Ms Christine Nelson v Volvo Group Pty Ltd T/A Volvo Finance Pty Ltd

[2012] FWA 8912

[2012] FWA 8912

FAIR WORK AUSTRALIA

DECISION

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

Ms Christine Nelson
v
Volvo Group Pty Ltd T/A Volvo Finance Pty Ltd
(U2012/8092)

COMMISSIONER ROE MELBOURNE, 23 OCTOBER 2012

Application for unfair dismissal remedy - jurisdiction - resignation- effective date of termination.

Introduction

[1] This matter concerns an unfair dismissal remedy application made by Ms Christine Nelson (the Applicant) on 16 May 2012. The Application had an obvious error in answer to the question as to when employment had commenced and the Applicant submitted a new form which corrected the obvious error and that form was received on 22 May 2012. I am satisfied that the Application was made on 16 May 2012. The application was made against Volvo Group Pty Ltd T/A Volvo Finance Pty Ltd (Volvo or the Respondent).

[2] The Applicant was employed from 4 or 6 July 2011 in the position of Collections and Remarketing Officer or Credit Risk and Operations Manager. Volvo is not a small business. There is no suggestion that the Applicant was made redundant.

[3] The Applicant was represented by a support person, Mr Cunning and the Applicant gave evidence and was cross examined. The Applicant provided a number of emails, correspondence and transcripts of meetings. The Respondent was represented by AIGroup. Mr Heiner, National HSE Manager, who is responsible for health and safety and workers compensation claims including that of the Applicant, gave evidence and was cross examined. Mr Smithard, General Manager, Human Resources for Volvo also gave evidence but his evidence was not challenged. Mr Heiner reports to Mr Smithard. I also considered the written submissions provided by Volvo.

[4] The Applicant claimed in a statement attached to her application for unfair dismissal that sometime in April 2012 she:

“received a phone call at my home in April from an unknown Volvo employee, who advised me that I no longer had a job at Volvo, that another male person (John) who was employed through Trace Personel has been employed in my role and I had no job to return to and that I had to resign or be sacked.”

[5] On 19 April at 4.45am the Applicant emailed Mr Kyle Heiner, National HSE Manager for Volvo:

“Kyle, As advised on the phone. I wish to advised that as I was forced to resign as a result of management at Volvo, I will be placing an application into the Industrial Commission for unfair dismissal upon the findings of Qcomp and CMC. Kind Regards Christine Nelson”

[6] On the same day Mr Heiner responded:

“Christine, in response to your email below I have confirmed with VFA and Human Resources that a resignation letter has not been received from you. Our understanding is that you are currently on medically certified personal leave until 15 of May 2012. Thanks Kyle”

[7] The Applicant responded further on 23 April 2012 that she “will serve Court documents on you at the Volvo workplace”. Mr Heiner responded on 24 April 2012 noting that:

“We have not received a response from you regarding my email dated 19 April 2012 in which I observed that the company has not received a resignation letter to date from you. Again, I emphasize that it is our understanding that you are still employed by Volvo Finance and that you are on personal leave subject to a medical certificate which states that you are incapacitated until 15th May 2012.”

[8] The Applicant claims that the response of Mr Heiner meant that the response of Volvo to her resignation was that Volvo still considered her employed until 15 May 2012. The Applicant therefore claims that her constructive dismissal took place on 24 April 2012 and that it took effect on 15 May 2012.

[9] Volvo says that at no stage did it receive a resignation from the Applicant. Volvo says that its response of the email of 19 April 2012 makes it clear that there was no resignation and the Applicant did not contact Volvo to advise of a resignation in response to that correspondence.

[10] Volvo says that the Applicant failed to return to work on 15 May 2012 after her medical certificate expired and failed to communicate with Volvo in relation to her reasons for failing to return to work despite the emails of 19 and 24 April from Volvo to the Applicant confirming that Volvo regarded her as still employed and on personal leave up to and including 14 May 2012. Volvo corresponded with the Applicant after 15 May 2012 seeking a response as to why she had not returned to work and giving notice that she would be taken to have abandoned her employment if satisfactory response was not provided. On 21 May 2012 Mr Smithard, General Manager Human Resources wrote to the Applicant advising that she should show cause in writing by 23 May 2012 why Volvo should not consider that she had abandoned her employment. On 22 May 2012 the Applicant responded by email advising that she had submitted an application to Fair Work Australia but not otherwise responding to the issues raised concerning her continued absence. Mr Smithard provided the Applicant with a further opportunity to respond but when that was unsuccessful the Applicant was terminated by letter on 25 May 2012.

[11] The Applicant did not directly raise with Volvo in any of the correspondence that she had received a phone call at her home from an unknown Volvo employee and that she had been told that she had to resign or be sacked. Mr Heiner and Mr Smithard gave evidence that they could not find any evidence to support the Applicant’s claim that someone had rung the Applicant in April and told her to resign or be sacked. They gave evidence that no separation certificate was issued to the Applicant and no resignation letter had been received. Mr Smithard gave evidence that a temporary employee had been engaged to do the Applicant’s work during her long period of absence on personal leave. Mr Smithard speculated that the Applicant may have been advised about this by colleagues at Volvo.

[12] Volvo also notes that the Application for unfair dismissal remedy has been dated 13 May 2012 which suggests that it was prepared two days prior to the date the Applicant claims her employment was terminated.

[13] The Applicant had been on personal leave and had lodged a workcover claim in January 2012. The Applicant was on personal leave covered by a medical certificate from 14 February 2012 until 14 May 2012. Her workcover claim was rejected on 7 March 2012 and the Applicant lodged a review application on 28 March 2012. That review application was unsuccessful. The process around the review of the workcover claim was hotly contested by the parties and the decision rejecting the Applicant’s review was made on 31 May 2012.

[14] The Fair Work Act 2009 (Cth) (FW Act) provides that a person who has been dismissed may apply to Fair Work Australia (FWA) for an order granting a remedy for unfair dismissal. 1

[15] Section 386(1) of the FW Act provides that 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.”

[16] The Respondent argues that the date of the Application for unfair dismissal remedy is earlier than the date of any termination. Volvo says that they terminated the Applicant’s employment on 25 May 2012. If this is correct then the Applicant was unable to make the Application she made on 16 May 2012.

[17] The Applicant alleges she was constructively dismissed at an earlier date. The evidence in support of this really comes down to two matters:

• Firstly, the alleged telephone call from an unknown Volvo employee at some time in April 2012; and



• Secondly, the response of Volvo to the email sent by the Applicant on 19 April 2012.

[18] Much of the other material provided by the Applicant is not relevant to these questions. For example:

• The Applicant provided material concerning the alleged unfairness of a warning issued by Mr Smithard to another employee which she says was similar to the type of behaviour she alleges occurred against her. I do not regard this as relevant to the issue of whether or not the Applicant was forced to resign and did resign in April 2012.



• The Applicant provided material which she says is from the Volvo Chat channel showing her as active and at work in June 2012. She claims that this means that a Volvo employee was using her log in. As this post dates the alleged resignation and also post dates the actual termination it is not relevant.



• The horoscope report of 5 June 2012 which “heralds the beginning of the end of a difficult phase” for the Applicant.



• The email complaint to Mr Heiner from the Applicant of 15 February 2012 in which she expressed concern at his failure and that of others in Volvo management at a meeting with her on 6 February 2012 to ensure that there was a safe working environment for her return to work. The email suggests that the response of management was that this was directly related to the merits of her workers compensation claim. In the correspondence the Applicant advised that her treating practitioner had told her to take three months off work. The Applicant did in fact provide a medical certificate requiring her absence of work from this time until 15 May 2012 and the evidence shows that this was accepted by Volvo. There is no suggestion that the meeting of 6 February or the events surrounding it constituted the termination of the Applicant’s employment or constructive dismissal or that the Applicant resigned her employment at this time. As the Applicant was off work on approved personal leave during the entire period following until 15 May 2012 I cannot see the relevance of this evidence to an assessment as to whether or not the Applicant was dismissed or resigned in April 2012.



• The Applicant provided the material she and Volvo provided to her workers compensation review hearing. This material is from February 2012 and earlier and it is therefore not directly relevant to the question of whether or not she was forced to resign in mid to late April 2012. The Applicant alleged that some of the material goes to the credibility of the Volvo witnesses and Mr Heiner in particular. I will deal with this matter later.

[19] I agree with Volvo that the responses of Volvo to the email of 19 April 2012 cannot be understood as accepting the Applicant’s resignation or terminating the Applicant’s employment as from 15 May 2012. There is no way of interpreting the responses of Volvo as meaning anything other than clear advice to the Applicant that Volvo has not received any written resignation, that Volvo has not terminated the Applicant, and that Volvo acknowledges that the Applicant is on personal leave until 15 May 2012. This is a statement that employment is ongoing not that employment will end on 15 May 2012. It is quite clear in these circumstances that if the Applicant wished to resign then she needed to respond by saying so. None of her responses can be read as a resignation. Furthermore the responses of Volvo are encouragement for her to continue her employment should she so wish.

[20] The Applicant included in her material an email dated 23 August 2012 from Mr Paul Skellern to the Applicant. In the email Mr Skellern says that he was present at the Applicant’s house in April 2012 when she received a phone call on her mobile phone from a Volvo employee. Mr Skellern said that the Applicant advised the person that she was resigning. He does not remember a great deal of the conversation apart from that the Applicant was told to resign as someone else had taken her job. The Applicant did not advise Volvo or FWA prior to the hearing that she sought to have Mr Skellern appear as a witness in the proceedings.

[21] On the evening of Sunday 14 October the Applicant forwarded a revised or further statement from Mr Skellern together with a copy of an airline ticket or itinerary for Mr Skellern. The hearing was on 16 October in Brisbane. The airline ticket showed Mr Skellern was travelling from Tamworth to Brisbane on 12 October and from Brisbane to Tamworth on 14 October. In his statement Mr Skellern says that “I am unable to attend court in October as I will be in Mongolia for work commitments, during this period”. I am not aware that Tamworth is on the way to Ulan Bator.

[22] The statement of 14 October is very similar to the earlier statement except in three respects. Firstly, Mr Skellern’s absence in Mongolia is in October not September. Secondly, Mr Skellern now says that the phone call the Applicant had with the Volvo employee was on “Wednesday 18th April 2012” rather than “in April”. Thirdly, the later statement no longer contains a reference to the Applicant having advised the person “that she was resigning.”

[23] Given Mr Skellern was not available for cross examination I do not give this evidence any weight. During the proceedings the Applicant suggested that I could contact Mr Skellern and he could give evidence on his mobile phone. I rejected this suggestion for two reasons; firstly, I felt it was unfair to Volvo in circumstances where the Applicant could have given FWA and Volvo advance notice; and secondly, given that the evidence was about the credibility of the Applicant’s evidence as opposed to the credibility of the evidence of Mr Heiner and Mr Smithard I did not feel confident that evidence on the telephone would have sufficient probative value. The parties did not object to my finding.

[24] The Applicant gave evidence that she lost all confidence in the managers of Volvo because as she saw it they had not behaved with integrity during the process of her workcover claim appeal. The Applicant argued that this had relevance to the question before me in two ways. Firstly, she said it explained why she did not contact someone else in Volvo following the alleged phone call in which she was effectively given no choice but to resign and why she did not respond more clearly to the email of 19 April 2012 and subsequent emails where Volvo said that they did not regard her as having resigned but believed that she was still employed. Secondly, she said it undermined the credibility of Mr Heiner as a witness. The example of this lack of integrity complained of by the Applicant which was most often referred to was her view that Mr Heiner had told her on 30 January 2012 that he supported her workcover claim and agreed with the matters she raised about her inappropriate treatment in the workplace but that he then proceeded to say the opposite in the workcover review proceedings. The Applicant says that she recorded the conversation on 30 January 2012 along with a number of other conversations with Volvo employees in the period up to March 2012. Volvo argues that there are issues with the accuracy of the transcription of the recordings by the Applicant. However, for reasons which will become apparent it is not necessary to resolve this issue.

[25] The Applicant put to Mr Heiner the words he is alleged to have said in the conversation on 30 January 2012. Mr Heiner does not deny that he made comments of this sort however he asserts that the Applicant is taking these remarks out of context. I agree with Mr Heiner. The Applicant says that Mr Heiner said things like “the things you’ve raised is quite right to me for someone to be upset and stressed and put a claim in. I support what you’re saying there” and “what you tell me so far, in all honesty I believe that these have actually occurred”. This is in the context that Mr Heiner is doing an initial investigation of the Applicant’s workcover claim. He had not spoken to anyone else, let alone those the Applicant alleged had behaved inappropriately and contributed to her illness. The Applicant was suffering from an illness which led to her being absent from work for at least three months. In these circumstances Mr Heiner is being empathetic towards the Applicant. His words should not be interpreted as a guarantee that Volvo would support her workers compensation claim or that he would support all of her allegations if upon further inquiry he discovered new information. Although I can appreciate why the Applicant may have felt let down by Mr Heiner when he did not support her position in the workcover review proceedings, I do not regard Mr Heiner’s actions as undermining the credibility of his evidence in these proceedings.

[26] At the hearing on 16 October 2012 the Applicant gave new evidence about the statement attached to her unfair dismissal application that she:

“received a phone call at my home in April from an unknown Volvo employee, who advised me that I no longer had a job at Volvo, that another male person (John) who was employed through Trace Personel has been employed in my role and I had no job to return to and that I had to resign or be sacked. I offered emailed my resignation, referring to the phone call and Volvo responded with that they still considered me employed until 15th May 2012.”

[27] The Applicant gave evidence in the proceedings that she was now definite that:

• The phone call was at 5.45pm on 18 April 2012.



• The conversation was on her mobile phone and was put on loud speaker and overheard by Mr Skellern.



• The Volvo employee was in fact Mr Heiner, she recognised his voice and the content of the conversation referred to a number of details which only Mr Heiner could have known from the conversation she had with Mr Heiner of 28 February 2012.



• She played to the Volvo employee during the telephone conversation a tape recording of the meeting she had had with Mr Heiner on 30 January 2012.



• Mr Heiner said that her probation which had ended on 4 January 2012 would now actually be extended.



• Mr Heiner said that he wouldn’t sack her upon her return to work but that Peter and Kathy would.



• If she returned to work she would be relocated to Richlands and Mr Heiner did not know what job she would be placed in.



• The Applicant felt from the conversation that if she did return to work they would get her in the end and that there was pretty much no point in her coming back to work.

[28] The Applicant did not say in her direct evidence to the Tribunal that Mr Heiner had said that she must resign or be sacked or direct words to that effect. The Applicant did say that there was a reference to dismissal in her conversation with Mr Heiner on 28 February 2012. The Applicant did accept that she left an angry and abusive message on Mr Heiner’s mobile phone shortly following the conversation of 28 February 2012.

[29] Mr Heiner totally denies that there was any conversation with the Applicant on or about 18 April 2012. Mr Heiner says that his inquiries reveal that no one with authority in Volvo had a conversation of this type with the Applicant. No one with authority received a resignation from the Applicant either verbally or in writing.

[30] The email of the Applicant of 19 April 2012 does not suggest that Mr Kyle Heiner was the person with whom the Applicant had had a conversation the previous day.

“Kyle, As advised on the phone. I wish to advised that as I was forced to resign as a result of management at Volvo, I will be placing an application into the Industrial Commission for unfair dismissal upon the findings of Qcomp and CMC. Kind Regards Christine Nelson”

[31] If as alleged by the Applicant it was Mr Heiner who constructively dismissed her the previous day then the tone of the message would have been quite different and Mr Heiner not generic management at Volvo would probably have been referred to.

[32] Mr Heiner suggested that the “as advised on the phone” could have been a reference to the conversation of 28 February in which the Applicant had said she was convinced that Volvo was trying to get rid of her. However, Mr Heiner did not suggest that he thought that at the time he got the message.

[33] I accept the evidence of the Volvo witnesses that no one with authority in Volvo rang the Applicant on or about 18 April 2012 and told her she had to resign or she would be terminated or any words to that effect. I found Mr Heiner to be a convincing witness. The documentary evidence shows that Volvo made it clear to the Applicant that they had not terminated her and regarded her as still employed.

[34] Even if I was to accept that the Applicant was mistaken in believing it was Mr Heiner who made the call, and that she did receive a call from an unknown person purporting to work for Volvo and if I accept that they told her she had to resign or be sacked, I am satisfied that no one in authority at Volvo received the resignation of the Applicant and no one in authority terminated the Applicants employment prior to 25 May 2012. The evidence of the Volvo managers, considered in context leaves me convinced that Volvo did not receive a resignation and did not terminate the Applicant, constructively or otherwise. A termination at the initiative of the employer requires some action by the employer. The evidence does not support a conclusion that there was any action by the employer to dismiss the Applicant or force her to resign. The Applicant was provided with ample opportunity to continue her employment with Volvo. Any possible misunderstanding was cleared up immediately following the email of the Applicant of 19 April 2012 suggesting she had been forced to resign.

[35] The Applicant has meticulously recorded correspondence and interactions with Volvo during the period from late 2011 to the present. It is difficult to understand why in these circumstances the Applicant would not have included in the statement that she made at the time of her application for unfair dismissal the identity of the person who made the call and the time and date when it was made. The Applicant had no explanation as to why the date and time of the phone call was only identified on the eve of the hearing. The Applicant says that the reason why she did not reveal Mr Heiner as the person on the call was because she was convinced that if she did Volvo would claim that another manager had made the call. Although it is conceivable that the Applicant might believe this I accept the evidence of Mr Heiner that he did not make the call. Furthermore given that Volvo in its correspondence with the Applicant from 19 April 2012 onwards clearly challenged the Applicant’s statement that she had been forced to resign, I consider it unlikely that the Applicant would not have defended herself with all available information including by referring to the conversation with Mr Heiner on 18 April 2012.

[36] The Applicant says that the reference of Mr Heiner in his email of 19 April 2012 and subsequent emails to the absence of a written resignation could have been understood by the Applicant as a rejection of the Applicant’s verbal resignation in the phone conversation of 18 April 2012. In my view this misses the point. The argument here is not about the Applicant resigning but about the statement “that I was forced to resign as a result of management at Volvo.” Mr Heiner in his response to this not only says that a resignation letter has not been received but also that the Applicant is on personal leave until 15 May 2012. In context it is clear that Mr Heiner is saying that Volvo has not forced the Applicant to resign, has not received any resignation and regards the Applicant as still employed. The documentary evidence is not consistent with Volvo having forced the Applicant to resign.

Conclusion

[37] The Applicant has suffered from a serious illness during 2012. The Applicant is convinced that she was not treated fairly by managers of Volvo in respect to her workcover claim. As a result the Applicant has lost confidence in those managers. I therefore consider it likely that the Applicant may have felt that her future employment at Volvo was at serious risk. Volvo quite appropriately denies that it dealt with the workcover claim unfairly or that the Applicant’s employment was at serious risk.

[38] I am satisfied that regardless of the Applicant’s perceptions no one in authority in Volvo dismissed her or forced her to resign or took actions which left her with no realistic alternative but to resign prior to 25 May 2012.

[39] If the Applicant did tell someone in Volvo that she was resigning this resignation was not received by anyone with authority in Volvo. If the email of 19 April 2012 is a resignation by the Applicant it is not a constructive dismissal or a termination at the initiative of the employer. Volvo made it abundantly clear in its response and without delay that the Applicant could continue in her employment.

[40] I am satisfied that the termination of the Applicant’s employment took place on 25 May 2012 which is after the application for unfair dismissal is made. In the alternative if the Applicant did in fact resign earlier on the 18th or 19th or 24th of April 2012 then the Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by Volvo.

[41] The application is therefore dismissed. An Order to this effect will be issued.

COMMISSIONER

Appearances:

Ms C Nelson appeared with Mr R Cunning.

Ms C Tucker from AiGroup appeared for the Respondent.

Hearing details:

2012

Brisbane

October 16

 1   Fair Work Act 2009 (Cth) s.394(1).

Printed by authority of the Commonwealth Government Printer

<Price code C, PR530365>