Ms Atareta Noble v Greyhound Australia Pty Ltd

[2014] FWC 7966

[2014] FWC 7966

FAIR WORK COMMISSION

DECISION

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

Ms Atareta Noble
v
Greyhound Australia Pty Ltd
(U2014/11993)

COMMISSIONER CLOGHAN PERTH, 24 NOVEMBER 2014

Application for relief from unfair dismissal - jurisdictional objection - termination or resignation.

[1] On 26 August 2014, Ms Atareta Noble (Ms Noble or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Greyhound Australia Pty Ltd (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The application was referred to me for arbitration on 23 September 2014.

[4] In response to the application, the Employer asserts that:

• the Applicant was not dismissed. At a meeting on 6 August 2014, the Applicant asked the Respondent that, instead of terminating her employment, would it accept her resignation. The Respondent agreed to this request and on 6 August 2014 wrote to the Applicant confirming its acceptance of her resignation effective that same day.

[5] To assist in determining whether the Applicant resigned and was not dismissed, I issued Directions and advised the parties that I intended to deal with the matter by way of written submissions. The parties were also given the opportunity to challenge the submissions or affidavits of the other party by oral evidence.

[6] No party sought to challenge the submission or affidavits oral evidence. However, the Employer advised that if the Commission was contemplating a finding that the Applicant was dismissed and had not resigned, the Employer requested a hearing to enable any concerns about Ms Henningsen’s credibility be put to her directly by way of oral evidence.

[7] In the absence of any party requesting to challenge the submissions or affidavits of the other party, I advised the parties that it would be understood by the Commission that the parties sought for any matters in dispute to be considered by the Commission on the written material provided.

[8] The Applicant’s submissions were assisted by the Transport Workers Union, Western Australia Branch (TWU). The Employer was assisted by Herbert Smith Freehills.

[9] This is my decision and reasons for decision, on whether the Applicant resigned, or was dismissed. In reaching such a decision, the Commission is determining, whether or not, the Applicant is protected by Part 3-2 Unfair dismissal provisions of the FW Act.

RELEVANT STATUTORY FRAMEWORK

[10] Section 385 of the FW Act sets out when a person has been unfairly dismissed as follows:

“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.”

[11] The meaning of “dismissed” in s.385(a) of the FW Act is contained in s.386 of the FW Act as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

(2) ...

(3) ...”

RELEVANT BACKGROUND

[12] Ms Noble commenced employment as a casual bus driver on 5 November 2013.

[13] The Employer is contracted to provide transportation services for construction workers at the Wheatstone project site near Onslow, in Western Australia.

[14] The Employer and its employees are required to comply with various site rules as designated by Bechtel, the Engineering, Procurement and Construction Management contractor at site.

[15] On 4 August 2014, the Applicant admitted having engaged in activities associated with one of the seatbelts in its buses. The Applicant claimed that she undertook these activities previously but not routinely. The Applicant was stood aside on full pay while the Employer completed its investigations.

[16] The investigation involved the Employer accessing and reviewing film footage of cameras located in buses that the Applicant had been driving in the months prior to 4 August 2014. The video footage revealed that the Applicant had engaged in the same conduct on numerous other occasions.

[17] On 6 August 2014, Employer representatives met with Ms Noble and her support person, Mr Morgan. Mr Morgan is also a bus driver and Employee Health and Safety Representative.

[18] On 6 August 2014, the Employer informed Ms Noble that it intended to terminate her employment.

[19] After being advised that the Employer intended to terminate her employment, the Applicant had a conversation with Mr Morgan.

[20] The Employer states:

“At the conclusion of the conversation the Applicant asked the Respondent’s representatives whether they would permit her to resign her employment, before implementing their intended case of termination. The Respondent’s representatives immediately agreed to that course.”

[21] The Applicant disagrees with the statement but does not add any comment or clarification as to why she disagrees with the Employer’s statement of fact.

[22] The Employer further states:

“No pressure was placed upon the Application (sic) by the Respondent’s representatives to make the decision to tender her resignation.”

[23] The Applicant disagrees with the statement on the basis that Ms Noble did not resign from her employment.

[24] On 6 August 2014, the Employer provided to the Applicant a letter which is entitled “Acceptance of Resignation” and relevantly reads as follows:

“Following on from our meeting at 9.00 am today, Greyhound Australia confirms acceptance of your resignation effective today.”

[25] Ms Noble filed this application on 26 August 2014.

CONSIDERATION

[26] The Applicant, in her application, states that she was given an opportunity to respond to the allegations and allowed a support person during the disciplinary hearing.

[27] The Applicant asserts that the dismissal was harsh, unjust and unreasonable in all the circumstances because the conduct complained of was, “as a result of the seat belt not providing adequate webbing and as such created a workplace hazard”. According to the Applicant, a first warning is appropriate as a consequence of her not reporting a workplace hazard.

[28] The Employer provided a detailed response to Ms Noble’s application on 3 September 2014. The response states that the Applicant sought whether the Employer would accept her resignation instead of having her employment terminated.

[29] On 21 October 2014, the TWU prepared a “statement of facts” which relevantly states:

“At no stage during the proceedings did the Applicant ask if she could resign and never raised the subject with the Respondent’s representatives.”

[30] The issue for statutory determination is whether, on the balance of probabilities, the Applicant resigned from her employment, and if she did, whether she was forced to do so because of conduct, or a course of conduct, engaged in by the Employer.

[31] The parties agree that the Employer informed the Applicant on 6 August 2014 that it intended to terminate her employment.

[32] Ms Noble’s recollection of the entire meeting as set out in her submitted statement of evidence is reduced to two (2) paragraphs as follows:

“1. ...

2. We all sat down, I was calm. Kylie said that the investigation was completed with consultation with Dallas (E- Officer of Greyhound), the outcome is that your position is terminated on the grounds, that I had committed a safety breach.

3. By this time I was numb and could not stop crying. Don was rubbing my back trying to calm me down. I was in utter shock and disbelief.”

[33] Mr Morgan’s recollection of the meeting can be relevantly reduced to six (6) paragraphs as follows:

“1. While working at Greyhound Australia at the Wheatstone project as a Bus Driver and Occupational Health and Safety representative I was asked by Ms. Atareta – (Tuppy) Noble to attend a disciplinary meeting between Ms. Noble and Greyhound management.

2. ...

3. After making the best case for Ms. Noble, to keep her job with a warning, which she was willing to accept.

4. I asked if they, Greyhound, could consider Ms. Atareta position for other employment and to put on her “Separation certificate “ that she had voluntarily quit and not have her employment terminated.

5. I never expected the present outcome – which is the company stating that Ms. Noble had resigned.

6. The decision to approach the company on behalf of Ms. Noble was solely my own decision and was not at the direction/request of Ms. Noble.

7. Ms. Noble was very upset and crying, very distort, following her termination, I attempted to assist by proposing the arrangement described in point 4 – herein.”

[34] Ms Henningsen, the Employer’s Human Resources Manager, People and Performance, has provided:

• seven (7) paragraphs in a signed witness statement; and



• a record of performance discussions on 5 and 6 August 2014.

[35] The 6 August 2014 document relevantly records that Ms Noble [and Mr Morgan] asked whether the Employer would accept a resignation.

[36] On 5 August 2014, Ms Noble was provided with a letter which is entitled “confirmation of investigation into alleged serious misconduct”. The letter confirms that the Employer would investigate certain allegations made with respect to the tampering of a seat belt in a bus on 4 August 2014. At the Applicant’s request, a meeting was held on 5 August 2014.

[37] The Employer’s Statement of Facts includes the asserted fact that after being advised that the Employer intended to terminate the Applicant’s employment, she was keen to discuss the matter with Mr Morgan. At the conclusion of the conversation, it is asserted that the Applicant asked the Employer, if it would permit her to resign in lieu of dismissal. While the Employer has used the generic term “Applicant”, Ms Henningsen’s witness statement states that it was Mr Morgan who asked, on behalf of the Applicant, whether the Employer would accept Ms Noble’s resignation in place of dismissal.

[38] The Applicant agrees that both her and Mr Morgan engaged in a conversation at the meeting after she was informed that the Employer intended to dismiss her. However, the Applicant in her Statement of Evidence is unable to say what she said in the conversation with Mr Morgan or at the meeting.

[39] The TWU contend that because Ms Noble cannot remember what happened, that this evidence should be supported as “she has consistently denied that she required to be able to resign”.

[40] The problem with such an approach is that the Applicant is seeking for the Commission to accept an absence of evidence at the meeting on 6 August 2014 and “denials”, in preference to the knowledge I have of Ms Henningsen’s evidence which clearly states that Mr Morgan, on behalf of the Applicant, requested that Ms Noble be allowed to resign.

[41] The Applicant may, as she infers, that this evidence is untrue. However, the Commission has before it the following facts:

• correspondence on 6 August 2014, from the Employer to the Applicant confirming acceptance of her resignation;



• the confirmation of resignation is in writing, specifically following verbal acceptance of Ms Noble’s resignation at the meeting earlier on the same day;



• typed file notes of the meeting on 6 August 2014, which record the Employer verbally accepting the Applicant’s resignation; and



• the Employer recording the cessation of employment as a resignation within its internal management system.

[42] In addition, it is notable that I have no material which indicates that the Applicant contested the Employer’s “acceptance of her resignation” until making this application to the Commission some 20 days after receiving correspondence which accepted her resignation.

[43] The Applicant asserts in her Statement of Facts that “at no stage during the proceedings did [she] ask if she could resign and never raised the subject with the Respondent’s representatives”. However, Mr Morgan writes in his Statement of Evidence that he put to the Employer, in consideration of obtaining further employment, could it be recorded on Ms Noble’s “Separation Certificate” that the Applicant “voluntarily quit and not have her employment terminated”. It is notable that Ms Noble distinguishes between what she did not do and what Mr Morgan did on her behalf.

[44] Clearly, the issue of resignation was discussed at the meeting. On the balance of probabilities, I find that it took place after the conversation between the Applicant and Mr Morgan.

[45] Mr Morgan does not describe what is meant by “separation certificate”. However, Mr Morgan is putting the proposition that the Employer record Ms Noble’s cessation of employment as a voluntary resignation but without having the Applicant actually resign. In the circumstances of Ms Noble’s termination of employment, I accept that there were adequate reasons for Mr Morgan putting such a proposition, however, I do not accept that it is plausible for the Employer to agree to such a course of action without an employee actually resigning from their employment.

[46] I have a discomfort in accepting any inference that Mr Morgan went off on a frolic of his own in suggesting that Ms Noble resign without discussing the matter with her. Secondly, in the event that Mr Morgan did go off on a frolic of his own in requesting that Ms Noble’s cessation of employment be recorded as a resignation, the Applicant sat next to him and did not raise any objection to her employment ending on the basis of a resignation.

CONCLUSION

[47] For the reasons outlined above, I find that Ms Noble, on 6 August 2014, resigned from her employment when faced with the Employer’s stated intention to dismiss her for a serious misconduct following allegations of interference with a seat belt on a bus.

[48] The Applicant’s position is not that “she was constructively dismissed”. Accordingly, it is unnecessary for the Commission to consider the provisions of paragraph 386(1)(b) of the FW Act.

[49] Having considered the provisions of s.386(1) of the FW Act, this application is dismissed for want of jurisdiction. An order to this effect is issued with this decision and reasons for decision.

COMMISSIONER

Final written submissions:

Applicant: 27 October 2014.

Respondent: 15 October and 5 November 2014.

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