that decision. The Respondent told the Applicant through her representative that her employment would be terminated, clearly regardless of any allegations of fraud. The Respondent cannot later claim that there was an ongoing disciplinary process and the Applicant resigned rather than respond to those allegations.” 10

[46] The Respondent emphatically denied that the Respondent forced the Applicant to resign or that there was any communication that the Respondent would withhold the long service leave entitlements of the Applicant, in any circumstances. They further submitted that it was always paid in accordance with the Enterprise Agreement. The Applicant had been employed for 38 years and it was confirmed at the final hearing, that she had not taken any long service leave and that no inquiry was made on the Applicant’s behalf regarding whether this entitlement would be withheld. However, the Respondent confirmed that the entitlement would have been paid, and was, and no enquiry was received from the FSU or her legal advisers regarding the entitlement at any time.

Consideration

[47] The date of termination is disputed between the parties. The Respondent argued the termination at the Applicant’s initiative by way of resignation took effect on 9 June 2016. That is, the day the FSU on behalf of the Applicant submitted her resignation. The Applicant argued that it took effect on 13 July 2016, the date of the final pay. The Applicant and Respondent both agreed that the application was lodged on 3 August 2016.

[48] Pursuant to s.394(2)(a), the application must have been made within 21 days after the date the dismissal took effect. In this case, the resignation was tendered on 9 June 2016. Other dates have been argued as to the date the resignation became effective; 8 July 2016 and 13 July 2016.

[49] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 11 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services12 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)13 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 14

[50] In addition, the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 15

[51] In considering an application for an extension of time, the Commission must be satisfied that there are “exceptional circumstances” warranting the extension of time, taking into account those matters in s.394(3) of the Act. Each of those criteria have been considered.

s.394(3)(a) - reason for the delay

[52] The Applicant predominantly argued as reasons to justify the extension of time; medical, other incapacity issues, lack of awareness of the 21 day time limit, constructive dismissal and uncertainty regarding the effective date of the resignation. The Applicant submitted that she was incapable of providing instructions to file an application within the 21 day timeframe given the seriousness of her Mother’s medical condition. It was also submitted that the Applicant was uncertain, regarding the date, the time period commenced, given no correspondence was received from the Respondent acknowledging the resignation until over a month later, and in addition, the Applicant had been on sick leave and submitted she thought she was still being paid as an employee. The Respondent argued that the Applicant would have known that the resignation brought her employment to an end; the Applicant was a long serving and experienced employee; a Branch Manager, and would have been aware that the payments represented the 4 week notice period under the Agreement. Furthermore, she would have been aware that the resignation brought her contract to an end. Even if the notice period of 4 weeks is taken into account, the final date is 8 July, on this date, the application is out of date.

[53] The Applicant referred to correspondence from the Respondent dated 15 July 2016, in which the date of dismissal was recorded as taking effect on 8 July 2016 (on the expiration of the notice period the Applicant owed under the Enterprise Agreement). The Applicant’s representatives stated that at the time the Applicant attended their office, the Applicant had been receiving a regular wage and was therefore uncertain regarding the date the timeframe commenced, after the resignation. It was submitted that the Applicant received her final pay on 13 July 2016 and contacted her solicitors on this date, and therefore they stated, the 21 day time period was calculated from this date and the application was filed on 3 August 2016, they state within time. No enquiry was made by the Applicant, the Applicant’s solicitor or the FSU, to the Employer regarding the long service leave payment or notice matters.

[54] The Respondent submitted it had no reason to question the voluntary nature of the resignation and therefore the resignation was accepted by the Respondent on 9 June 2016. At no point did the Applicant dispute the resignation prior to the application.

[55] The Applicant submitted in her affidavit the following reasons for the delay in filing. Firstly, she submitted she was suspended from her employment on 26 May 2016 and the Respondent told her it was conducting an investigation in relation to her conduct. The Applicant stated she was told by the Respondent she was not to have contact with any of the Respondent’s customers or employees during her suspension. Further, the Applicant submitted she was not allowed to go into the branch.

[56] The Applicant stated she had been advised by a representative of the FSU that if she did not resign, the Respondent’s workplace relations division would terminate her employment and she would lose her employment benefits 16. The Applicant submitted she responded by stating she needed to obtain legal advice and was again told that if she did not resign, her employment would be terminated and she would lose her employment benefits. The Respondent denied that it had been stated by the Respondent, or any representative of the Respondent, that the Applicant would forfeit her statutory entitlements. No evidence was provided on behalf of the FSU stating that the Employer had communicated that the Applicant would not be paid the long service leave entitlement, if she was dismissed from her employment.

[57] It was argued that the Applicant did not want to lose her employment benefits so she sent an email to the Respondent on 9 June 2016 resigning from her employment, she did not communicate the loss of the long service leave as the reason for the resignation. To the contrary, the resignation represented a voluntary, gracious exit from the employment contract.

[58] The Applicant stated that no one from the Respondent’s management had contacted her to discuss her resignation email or her suspension. The Applicant alleged she was unsure whether she was still employed with the Respondent, given the further payment received after her resignation. The Applicant had access to legal representation and representation by the FSU during this time. Such inquiries clearly could been made on behalf of the Applicant. The Respondent was not put on notice during this period, that the Applicant disputed the situation, or that she resiled from her resignation in anyway, nor was it communicated to the Employer that she considered, she had been constructively dismissed. It was not until the Applicant received her payment of entitlements, that she stated she took action to dispute the resignation.

[59] The Applicant also submitted she had an appointment with her solicitor on 8 July 2016 and at this time she was confused as to whether she was still employed with the Respondent. She believed she was still on sick leave.

[60] The Respondent submitted that whilst the Applicant stated that she was not aware that her employment ended, it was submitted, that it is inconceivable in the circumstances that the Applicant was not aware on tendering her resignation, that she had brought her employment, to an end, by her resignation in writing, provided to the Respondent by her industrial representative from the FSU. The Applicant had been employed with the Respondent for many years and was an experienced Manager who dealt with staff matters, including recruitment and termination as part of her role. The Applicant was aware, that she could contact the People Advisory Centre at any time regarding her employment or pay related enquiries.

[61] The Applicant clearly resigned on 9 June 2016 and this was effective at that date, the later payment of wages in lieu of notice does not alter this date. The Applicant did not dispute the resignation and the final allegations in terms of reasons for the delay do not provide exceptional circumstances. Whilst the concern the Applicant had for her mother’s health is recognised, the caring duties commenced some days after the resignation, and the case was not made out regarding how these duties (whilst her mother was in hospital) totally prevented an application being filed, in circumstances where she was represented.

s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[62] The Applicant submitted that she considered she was still employed with the Respondent after 10 June 2016 given she was being paid her usual wage and had a medical certificate, and had not received acceptance of her resignation.

[63] The Applicant alleged she received her final pay on 13 July 2016 and it was at this time she realised that her employment had ended and her sick leave was not extended, and she sought a meeting with her representatives. Neither the Applicant, nor the FSU, had at any time queried the extension of sick leave, at the time of tendering the resignation, the night prior to the response date on the further allegations.

[64] The Applicant submitted she believed her last day of employment was 13 July 2016 (being the last date she was paid) and subsequently, the 21 day requirement commenced on 13 July 2016, meaning her application was to be made by 3 August 2016.

[65] The Applicant submitted that the Respondent alleged the dismissal took effect on 9 June 2016, however, the letter the Applicant received from the Respondent dated 15 July 2016 stated the resignation took effect on 8 July 2016. The Applicant tendered her written resignation at a time that then did not require her to respond to the serious allegations of fraudulent conduct. The Applicant, as stated, was a Branch Manager and was represented at the time of providing her resignation. The resignation became effective on the day it was tendered.

[66] The Applicant argued the Respondent brought the employment contract to an end. The Applicant submitted that;

“31. There is clear action by the Respondent in advising the Applicant through her representative that the Respondent had decided to terminate her employment, and by further advising the Applicant that if she resigned that resignation would be accepted which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.

32. The Respondent left the Applicant with no real choice but to resign. Otherwise her employment would be terminated, and she had been advised by a FSU representative that she would lose her employment benefits (including annual leave, long service leave and other entitlements) if she was terminated and did not resign.

33. The Applicant disputes the Respondent's submission that her decision to resign prior to the outcome of the investigation was her own and not forced. The investigation by the Respondent was complete and the Respondent decided to terminate the Applicant's employment. The outcome of the investigation was known to the Applicant prior to her providing her written resignation. The Respondent has clearly stated in its own outline of submission:
"after considering all the factors relating to the bullying allegations, including the Applicant's written response, the Respondent had formed the view that the Applicant's conduct was sufficiently serious to warrant termination and that the Respondent would be terminating the Applicant's employment. As the Applicant had not responded to the fraud allegations, that was not considered part of the decision to terminate the employment"

34. The facts in Knight v Wattyl Australia Pty Ltd PR974876 [2006] AIRC 788; (8
December 2006) can be distinguished here. In that case, unlike the situation in this matter, the Applicant Knight was made aware that if he resigned he would not carry the stigma of being terminated for reasons related to pornography. The Applicant is 55 years old. Due to her age it will be difficult for her to find alternative employment and she was not concerned about carrying stigma to a new employer.

35. In addition, in that case, unlike the situation in this matter, the Applicant Knight was made aware that he would not have an unfair dismissal claim.” 17

[67] In this matter it was open to the Applicant’s representatives to advise her of the likely outcome if she litigated the dismissal. The Applicant stated she refuted the alleged conduct. The Respondent stated that these discussions regarding resignation, were brought about as a result of an enquiry by the FSU on behalf of the Applicant. The Applicant made an election to resign in the circumstances. The Applicant elected to resign and was not forced to do so.

s.394(3)(c) - any action taken by the person to dispute the dismissal

[68] The Applicant did not provide any evidence of her intention to dispute the dismissal within the 21 day period. In fact, the Applicant resigned, rather than a termination of employment being effected by the Respondent. The Applicant was at liberty to dispute the dismissal, but resigned instead. The fact that it may have been undertaken on a mistaken fact (on her submission) to protect her entitlements, does not affect the resignation was freely given.

s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[69] The Applicant submitted the Respondent was a large employer and would not experience any prejudice if the application was accepted. The Respondent on this criterion stated that it would be inequitable to other Applicant’s to extend time in these circumstances, where the Applicant had resigned, and was represented.

s.394(3)(e) - the merits of the application

[70] The Applicant stated the following, in her affidavit, regarding the merits of her case; she considered her case against the Respondent to be strong; she had been employed with the Respondent for 38 years. The Applicant argued she had provided her resignation in circumstances where she had been advised “after hours” by the FSU that she would lose her entitlements if she did not resign.

[71] In this regard, the Respondent considered a significant inference could be drawn by the Commission that the FSU did not provide evidence in this matter. This was in circumstances where the FSU had forwarded the Applicant’s resignation to the Respondent. The email trail of receipt of this is attached to Mr Tawadros’ statement.

[72] In the Applicant’s F2 application at question 3.2, the Applicant submitted she cooperated and participated in the investigation in relation to her conduct and behaviour. Further, the Applicant believed she attended the interview with Fiona Lynch and Daniel Tawadros, representatives of the Respondent on 26 February 2016, and answered all questions. In relation to the eight allegations put to the Applicant by the Respondent, the Applicant submitted she denied each of the allegations and believed her conduct was reasonable management action.

[73] The Respondent, in reference to the merits of the application, referred to the allegations that were being pursued against the Applicant in relation to the bullying complaints and the matter of alleged fraudulent conduct. After having put the final matters including the fraudulent allegations to the Applicant, to show cause, the Applicant tendered her resignation. The Respondent’s case was that these were substantive matters that would have been relied on. The response to these allegations was that the Applicant brought her employment contract to an end of her own volition. If the allegations of improperly changing interest rates were proven, it is unlikely the Applicant who was the Branch Manager would have succeeded in her merits case. The Applicant did not use the opportunity to respond to the allegations but instead resigned.

s.394(3)(f) - fairness as between the person and other persons in a similar position

[74] The Applicant considered that given the uncertainty of the end date, of the employment contract, that there was a difference between this and other matters.

[75] The Respondent submitted that it would be unfair to grant an extension of time, given that no exceptional circumstances have been identified, to justify the Applicant’s delay in lodgement. No other persons, in a similar position were identified.

[76] It was common ground that the Applicant resigned on 9 June 2016 and later conduct and arguments did not derogate from this action or its effect on that day.

Resignation

[77] In deciding whether a dismissal has taken place, the Commission must consider the factors in section 386(1). The circumstances of the resignation as outlined and the reasoning provided is not commensurate with s.386(1)(a) or (b). The Applicant was at liberty to defend any dismissal resulting from the bullying complaints, she elected to resign. The evidence does not demonstrate that the Applicant’s employment was terminated on the Employer’s initiative, but that the Applicant resigned in circumstances where she was not forced to do so.

[78] In the case of a forced resignation, where the employee argues that they had no real choice but to resign, the onus is on the employee to demonstrate that the resignation was forced, or not voluntary. That is, they must prove that the Employer forced them to resign. That is, that the principal contributing factor leading to the termination, was pressure from the Employer to resign. There was no such pressure in this matter. The Applicant’s conduct in this matter cannot be described as a ‘heat of the moment’ resignation. She had discussed the issue, and on the material before the Commission, sought confirmation via the FSU of the tendering of the resignation.

[79] In assessing whether there was a termination at the initiative of the Employer, on the facts of the matter, the principle to be applied against the particular circumstances, was summarised in the decision of Mohazab v Dick Smith Electronics (No 2) as follows:

"That principle is that for a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign." 18

[80] The effect of the giving of notice is summarised by Gray J in the Federal Court in Birrell v Australian National Airlines Commission:

"The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice." 19

[81] Consideration of the circumstances of the current matter, in line with the principle, demonstrate that whilst the employee was aware that the Employer considered they had grounds based on the bullying allegations to dismiss, no ultimatum had been given to the Applicant to force her resignation. It is often a fine line analysis of the conduct in these situations. From the conduct of the Employer in the current case (where the employee considered she had grounds to challenge the merits of any dismissal) it cannot be seen that the Applicant had no real choice but to resign. In the circumstances, the Applicant’s mistake of fact, regarding the potential non-payment of her long service leave entitlements, is not grounds for constructive dismissal. She resigned in circumstances which then did not require her to respond to the claims of fraudulent conduct. The words of the Applicant's resignation were unambiguous and accordingly, the Employer was entitled to rely on them as such 20. Furthermore, during theproceeding lapse of time, the employee took no steps to revoke the resignation21. Furthermore, the Applicant’s resignation brought the contract to an end, there was no requirement for the Employer to accept or reject the resignation. Whilst it may be an administratively prudent course and a reasonable expectation of a significantly large employer, with dedicated human resource specialists, there is no requirement to do so.

[82] The Employer’s conduct was not sufficient to force this resignation. The Applicant had a choice and balanced what she saw or was advised of the risk, and “then self-initiated the resignation”. 22

Conclusion

[83] The resignation by the Applicant was emailed by the FSU to the Respondent on 9 June 2016. It was effective on this date. 23 The Applicant was represented by the FSU, and the Applicant herself was a senior employee, a Branch Manager.

[84] Where the Applicant applies for an extension of time in a matter, the onus is on the Applicant to satisfy the Commission of their case.

[85] Where the Applicant applies for an extension of time in a matter, the onus is on the Applicant to satisfy the Commission of their case.

[86] Whilst the circumstances of the Applicant’s mother’s ill-health are recognised, the reasons for the delay over the period in question, as set out, do not meet the ‘exceptional circumstances’ test in section 394(3) of the Act. The Applicant was not comprehensively prevented by her circumstances, over the relevant 21 day period, from making an application to the Commission or instructing her solicitors or the FSU to do so, within the requisite timeframe. The Applicant stated that she discovered her mother in a state of ill-health on 13 June 2016, 4 days after the resignation. Further, if the Applicant was uncertain of the resignation, her representatives, or she, could have clarified such.

[87] In addition, the Applicant in this matter voluntarily resigned and therefore, no termination at the initiative of the Employer was effected as required by s.385(a) or by s.386(1)(a). The Applicant’s 21 day period ran from the date the resignation was tendered.

[88] As stated, the Applicant was a Branch Manager, who had the FSU acting in support and a legal representative. The FSU emailed her resignation in circumstances where she was facing serious fraud allegations. She did not dispute the resignation prior to the application.

[89] Having considered all the matters raised by the Applicant, there is a lack of reasoning and evidence to meet the ‘exceptional circumstances’ test. In accordance with the aforementioned reasons, an extension of time pursuant to s.394(2)(b) cannot be justified, and on that basis, the application made pursuant to s.394 is dismissed. On the alternative grounds, the application is also jurisdictionally barred as there was no termination at the initiative of the Employer; as required by s.385(a) and s.386(1)(a) or s.386(1)(b). The facts do not represent a constructive dismissal. The Applicant resigned; in circumstances where she was not forced to do so. There is no evidence to demonstrate that she would not have been paid her entitlements. 24 The resignation email was provided by the FSU, the day prior to the date the Applicant was to respond to the fraud allegations.25 The Applicant was at liberty to respond to the allegations and to contest a dismissal.

[90] Accordingly, for the aforementioned reasons, the Application made pursuant to s.394 is dismissed. The applicant resigned and was not constructively dismissed and the application was not filed within the 21 day legislative time frame. In the alternative, the Applicant resigned and there was no termination of employment, at the Employer’s initiative.

[91] I Order accordingly.

COMMISSIONER

1 Lewis v Altus Traffic Pty Ltd[2015] FWCFB 259.

2 Statement of Daniel Tawadros, Attachment I.

3 Statement of Daniel Tawadros at [17] –[28], 11 October 2016.

4 Applicant Submissions dated 8 December 2016 at [20].

5 Applicant’s Submissions dated 8 December 2016 at C. Extension of time at [1]-[4].

6 Applicant’s Submissions dated 8 December 2016 at [16]-[19].

7 Applicants Submissions dated 8 December 2016 at [21]-[26].

8 [2006] AIRC 562.

9 Applicants Submission at [68].

10 Applicant’s Submissions dated 8 December 2016 at [36]-[40].

11 Fair Work Act 2009 (Cth) s.394(3).

12 Wheelan C, [2009] FWA 1638, [30] and [31].

13 Lawler VP, [2010] FWA 1394.

14 In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

15 Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

16 Statement of Valmai Hardwick, paragraph 4(ii).

17 Applicant’s submissions dated 8 December 2016 at [31]-[35].

18 Print N5682 at p.7 per Munro J, Harrison DP and Lawson C.

19 Birrell v Australian National Airlines Commission (1984) 9 IR 101 at 109.

20 Kwik-Fit (G.B.) Ltd v Lineham [1992] ICR 183 at 188.

21 Minato v Palmer Corporation Print N5682 at p.7 per Munro J, Harrison DP and Lawson C.

22 Hamann v Thiess Pty Ltd [2012] FWA 9473.

23 Respondent’s Submissions, at [27].

24 Pacific National (NSW) Limited v Bell (2008) 175 IR 208.

25 Davidson v Commonwealth [2011] FWA 3610 (unreported, Deegan C, 7 June 2011); Permission to appeal refused (2011) 213 IR 120.

Printed by authority of the Commonwealth Government Printer

Mrs Valmai Hardwick v National Australia Bank Ltd T/A National Australia Bank