[2018] FWC 781

FAIR WORK COMMISSION

DECISION

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

Ms Jane Kerr
v
Boom Logistics Limited
(U2017/9821)

COMMISSIONER SIMPSON

BRISBANE, 6 FEBRUARY 2018

Application for unfair dismissal remedy – constructive dismissal – change of working conditions – applicant resigned voluntarily – no jurisdiction – application dismissed

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Ms Jane Kerr who alleges that the termination of her employment with Boom Logistics Limited (Boom Logistics) was unfair.

[2] Ms Kerr lodged her application on 11 September 2017 with the Fair Work Commission (the Commission), after tendering a resignation on 23 August 2017 with four weeks’ notice. The resignation was accepted by her employer the following morning on 24 August 2017.

[3] On 28 August, Ms Kerr emailed her managers to advise that she wished to rescind her resignation. Ms Kerr stated that it was made ‘in the heat of the moment as I was under enormous work related stress.’ Ms Kerr said in her application that she was afforded no cooling off period.

[4] Boom Logistics filed its response on 18 September 2017 and raised a jurisdictional objection on the basis Ms Kerr was not dismissed and instead ‘chose to resign from her position with no pressure or duress from the Employer’. Boom Logistics also stated Ms Kerr was allowed a cooling off period prior to confirming whether she still wished to proceed with the resignation; Ms Kerr confirmed this and requested to have her notice period waived which was acquiesced to by Boom Logistics.

The matter was listed initially for conciliation by a Commission conciliator on 4 October 2017, however it was unsuccessful and the matter proceeded to hearing on 21 and 22 November 2017.

[5] Boom Logistics filed an outline of argument in relation to their objections, a witness statement of John William Mitchell, 1 and a witness statement of Darren Woodley.2

[6] Ms Kerr filed an outline of argument on the objections issue, a document list, a decision of the Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli, 3and witness statements of Jane Elizabeth Kerr,4 Joy Seib5 and Claire Dow.6 On the same date, Ms Kerr made an application for an order to produce documents, seeking a range of documentation between Ms Kerr and her managers and CEO.

[7] A reply to the Ms Kerr’s material was filed by Boom Logistics including a further statements from Mr Mitchell 7 and Mr Woodley.8

[8] At the hearing, Ms Kerr was given leave to be represented by Mr Gerard Butler, an agent. Ms Brown of KHQ Lawyers represented Boom Logistics with leave.

Background

[9] Ms Kerr was employed at Boom Logistics and its predecessors for approximately 12 years and 4 months. She provided a letter from the General Manager dated 29 January 2013 outlining the agreement by which she would be permitted to work from home for four days per week and attend the office at Eagle Farm one day per week. Ms Kerr’s current contract at the time of the termination of her employment was to commence from 1 November 2014 at Boom as a Sales Representative.

[10] In her application, Ms Kerr stated that her manager Paul Beavon had waived the requirement to attend the office one day per week from about January 2016, on the proviso that she would be readily available by phone or email and could attend meetings as required. Mr Beavon later resigned and Ms Kerr was asked to report to Michael Spedding and Darren Woodley. Ms Kerr said that she was ‘horrified’ as there had been a history of hostile workplace relations between herself and Mr Woodley while they were previously employed at another company, eventually leading to her resignation from that position. However the particulars of what Ms Kerr alleged were the historical issues between herself and Mr Woodley were never advanced as part of Ms Kerr’s case.

[11] Ms Kerr also referred in her application to a ‘significant and ongoing disagreement with BOOM’ in respect of the company’s Sales Commission Scheme. The Scheme is referred to in the contract dated 12 November 2014 and is described in that contract as follows:

“You will have the opportunity to participate in a Sales Commission Scheme.

The objective of the scheme is to enable you to earn commission for sales of specific equipment types which are sold as a result of a lead you have generated and which deliver a POSA for the company.

The Sales Commission structure is offered on the basis that it will be reviewed bi-annually and may be amended or varied at the discretion of the Company.”

[12] It was submitted by Ms Kerr that:

“The commission issue in 2014 had a significant adverse impact on both my income and my health. I was diagnosed with severe depression, required ongoing psychological treatment and counselling and was prescribed and continue to take anti-depressant medication. I have continued on the medication since that time and have stabilised my condition. Despite the work-related nature of my condition I did not claim workers compensation. My contract clearly stipulated both the nature and amount of the Commission payable but I eventually accepted a new contract which effectively reduced my income by in excess of 25%. I stayed with BOOM despite this.”

[13] Ms Kerr gave further oral evidence on this issue stating that she was first diagnosed with major depression in 2007 and it is ongoing. 9 However the evidence in the case disclosed that the parties reached an agreement over this issue in 2015 whereby Ms Kerr would have a significantly higher base rate of pay and not receive commission.

The Evidence of Ms Kerr

[14] Ms Kerr said the applicable version of her contract of employment was the one attached to the statement of John Mitchell. 10 She explained that the contract arose out of a series of discussions and various changed arrangements negotiated with her previous manager Mr Beavon, Ms Rosalie Hammond and Mr John Mitchell during the period between September 2014 and May 2015. Ms Kerr gave evidence that these negotiations impacted on her mental health. Ms Kerr also said in her statement that Mr Mitchell told her she could not continue to take sick leave. 11 This claim was disputed by Mr Mitchell.

[15] Ms Kerr gave evidence that throughout her time at Boom Logistics she had enjoyed a level of independence and autonomy. Ms Kerr said she had not been advised of any performance issues, had exceeded performance expectations and her working from home arrangement had continued and expanded to five days a week. Ms Kerr said she had never been advised of any concerns about her availability or attendance at meetings. 12

[16] Ms Kerr said she raised her concerns about the arrival of Mr Woodley in June 2017 with Mr Beavon but was unaware of any resultant actions or investigations. Ms Kerr said after his arrival she discussed matters with Mr Woodley, accepted additional work, for example the MEX project, and was determined to maintain good working and personal relationships. Ms Kerr said she had difficulty with Mr Woodley in terms of both rescheduling and cancelling meetings, requiring information or reports that were readily available, micromanaging and following through agreed outcomes. 13 Mr Woodley disputes these claims.

[17] Ms Kerr said she had been attempting to get clarity around a pricing issue since 11 August as she had customers making enquiries and had to update the web site. Ms Kerr said she was aware after advice from the CEO on 17 August that Mr Woodley was to work through it with her. Ms Kerr said despite repeated requests from her this did not occur. Ms Kerr said that eventually she proposed a meeting in the office with Mr Woodley and they agreed to meet on 23 August. 14 Mr Woodley maintained that the pricing issue had been addressed and that he proposed the meeting on 23 August not Ms Kerr.

[18] Ms Kerr said she rang Mr Mitchell and asked him about the meeting on 23 August and he advised her that he would be attending given the history with Mr Woodley and herself. Ms Kerr claimed that both Mr Mitchell and Mr Woodley indicated that they wanted to discuss the reporting arrangements but neither advised the pricing issue was not to be addressed. Ms Kerr said she became concerned and anxious about the meeting but thought she would resolve the pricing issue with Mr Woodley. 15

[19] Ms Kerr agreed during cross examination with the proposition that she asked Mr Mitchell when she rang him on 22 August what the meeting was about. 16 In her oral evidence Ms Kerr said she could not remember if she asked about the pricing issue at the meeting on 23 August. Ms Kerr maintained Mr Woodley had no intention of discussing it.17

[20] Ms Kerr said that at the meeting on 23 August Mr Woodley raised the cessation of working from home issue and followed up with a suggested conversion of her role into the Business Support Centre (BSC). Ms Kerr said there was some discussion about transition arrangements and that she asked for petrol money/fuel card and the possibility of bringing her dog to work, and these were rejected. Ms Kerr said she asked “Where is the compromise?” Ms Kerr said Mr Mitchell suggested the compromise was the phase in of the return to office based work. 18 Ms Kerr accepted that there were no final decisions made at the meeting on 23 August and she was to go away and think about it.19

[21] Ms Kerr agreed she was not crying at the meeting and agreed she did not mention her medical condition at the meeting. 20

[22] Ms Kerr said when she returned home she sent an email to Mr Woodley and others indicating that she still needed answers on the pricing issue. Ms Kerr agreed she was not happy about having to work with Mr Woodley. 21 Ms Kerr said Mr Woodley responded by email to her and others indicating that they had met and resolved the issue as well as requesting further previously provided additional information. Ms Kerr accepted during oral evidence that the email did not say that the issue had been resolved.22

[23] Ms Kerr said that Mr Woodley also requested in the email that she refer to him first on such matters. Ms Kerr said that after she received Mr Woodley’s email she responded in the heat of the moment and sent the “I quit you win” email. Ms Kerr said she thought that Mr Woodley had lied about her not supplying further information which she had supplied to him on a couple of occasions and that he was trying to push her out. Ms Kerr said in her view Mr Mitchell was supporting him. 23 It was put to Ms Kerr that Mr Woodley’s email was asking for another update, if anything else had happened, and that marketing isn’t a one off thing. Ms Kerr responded that everything about the offers and on the equipment was up to date.24 Ms Kerr accepted she did not send an email back saying what she had done. She said she had already done that once before.25

[24] Ms Kerr’s evidence included that she sent the resignation email because Mr Woodley’s email made her look back in front of other managers. 26

[25] Ms Kerr said her mother came around to support her the next morning 24 August and that she was distressed and crying. Ms Kerr said at 8.01am she sent an email directly to Brendan Mitchell the CEO of Boom Logistics. Ms Kerr said the email was written in an emotional state and advised him that Ms Kerr had resigned under extremely unhappy circumstances. Ms Kerr said she thought Mr (Brendan) Mitchell would at least seek to clarify the issues. 27

[26] Ms Kerr said that Mr John Mitchell rang her later that morning at about 9.00am while her mother was still there and advised that her resignation had been accepted by management and that management would waive the usual notice requirement. Ms Kerr said that Mr John Mitchell did not suggest a cooling off period or that she reconsider her actions, and did not enquire about her wellbeing or health. Ms Kerr said Mr Mitchell said he would be around to pick up the company computer phone and other equipment and confirmed this by email shortly after. 28

[27] It was put to Ms Kerr that Mr Mitchell’s statement says he said to Ms Kerr that he had received the email and Ms Kerr said something along the lines of “Yes, I’ve had enough and I want to resign”. Ms Kerr said this was incorrect and not true. 29 Ms Kerr accepted that she did not tell Mr Mitchell that she was upset, or distressed, and did not ask for more time to think. Ms Kerr said she did not think she had that choice.30 It was put to Ms Kerr that she did not say to Mr Mitchell that her resignation was in the heat of the moment and Ms Kerr’s evidence was she could not remember.31

[28] Ms Kerr said it was Mr Mitchell who brought up the issue of being paid out her leave. Ms Kerr said she was not thinking straight and she thought she might as well go now. Again Ms Kerr said she did not think she had a choice. 32

[29] Ms Kerr said that after her discussion with John Mitchell she continued to be distressed and was crying and sobbing uncontrollably. Ms Kerr said her situation was made worse by her anaemia and she was due for an iron infusion. Ms Kerr said due to her distress she asked her flatmate Ms Dow to meet John Mitchell and give back the computers and other equipment. 33

[30] Ms Kerr said her distress level reduced over Friday, Saturday and Sunday due to the support she received from her family and friends. Ms Kerr said on Monday 28 August she had settled down and began to regain her composure and she emailed both Brendan and John Mitchell that she had resigned in the heat of the moment and wanted to rescind the resignation and wanted to discuss this with John Mitchell. Ms Kerr said there was also an issue of her having given the wrong computer back. Ms Kerr said she could not meet John Mitchell that Monday as she was due for a transfusion and they agreed to meet the next day, which was Tuesday 29 August. 34

[31] Ms Kerr said on 29 August John Mitchell advised her that management had previously accepted her resignation, a cooling off did not apply and her resignation stood. 35 Ms Kerr accepted that she had not provided medical information to Boom Logistics about her medical condition.36 Medical certificates relied on by Ms Kerr during her employment had only been to the effect that she was unfit for duty. However Ms Kerr said that she had told Mr Mitchell she suffered from the condition (of depression).

[32] Ms Kerr accepted that at the meeting on 29 August with Mr Mitchell she did not provide him with a medical certificate. Ms Kerr said she may have mentioned she went to the doctors but said she was not sure and did not remember. 37

[33] In her oral evidence it was put to Ms Kerr that the real reason for her resignation was that she was angry with Mr Woodley who she described as her arch nemesis. Ms Kerr responded that the reason was that Mr Woodley tried to make out she hadn’t given him information which upset her because she said she had, and that was the straw that broke her. 38 Ms Kerr said she thought Mr Woodley was out to get her. Ms Kerr agreed that she did not want to work with Mr Woodley.39 Ms Kerr accepted Mr Woodley gave her more work which she wanted.40 Ms Kerr accepted she had never made a formal complaint about Mr Woodley.41

The Evidence of Mr Mitchell

[34] Mr John Mitchell is the National Human Resources Manager for Boom Logistics based in Brisbane and commenced employment with Boom in April 2011. 42 He provided two witness statements, dated 31 October 2017 and 13 November 2017, and was called to give evidence by Boom Logistics.

[35] Mr Mitchell said he had known Ms Kerr for most of his tenure, and in or around January 2013, Ms Kerr requested that she be allowed to work from her home at the Gold Coast, and this was agreed by the then General Manager Mr Glen Wright on certain conditions. 43

[36] Mr Mitchell gave evidence about Ms Kerr’s commission payments which is dealt with in more detail below 44 but in short he said was resolved by mutual agreement involving Ms Kerr receiving a significant wage increase and not receiving commission. Mr Mitchell totally refuted Ms Kerr’s claim that he told her she could not take sick leave and said it was totally untrue and misleading.45 Mr Mitchell said Ms Kerr’s tone in her emails and behaviour was also discussed at a meeting on 30 April 2015 where the commission issue was resolved.46

[37] Mr Mitchell provided evidence in his statements concerning the need for changes to Ms Kerr’s position following changes in the business, and his suggestion to Mr Woodley that a consultation process occurs with Ms Kerr. He said the role (being proposed) was not a demotion, and her role had changed with the nature of the business such as a reduction in assets sales and Ms Kerr was required to take on more skills and share knowledge with members of the BSC. Mr Mitchell said there was never any intention to reduce Ms Kerr’s income or status within the organisation. 47

[38] Mr Mitchell said that to his knowledge, Boom Logistics had not been provided with medical evidence that Ms Kerr suffers from a mental health condition and consequently required special considerations, or that it affected her performance. Mr Mitchell states that had Boom Logistics been aware, reasonable accommodations would have been made. 48

[39] Mr Mitchell gave detailed evidence concerning 22 August 2017 including that Mr Woodley advised him that he had spoken to Ms Kerr and had made arrangements for a meeting the next day. Mr Mitchell said he had spoken to Ms Kerr at around 10.51am that day and that Ms Kerr had asked him what the meeting was about and whether she was going to have to work from the office instead of home. Mr Mitchell’s evidence was he said to Ms Kerr words to the effect that her role had changed and that it would need to be office based but that they could talk about it at the meeting the next day. Mr Mitchell said Ms Kerr told him she had a dog which suffered from anxiety and could not be left alone as it self-harmed, and that she had experienced issues working with Mr Woodley 15 years earlier. 49

[40] Mr Mitchell gave evidence concerning the meeting of 23 August including that he arrived at the meeting late, that Mr Woodley and Ms Kerr were already at the café, and they had some discussions about sales and the asset register. 50 Mr Mitchell gave detailed evidence concerning the discussion that ensued concerning changes to Ms Kerr’s role including that while Ms Kerr wasn’t pleased about the changes, she appeared to accept the change and wasn’t visibly angry or upset. He said at no point in the meeting was there any heated exchange or argument and the discussions were very professional and civilised. He said Ms Kerr did not at any anytime mention the impact of the change on her mental health or her health at all.51

[41] In his oral evidence Mr Mitchell said Ms Kerr was agreeable, laughing and it was just a normal conversation. 52 When Mr Butler challenged Mr Mitchell during cross examination about the believability of Ms Mitchell’s evidence concerning the meeting Mr Mitchell said he was aware Ms Kerr covertly recorded the conversation.53 Mr Butler confirmed in closing oral submissions that Ms Kerr had secretly recorded the meeting but did not seek to rely on the recording and Mr Butler submitted Ms Kerr provided a copy of that recording to Boom Logistics when asked for it.54 Mr Mitchell said the meeting ended at around 11am.

[42] Mr Mitchell said that at around 2.19pm on 23 August he received an email from Mr Woodley forwarding an email sent to him from Ms Kerr in which she had resigned. Ms Kerr had copied in a number of senior managers at Boom Logistics into the email. Mr Mitchell said it appeared Ms Kerr’s emailed followed from an earlier email sent by her to Mr Woodley and other senior leaders at Boom around 2.00pm that day, to which Mr Woodley had responded to Ms Kerr, also copying in other managers. 55

[43] Mr Mitchell gave evidence that Mr Woodley telephoned him at around this time and they discussed Ms Kerr’s email. Mr Mitchell gave evidence that he said to Mr Woodley that he thought they should give Ms Kerr a chance to cool down and that they could call her in the morning and discuss the email with her. Mr Mitchell said he sent an email to all senior managers asking them not to respond and that Mr Woodley and himself would give Ms Kerr a chance to cool down overnight. A copy of that email was attached to Mr Mitchell’s statement. 56 In his oral evidence Mr Mitchell said it was general HR practice that if someone sends an email that appears a bit emotive, you give them a chance to cool down.57

[44] Mr Mitchell provided detailed evidence concerning his version of the events of the following morning of 24 August including his making a phone call to Ms Kerr at 9.19am with Mr Woodley present, however he said the phone was not on speaker and Mr Woodley could only hear Mr Mitchell’s part of the conversation.

[45] Mr Mitchell said he started the call by saying to Ms Kerr that he had received a copy of an email that she had sent the day before advising that she had resigned. Mr Mitchell claimed in his evidence that Ms Kerr responded with words to the effect of “
yes, I have had enough I want to resign”. Mr Mitchell said that Ms Kerr did not sound distressed at all, and according to him was rather quite matter of fact and determined in her decision. Mr Mitchell said this caused him to conclude that her resignation had not been given in the heat of the moment but rather had been a definite decision. He said for this reason he responded with words to the effect of “well if that’s the case then Boom accepts your resignation”. 58

[46] In Mr Mitchell’s oral evidence he said he rang Ms Kerr and said “I’ve seen an email that says you’ve resigned. Is that your intent?” Mr Mitchell then said Ms Kerr replied “Yes it is.” 59 Mr Mitchell was asked whether Ms Kerr’s statement that she had ‘had enough’ rang any bells as an experienced HR practitioner. Mr Mitchell said it did not.60

[47] Mr Mitchell said that they then had a discussion about Ms Kerr’s reference in her email to providing four weeks’ notice and taking four weeks’ holiday. Mr Mitchell said they reached an agreement that Ms Kerr’s notice period would be waived. He said Ms Kerr did not sound distressed or upset to him at all. 61 Mr Mitchell said he sent an email at 9.45am to confirm the conversation and a copy of the email was attached to his evidence.62

[48] Mr Mitchell said that at around 10.06am he received an email from Boom Logistics’ CEO Mr Brenden Mitchell forwarding an email Ms Kerr had sent to him at 8.01am that morning, in which she confirmed her resignation and raised complaints about Mr Woodley and various other matters. Mr Mitchell said in forwarding the email Mr Brenden Mitchell asked him to call Ms Kerr if he had not already done so. Mr Mitchell said as he had already spoken to Ms Kerr and this conversation occurred after Ms Kerr’s email to Mr Brenden Mitchell he did not call Ms Kerr again. 63

[49] Mr Mitchell said at 10.27am Ms Kerr sent a text message from her work mobile which read “Can u let me know roughly what time?” Then at 10.32am, he said he received a further message which read: “Pls ring or text time to my personal phone turning this one off (redacted).” Mr Mitchell said at 10.50am he sent a text to the number Ms Kerr had sent him which read “Hi Jane. John here. I am aiming to be at Margate around 3pm”. He said Ms Kerr responded immediately, “OK”, and then at 12.26pm Ms Kerr sent another message which read “Can you get my payslip and any other correspondence emailed to (redacted) Ta”. 64

[50] Mr Mitchell gave further evidence about receiving a text message from Ms Kerr on 25 August and about Ms Kerr returning the wrong computer, and about her subsequent request to withdrawn her resignation the following Monday 28 August. He said he and Mr Brenden Mitchell discussed the request and they concluded that they had already given Ms Kerr an opportunity to withdraw her resignation and she had not. Mr Mitchell went on to detail subsequent discussions with Ms Kerr on 28 and 29 August and the reasons given for not agreeing to Ms Kerr’s request.

The Evidence of Mr Woodley

[51] Mr Woodley was engaged by Boom Logistics from 5 June 2017 as an independent contractor in a management consulting role involving financial support and business improvement. From 19 June 2017, Mr Woodley began to take over duties from Mr Paul Beavon, who had until that time been Ms Kerr’s supervisor and who was resigning from 30 June 2017. He said that during the handover period he and Mr Beavon discussed the changing needs of the business and the scope of Ms Kerr’s role as a result of a declining workload in asset sales. Other work that Ms Kerr could undertake in her role, including integration of the role into the BSC and the MEX upgrade project, was also discussed. 65

[52] Mr Woodley said he knew Ms Kerr prior to commencing with Boom as they had worked together at another company Terex, approximately 15 years earlier. He said he did not consider there were any issues between them following from having worked together at Terex. He said his focus was on trying to make the transition of Mr Beavon’s duties and responsibilities, including supervising Ms Kerr’s role, as smooth as possible.

[53] Mr Woodley said he started to meet with Ms Kerr and their discussions included her role. Mr Woodley said in or around early July 2017 Ms Kerr raised with him that she had surplus capacity and was becoming a bit ‘bored’ in her role and asked if she could get involved with the upgrade of the information contained in the MEX system, as he had considered with Mr Beavon and she agreed to start working on that project. 66

[54] Mr Woodley rejected Ms Kerr’s evidence that he rescheduled or cancelled meetings, or required information or reports that were readily available or that he micromanaged Ms Kerr. He said changes to meetings were mutual and both ways to accommodate each other. 67 Mr Woodley said he met with Ms Kerr four times, an initial meeting including Mr Beavon, a meeting at Margate, in the Boom offices on 19 July and also on 23 August.68 Mr Woodley said he was in Perth or Melbourne for two weeks during this time and Ms Kerr was at the Gold Coast for another two weeks.69 Mr Woodley said the meetings were very cordial.70

[55] Mr Woodley said in around early August 2017 he again considered the integration of Ms Kerr into the BSC team as he had discussed with Mr Beavon. He said in his view this made sense as Ms Kerr’s role was aligned with the BSC and it was a natural progression that the used equipment sales work that Ms Kerr performed could form part of the BSC’s services and be performed by Ms Kerr as a member of that team. He said he also thought it would help Ms Kerr and other BSC members to cross skill such that if Ms Kerr or a BSC team member was on leave they could fill in for each other. 71

[56] Mr Woodley said he discussed the potential integration with the Chief Financial Officer of Boom Logistics who agreed to amalgamate Ms Kerr’s role into the BSC as long as there was no increase in duties that BSC members were to perform. Mr Woodley said he decided to implement the change and as a result of the change, Ms Kerr’s work location would need to adjust to the Brisbane office. Mr Woodley said after speaking with Mr Mitchell he suggested that they organise a meeting with Ms Kerr to discuss the changes. Mr Woodley said on 22 August he telephoned Ms Kerr and arranged a time to meet the next day to discuss the situation. He said he sent an email to Ms Kerr to confirm the time and location and the matters he wished to discuss. The email was attached to his evidence. 72

[57] Mr Woodley said on 23 August 2017 he and Ms Kerr firstly discussed a number of day to day tasks and they then moved onto the topic of the proposed changes to the role and Ms Kerr’s work location. Mr Woodley said he took notes of the meeting which he later typed up and sent to Mr Mitchell. He attached to his evidence what he said were his notes that he emailed to Mr Mitchell around 2.19pm on 23 August 2017. 73

[58] Mr Woodley was asked a series of questions in cross examination about the pricing issue Ms Kerr raised in her evidence. Mr Woodley said he asked Ms Kerr to speak to Michael Ong the Finance Manager about the write down value and anything above that is the target minimum, and is negotiation. 74 Mr Woodley said as far as he was concerned the matter had been dealt with.75 Mr Woodley said the best price is a relative term, and there is a list price and a written down value price and the best price is whatever can be negotiated between those two. Mr Woodley said Ms Kerr had the list price on her access database and they were in the weekly report that he got from Ms Kerr each week.76

[59] It was Mr Woodley’s evidence that Ms Kerr’s demeanour during the meeting was fairly relaxed. He said Ms Kerr appeared a little frustrated toward the end of the meeting following responses given to her requests for compensation associated with working in the office but the conversation was not heated at all and Ms Kerr did not raise her voice or seem upset at all. 77

[60] Mr Woodley said that later that afternoon Ms Kerr sent an email regarding work which he responded to. He said Ms Kerr then responded to the email that she was resigning from her employment. Mr Woodley attached to evidence these emails. 78 Mr Woodley’s evidence was consistent with Mr Mitchell’s that they discussed the resignation email from Ms Kerr and that Mr Mitchell advised Mr Woodley not to respond and he recommended Ms Kerr be given overnight to cool off and he would contact her in the morning.79

[61] Mr Woodley said that on the following morning 24 August he was present with Mr Mitchell when Mr Mitchell had a telephone conversation with Ms Kerr. He said he could only hear Mr Mitchell’s side of the conversation. In his oral evidence he said he did not know what Ms Kerr said. 80 Mr Woodley said he heard Mr Mitchell ask Ms Kerr about her email she sent the previous day and then say words to the effect of “well if that’s your decision then we accept your resignation”. Mr Woodley said that Mr Mitchell then spoke about the notice period provided by Ms Kerr and a mutual agreement to waive that period. Mr Woodley said that it appeared to him from listening to Mr Mitchell’s side of the conversation that everything was quite straight forward and there didn’t appear to be much argument going on.81 He said the conversation went for five minutes.82

[62] Mr Woodley was shown an email of 24 August 2017 that he confirmed was an email he sent to Mr Mitchell that afternoon summarising his version of the call Mr Mitchell made to Ms Kerr. 83

[63] Mr Woodley provided with his evidence emails Mr Beavon forwarded to him that indicated Ms Kerr had quite a negative attitude toward Mr Woodley even before Mr Beavon had left employment with Boom Logistics and Mr Woodley had taken over responsibility from Mr Beavon for Ms Kerr’s role. 84

[64] Mr Woodley affirmed in his reply evidence his view that Ms Kerr did not propose the meeting of 23 August and that he did, and he relied on the email he sent describing the purpose of the meeting. 85

[65] Mr Woodley also strongly refuted Ms Kerr’s allegation that he lied to her regarding a request for information on marketing. He said he was seeking an update on those details and any plans/activities/suggestions that were happening. He said marketing is not a once off task and it involves many activities that are regularly repeated.

[66] On 19 July 2017, Mr Woodley said he introduced Ms Kerr to the BSC team during their meeting at the Boom Logistics office, aiming to encourage a working relationship between them and to familiarise Ms Kerr with the BSC team and their work. Mr Woodley said his intent was to retain Ms Kerr’s role in the business long term, with the duties to be performed in partnership with BSC, rather than replaced by BSC. 86

[67] Mr Woodley said that there was nothing in the meeting of 23 August that signified to him that Ms Kerr was doing anything other than rationally deciding what she wanted to do. He said it seemed to him Ms Kerr was completely in control of what was understandably for her an evaluation of the pros and cons of what the change meant for her. Mr Woodley said she was very clear about what those considerations were and how she felt about them. He said she was slightly more frustrated than usual but that was in his view just because she was not getting what she wanted, rather than any breakdown of control of capacity. 87

The Evidence of Ms Seib and Ms Dow

[68] At the hearing, Mr Butler called Ms Joy Seib and Ms Claire Dow. Ms Seib is Ms Kerr’s mother and Ms Dow is Ms Kerr’s flatmate.

[69] Ms Seib’s statement attested to the circumstances, as she perceived them, surrounding Ms Kerr’s employment and the termination of such. Upon cross examination by Ms Brown, Ms Seib conceded she did not have direct knowledge of the circumstances of Ms Kerr’s employment at Boom Logistics, and that it had been based on Ms Kerr’s recounting of the matters to Ms Seib.

[70] Ms Seib stated that Ms Kerr called her, shaken and upset, in June 2017 after hearing that Mr Woodley would be her ‘boss’ and Ms Kerr had referenced her previous experiences with Mr Woodley at Terex. Ms Seib’s evidence was that the issue at Terex had occurred because ‘Darren was intent on taking away the commission Jane was entitled to’ and which resulted in Ms Kerr’s resignation from Terex.

[71] Ms Seib included in her statement her understanding of the meeting which occurred on 23 August 2017, at which Ms Kerr had intended to discuss pricing. Instead, Mr Woodley discussed ‘demoting’ Ms Kerr, including adding administrative duties, rescinding her permission to work from home and downgrading her current contract. Ms Seib gave evidence that when she saw Ms Kerr the next morning, she was ‘in a state of shock’ and ‘crying uncontrollably’.

[72] Ms Dow’s statement, dated 7 November 2017, exhibited her affidavit sworn 5 September 2017 and included her statement that her work as a Domestic Support Worker had trained her in the practice of making contemporaneous notes or records of significant events and records.

[73] The affidavit provided Ms Dow’s evidence that Ms Kerr had confided in Ms Dow her apprehensions about working with Mr Woodley, which were confirmed when she began working with him in approximately July 2017. Ms Dow observed a marked increase in Ms Kerr’s workload and that Ms Kerr had ‘happily agreed’ to the increase.

[74] Ms Dow observed Ms Kerr in a ‘state of anxiousness and worry as she prepared for meeting’ on 23 August 2017 and, upon her return, in a ‘very distressed state. Ms Dow said that Ms Kerr referred to the cost of hiring a dog sitter five days per week, a demotion and that Mr Woodley had lied in respect of a task that he said Ms Kerr had not completed.

[75] At the hearing, Ms Dow was cross examined on her evidence. She said that Mr Woodley lying had been ‘almost the catalyst’ for Ms Kerr to quit her job. She also gave evidence that she took Ms Kerr to the doctor on Tuesday 29 August 2017, before a further meeting with Mr Mitchell.

Working from home

[76] The earlier statement of Mr Mitchell set out the circumstances, as he understood them, of Ms Kerr’s arrangement with Mr Glen Wright, then the Queensland General Manager, to work from home. Mr Wright had allowed her to work from her Gold Coast home provided that she work one day per week in the Brisbane office and on the basis that it could be terminated at the initiative of either party. Part of the justification for the arrangement was because many of the clients were based in the northern hemisphere and consequently, work relating to those clients needed to be completed at night; Ms Kerr was also concerned about the commute from the Gold Coast.

[77] Over time this arrangement evolved so that Ms Kerr worked from home full-time. Mr Mitchell said that he was aware that at some point in the last two years Ms Kerr moved from the Gold Coast to Brisbane.

Commission dispute

[78] Ms Seib gave evidence that the commission issue also arose at Boom Logistics, where management would, on a monthly basis, question ‘her right to the commission’. According to Ms Seib, the ongoing friction caused ‘serious health problems’ for Ms Kerr. According to Ms Seib, this was resolved when a new contract was reached in 2015, whereby Ms Kerr would ‘forego the commission’ but continue to work from home and take care of her dog; this resulted in Ms Seib’s perception that Ms Kerr’s physical and mental health improved significantly.

[79] In his statement, Mr Mitchell said Ms Kerr took issue with the amount of commission awarded to her. Mr Mitchell stated that at the time Boom Logistics incorporated Sherrin, the equipment owned by Sherrin that Ms Kerr was selling was of a far lower value than the cranes Ms Kerr had been selling for Boom Logistics. However, Ms Kerr would claim a $500 commission for an item that had sold for $200, and claimed commission for sales in which she had drafted paperwork even where they had been sold by Mr Beavon.

[80] An agreement was made to clarify the commission payments, but the payments continued to be disputed by Ms Kerr. Mr Mitchell attached an email chain from this time in early 2015 and stated his view that the tone of the emails was unacceptable, and the attitude of Ms Kerr in refusing to engage in any reasonable discussion, was indicative of how Ms Kerr behaved in the workplace. Mr Mitchell said he saw Ms Kerr’s resignation email as being typical and consistent with her communications with management, even where management had attempted to accommodate and assist Ms Kerr. Mr Mitchell attached to his second statement, an email from Mr Beavon to senior management asking for guidance in the ‘ongoing challenging management of her [Ms Kerr’s] behaviour’. 88

[81] These issues were resolved through a mutual agreement by which Ms Kerr would receive a significant pay increase and forego her eligibility for commission. This arose from a meeting held on 30 April 2015 between Mr Beavon and Mr Mitchell. Annexed to Mr Mitchell’s first statement was a copy of the current contract of employment.

List Pricing

[82] At the hearing, Mr Woodley was extensively cross examined by Ms Kerr’s advocate, Mr Butler, in relation to the list pricing issue. Mr Butler put to Mr Woodley that Ms Kerr had been seeking clarification in regards to the pricing of the assets, and that was her motivation for initiating the meeting on 23 August 2017. Mr Woodley relied on his statements that the meeting had been initiated in order to discuss the role, as contained in the body of the meeting request. Mr Butler pressed Mr Woodley to explain the difference between ‘list price’ and the bottom price, or the ‘stop-loss’ price. Mr Woodley explained, several times, that the stop-loss is the hard bottom line, below which the company would make a loss on the sale, and that the list price is the asking price listed on the website, visible to clients. The evidence from Mr Woodley was effectively that these two prices serve as parameters between which the negotiations would settle on an agreed figure.

Change to Position

[83] The current contract of employment dated 8 May 2015 included the following clause relating to changes of position:

“Position Changes Boom Logistics may at its discretion and either on a temporary or permanent basis:

a) change your work location, duties, title or reporting or reporting relationships; or,

b) require you to occupy a position other than that referred to above but only if the other position is no less favourable in status to and has a level of remuneration which is no less favourable to that of the position referred to above.”

[84] The sales aspect of Ms Kerr’s role involved selling underutilised assets in order to create cash flow for the business in a sluggish market; however as the market improved and the amount of assets for sale diminished, Ms Kerr began taking on administrative and asset registration duties. Mr Mitchell says at this point a potential change to her role was considered, such that it would report to the BSC Manager rather than Mr Beavon, which would necessitate the location of the role being changed to the Boom Logistics offices.

[85] Mr Woodley decided that in order to implement the integration, Ms Kerr would be required to work at the Brisbane office of Boom Logistics where cross-skilling could occur more easily and naturally. He then spoke to Mr Mitchell, the HR Manager, who suggested scheduling a meeting with Ms Kerr to discuss the changes with her.

[86] Mr Mitchell said in his statement that he attended in part to be an independent third party because he was aware that Ms Kerr had made accusations against Mr Woodley in respect of their previous employment at Terex. He gave evidence that although the meeting was initially going to be at the Boom Logistics offices, it was rearranged to take place at a café near Ms Kerr’s home where she had previously had catch-ups with Mr Woodley.

[87] A copy of the meeting request for 23 August 2017 was annexed to Mr Woodley’s statement, the subject of which was ‘Used Equipment Sales Admin role and activity update’ and which referred to the purpose of the meeting ‘to discuss the opportunity to review how the role has evolved in addition to the Boom initiative of the BSC resource at the Brisbane office and the interaction observations.’ In his further statement, Mr Woodley said that he had created the email meeting request in an attempt to organise more regular catch-ups and that the intent of the meeting was to review the proposed revised job description in consultation with the BSC Manager, the CFO, the HR Manager Mr Mitchell and Ms Kerr.

[88] On 22 August, Ms Dow said she received a text message from Ms Kerr regarding a meeting set for the following day, the agenda of which included a ‘sales admin role with discussions on working more in the office’, and that the following text she received from Ms Kerr read ‘don’t know what I’m going to do’. Following this statement and apparently by way of explanation of that text message, Ms Dow said that Ms Kerr owned a dog which cannot be left alone at home.

Meeting of 23 August 2017

[89] At the meeting on 23 August, Mr Woodley discussed with Ms Kerr the day-to-day aspects of Ms Kerr’s role including sales and the asset register, and the proposed changes to the role and the work location. This was supported by Mr Mitchell’s evidence. Mr Woodley took contemporaneous notes which he later forwarded to Mr Mitchell and which were annexed to his statement. Mr Woodley referred to the lower number of sales and that BSC was now managing the register, and mentioned the MEX project and other duties Ms Kerr was performing.

[90] Ms Kerr was advised that her role would need to be based in the office, and she immediately asked whether she could bring her dog, suggesting that she work from the workshop on site rather than the office. This was not accepted by Mr Woodley and Mr Mitchell. Ms Kerr then requested a pay rise and/or travel allowance to compensate her for coming into work and said that she couldn’t afford to live. Mr Mitchell said he and Mr Woodley explained that this would create a pay disparity with other employees who travel to the office, are not paid as highly as Ms Kerr, and do not have a travel allowance. Ms Kerr also asked about whether the business would compensate her for the cost of a dog carer, to which they said it would not.

[91] Mr Mitchell said that Ms Kerr then asked where the compensation and negotiation was. Mr Mitchell responded that the business would accommodate a transitional period to work from the office full-time and did not expect her to make the change immediately, following which Mr Woodley proposed a graduated timetable over approximately four months. This would begin with two days per week, increasing one day per week from October 2017 until she would be working in the office full-time from January 2018. Mr Mitchell supported Mr Woodley’s proposal and said they would be open to suggestions from Ms Kerr.

Resignation emails and telephone call

[92] Ms Kerr’s first resignation email (annexed to Mr Mitchell’s statement) read,

“Don’t worry… I quit.

Four weeks [sic] notice and I’ll take four weeks holiday.

You win Darren!”

[93] He forwarded the email to and called Mr Mitchell who advised him not to respond and recommended they allow Ms Kerr a cooling off period overnight and then contact her the following day to discuss the email. Mr Mitchell replied to all the managers copied to the email with this instruction. This email was annexed to his statement.

[94] On Thursday 24 August, the following morning, Ms Kerr sent a further email to the CEO and Managing Director of Boom Logistics, Mr Brenden Mitchell, at 8.01am. The relatively lengthy email commenced, ‘as you know I have resigned under extremely unhappy circumstances’ and detailed a number of reasons for her resignation: the commission dispute and resulting financial difficulty, feeling that she was overlooked for promotions and disbelieved in preference to Mr Woodley on the basis of her gender, complaints and accusations of lying regarding Mr Woodley (described in the email as her ‘arch nemesis’), changes in the reporting structure, and the proposed changes to her role and work location. Mr Brenden Mitchell then forwarded this to Mr John Mitchell and requested that he call Ms Kerr on his behalf. 89

[95] Mr John Mitchell called Ms Kerr with Mr Woodley present. His evidence was that he began the call by advising her that he had received a copy of the email she had sent the day before, and Ms Kerr said something to the effect of ‘yes, I have had enough and I want to resign’.

[96] Ms Seib was present when Mr Mitchell called Ms Kerr to confirm that management had accepted her resignation, and said Ms Kerr had been ‘hoping to discuss the situation further’.

Notice Period

[97] The notice period referred to in Ms Kerr’s email was discussed and an agreement was reached to waive the notice period.

Events following resignation and rescission

[98] Mr Mitchell recounted the arrangements made between himself and Ms Kerr, over the phone and via text message, in order to meet at the same café in Margate for him to collect any company property in her possession. Ms Kerr did not attend but a person identifying herself as Ms Kerr’s flatmate (Ms Dow) handed over the property, asking for a receipt. Mr Mitchell said he would email this to Ms Kerr.

[99] On 25 August 2017 at 7.30am, Mr Mitchell received a message from Ms Kerr that read, ‘the worst thing is I’ll have to sell my unit and I’ll be living in my car with my dog in about 3 months or sooner’. He did not respond to the message but later that morning sent the email confirming receipt of the company property, and included information about the company’s Employee Assistance Program. The EAP can assist with counselling and financial management and Mr Mitchell said that was what he contemplated in providing the brochure to Ms Kerr.

[100] Mr Mitchell received an email from Ms Kerr advising that one of her own personal laptops had mistakenly been handed over by Ms Dow to Mr Mitchell, and they exchanged correspondence to organise a swap to correct the mistake.

[101] On Monday, 28 August 2017 Mr Mitchell received an email, also sent to Mr Brenden Mitchell, from Ms Kerr stating that she wished to rescind her resignation, which she followed up with a text message requesting he confirm receipt of the email and asking to discuss the matter. Mr Mitchell discussed with the CEO whether the business should allow Ms Kerr to rescind her resignation where it had already been accepted. They concluded that a cooling off opportunity had been offered to Ms Kerr and she had confirmed that she wished to resign. In conjunction with the lack of any new information in Ms Kerr’s email, they concluded that the rescission would not be accepted.

[102] Mr Mitchell then responded to Ms Kerr’s text, inviting her to meet with himself and the HR Coordinator, Sharon Ramsden, for coffee and to bring a support person if she wished. An exchange of messages followed to the effect that the meeting was postponed until the next day.

[103] At that meeting on 29 August, Ms Kerr brought Ms Dow with her. Mr Mitchell explained that the business had accepted her resignation and would not agree to her rescission. Ms Kerr said that the resignation had been tendered in the heat of the moment and she had received advice that she could withdraw it. Mr Mitchell said that is why the business had allowed a cooling-off period and waited until the following day to confirm she wished to resign, which she had. A conversation ensued in which it appeared that Ms Kerr did not believe the cooling-off period was sufficient but that Mr Mitchell felt that the time allowed was reasonable. Ms Kerr told Mr Mitchell and Ms Ramsden that she would take Boom Logistics to the Fair Work Commission, and mentioned that a relative who was second-in-charge in an industrial relations department had advised her that she could apply for a remedy for unfair dismissal. Mr Mitchell responded that this was her prerogative. Ms Kerr also mentioned that Mr Woodley was out to get her because of their previous encounter 15 years ago.

[104] According to Mr Mitchell, the meeting ended without further information being provided to Boom Logistics which may impact their decision regarding Ms Kerr’s withdrawal of her resignation. Ms Dow and he exchanged the laptops and he provided a receipt the following day.

[105] Ms Seib stated that Ms Kerr was only able to comprehend the situation by the weekend (26-27 August), when she then decided to rescind her resignation.

Jurisdictional Issue – Whether the Applicant has resigned

[106] Section 386(1) provides:

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.

[107] Both parties referred to the tests for satisfying s.386(1)(a) and (b) as set out in Bupa Aged Care: 90

“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

Summary of the Applicant’s Submissions

[108] Ms Kerr argued in the first instance that she was dismissed at the employer’s initiative, when the company did not accept Ms Kerr rescinding her resignation. It was also contended that the resignation was as a result of the course of conduct engaged in by the employer, which left Ms Kerr no option but to resign.

[109] In closing oral submissions it was made clear Ms Kerr relied on both limbs of s.386(1). 91 The first limb is pressed on the basis that Boom Logistics did not clarify or confirm with Ms Kerr after a reasonable time that Ms Kerr genuinely intended to resign.

[110] The resignation email sent by Ms Kerr to Mr Woodley on 23 August, after their meeting that morning, was characterised as a “heat of the moment ‘I quit you win’ email” 92 by Mr Butler and a number of authorities were cited which imposed a cooling off period to ensure the resignation was really intended.93 It was submitted that the email sent the following day was to advise the CEO of the circumstances surrounding her resignation and in particular, her concerns about Mr Woodley.

[111] Mr Butler relied upon the contract provisions relating to position changes set out above and argued that the proposed changes could not be said to be ‘no less favourable’ in status and remuneration to Ms Kerr. It was submitted that Mr Mitchell was aware of Ms Kerr’s mental health condition and her home arrangements, and ‘ought to have realised the ramifications of [changes to] the established and extended working from home arrangements Ms Kerr had enjoyed for in excess of five years’. 94

[112] Mr Butler also submitted that ‘at the time the communication was given Ms Kerr was not capable of appreciating the consequences of such a communication’. 95 Further, it was contended that management at Boom Logistics, including Mr John Mitchell, were aware of Ms Kerr’s agitated state at the time of sending her resignation email. Referring to Bupa Aged Care, Mr Butler submitted that ‘jostling’ by Mr Mitchell contributed to the termination of Ms Kerr’s employment, and contended that Boom Logistics was aware that Ms Kerr did not actually wish to convey a real intention to resign.

[113] Mr Butler in closing oral submissions referred to the extent to which Ms Kerr had increased the medication she was taking. 96

[114] Addressing the second limb s.386(1)(b), the following points were listed as evidence of the employer’s conduct which forced Ms Kerr’s resignation:

“12. The pattern of behavior (sic) effectively commenced with and includes:

a. the extended and multiple changes and challenges to the Applicant’s commission entitlement in 2014/15,

b. the admonishment at that time concerning sick leave changes,

c. the behavior (sic) of Mr. Woodley in relation to additional duties and micromanagement together with comments that the Applicant had not provided information previously requested,

d. the less than candid description by Mr. Woodley as to the purpose of the meeting on 23 August 2017

e. the selection of a public space to hold such a meeting,

f. the lack of consideration of the Applicant’s prior history and mental health, (a support person would normally be considered appropriate in such circumstances),

g. the belated offer by Mr John Mitchell of access to the EAP program,

h. the failure by Mr. Beavan to at least advise the Applicant that her concerns about Mr. Woodley had been heard and at least considered.

i. The failure of Mr. John Mitchell to advise the Applicant that her concerns about Mr. Woodley had been heard and at least considered.

j. The inability of Mr. John Mitchell to arrive on time at a meeting requiring his involvement as a purported “independent”.

k. The alacrity with which Mr. John Mitchell moved to “jostle” the Applicant out of her employment despite her obvious state of distress,

l. the failure to suggest a cooling off period to the Applicant and or even a suggestion that she take some of her accumulated sick leave.”

Summary of the Respondent’s Submissions

[115] Boom Logistics submitted that the employment had been terminated at Ms Kerr’s initiative, and that the resignation was not forced by the conduct of the employer. In her closing submissions at the hearing, Ms Brown for Boom Logistics first addressed whether Ms Kerr had been dismissed under s.386(1)(a), referring to the above test in Bupa Aged Care 97 and its consideration of whether a purported resignation could be reasonably understood as a real intention to resign. There, the Full Bench said:

“[35] Additional but not unrelated to the concept of “forced” resignation is a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative. Where the resignation is ineffective, purported acceptance of the resignation by the employer forthwith, without clarifying with the employee whether resignation was truly intended, will constitute a termination of employment at the initiative of the employer. The usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment. However an expression of resignation which cannot reasonably be regarded as voluntary may not operate as an effective resignation capable of acceptance by the employer.”

[116] Boom Logistics contended that Ms Kerr’s resignation did not satisfy the test above, and the employer was entitled to treat it as an effective resignation. Firstly, the words used were unambiguous. Secondly, it could be reasonably regarded as voluntary and could therefore be capable of acceptance. Therefore, the circumstances did not constitute termination at the initiative of the employer.

[117] Boom Logistics summarised the sequence of events, which are detailed above, surrounding Ms Kerr’s resignation to argue that the resignation was voluntary and not attributable to the heat of the moment. She submitted that on the evidence of Mr Mitchell and Mr Woodley, and of Ms Kerr herself, that at the meeting on 23 August, Ms Kerr appeared to be fairly relaxed aside from some frustration at what was being proposed by Mr Mitchell and Mr Woodley, but showed no visible signs of upset or distress. In response to a submission from Mr Butler, that Ms Kerr may have been upset but not shown it due to the public surroundings, Boom Logistics submitted that even in that case, Ms Kerr was controlling her emotions and could reasonably be regarded as capable of rational decision-making. 98

[118] It was submitted that the email sent by Ms Kerr to Mr Woodley that afternoon, and then the email to the CEO Mr Brenden Mitchell the following morning, both clearly conveyed her intention to resign. Further, the latter email also gives reasons for that decision. 99

[119] As to the differing evidence on what was said during the telephone call from Mr John Mitchell to Ms Kerr on 24 August, Boom Logistics contended that Mr Mitchell’s evidence should be preferred to Ms Kerr’s, on the basis of his credibility as a witness. In addition and more significantly, Boom Logistics noted that Mr Mitchell’s version of the conversation – in which he confirmed with her whether she was decided before saying that the resignation had been accepted by management – was consistent with his action in affording Ms Kerr the opportunity to cool down and consider her decision. She submitted that Ms Kerr’s version of the conversation was inconsistent with his action, and further, that Ms Kerr was at times ‘evasive in her answers and lacking in detail as to what occurred’. 100

[120] In response to a question from me, Boom Logistics submitted Mr Mitchell’s evidence of the conversation was not inconsistent with Mr Woodley’s email record of the conversation 101 on the basis that Mr Woodley was only able to hear Mr Mitchell’s half of the conversation, and was not able to hear Ms Kerr confirming her resignation. In addition, Mr Woodley’s email does not necessarily suggest that what was said by Mr Mitchell was not punctuated by responses from Ms Kerr.102

[121] Ms Brown then referred to the text and email messages between Ms Kerr and Mr Mitchell which spanned four days before Ms Kerr notified Boom Logistics that she wished to rescind her resignation on the basis that it was in the ‘heat of the moment’. Ms Brown set out this chronology in order to illustrate her point that Ms Kerr’s interactions with Boom Logistics were all indicative of and consistent with a clear intention to resign.

[122] Addressing Ms Kerr’s state of mind at the time of resignation, Boom Logistics submitted there is no evidence beyond the observations of Ms Dow and Ms Seib, and Ms Kerr’s own evidence. The only medical report is dated five weeks later and is reliant upon Ms Kerr’s recount to the treating psychologist. Further, addressing Ms Kerr’s mental health condition, Boom Logistics noted that ‘mental health issues are being suffered and managed by a significant proportion of the population’ and pointed out that Ms Kerr’s role required autonomy and aptitude for decision-making, there being no suggestion that her illness impacted on these faculties in recent times. 103

[123] Boom Logistics submitted that the evidence pointed not to a ‘heat of the moment’ resignation, but to a real intention to resign about which Ms Kerr subsequently changed her mind. Not only was her email capable of being reasonably regarded by an employer as conveying a real intention to resign, but Ms Kerr’s behaviour over the following days up until Monday 28 August was consistent with a real intention to resign.

[124] It was submitted that what happened between the Thursday and the following Monday was clearly that Ms Kerr changed her mind, but that doesn’t mean that there is a termination at the employers initiative.

[125] Boom Logistics refuted Ms Kerr’s submission that she was constructively dismissed or forced to resign under s.386(1)(b), on the basis that it failed to meet the test set out in Bupa. 104 Boom Logistics addressed each of the reasons going to the cumulative conduct of the employer which allegedly forced her resignation (extracted above), the most significant of which being the changes proposed to her role and working location. Boom Logistics submitted that the contract allowed for those changes, and furthermore, Ms Kerr was involved in the consultation process. In addition, there were cogent business reasons for the proposed changes which were discussed with Ms Kerr, which had not taken effect at the time of resignation. It did not follow that the probable result, from the employer’s point of view, would be Ms Kerr’s resignation.105

[126] In relation to the other reasons alleged by Ms Kerr, including issues surrounding commission entitlements and sick leave, Boom Logistics submitted that these issues arose and were resolved some two to three years prior to the resignation. Regarding the additional duties assigned to Ms Kerr, Boom Logistics noted that Ms Kerr conceded in cross examination that she was bored and sought more work to do. Turning to Ms Kerr’s allegations of micromanagement by Mr Woodley, Boom Logistics argued that this could not be reconciled with evidence and submissions from Ms Kerr that there were not enough meetings between herself and Mr Woodley. Regarding Boom Logistics’ lack of response to Ms Kerr’s complaint about Mr Woodley as per the Speak Up Policy, it was submitted that Mr Woodley explained the alleged ‘lie’ in his evidence and this too, does not evince conduct designed to induce Ms Kerr’s resignation.

[127] Boom Logistics submitted that the topic and venue of the meeting on 23 August were also not intended to yield a resignation, as the venue was one commonly used by Ms Kerr and the purpose of the meeting had been notified to and discussed with Ms Kerr. The failure to provide a support person at that meeting also does not meet the test, because the meeting was for a consultation and not a disciplinary purpose, and a support person would not usually be required nor was requested by Ms Kerr. Boom Logistics argued that Mr Mitchell’s lateness to the meeting could not be conduct capable of satisfying the test, as it was not deliberate, attributed to family responsibilities and in any event, the meeting proper did not commence until he arrived – on both Ms Kerr’s and Mr Woodley’s evidence, they only made small talk in the intervening period. 106

[128] In summary, Boom Logistics argued that Ms Kerr failed to establish that she had been dismissed within the meaning of either s.386(1)(a) or s.386(1)(b), as the respective tests could not be satisfied on either limb. Boom Logistics submitted therefore Ms Kerr had resigned of her own volition and was jurisdictionally precluded from making an application for an unfair dismissal remedy.

Consideration

[129] I am satisfied from the evidence that it was Mr Woodley that arranged the meeting on 23 August and not Ms Kerr as she claimed. Ms Kerr said in her own evidence she accepted she had a conversation with Mr Mitchell that day and asked him what the meeting was about, and she also said Mr Woodley had said to her on the phone that she should feel free to give ‘John’ a call to find out more. Ms Kerr also confirmed that Mr Mitchell said that there was some change in her role. 107

[130] In this case I am satisfied from the evidence a decision was made by Boom Logistics to not act on the written advice of resignation provided by Ms Kerr on the afternoon on 23 August, and to allow some time for Ms Kerr to consider her position overnight, and the matter would be taken up the following day. There is a conflict between the evidence of Ms Kerr and Mr Mitchell about what was said between them during their telephone conversation on the morning of the 24 August 2017.

[131] In terms of s.386(1)(a), referring to the test in Bupa Aged Care 108 and whether Ms Kerr’s resignation could be reasonably understood as a real intention to resign, firstly her email of resignation on 23 August was unambiguous.

[132] Secondly an overall assessment of the evidence concerning the meeting on the morning of 23 August does not indicate any particular features about the meeting itself that would indicate Ms Kerr’s decision to send the email later that day resigning was not her own decision. The evidence does not support a conclusion Ms Kerr was incapable of rational decision-making. Further, the email sent to Mr Brenden Mitchell the following morning gave reasons for the decision made the previous day.

[133] Thirdly, I prefer the evidence of Mr John Mitchell concerning the telephone call from Mr John Mitchell to Ms Kerr on 24 August. He was a credible witness, and his version was consistent with his decision the previous day to allow a period for Ms Kerr to cool down and consider her decision. Ms Kerr’s recollection in her evidence appeared less certain in some aspects which tend to support my preference for Mr Mitchell’s recollection.

[134] Fourthly, I am satisfied Mr Woodley’s email record of the conversation can be reconciled with Mr Mitchell’s version as Mr Woodley could only hear half of the conversation, and was not able to hear Ms Kerr confirming her resignation.

[135] Fifth, the text and email messages that were exchanged over the ensuing days between Ms Kerr and Mr Mitchell before Ms Kerr ultimately decided to request to rescind her resignation are evidence Ms Kerr was still, even at that later stage, of a mind to resign and this supports the conclusion that the resignation was not in the heat of the moment, and her subsequent request on 28 August to rescind was instead a change of mind on the part of Ms Kerr.

[136] Sixth, there is no independent medical evidence provided to the Commission concerning Ms Kerr’s state of mind at the time. The only material, other than the evidence of Ms Kerr herself, her mother and her flat mate, was a medical report prepared five weeks later containing a psychologist recounting of Ms Kerr’s version. Ms Kerr appeared to have been performing her work role at the relevant time which required autonomy and decision making skills. The evidence of her demeanour at the meeting did not indicate she was incapable of decision making at that time. Ms Kerr engaged in communications with Mr Mitchell after her telephone call with him on 24 August on that day, and the days up to and before her decision to seek to rescind the resignation on 28 August.

[137] Ms Kerr was not dismissed or forced to resign as contemplated under s.386(1)(b). Ms Kerr’s employment contract allowed for her work location to be changed and Boom Logistics was entitled to engage in consultations with her with a view to seeking to change the nature of her role in response to changes in the business. Boom Logistics had appropriately involved Ms Kerr in a consultation process and the evidence supports a conclusion that there were legitimate business reasons for the proposed changes. No decisions had been finalised or changes implemented at the time of resignation.

[138] Issues concerning commission entitlements and sick leave were resolved years earlier and could not be a basis to find they would have forced Ms Kerr to resign. Ms Kerr accepted in her evidence she had been bored and sought more work to do, so to argue being provided additional duties is not a basis to be satisfied Ms Kerr was being forced to resign. Further the evidence does not support a conclusion that any conduct on the part of Mr Woodley would have had the probable result of Ms Kerr having to resign, including the allegation that Mr Woodley had lied to her. Mr Woodley’s explanation in this regard seemed both logical and plausible.

[139] The venue of the meeting on 23 August had been used before by Ms Kerr and the purpose of the meeting had been notified to and discussed with Ms Kerr. The meeting was to consult over changes to her role and was not disciplinary in nature and Ms Kerr did not request the attendance of a support person.

Conclusion

[140] I have concluded Ms Kerr was not dismissed within the meaning of either s.386(1)(a) or s.386(1)(b) and that Ms Kerr resigned of her own volition. On that basis the Commission has no jurisdiction to deal with application further and it must be dismissed.

COMMISSIONER

Appearances:

Mr G Butler for the applicant

Ms C Brown of KHQ Lawyers for the respondent

Hearing details:

2017,

Brisbane:

21 and 22 November 2017.

1 Exhibit 4.

2 Exhibit 9.

3 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

4 Exhibit 1.

5 Exhibit 2.

6 Exhibit 3.

7 Exhibit 5.

8 Exhibit 10.

9 Transcript PN 100 – 103.

10 Exhibit 1 para 3.

11 Exhibit 1 para 4 and 5.

12 Exhibit 1 para 7.

13 Exhibit 1 para 8..

14 Exhibit 1 para 9.

15 Exhibit 1 para 10.

16 Transcript PN 141.

17 Transcript 152-157.

18 Exhibit 1 para 12.

19 Transcript PN 164-165.

20 Transcript PN 166-167.

21 Transcript PN 173.

22 Transcript PN 178.

23 Exhibit 1 para 15.

24 Transcript PN 187.

25 Transcript PN 189.

26 Transcript PN 191.

27 Exhibit 1 para 16.

28 Exhibit 1 para 17.

29 Transcript PN 204.

30 Transcript PN 206-215.

31 Transcript PN 293.

32 Transcript PN 218-219.

33 Exhibit 1 para 18.

34 Exhibit 1 para 20.

35 Exhibit 1 para 21.

36 Transcript PN 232.

37 Transcript PN 241-242.

38 Transcript PN 245.

39 Transcript PN 251.

40 Transcript PN 259.

41 Transcript PN 274-276.

42 Exhibit 4 para 1.

43 Exhibit 4 para 5.

44 Exhibit 4 para 8-9, Exhibit 5 para 3-8.

45 Exhibit 5 para 7.

46 Exhibit 5 para 8.

47 Exhibit 4 para 10-14, Exhibit 5 para 14 a,b.

48 Exhibit 5 para 9.

49 Exhibit 4 para 15-16.

50 Exhibit 4 para 17.

51 Exhibit 4 para 24.

52 Transcript PN 827.

53 Transcript PN 838.

54 Transcript PN 1509.

55 Exhibit 4 para 26.

56 Exhibit 4 attachment JWM 3.

57 Transcript PN 859.

58 Exhibit 4 para 30.

59 Transcript PN 747.

60 Transcript PN 753.

61 Exhibit 4 para 31.

62 Exhibit 4 attachment JM 4.

63 Exhibit 4 para 34.

64 Exhibit 4 para 36.

65 Exhibit 9 para 4.

66 Exhibit 9 para 7.

67 Exhibit 10 para 3.

68 Transcript PN 1037.

69 Transcript PN 1042.

70 Transcript PN 1046.

71 Exhibit 9 para 8.

72 Exhibit 9 attachment DW 1.

73 Exhibit 9 para 13.

74 Transcript PN 1211.

75 Transcript PN 1213.

76 Transcript PN 1253.

77 Exhibit 9 para 14.

78 Exhibit 9 attachment DW 3.

79 Exhibit 9 para 17.

80 Transcript PN 1298.

81 Exhibit 9 para 19.

82 Transcript PN 1313.

83 Exhibit 15.

84 Exhibit 10 attachment DW3a.

85 Exhibit 10 attachment DW4a.

86 Exhibit 10 para 14 and 15.

87 Exhibit 10 para 17.

88 Exhibit 5 para 8 attachment JWM9a.

89 Witness Statement of John Mitchell, Annexure JM-5.

90 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 [35].

91 Transcript PN 1419.

92 Applicant’s Outline, paragraph 6.

93 Minato v Palmer Corporation Ltd 63 IR 357; Ngo v Link Printing 94 IR 375; Kwik Fit (GB) v Lineham ICR 183.

94 Ibid paragraph 9.

95 Ibid paragraph 10.

96 Transcript PN 1466.

97 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 [35].

98 Transcript PN 1642-1643.

99 Transcript PN 1646.

100 Transcript PN1648.

101 Email dated 24 August 2017, 2.27pm.

102 Transcript PN 1652.

103 Transcript Day 2 PN1661.

104 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 [47].

105 Transcript PN 1667-1674.

106 Transcript PN 1682-1683.

107 Transcript PN 141-143.

108 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 [35].

Printed by authority of the Commonwealth Government Printer

Ms Jane Kerr v Boom Logistics Limited