Ms Jessica Maher v AJ & Mt Properties Pty Ltd t/a Belle Property South Brisbane

[2013] FWC 7853

[2013] FWC 7853

FAIR WORK COMMISSION

DECISION

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

Ms Jessica Maher
v
AJ & MT Properties Pty Ltd t/a Belle Property South Brisbane
(U2013/2049)

DEPUTY PRESIDENT ASBURY BRISBANE, 8 OCTOBER 2013

Application for unfair dismissal remedy - Jurisdiction - Applicant terminated on the employer’s initiative - Jurisdictional objection dismissed.

[1] The following decision, now edited, was issued following a hearing on 2 October 2013.

[2] Jessica Maher applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to the cessation of her employment with AJ and MT Properties Pty Ltd trading as Belle Property South Brisbane (Belle Property). Belle Property objects to the application on the grounds that Ms Maher resigned her employment on 1 June 2013, and that the application was made outside the time required in s.394 subsection (2) of the Act. This decision deals with those objections.

[3] Evidence was given by Ms Maher and by her father, Mr Dan Maher, and by a Director of Belle Property, Ms Bettina Jude. I have considered all of the evidence in the material tendered. Neither of the witnesses, Ms Jude nor Ms Maher, provided a statement of evidence and instead provided submissions containing factual assertions. Much of the material was irrelevant to the matters for determination in this application.

[4] I have also considered the statements made in the form F2 application for an unfair dismissal remedy and the form F3 employer's response to that application to supplement the material filed. Ms Maher states in her application that she was employed from 5 July 2010 until 4 June 2013. On 1 June 2013 she was involved in a discussion with Ms Jude during which she asked for a week of stress leave. When this was refused Ms Maher states that, "I then verbally offered to hand in a resignation as I felt I desperately needed time to myself away from Bettina and the workplace." Ms Jude declined the offer of resignation and agreed that Ms Maher could take a one week period of leave.

[5] In the statements and/or submission filed by Ms Maher it is also asserted that when Ms Jude declined her request for a week's leave she asked Ms Jude whether she required her to resign and said, "If that is the case, I'm happy to hand in a resignation." Ms Maher further asserts that she had no intention of resigning and that Ms Jude declined her offer. According to Ms Maher it was agreed that she would work on 3 June 2013, a day that she was scheduled to have off, and that her stress leave would start on 4 June 2013. Ms Maher did not work on that day, and there is conflicting evidence about whether Ms Maher or Ms Jude cancelled the appointment. It is not necessary to resolve this matter.

[6] Ms Maher's father, Mr Dan Maher, gave evidence of a telephone discussion with Ms Jude on 1 June 2013 about issues between Ms Jude and Ms Maher and whether Ms Maher was upset or unwell. Mr Maher's account of the discussion makes no mention of Ms Jude informing him that Ms Maher had resigned her employment. Mr Maher also states that Ms Jude told him that Ms Maher was not very good at her work and that Ms Jude would have to do something about it.

[7] Ms Jude said that Ms Maher came to work on 1 June 2013 unsuitably dressed and spoke on her mobile telephone instead of dealing with clients at various properties that she was working in with Ms Jude on that date. Ms Jude said, "On reflection it would seem that Jess was doing everything in her power for me to sack her and, God knows, the way she behaved, I had good reason to do so." Ms Jude also said that when she did not respond to Ms Maher's request for stress leave, Ms Maher gave her a verbal resignation.

[8] In her written statement and her oral evidence to the commission Ms Jude said that Ms Maher was crying and, "Throwing a tantrum", during their meeting. Ms Jude sent a letter to Ms Maher dated 4 June 2013 in the following terms:

With reference to our conversation on Saturday, 1 June, having given the matter much consideration, I have reached the decision that I accept your resignation as of that date. You are under the award to give two weeks' notice from that date. This means that your employment with Belle Property South Brisbane ends on Saturday, 15 June 2013. We thank you for your service to Belle and wish you all the best.

[9] On 7 June 2013 Ms Maher responded by letter and stated that she had not resigned, and that the letter of 4 June had come as a surprise. Ms Maher concedes in the letter that during the conversation on 1 June 2013 when her request for stress leave was declined, she said that if that was the case she was happy to hand in her resignation and that this was refused by Ms Jude. Ms Maher goes on to assert that the letter of 1 June 2013 is a summary dismissal and seeks two weeks' payment in lieu of notice and employment benefits.

[10] Ms Maher provided a medical certificate issued on 5 June 2013 covering an absence from 4 to 8 June 2013. Ms Jude responded to Ms Maher by further letter dated 11 June 2013 and that letter states that: "Ms Maher should have turned up for work on 11 June, that due to shortness of staff in the office when she threatened to resign if I did not give you the time off", that Ms Jude had accepted the resignation as of 1 June. "We have enclosed your latest pay slip," and goes on to say, "We need property returned."

[11] At some point Ms Maher posted a comment on her Facebook page that she was no longer working for Belle and that she was “pretty happy about that”. 35 persons “liked” the comment, including one who said that it was about time.

[12] After considering the evidence, I do not accept Ms Jude's assertion that Ms Maher resigned her employment. Leaving aside the question of whether an offer of resignation can be retrospectively accepted, it is clear from the correspondence that in purporting to accept that offer Ms Jude dismissed Ms Maher. As a Full Bench of the Commission said in Dover Ray v Real Insurance Pty Ltd in relation to repudiation of contract:

“The test for intention is not a subjective one, depending on the actual intention of the repudiating party. Intention is to be judged from what the other party reasonably infers from the actions or words of the party who is alleged to have repudiated the contract.”

[13] The Full Bench went on to state that:

“The employment contract would not come to an end unless the other party elected to accept the repudiation of the contract.”

[14] In my view, the correspondence of 4 June and 11 June 2013 makes it clear that Ms Maher threatened to resign and that Ms Jude on 4 June 2013 accepted that threat, and it was that which brought the employment to an end, because I am not satisfied that it was a clear resignation, an offer to resign does not automatically constitute a resignation and does not necessarily bring a contract of employment to an end. In the present case the offer of resignation was given on 1 June 2013 and it was not accepted at that point.

[15] Ms Jude's letter of 4 June 2013 seeking to retrospectively accept Ms Maher's resignation brought Ms Maher's employment to an end so that she was dismissed, or alternatively Ms Jude persisting in the view that Ms Maher had resigned when Ms Maher sought to clarify the situation, and conceding in her letter of 11 June 2013 that Ms Maher had threatened to resign, further indicates support for the proposition that it was Ms Jude's acceptance of the repudiation that brought the contract to an end.

[16] It is also the case that an employee who resigns in the heat of the moment or while in a distressed state may withdraw that resignation provided the retraction is swift and unequivocal. On Ms Jude's own evidence, Ms Maher was crying and “throwing a tantrum” at the point she offered her resignation, and Ms Jude was concerned enough about her state to contact her parents. Ms Maher states that she was not aware that her offer to resign had been accepted until she received Ms Jude's letter of 4 June 2013, and that up until that point she believed she was on sick leave.

[17] Upon receiving the letter informing her that Ms Jude was purporting to accept her offer of resignation, Ms Maher made it clear that she had not intended to resign, and unequivocally withdrew any assertion of that nature and set out the assertion that she had not, in fact, resigned. Ms Maher also provided a medical certificate covering her for the period from 4 to 8 June 2013 and was paid for that period. In my view, by refusing to accept the withdrawal of Ms Maher's “resignation” and by persisting with the view that she had, in fact, resigned when she had simply threatened to do so, Ms Jude brought about the termination of Ms Maher's employment so that she was dismissed.

[18] The dismissal took effect on 4 June 2013 when Ms Jude sent the letter accepting the threatened resignation the application was made on 23 June 2013. The application is made within the time required in s.396(2) of the Act. There is no evidence that Ms Maher is not a person protected from unfair dismissal. Accordingly the jurisdictional objections are dismissed and an order to that effect will issue with this decision. The effect is that the matter will now proceed to formal hearing.

DEPUTY PRESIDENT

Appearances:

Ms J. Maher on her own behalf.

Ms B. Jude on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

October 2.

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