Ms Gwynn Poole v Optia Incorporated
[2014] FWC 7292
| [2014] FWC 7292 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Gwynn Poole
v
Optia Incorporated
(U2014/11513)
| DEPUTY PRESIDENT ABEY | HOBART, 28 OCTOBER 2014 |
Application for relief from unfair dismissal - jurisdiction - whether applicant resigned or was terminated by employer - termination at initiative of employer - jurisdiction application dismissed
The applicant, Ms Gwynn Poole, has been employed by Optia Incorporated (the respondent) as a disability support worker since 7 April 2007. Ms Poole was employed as a permanent part-time employee working approximately 30 hours per week. The respondent is a relatively large scale provider of Disability Support Services across a number of sites in Tasmania and employs approximately 400 staff.
The applicant’s employment came to an end on either 10 July 2014 or 18 July 2014.
On 8 August 2014 the applicant lodged an application pursuant to s394 of the Fair Work Act 2009 seeking an unfair dismissal remedy.
Two jurisdictional questions arise:
- The respondent contends that the applicant resigned on 10 July 2014 and as a consequence, the termination was not at the initiative of the employer
- In the event that the respondent is correct on 1 above, the applicant seeks an extension of time pursuant to s394(2)(b)
Evidence
Sworn evidence was taken from the following witnesses:
· Gwynn Kathleen Poole, the applicant
· Gaylene Pool, Coordinator of the Garden Road site.
· Joanna Hacker, Human Resource Coordinator
Background
Since 2007 the applicant has worked at three different sites, and has worked at the Garden Road site since November 2012.
In May 2014 a compulsory staff training program commenced at the Garden Road site.
On 24 June 2014 a training day was scheduled on the day after Ms Poole was rostered for an overnight/sleepover shift (S/O) and on the same day she was scheduled to do another S/O shift. The applicant states that the respondent’s policy was not to work consecutive shifts except in an emergency situation.[1]
The applicant emailed Ms Gaylene Pool explaining that for the above reasons, she could not attend the training scheduled for that day.
By letter dated 26 June 2014, Practice Development Consultant, John Anning wrote to the applicant expressing disappointment at her non-attendance and stating that failure to attend future training sessions without a medical certificate may result in disciplinary action. The letter designated four future training dates, all of which apparently coincided with rostered days off (RDOs) in Ms Poole’s case.
Ms Poole states that RDOs are important to her in that she used them to travel to Launceston to visit her sick mother.
On receipt of this correspondence, Ms Poole:
·Sought to arrange a meeting with the CEO to discuss roster and training issues.
·Attended her GP complaining of stress arising out of the rostering issues.
·Arranged an appointment with the Health and Community Services Union (HACSU) to discuss the issue of training days being scheduled on RDOs.
On 2 July 2014 Ms Poole met with Mr Andrew Heynes, Southern Manager and Ms Judy Proden, Manager of Client Services. Ms Poole’s evidence is:[2]
“ At the meeting we discussed the rostering issues at the Garden Road site. At the meeting there was no resolution. Mr Heynes and Ms Proden did not offer any support or assistance in relation to solving the issues.”
Thursday 10 July 2014
Events that occurred on this day are at the heart of the issue in dispute.
The evidence of the applicant is:[3]
“On or about Thursday 10 July 2014 I felt ill. I was rostered to work on this day. I did
not feel that I could attend work. I telephoned Ms Pool. On the telephone:
a) I said words to the effect ‘I’m calling in sick today with a medical certificate’
b) Ms Pool said words to the effect ‘is everything ok?’c) I replied words to the effect ‘no, because of how my roster is and the training with
my current roster, I’m struggling’
d) Ms Pool replied words to the effect ‘get used to it as there is going to be a whole
lot more’.
e) I replied words to the effect ‘I won’t be returning to the Gardens Road site’.
f) Ms Pool replied words to the effect ‘are you leaving?’
g) I replied words to the effect ‘I won’t be returning to the Gardens Road site’.
h) This was the end of the conversation.
i) Ms Pool did not offer an exit interview.
j) I did not say the words ‘I am resigning effective immediately’.”
The evidence of Ms Gaylene Pool is:[4]
“At approximately 1 pm on Thursday 10 July 2014, I received a telephone call from Gwynn, asking me if I would be attending the Garden Road site today. I responded that I would be at the site shortly as I was just leaving a coordinators meeting.
Gwynn the informed me that she wished to resign from her position “effective immediately”. She explained that she was unable to cope with the roster and no longer had enough time-off due to the training sessions she was required to attend. She also stated that she was still upset about the letter she had received from Jon Anning, the Practice Development Consultant, regarding her failure to attend the compulsory Garden Road training sessions.
I responded that I was sorry to hear that and that I understood she had been struggling for some time with the roster. As her coordinator, I accepted her verbal resignation.”
It is agreed that Ms Gaylene Pool suggested that they meet in person the next day. Ms Gaylene Pool said that this was to enable them to say goodbye whereas the applicant said that the stated purpose of the meeting was to “chat.” [5]
Ms Poole attended her GP stating she had been having trouble with the roster and it was causing severe stress and anxiety.[6] She was given a medical certificate stating she was unfit for normal work from 10 to 17 July 2014.[7]
Friday 11 July 2014
Ms Poole attended the Garden Road site. Her evidence is:[8]
“Whilst waiting to see Ms Pool, I spoke to Mr Noel Gaskell (support worker), who was with Mr Brian Gilligan (client). I had a conversation with Noel. In the conversation:
a) I said words to effect ‘I’m leaving the Gardens Road Site’.
b) Noel replied words to the effect ‘what will you do?’
c) I replied words to the effect ‘I don’t know yet, but I need to speak with Gaylene,
but I won’t be coming back to Garden Road site’.
I then met with Ms Pool. In the conversation:
a) I said words to the effect ‘Here is my medical certificate, I am on sick leave until 17 July 2014, I’m burnt out, something needs to be done about the policing of staff on this site, everything we do, write, say, is passed to you even when you are not here. We are adults, you’ve lost some good staff from this site because you’ve policed it so much, and it is a good site to work at.
b) She replied words to the effect ‘thank you, I know who they are’
c) I replied words to the effect ‘this is the 5th time I’ve mentioned the roster to you, training on my days off, I’m struggling with my days off, I just can’t do the training justice, that’s why I cant stay at this site.
d) I said words to the effect ‘I have my resignation letter but I’ll see how things pan out’
e) She replied words to the effect ‘all the best’.”
The evidence of Ms Gaylene Pool is:[9]
“I met with Gwynn at approximately 11:30am on Friday 11 July at the Garden Road site.
Gwynn reiterated her concerns about the roster and the requirement that she undertake training on her registered days off. She indicated that these issues require her to resign from Optia Inc.
Gwynn provided me with a copy of her medical certificate and stated that she would be on sick leave until Friday 17 July. I understood that this medical certificate was to cover the required period of notice. However, I was later informed by Joanna that it was unnecessary for Gwynn to provide a copy of her medical certificate as she had resigned effective immediately.
Gwynn also stated that she had a copy of her written resignation with her and that she would pass this on to Joanna.
At the end of the meeting I wished Gwynn well and asked her if she would like to have the opportunity for an exit interview. She responded that she would think about it.
Based on the telephone conversation with Gwynn on Thursday 10 July and the meeting on Friday 11 June I understood that Gwynn intended to resign from Optia. Her statements and conduct provided clear unequivocal evidence of her intention to resign.”
The evidence of both Ms Gwynn Poole and Ms Gaylene Pool was, in all material respects undisturbed by cross-examination.
An unsworn statement from Mr Noel Gaskell was tendered.[10] This statement reads:
“I Noel Gaskell Was Working At Garden Road on The 10th Of July In a Clients Unit When Gwynn Poole Came In to Inform Me That She Was Resigning Immediately. Gwynn Poole Then Gave Me A Hug And Said I Would See you [sic] Around. It Was A Pleasure Working With You. Thanks Noel Gaskell”
Subsequent Events
Sunday 13 July 2014.
Ms Poole logged on to the Optia work system (Rosterlive).She became aware that timesheets for completed shifts had been deleted from the system. Her evidence is that “I put the shifts I had worked back into the system”.[11]
Monday 14 July 2014.
The applicant sends a text message to Ms Gaylene Pool as follows:[12]
“Hi I went 2 post my rosterlive last night and noted my shifts that are currently covered by my sick leave certificate had been erased. I’ve put the shifts back on 2 rosterlive. I am covered intil [sic] 17th July 2014 on s/l certificate I gave u. I have enough s/l to cover the shifts I was unable 2 work the latter part of this week just gone. Regards, Gwynn Poole”
Ms Poole also sends a response text to Tony Mercer in the following terms:[13]
“Ta 4 the text. I havnt [sic] put my resignation letter in as yet. Am on sick leave and am going 2 the Union 2morro 2 weigh up options. But, likewise, i’l miss our talks also. Was good 2 work with u. All the best with your future endeavours. Take care. Gwynn.”
Tuesday 15 July 2014
Ms Poole meets with the HACSU representative to discuss the issue of training sessions on RDOs.
At some point during the week 13 to 18 July 2014 Ms Poole contacted Brendan Risely, (Coordinator) to discuss the possibility of a transfer. Her evidence is:[14]
“a) I said words to the effect ‘I was wondering, Tony Mercer is making noises about
going back to the Garden Road site or leaving Optia, when his line becomesavailable, could you consider me please?’
b) He replied words to the effect ‘It will have to be advertised?’
c) I replied words to the effect ‘sometimes they do swaps’
d) He said words to the effect ‘we don’t have dates yet, so we can’t do swaps’e) I said words to the effect ‘ok, let me know thank you’”
Wednesday 16 July 2014
Ms Poole sends a response text to ‘David’ as follows:[15]
“I haven’t literally resigned. Am on S/L at present. It was great working with u also and i was always happy 2 c your car pull up. Meant it was going 2 be a good shift. U have a wonderful intelligent”
Thursday 17 July 2014
Ms Poole attends her GP and is diagnosed with bronchitis, stress and anxiety.[16] She is declared ‘unfit for work’ for the period 17 to 24 July 2014.[17]
Friday 18 July 2014
The applicant receives correspondence from Ms Jo Hacker dated 15 July 2014. This reads as follows:[18]
“Dear Gwynn,
We confirm you[sic] resignation from the role of a Disability Support Worker at Optia effective immediately 10 July 2014.
Thank you for providing the medical certificate until 17 July 2014 however we do not require this for our records as you resigned your position as of 10 July 2014.
Your outstanding wages will be paid into your bank account 16 July 2014, with your payslip and separation certificate posted in the mail.”
Ms Poole said she immediately telephoned Ms Hacker. Her evidence is:[19]
“I immediately telephoned Ms Hacker. On the telephone:
a) I said words to the effect ‘I did not resign, where did you obtain this information
from?
b) Ms Hacker replied words to the effect ‘Gaylene advised me that you resigned
effective immediately on 10 July 2014’.
c) I said words to the effect ‘I swear on a stack of bibles I did not put a resignation
in on that day’
d) She replied words to the effect ‘I will speak to Gaylene’.
On the same day, Ms Hacker telephoned me. In the conversation
a) She said words to the effect ‘Gaylene told me you resigned on 10 July 2014’
b) I replied words to the effect ‘I did not resign or say anything about resigning’.c) She replied words to the effect ‘perhaps we can do mediation or reinstatement
with Gaylene’.
d) I replied words to the effect ‘mediation with Gaylene would not work’.”
Evidence of Ms Hacker
Ms Hacker’s evidence is that Gaylene Poole telephoned her on 10 July 2014 and advised that Gwynn Poole had resigned. This was later corrected to be advice by email rather than by telephone.[20]
Ms Hacker confirmed that she drafted a letter to Ms Poole, confirming her resignation. This was sent on 15 July 2015. Ms Hacker arranged a termination payment for all monies due up until 10 July 2014.
Her evidence in relation to subsequent events is:[21]
“On Friday 18 July, I received a telephone call from Gwynn querying the letter which I had sent to her confirming her resignation. Gwynn stated that she had not told Gaylene she was resigning, rather she told her that she would not be fit for her normal duties for the rest of the week.
As a result of this denial, I sought further information from all relevant parties involved in the process to determine whether Gwynn had resigned.
Based on the evidence provided by Ms Pool of her conversations with Gwynn and other relevant information provided by Mr Anning, Mr Heynes and Ms Proden I determined that Gwynn had intended to resign from her position.
I wrote a letter to Gwynn informing her of the outcome of the review and that based on the available evidence, Optia had a reasonable belief that she had resigned from her employment.”
During cross examination Ms Hacker agreed that whilst she had drafted to substance of the correspondence, it was actually sent as an email from Mr Beswick dated 24 July 2014.
In relation to the letter of resignation, Ms Hacker’s evidence is:[22]
“Does Optia have any policy concerning the giving of notice when employees resign?---Under the national employment standards you are required to give notice but you can't force someone to give that notice.
At any stage did you ask for a written resignation?---No, sir.
Any particular reason why not, given your stated policy?---As I was informed by Gaylene Pool that Gwynn had her resignation that she would be handing in to me.
Which she didn't do?---Which she didn't do.
No. But you didn't follow that up at all and say - you didn't follow that up? You didn't ask whether there was a written resignation?---No.”
Events Subsequent to 18 July 2014
Following the phone call from Ms Poole on 18 July, Ms Hacker undertook further investigation of the events on 10 and 11 July. The results of this investigation were conveyed in an email from Mr Beswick (Assistant CEO) dated 24 July 2014.[23] Mr Beswick concluded:
“Based on the evidence available we have a reasonable belief that you resigned your employment and that Optia accepted your resignation.”
On 21 July Ms Poole met with the HACSU union representative.
On 22 July Ms Poole attended her GP complaining of stress and anxiety.
On 23 July Ms Poole sent an email for the attention of Glenn Campbell (CEO) recapping the events that had occurred and emphasising “I have never & would not resign VERBALLY ON THE SPOT.”[24]
On 28 July Ms Hacker telephoned Ms Poole to schedule a meeting with Mr Beswick on 6 August 2014.
At approx. 9am on 6 August Ms Poole received a text message from Ms Hacker cancelling the meeting due to the unavailability of Mr Beswick. According to Ms Poole, Ms Hacker advised that another date would be organised. However Ms Poole had heard nothing further from the respondent. Later that day Ms Poole contacted Centrelink.
On 8 August 2014 Ms Poole lodged the unfair dismissal application with the Fair Work Commission.(FWC). It follows that if the applicant’s contention is correct and her employment ended on receipt of the correspondence from Ms Hacker on 18 July 2014, the unfair dismissal application was lodged within time, albeit on the 21st day. If on the other hand Ms Poole resigned on 10 July, the application is some eight days out of time.
Meaning of Dismissal
Section 386(1) reads:
(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.
It seems to me that the question of constructive dismissal under s386(1)(b) does not arise. The evidence is clear that the respondent did not in any way create a situation whereby Ms Poole was either instructed to resign in the face of a threatened or impending dismissal, or in the alternative, the conduct of the employer gave Ms Poole no reasonable choice but to resign.
The question is whether or not Ms Poole resigned? Duress or other behavioural aspects on the part of the employer do not arise. If it is found that Ms Poole did not resign, then a conclusion that is open is that by virtue of the correspondence dated 15 July and received on 18 July, the employment of Ms Poole came to an end at the initiative of the employer.
Conclusion
There is no doubt that Ms Poole was becomingly increasingly frustrated and disillusioned with the rostering arrangements and training requirements at the Garden Road site, which clearly was exacerbated by her mother’s continuing ill health and the need to regularly travel to Launceston. Despite numerous representations to management, Ms Poole felt that was not being provided with the necessary support and assistance to overcome these difficulties. This does not amount to a finding on the justification or otherwise of the management position; rather, it is an observation on the state of mind of Ms Poole at the relevant time.
It would seem that these issues came to a head on Thursday 10 July. There is conflict in the evidence as to whether the word ‘resignation’ was used. There is no doubt however that Ms Poole made it clear that she would not be returning to the Garden Road site. In the absence of any further explanation as to future intentions, (eg seek a transfer to another site) it would be quite reasonable for a bystander, such as Mr Gaskell, to interpret this as a resignation, even if it was not so in the legal sense. Similarly, it is understandable that Ms Gaylene Pool might have reached a similar conclusion, although it is surprising that Ms Pool, or perhaps more correctly Optia, did not make subsequent clarification inquiries when a number of warning flags were raised.
There were no witnesses to the conversation between the applicant and Ms Pool. Hence to resolve this conflict in the evidence I have looked to subsequent events for guidance.
The applicant presented as an honest and reliable witness. Her evidence was clear and consistent. I have no reason not to accept Ms Poole’s recollection of the conversation, which, after all, she initiated. This is not a reflection on the evidence of Ms Gaylene Pool. I have already indicated that the circumstances were such that a conclusion on Ms Pool’s part that the applicant had resigned ‘effective immediately’ was reasonably open.
I am strengthened in my view by the following events:
·The applicant presented a medical certificate to cover the following week.
·On 13 July Ms Poole logged into ‘Rosterlive’ and restored timesheets which had been deleted.
·On 14 July the applicant sent a text message to Ms Gaylene Pool confirming the above Rosterlive changes. The evidence suggests that text messaging is a regular means of communication for Optia staff.
·Ms Poole sent two text messages to work colleagues advising that she had not resigned but was weighing up options.
·She actively sought a transfer to another site through a coordinator (Brendan Risely). The evidence suggests that staff transfers between sites are not uncommon.
·In the week following the purported resignation, Ms Poole sought advice from the union on the issue of training sessions programmed on RDOs.
·On Thursday 17 July Ms Poole obtained a further medical certificate for the period 17 to 24 July.
·Immediately upon receipt of the correspondence from Ms Hacker, Ms Poole vigorously contested the conclusion that she had resigned. This active contest continued over the ensuing period up to the lodgment of this application.
There is also the matter of the written resignation. The applicant advised Ms Pool that she had a resignation letter (in the car) but will “see how things pan out.” The evidence of Ms Gaylene Pool is that the applicant indicated she would hand the letter to Ms Hacker. Either way, the letter of resignation was never submitted. Given that the Optia Human Resources Manual states that “all staff are required to give the required notice..” and a “written letter of resignation must be forwarded to the Human Resources Manager.”[25]it is surprising that that this did not raise a warning flag. Coupled with the events outlined above, some of which were in the knowledge of the employer, I find it surprising that Optia, through the HR office, did not follow up and seek clarification from Ms Poole as to her intentions, before the letter of 15 July was sent. I do however accept the respondent’s contention that a ‘best practice’ manual does not override an individual’s legal right to resign by means other than in writing.
In my view the subsequent events outlined above point overwhelmingly to a state of mind on Ms Poole’s part whereby she was considering her options. I accept that her strongly preferred option was a transfer to another site. A subsequent resignation might well be a possibility if things did not work out to Ms Poole’s satisfaction, but the evidence does not support a conclusion the that Ms Poole resigned, effective immediately, on 10 July 2014.
The obvious question is why didn’t Ms Poole raise the transfer issue at the time she said she was not returning to the Garden Road site? Her evidence is:[26]
“- - - is there any particular reason why you didn't float the idea of relocating to another site?---No, there's isn't any reason for that. I wanted to do that independently of Gaylene. I had approached Gaylene no less than five times regarding my roster and the training, the struggle that I was having with that. I didn't get any result from that whatsoever. Gaylene basically just shrugged me off with that. So for me to involve Gaylene with a transfer to another site - I was willing to do that on my own. I had sourced my other ways of going to other sites prior on my own and had been successful. I didn't think it was ‑ ‑ ‑
Thank you for that. Mr Cameron, do you want to cross on that question?”
If the applicant did not wish to involve Ms Gaylene Pool, then another option was to raise the issue with the HR office. Against that, Ms Poole was on sick leave suffering from stress and anxiety, and she had confidence in her own capacity to arrange a transfer through her own inquiries.
This is not however about re-writing the script. I can only deal with the evidence before me and on that basis I conclude that Ms Poole did not resign her employment with Optia on 10 July 2014 or on any subsequent date.
I turn now to the question of whether there has been a termination at the employer’s initiative.
In Mohazab v Dick Smith Electronics Pty Ltd[27] it was stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate
an exhaustive description of what is termination at the initiative of the employer but
plainly an important feature is that the act of the employer results directly or
consequentially in the termination of the employment and the employment
relationship is not voluntarily left by the employee. That is, had the employer not
taken the action it did, the employee would have remained in the employment
relationship.”
The Full Bench in O’Meara v Stanley Works P/L[28]observed:
“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” (citation omitted)
In Ashton v Consumer Action Law Centre [29] Bissett C said:
“The important consideration is whether there was some action of the employer intended to or with the probable result of bringing the employment relationship to an end.”
Applying these principles to the current circumstances I conclude:
·The applicant did not resign.
·The employer, by correspondence dated 15 July and received on 18 July 2014, effectively brought the employment contract to an end, even if the correspondence was premised on a misunderstanding or misapplication of the facts on the employer’s part.
·But for the correspondence referred to above, the applicant would have continued in employment.
I conclude that the employment contract of Ms Poole was terminated at the initiative of the employer, with effect from 18 July 2014. The application lodged under s394 seeking an unfair dismissal remedy was lodged within the 21 day period and hence the issue of an extension of time does not arise.
The jurisdictional application advanced by the respondent is dismissed.
DEPUTY PRESIDENT
Appearances:
I Gunadasa for the Applicant
A Cameron for the Respondent
Hearing details:
2014
Hobart
10 October
[1]Exhibit A1 att. ‘A’
[2]Exhibit A1 para 26
[3]Exhibit A1 para 28
[4]Exhibit R2 paras 4-6
[5] Transcript para 374
[6]Exhibit A1 para 29
[7]Exhibit A1 att ‘C’
[8]Exhibit A1 paras 31,32
[9]Exhibit R2 paras 9-14
[10]Exhibit R1
[11]Exhibit A1para 33
[12]Exhibit A2
[13]Exhibit A2
[14]Exhibit A1 para 27
[15]Exhibit A2
[16]Exhibit A1 para 37
[17]Exhibit A2 att. ‘D’
[18] Exhibit A1 att ‘E’
[19]Exhibit A1 para 39, 40
[20] Exhibit R3
[21] Exhibit R4
[22] Transcript paras 264 - 268
[23]Exhibit R6
[24]Exhibit A1 att ‘F’
[25]Exhibit A1 att ‘SI’
[26] Transcript para 579
[27][1995] 62 IR 200, 206
[28]PR973462 11 August 2006
[29][2010]FWA 9356
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