[2019] FWC 4657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Ms Kathryn Wynne
v
Victoria Daly Regional Council
(C2019/2087)

COMMISSIONER SIMPSON

BRISBANE, 3 JULY 2019

Application dealing with a dismissal dispute by arbitration - Applicant found to have resigned from employment – Respondent did not breach any of the general protections provisions – Application dismissed.

[1] On 19 March 2019 Deputy President Cross issued a certificate under section 368 of the Fair Work Act 2009 (the Act) certifying that the Commission was satisfied that all reasonable attempts to resolve a section 365 dispute between Ms Kathryn Wynne (Ms Wynne) and the Victoria Daly Regional Council (the Respondent) had been, or are likely to be, unsuccessful.

[2] A Form F8B – Notification of agreement for consent arbitration of a general protections dispute was subsequently filed by the Applicant stating that the parties had consented to the Commission dealing the dispute by arbitration. The Form includes signatures from both Ms Wynne and Ms Joanne Sangster on behalf of the Respondent confirming agreement to the Commission dealing with the dispute by arbitration.

[3] On 18 April 2019 a Form F53 Notice of representative commencing to act was filed advising that Mr Robert Davidson of Davidson Workplace Solutions Pty Ltd would be representing the Respondent.

[4] A directions hearing was held on 1 May 2019 where I granted leave for the Respondent to be represented, and issued directions for the filing of evidence and submissions.

Evidence and Opening Submissions

[5] The F8 General Protections application involving dismissal filed by Ms Wynne stated that she began working with the Respondent on 30 July 2018 and was dismissed on 17 January 2019, a period of approximately five and a half months. The application stated that the remedy Ms Wynne was seeking was to be reinstated to her position with the original agreement of 1 day per week in the Katherine Office and the balance of the week worked from the Pine Creek Office.

[6] Ms Wynne submitted as an alternative remedy option, that she would like to be compensated for the length of time she had been out of work since her dismissal until hearing, and also compensated for other matters including hurt, stress and humiliation and for the mileage travelled in her own vehicle to work from the Katherine Office, and for accommodation costs incurred relocating to Katherine from 1 October 2018 to 15 December 2018 at a cost of $150 per week.

[7] In the Form F8 Ms Wynne set out that she had worked for the Victoria Daly Regional Council for three years as the Executive Assistant to the Counsel Services Manager (CSM) at the Pine Creek Office of Victoria Daly Regional Council prior to retiring in April of 2017.

[8] Ms Joanne Sangster, the Chief Executive Officer of the Council, provided a witness statement 1 and gave evidence. Ms Sangster said that she had a number of discussions with Mr Abbott, the Funding Manager, about the location of the Grants Administrator Officer position in Katherine that had been filled by Ms Wynne. Ms Sangster said that she considered it important that the position be located in Katherine as the position is required to liaise with other employees across a number of areas and this was not able to be done effectively when located remotely. Ms Sangster also said the position had been vacant for some time and it needed to be located in Katherine to enable the establishment of effective relationships with other employees, and the position required access to documents that are not stored electronically and these documents needed to be accessed by other employees in Katherine.

July 2018

[9] Ms Wynne said she commenced in the role of Temporary Executive Assistant at the Pine Creek office on 30 July 2018. Ms Wynne said that in late August the Pine Creek CSM, Ms Joselyn Moir, spoke to Ms Boyd, the Chief of Operations (COO), as to the possibility of the Grants Officer position that was under a second round of advertising being based in the Pine Creek office. Ms Wynne submitted that Ms Boyd agreed with Ms Moir that as the Senior Finance Manager was working virtually in Melbourne that it had set a precedent and that it may be possible for the Grants Administrator position to be based in Pine Creek.

August 2018

[10] It was submitted by Ms Wynne that some days after the phone call Ms Moir had with Ms Boyd, Ms Wynne phoned Ms Boyd herself and asked if she should submit an application for the position of Grants Officer on the basis that her application was subject to the approval to work from Pine Creek. Ms Wynne submitted that Ms Boyd said to submit the application.

[11] Ms Wynne submitted that she made the application on 22 August and included with it a covering letter that included the following:

“Please accept my application for the position of Grants Administration. As I reside in Pine Creek this application is subject to the opportunity for this position being virtual and being based at Pine Creek Service Centre. I am aware that certain hours would have to be spent in either the Katherine Office and/or the communities but the normal daily 8:00 – 4:30 be carried out from the Pine Creek Office. If this is an option then I wish to submit this application.

……………………”

[12] Ms Wynne submitted that she was interviewed and the location of the position’s base did not come up during the interview process. Ms Wynne said that as the criteria for her to even be considered for the position was it would be based in Pine Creek, she never thought to bring it up in the interview.

[13] Ms Moir, the CSM at Pine Creek, provided a statement 2 and gave evidence in the Applicant’s case. Ms Moir said she spoke to Ms Boyd the COO and said Ms Boyd agreed at the time that it was possible for a successful applicant for the Grants Administrator role to work from another location.

[14] Ms Moir said she encouraged the Ms Wynne to apply for the position and if she was still hesitant to give Ms Boyd another call to discuss it. Ms Moir said from that conversation Ms Wynne applied for the position. In her oral evidence she said Ms Boyd had said to her it was “absolutely possible” that the position could be based in Pine Creek.

[15] Mr Colin Abbott, the Funding Manager for the Council, provided a written statement 3 and appeared to give evidence at the hearing. He said that in August he was asked to be part of the selection panel for the position of Grants Administration Officer.

[16] Mr Abbott said while reading Ms Wynne’s application for the role he did read her covering letter that included a statement that she was only interested in the position if she could work in Pine Creek. Mr Abbott said that he believed that she was participating in the interview in order to enable her to make an informed decision about whether to accept the position if it was offered to her.

[17] Mr Abbott said that Ms Wynne did not raise the location of the position during her interview for the position. He said Ms Wynne was sent a letter of offer for the position which stated that the location of the position was the Regional Office which is located in Katherine.

[18] Ms Boyd, the Chief Operating Officer of the Council at the relevant times and who has since resigned from the Council, provided a witness statement 4 and also gave evidence at the hearing.

[19] Ms Boyd said that she received a phone call from Ms Moir in August 2018 asking whether Ms Wynne should apply for the position of Grants Officer and included in that conversation was a discussion about whether the position could be based in Pine Creek. Ms Boyd said that she advised Ms Moir that Ms Wynne should submit an application and include that she wanted to be able to undertake the role in Pine Creek. Ms Boyd said that she did not state that Ms Wynne would be able to perform the role from Pine Creek if her application was successful.

[20] Ms Boyd said that she was on the interview panel for the position and neither Ms Wynne nor any panel members made mention of the location of the position. Ms Boyd said the letter of offer was sent to Ms Boyd which stated that the position was located at the Regional Office which is in Katherine.

September 2018

[21] Ms Wynne said that on 13 September she received a letter of offer via email for the position of Grants Administrator. The letter of offer included the following:

“I am pleased to offer you permanent employment with Victoria Daly Regional Council – “The Council”. Your employment details with the Council are below:

• Commencement date – to be negotiated;

• Position on commencement – Grants Administrator;

• Classification – Level 6.1;

• Annual salary on commencement - $72,274.61;

• Full-time /Part time Status – Full-time;

• Location – Regional Office.”

[22] A copy of the letter of offer included a signature of Ms Sangster the Chief Executive Officer, as well as the signature of Ms Wynne under a heading Acceptance of Officer and the following words:

“I Katherine Wynne accept the above Offer of Employment and understand and agree to the terms and conditions of employment as outlined in this Offer.”

[23] There was no dispute between the parties that the reference to “Regional Office” in the letter of offer was a reference to the office located at Katherine.

[24] Ms Wynne submitted that at 8.44am on 14 September she sent back the signed letter of offer, and at 8.46am emailed a request to confirm that the work location would be Pine Creek. The email read as follows:

“Just to confirm that my work location would be Pine Creek on a daily basis with trips to Katherine Regional Office as required.”

[25] Ms Wynne sent a separate email about her start date and other matters, and at 11.33am received a response to her email of 8.44am from Ms Boyd that included the following:

“…..

Subject: RE: Kathry (sic) Wynne – Signed LOO

Hi Kathryn, I have been discussing this request with Colin and our response is that the position would need to be based in Katherine 5 days a week for at least the first two months, after that we would expect a minimum of three days a week, with five days in Katherine during peak times or possibly once a month.

If you have any queries please don’t hesitate to contact me.”

[26] Ms Wynne submitted that within minutes of receiving this email she phoned Ms Boyd and sought advice as to whether this was a permanent schedule. Ms Wynne said she was advised it was just until she had a handle on the position so she replied to the email in the positive and did not clarify this was a temporary arrangement as discussed with Ms Boyd. At 11:53am Ms Wynne responded by email to Ms Boyd as follows:

“………

Good morning Heather

I am quite happy to follow your suggested schedule.”

[27] Ms Wynne said in her oral evidence that Ms Boyd’s statements were contradictory concerning whether she had a discussion with Ms Wynne this day. Ms Wynne said she had a telephone conversation with Ms Boyd where Ms Boyd said to her that the position in the email was only a temporary arrangement. It was put to Ms Wynne that such a phone call never occurred and she maintained it did. Ms Wynne accepted in her oral evidence that she was saying the phone call was after she had accepted the offer. Ms Wynne’s oral evidence appeared to then be that the phone call occurred in the afternoon and after Ms Boyd sent her the email setting out the arrangements in the 11.33am email.

[28] Ms Wynne then said in her oral evidence the phone call took place between the 11.33am and the 11.53am email. It was put to Ms Wynne that it would have made sense for her to make reference to the phone call in her email response at 11.53am.

[29] Mr Abbott said that Ms Wynne sent an email to Ms Boyd at 8.46am on 14 September seeking to confirm that her work location would be Pine Creek with trips to the Katherine Regional Office as required, and this email was sent shortly after Ms Wynne had sent an email forwarding her acceptance of the position.

[30] Mr Abbott said that Ms Boyd discussed the email with him because Ms Wynne would be reporting to him once she commenced in the role. Mr Abbott said that he and Ms Boyd agreed that Ms Wynne would need to work in Katherine five days per week for at least the first two months and after that a minimum of three days per week with five days per week in Katherine during peak times, or possibly once a month.

[31] Mr Abbott gave evidence similar to that of Ms Sangster concerning the reasons for the decision that the position should be based out of Katherine. He said this decision was communicated to Ms Wynne at 11.33am on the same day. He said Ms Wynne replied at 11.53am the same day saying “I am quite happy to follow your suggested schedule”.

[32] Ms Boyd said that Ms Wynne sent her an acceptance of the position and shortly after sending the acceptance Ms Wynne sent an email seeking to confirm that the position would be based in Pine Creek. Ms Boyd said she discussed the matter with Mr Abbott and it was decided the position needed to be in Katherine full time for at least the first two months and after that it could be three days in Katherine and two days in Pine Creek except for busy times or on at least one week per month when it would need to be full-time in Katherine.

[33] Ms Boyd said she sent Ms Wynne an email setting out these arrangements. She said she did not recall Ms Wynne calling her to inquire about the email. Ms Boyd denied ever advising Ms Wynne that the arrangements in the email would not be a permanent arrangement or that they would only be in place until she had a handle on the position.

[34] Ms Boyd said that she may have spoken to Ms Wynne that the requirement that she work in Katherine full time was only until she had a handle on the position which confirmed the arrangement set out in the email. Ms Boyd said Ms Wynne replied to the arrangements set out in the email to her and agreed.

[35] In her oral evidence Ms Boyd said that she did not recall a phone call with Ms Wynne on the day of the acceptance of the offer. Ms Wynne said to Ms Boyd that Ms Boyd said words to the effect that after the first two months they could see what arrangement they could come to. Ms Boyd repeated that she could not remember the phone call.

October 2018

[36] Ms Wynne said after commencing the new position on 19 September, on 9 October she relocated to Katherine from Pine Creek. Ms Wynne submitted that the stress of travelling the Stuart Highway between Pine Creek and Katherine was beginning to have an effect on her and she was feeling anxious and nauseated prior to departure and throughout the journey. Ms Wynne said that she was led to believe that working from Katherine was a temporary arrangement.

[37] Ms Wynne said that a meeting was scheduled every week with Mr Abbott to review the week and at every meeting she raised the subject of returning to work from Pine Creek and the issue was deferred each time.

November 2018

[38] Ms Wynne said that a meeting with Mr Abbott on 15 November ended in tears as Mr Abbott became intimidating advising that she would be required to work a majority of her time in the Katherine Office. Ms Wynne said this upset her as she had had a near collision with a road train. Ms Wynne said she called a halt to the meeting as it was not what was agreed.

[39] Ms Wynne said that she had a discussion with Mr Abbott about a discussion with Ms Boyd the day before and how the workplace atmosphere was making her uncomfortable.

[40] It was put to Ms Wynne that she said to Mr Abbott in a November meeting that the most she would accept was 1 day a week at Katherine. Ms Wynne said that was taken out of context and she said she hoped that would be the arrangement.

[41] Ms Trudy Braun, HR Manager for the Council, provided a witness statement 5 and gave evidence that Mr Abbott told her that Ms Wynne had threatened to resign during a meeting on 22 November. Ms Braunsaid that Mr Abbott spoke to her about a meeting on 22 November where Ms Wynne had threatened to resign. Ms Braun said Mr Abbott told her that he had tried to be as fair as possible about her request to work from Pine Creek, and that Ms Wynne had behaved aggressively, and he sought Ms Braun’s advice as to how to handle the situation.

[42] Mr Abbott said that following Ms Wynne’s commencement she requested that she be based in Pine Creek on at least one occasion before 22 November 2018. In that discussion, Mr Abbott claimed that Ms Wynne became agitated when he clarified that the position was Katherine based but that he was happy to abide by the schedule that she had agreed to.

[43] Mr Abbott claimed that two meetings where Ms Wynne raised her work location ended with her storming out of the meeting in an angry manner. He said on 22 November he had a meeting with Ms Wynne about work matters and Ms Wynne raised the issue of her work location during the meeting and Mr Abbott said that he confirmed the decision communicated to her in the email from Ms Boyd at 11.33am on 14 September 2018. Mr Abbott said he read to Ms Wynne the email exchange and said she had agreed to the arrangement put in place, and he said Ms Wynne became angry and displayed aggressive behaviour including a raised voice and standing up on the other side of the table and leaning toward him in an intimidating way. In her oral evidence Ms Wynne refuted that she stormed out of meetings and said she would leave meetings in tears. Ms Wynne denied leaning toward Mr Abbott in an intimidating manner.

[44] Mr Abbott claimed that Ms Wynne threatened to resign if he did not agree to her working at Pine Creek. Mr Abbott claimed he replied that the work Ms Wynne was doing to date was good and he would not like to see her resign however this was a decision that needed to be made. Mr Abbott claimed he attempted to terminate the meeting and Ms Wynne continued to be aggressive toward him. Mr Abbott claimed Ms Wynne said that she hated Katherine, hated driving to Katherine and hated having to get up early to travel to work in Katherine. Mr Abbott’s evidence was Ms Wynne stormed out of the meeting and at no time was he aggressive in the meeting. Mr Abbott provided a summary of the meeting that he said he wrote after the meeting ended.

[45] Ms Boyd said that after Ms Wynne met with Mr Abbott on 22 November, Ms Wynne met with her in Ms Boyd’s office and was visibly angry. Ms Boyd said she advised Ms Wynne to put her request to work in Pine Creek in writing as she believed this may help calm Ms Wynne down. Ms Boyd said she did not make any commitment about Ms Wynne being able to work in Pine Creek and to her knowledge Ms Wynne did not follow up on her advice and did not write an application to work from Pine Creek.

December 2018

[46] Ms Wynne said that on 12 December she woke ill and anxious and was unable to go to work. Ms Wynne said she felt the same on 13 December but went to work, but felt so unwell she advised the COO and returned home after making an appointment to see the doctor and obtained a medical certificate.

[47] Ms Wynne said that on 14 December she received an email from Mr Abbott about working at Pine Creek over the Christmas and New Year’s period.

[48] Ms Wynne was shown several emails concerning the issue of whether there needed to be an agreement if she was to work any further dates at Pine Creek after 13 January 2019. 6 Whilst Ms Wynne appeared not to accept it, these emails tend to support the Respondent’s submission that Ms Wynne was not authorised to continue to work at Pine Creek after the meeting on 11 January 2019.

[49] Mr Abbott said that Ms Moir requested that Ms Wynne be permitted to work from Pine Creek for the period from 17 December to 21 December 2018 to provide coverage for Ms Moir’s assistant who was on leave. Mr Abbott said he reluctantly agreed. Mr Abbott said he was concerned Ms Wynne would seek to use this as a precedent.

[50] Mr Abbott said Ms Wynne was on leave from 24 December 2018 to 4 January 2019 He said he further agreed to Ms Wynne working from Pine Creek from 7 January to 9 January 2019 and 11 January 2019 with a meeting in Katherine on 10 January 2019. He said the date for Ms Wynne to work in Katherine was later changed to 11 January 2019.

11 January 2019

[51] Ms Wynne said that on 11 January 2019 she met with Mr Abbott and Ms Boyd in the Katherine Office, and at the meeting she again brought up the relocation of her position to Pine Creek. Ms Wynne claimed she was dealt with in an intimidating and bullying manner by Mr Abbott who refused to comply with her request and was advised the CEO required the position to be based in the Katherine Office on a full time basis. Ms Wynne said that as she had been carrying out the duties from the Pine Creek Office for nearly a month she saw this as being unreasonable and not the original negotiation so she sought a meeting with the CEO. Ms Wynne said she was advised the CEO would be on leave from 2 weeks from the close of business on the day so she requested that a meeting be held immediately.

[52] Ms Wynne said that the meeting was moved to the CEO’s office without the presence of the COO. Ms Wynne said she again explained the criteria for her application for the position and the reasoning behind why she had stipulated those terms and that Victoria Daly Regional Council had taken her not only to the interview process but on to appointment. Ms Wynne claimed that at all times she had reiterated that she was given the impression that once she felt competent in carrying out the duties she could return to work from the Pine Creek Office.

[53] Ms Wynne claimed that the CEO said that she required the position to be based in Katherine and asked Ms Wynne if she would be tendering her resignation today. Ms Wynne said that she commented that she could not believe that the CEO would let competent personnel walk out the door when the organisation was screaming for personnel. Ms Wynne said she asked what amount of notice they would require. Ms Wynne claimed that she left the meeting with Mr Abbott yelling after her that he wanted it in writing.

[54] Ms Wynne said that she went upstairs to her desk and logged off without communicating with anyone further by email, phone or verbally. Ms Wynne said that on reaching her car she rang the CSM from the Pine Creek Office as she was so upset that she needed to speak to someone.

[55] In her oral evidence Ms Wynne repeated her written evidence that she denied ever saying that she resigned. Ms Wynne also said the contradictory evidence of Mr Abbott and Ms Sangster speaks for itself.

[56] In her oral evidence Ms Wynne said she ignored the questions put to her by Ms Sangster in a meeting that day that she had resigned.

[57] It was put to Ms Wynne that she did not say to Ms Moir that she had not resigned. Ms Wynne claimed she said to Ms Moir that they are trying to force her to resign. It was put to Ms Wynne that she did not include this in her witness statement and Ms Wynne responded that it was in Ms Moir’s statement.

[58] Ms Wynne said at the end of the meeting on 11 January she was so upset she could not drive or think straight. Ms Wynne said she discussed it with Ms Moir and they decided she should think about it over the weekend and then talk to the Human Resources Manager on Monday morning.

[59] Ms Moir said that in January 2019 she received a phone call from Ms Wynne who was extremely upset. Ms Moir said she encouraged Ms Wynne to calm down as she was concerned that Ms Wynne had to drive 90km back to Pine Creek. Ms Moir said Ms Wynne expressed feeling boxed in and that she was expected to make a decision concerning her job while under very stressful conditions. Ms Moir said in her oral evidence that she did not believe Ms Wynne had resigned from the conversation with Ms Wynne.

[60] Ms Braun gave evidence that Mr Abbott told her that Ms Wynne had threatened to resign during a meeting on 22 November and again on 11 January 2019.

[61] Ms Braun said that on 11 January 2019 she observed Mr Abbott and Ms Wynne entering Ms Sangster’s office and the door being closed. Ms Braun said after a short time the door opened and she heard Ms Sangster say;

“So can I take that as you resigned.” Ms Braun said she heard the Applicant reply “Yes” and then the Applicant exited.

[62] Ms Braun said Ms Sangster asked her to come into the office and Ms Braun asked Ms Sangster what happened and Ms Sangster replied with words to the effect;

“She wasn’t happy with the decision that her position is based here. She resigned twice during the course of the conversation and I confirmed on both occasions that she was resigning”.

[63] Ms Braun said that Ms Wynne re-entered the office and said “How many weeks’ notice do I have to give?” Ms Braun said Ms Sangster replied “Two”. Ms Braun said Ms Wynne replied “Right” and stormed off saying words to the effect of “Nothing but bloody idiots”. Ms Wynne put it to Ms Braun how she could have heard the conversation when the door to the CEO office was closed. Ms Braun said the door opened and she repeated her evidence contained in her written statement. Ms Braun said her office is straight outside the CEO’s office. Ms Braun confirmed that she heard Ms Wynne say “yes” in response to Ms Sangster’s question.

[64] Ms Sangster gave evidence that on 11 January Mr Abbott and Ms Boyd were meeting with Ms Wynne and Mr Abbot told her that Ms Wynne requested that she meet with Ms Sangster to continue the discussion about the location of her position.

[65] Ms Sangster claimed that Ms Wynne appeared agitated when she entered the office. Ms Sangster said the meeting involved Ms Wynne, Mr Abbott and herself. Ms Sangster said she provided Ms Wynne an opportunity to explain her reasons for wanting the position located at Pine Creek and Ms Sangster said she confirmed the decision that it be based in Katherine and explained her reasons. Ms Sangster said that Ms Wynne kept repeating demands that the position be based in Pine Creek and said at one point that she would agree to no more than one day per week at Katherine.

[66] Ms Sangster said after further discussion Ms Wynne said “Well, I resign”. Ms Sangster said that she sought confirmation by asking “Are you handing in your resignation?” Ms Sangster said Ms Wynne replied “Yes.” Ms Sangster said after some further discussion she sought further confirmation that Ms Wynne had resigned to which Ms Wynne replied “Yes”. Ms Sangster said Ms Wynne then stormed out of the office.

[67] Ms Sangster said that during the meeting Ms Wynne told her that she was stupid or words to that effect. Ms Sangster said that following the meeting she made arrangements for a replacement to commence as soon as possible as it is an important position and there was a significant amount of priority work that needed to be undertaken.

[68] Ms Wynne put to Ms Sangster that she did not resign. Ms Sangster maintained in her oral evidence the same position she had put in her statement.

[69] Mr Abbott said that he invited Ms Boyd to participate in the meeting with Ms Wynne on 11 January because he was concerned about her likely behaviour during the meeting and wanted additional support. He said he also considered it important he have a witness to the discussion. Mr Abbott claimed that during the meeting Ms Wynne said that she would be working from Pine Creek from 14 January and claimed Mr Abbott had agreed to this. Mr Abbott said that he disagreed with this statement and referred to his email of 14 December 2018. Mr Abbott said that Ms Wynne became aggressive and behaved in an intimidating manner when he would not agree to what he said constituted demands he agree to her working at Pine Creek. Mr Abbott said that at all times he maintained a non-aggressive, non-confrontational approach.

[70] Mr Abbott claimed that Ms Wynne said that she would not accept anything other than one day week in Katherine and implied that she was not willing to continue in the job. Mr Abbott claimed that he replied that was a decision for her to make. Mr Abbott said Ms Wynne asked if she could discuss the issue with the CEO and both he and Ms Boyd indicated that she could and they ended the meeting. Mr Abbott provided a copy of his notes of the meeting.

[71] Mr Abbott said that Ms Sangster provided Ms Wynne the opportunity to put forward her case and then Ms Sangster explained why the position needed to be in Katherine in a calm and professional manner. Mr Abbott claimed that Ms Wynne then started to become angry and was speaking in a raised voice. Mr Abbott said Ms Wynne said “Well, I resign”. He said Ms Sangster said “Can I clarify. Are you resigning?” Mr Abbott said that Ms Wynne replied “Yes.” Mr Abbott said there were further discussions and Ms Wynne became angrier and was standing up with her hands on the desk. Mr Abbott said after a further period of discussion Ms Sangster said “Just want to confirm again. Are you resigning?” Mr Abbott said that Ms Wynne replied “Yes” and then stormed out of the office.

[72] Mr Abbott claimed he left the office and spoke to Ms Wynne in a quiet and respectful voice and said “Can you put that in writing”. He said he did not yell and was not close to Ms Wynne when he asked her to do this. He said Ms Wynne gave a slight nod which he took to be a non-verbal signal of affirmation. Mr Abbott said that Ms Wynne returned to Ms Sangster’s office after approximately five (5) minutes and asked how much notice she has to give. He said Ms Sangster replied “Normal notice is two weeks”. He said Ms Wynne acknowledged this saying “okay”. Mr Abbott said he was left in absolutely no doubt that Ms Wynne had resigned at the meeting.

[73] Ms Boyd denied that she ever apologised to Ms Wynne about the requirements to work in Katherine.

[74] Ms Boyd said that she met with Ms Wynne on 11 January 2019 and included in that discussion was the location of her work. Ms Boyd said at all times during the meeting Mr Abbott behaved in a calm and professional manner, and did not raise his voice or behave in an intimidating manner. Ms Boyd said during the discussions about her work location Ms Wynne was visibly agitated and behaved in an intimidating manner with a raised voice.

[75] Ms Boyd said that she was told by Ms Sangster that Ms Wynne had resigned from her position in a meeting with Ms Sangster on 11 January 2019.

14 January 2019

[76] Ms Wynne said in her oral evidence she was given approval to work at the Pine Creek office up until 18 January.

[77] Ms Wynne said that on 14 January 2019 at 9.30am at an Executive Managers Meeting that the CSM Pine Creek was attending via teleconference and on speaker phone, she overheard that she would be leaving the organisation and another employee was named as her replacement. Ms Wynne said she also overheard the mother of the replacement give a cheer as she was also in attendance at the teleconference. Ms Wynne said that this was quite disturbing to her and she was reduced to tears by the whole situation.

[78] Ms Wynne said that at 2.39pm she sent an email to Human Resources Manager Ms Braun to clarify that she would not be resigning her position and requested a meeting with the CEO to discuss the options.

[79] Ms Moir said that during a Senior Management meeting on a Monday Ms Boyd announced that Ms Wynne had resigned and the name of her replacement, and a senior manager at the meeting cheered. Ms Moir said she sent an email to Ms Boyd as acting CEO and HR Manager Ms Braun expressing her disappointment at discussing individuals at the meeting as the CEO Ms Sangster had been very specific about not discussing individual employees in this setting, and secondly that the announcement had been cheered with no response from the Executive. Ms Moir said she later received an email from the person who cheered saying that it in no way reflected on Ms Wynne but rather was excitement at her daughter taking the role.

[80] Ms Moir said that unfortunately the Pine Creek Office has no meeting/confidential area and her phone was on speaker and Ms Wynne heard the comments and was extremely upset. Ms Moir said Ms Wynne stated that she had not given her resignation during her meeting with the CEO. Ms Moir said that she advised Ms Wynne to email Ms Braun the HR Manager to resolve yet another uncertainty. Ms Moir said Ms Wynne said she had not tendered her resignation and reiterated that the meeting with the CEO was very tense, and angry and uneasy, and that she felt pressured and pushed into a decision she wasn’t ready to make.

[81] Ms Braun said that Ms Wynne rang her on the morning of Monday 14 January 2019 at around 11.00am and advised her that she had overheard a phone hook-up led by Ms Boyd in which her resignation was announced. Ms Braun said that this upset her, and stated that she had not resigned and sought a meeting with the CEO. Ms Braun said Ms Wynne followed this up with an email (sent at 2.39pm) confirming her claim that she had not resigned at the 11 January 2019 meeting.

[82] Ms Sangster said that she interpreted the email sent by Ms Wynne to Ms Braun on 14 January as a request to withdraw her resignation given her clear understanding that Ms Wynne had resigned her employment during the meeting (on 11 January).

[83] Ms Boyd said that on 14 January in a telephone hook-up with the Council Services Managers, she advised them that Ms Wynne had resigned and advised them of her replacement. Ms Boyd said that this was important as each of the service managers are required to work with the Grants Administration Officer. Ms Boyd said that she was unaware that Ms Moir had her telephone on speaker or that Ms Wynne was in the office and able to hear the conversation.

17 January 2019

[84] Ms Wynne said that on 17 January she received an email from the HR Manager with a letter attached from the CEO and signed by the Acting CEO Ms Boyd, stating that she would be terminated as of 25 January 2019.

[85] In Ms Wynne’s witness statement 7 she says that that the Respondent did not allow her the opportunity to exercise her workplace right in trying to clarify with the Respondent the terms and conditions of her employment, specifically the location and schedule of days at the two different locations.

[86] Ms Wynne submitted that her covering letter set out to the Respondent as to the conditions that she would be willing to undertake the position, and as she had not received any information to lead her to believe that the criteria of her application had not been met or not agreed to, then she reasonably believed that the position would eventually be based on Pine Creek with just some relevant time spent at the Katherine office.

[87] Ms Wynne claimed that instead of clarification she received an ultimatum which she never responded to due to the undue stress she was feeling at the time. Ms Wynne said that the action in announcing her termination at the meeting held on the Monday after her meeting with the CEO was an instigation of the Respondent to end her position.

[88] Ms Wynne said that even though she emailed to clarify with the COO, who was acting CEO at the time that she had not resigned, the announcement and her subsequent rebuttal email was followed up by a letter stating that her position would be terminated two weeks from the date of the meeting with the CEO.

[89] Ms Wynne said she requested a meeting with the CEO to explain her position and to try to reach some sort of amicable agreement, and a meeting was held on 6 February 2019. Ms Wynne said that the CEO refused to respond on the day and followed up with a written response which in short stated that she had resigned and the conditions were never negotiated verbally. Ms Wynne said both statements are false.

[90] Ms Sangster said that she wrote to Ms Wynne on 17 January and advised her that she was not prepared to agree to Ms Wynne’s request to withdraw her resignation and confirmed the employment would end on 25 January 2019.

6 February meeting

[91] Ms Wynne said that on 6 February she attended a meeting with the CEO to discuss the position and provided a two page document outlining her concerns including refuting that she had resigned and claiming her response to Ms Sangster on the day of their meeting (11 January) was to ask for a timeline for a resignation but it was not a resignation. The letter also set out the basis for why she maintained that Council had been unreasonable and that she would not have taken on the position if she could not work from Pine Creek, and she had been under the impression and allowed to think that she would be able to return to Pine Creek to carry out the role.

[92] Ms Braun said she attended this meeting and provided a copy of her notes of the meeting.

[93] Ms Sangster said that she agreed to Ms Wynne’s request to meet with her and the meeting was held on 6 February.

8 February response

[94] Ms Sangster said Ms Wynne provided a written statement, she considered the material presented and confirmed her decision not to accept her withdrawal of her resignation.

[95] Ms Sangster’s written response rejected Ms Wynne’s claim that she had not resigned at the meeting on 11 January and said that Ms Boyd had confirmed to her that she had not at any time made a commitment to Ms Wynne that the position would be based at Pine Creek and that was a matter for discussion if Ms Wynne was successful in gaining the position. Ms Sangster’s correspondence said she had reviewed email exchanges and it was made clear to Ms Wynne that the position was based in Katherine, and that the letter of offer Ms Wynne had signed was clear.

Alleged Grounds of Adverse Action

[96] Ms Wynne asserts the following in relation to contraventions of the Fair Work Act 2009.

Complaint or inquiry

[97] Section 341 of the Act reads as follows:

“Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee--in relation to his or her employment.

[98] Whilst not expressly pleaded it can be inferred that Ms Wynne is submitting that the Respondent took adverse action against her on the basis of her complaint or inquiry about her position not being based in Pine Creek.
[99]

Coercion

[100] Section 343 reads as follows:

“(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b) exercise, or propose to exercise, a workplace right in a particular way.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply to protected industrial action.”

[101] Ms Wynne asserts that during the entire period that she was employed in the position of Grants Administrator she tried to clarify when she would commence full time in the Pine Creek office and each time Mr Abbott became very intimidating in manner and bullied her into silence. Ms Wynne said that she was under a great deal of stress as her job description and the duties related were being altered almost daily. She said she tried to clarify actual duties of the role and was coerced into taking on additional duties that were related to another department but the information gathered related to the reporting. Ms Wynne said she was afraid if she broke her silence during these times she would incur repercussions, mainly termination of her position. Ms Wynne said that she explained many times the criteria of her application being accepted and was told Mr Abbott was fully aware of the conditions of her application. Ms Wynne said that she usually left these meetings in tears as they led to frustration in not being able to resolve the issue and left her feeling not in control of the situation or her emotions.

[102] The Respondent objected to the inclusion of the alleged contravention of s.343 as it said Ms Wynne had not provided any link between the alleged coercion and the termination of employment. The Respondent submitted that the Commission has no power to arbitrate a general protections dispute other than one that is associated with a dismissal.

[103] The Respondent submitted that there had never been any statements or actions by Ms Boyd, Mr Abbott or Ms Sangster that could be construed as agreement to Ms Wynne working full-time in the Pine Creek Office, or in fact anything beyond what had been originally agreed on 14 September 2018, and Ms Wynne was provided multiple opportunities to put forward her requests to work from Pine Creek despite her contractual obligations to work at the Katherine Office.

[104] The Respondent rejected the allegation that Mr Abbott acted in an intimidating manner and bullied her to silence and submitted that the Respondent did not at any time take any action to prevent Ms Wynne from making enquiries about her work location and instead provided her with multiple opportunities to do this.

[105] The Respondents said Ms Wynne raised an additional allegation that she had been coerced to take on additional duties. The Respondent said that even if this were true the allegation has no relevance to whether Ms Wynne had been coerced to exercise or not exercise a workplace right or to exercise that right in a particular way.

[106] This allegation is directed at Mr Abbott. The evidence does not support a conclusion that Mr Abbott was seeking to coerce Ms Wynne in connection with a workplace right.

Undue influence or pressure

[107] Section 344 reads as follows:

“An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:

(a) make, or not make, an agreement or arrangement under the National Employment Standards; or

(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

(d) accept a guarantee of annual earnings; or

(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

Note 1: This section is a civil remedy provision (see Part 4-1).

Note 2: This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)).”

[108] Ms Wynne stated that as she had been led to believe by the COO that the position would eventually be based in the Pine Creek office she continually sought advice as to when that would be a viable option. Ms Wynne said she was told that it would happen when she had a handle on the job and the reporting had been brought up to date. Ms Wynne said at the time she requested the meeting with the CEO she reasonably believed that she was at that stage as she had been working from the Pine Creek Office for the previous month. Ms Wynne stated that by asking if she was submitting her resignation rather than facilitating an agreeable option the Respondent was placing undue influence and pressure to have her agree to yet another complete backflip on her working status.

[109] The Respondent submitted that it objects to the inclusion of the alleged contravention of s.344 as Ms Wynne did not provie any allegations that are relevant to the termination of her employment. Again the Respondent submitted that the Commission has no power to arbitrate a general protections dispute other than one that is associated with a dismissal.

[110] The Respondents submitted that Ms Wynne had not provided details of any actions of the Respondent that could be construed as exerting undue influence or pressure regarding any of the points set out in section 344. In her oral evidence Ms Wynne suggested she may have made an individual flexibility agreement, however then appeared to accept she had not sought to make an IFA under the enterprise agreement. There is no evidence of any IFA under the enterprise agreement.

[111] It is apparent that the nature of the facts that s.344 is not applicable as the issue was over the location of the Ms Wynne’s work based on a disputed interpretation of her employment contract. It does not fall under any of the categories defined in the section.

Discrimination

[112] Section 351 reads as follows:

“(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) Each of the following is an anti-discrimination

(aa) the Age Discrimination Act 2004 ;

(ab) the Disability Discrimination Act 1992

(ac) the Racial Discrimination Act 1975 ;

(ad) the Sex Discrimination Act 1984 ;

(a) the Anti-Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 2010 of Victoria

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti-Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti-Discrimination Act of the Northern Territory.”

[113] Ms Wynne said in her statement that she believed that by allowing other employees to work remotely and denying her the same opportunity was an act of discrimination.

[114] The Respondent objected to the inclusion of the alleged contravention of s.351. The Respondent submitted that the material submitted by Ms Wynne in relation to s.351 is limited to only alleged discrimination involving the decision by the Respondent not to allow her to work remotely. The Respondent submitted that the Commission has no power to arbitrate a general protections dispute other than the one associated with the dismissal.

[115] The Respondent submitted in the alternative that if the s.351 objection fails, Ms Wynne has not identified any discrimination within the meaning of s.351 as she has failed to identify the attribute that is alleged to be the subject of discrimination and has not asserted that she was dismissed for this reason.

[116] The Respondent submitted that Ms Wynne has claimed that she was discriminated against because other employees had been offered work remotely; however, Ms Wynne has not identified an attribute that she believes related to discrimination.

[117] Ms Wynne has not been able to identify an attribute that is alleged to be the subject of discrimination. Ms Wynne confirmed she could not identify an attribute at the commencement of her oral evidence, and therefore this element of her claim has no basis pleaded to consider the claim.

Dismissal or resignation

[118] Section 386(1) reads as follows:

“(1) A person has been dismissed if:

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

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

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”

[119] Ms Wynne stated that the crux of the whole matter is whether or not she resigned at the meeting held with the CEO on 11 January 2019. Ms Wynne said that she had the support of a co-worker to substantiate the fact that after the meeting she was not of the belief that she had resigned and that she was still hopeful of coming to some sort of amicable arrangement to allow her to retain the position.

[120] Ms Wynne stated in summing up that she believed that the adverse action taken by the Respondent was in response to her complaints in regard to coercion, undue pressure and intimidation and expressing her workplace right in having her working conditions adhered to as per the conditions set out in the application covering letter and as discussed and agreed by the COO.This could be understood to be a claim that adverse action was taken because of a complaint or inquiry as described in s.341 (1)(c) of the Act.

[121] The Respondent submitted that it objects to the application on the basis that the Applicant resigned from her position, and as such there was no dismissal by the Respondent which is a pre-requisite for the Commission to arbitrate a dispute under s.369.

[122] The Respondent submitted that the sequence of events that are relevant to the matter are:

a. The Applicant agreed to an employment contract on 14 September 2018 that specified that the location of her position as the Regional Office which is located in Katherine;

b. The Applicant sought confirmation from the Respondent on 14 September 2018 about the location of the position after she had signed the employment contract;

c. The Respondent, in response to the Applicants inquiry, agreed on 14 September 2018 to allow the Applicant to work two days per week in Pine Creek after an initial two month period, subject to working full-time in Katherine at least one week per month or during busy periods;

d. The Applicant agreed to this arrangement by email on 14 September 2018;

e. The Applicant repeatedly sought to be based in Pine Creek rather than in accordance with her employment contract and the agreement reached on 14 September 2018;

f. The Applicant threatened to resign on at least two occasions if the Respondent did not agree to her demands to be based at Pine Creek;

g. The Applicant resigned from her position in a meeting with the Chief Executive Officer on 11 January 2019.

[123] The Respondent submitted that there were no actions taken by the Respondent that directly and consequentially resulted in Ms Wynne’s employment ending. The Respondent further submitted that Ms Wynne’s employment would have continued if she had not resigned and had agreed to work in accordance with her employment contract.

[124] The Respondent submitted that in the meeting between Ms Sangster, Mr Abbott and Ms Wynne on 11 January 2019, both Ms Sangster and Mr Abbott heard Ms Wynne stating that she resigned during the meeting. The Respondent submitted that Ms Sangster sought confirmation from Ms Wynne that she was resigning on two occasions, and on both occasions Ms Wynne confirmed that she had resigned. The Respondents submitted that the second of these confirmations was also witnessed by Ms Braun.

[125] The Respondent submitted that on Monday 14 January 2019 Ms Wynne attended work at Pine Creek rather than at Katherine as required and only sought to reverse her decision to resign (by denying that she had resigned) following an announcement of her resignation by the Chief Operating Officer, Ms Boyd, to the Managers in a teleconference that she overheard while in the Pine Creek office.

[126] The Respondent submitted that Ms Wynne had not made any attempt to withdraw her resignation until after that time. The Respondent submitted that Ms Wynne’s denial that she resigned during the meeting on 11 January 2019 is contradicted by the evidence of Ms Sangster, Mr Abbott and Ms Braun that she did resign during the meeting and that Ms Sangster had sought and obtained confirmation from her that she had resigned.

Closing Submissions

[127] In closing submissions Ms Wynne submitted that cases referred to by the Respondent pertained to circumstances where an employee has actually spoken the words of resignation with the intention of resigning and then later regretted the decision and has attempted to reverse it. Ms Wynne submitted she never intended to resign, and her email sent on Monday 14 January stated she did not resign.

[128] Ms Wynne put a version of the exchange with Ms Sangster in her closing submissions that differed from the evidence of the Respondent’s witnesses. Ms Wynne continued to maintain that she did not say that she resigned in the meeting on 11 January.

[129] Ms Wynne submitted that Ms Braun could not have heard what was said as claimed. Ms Wynne said in her closing submission that she accepted that Mr Abbott had asked her for her resignation in writing, but submitted, contrary to the Respondent’s submission that there was no reason for Mr Abbott to ask this question then if she had said she resigned, that the reason Mr Abbott asked the question was because Ms Sangster had asked her the question twice and had received no response from her.

[130] Ms Wynne said that she ignored Mr Abbott’s comments. Ms Wynne made submissions about a number of matters that caused her to return to the office of Ms Sangster and ask “How much notice would you want?” and Ms Sangster replied “2 weeks is the normal period”.

[131] The Respondent submitted that Ms Wynne’s denial of having resigned is contradicted by the evidence of Ms Sangster, Mr Abbott and Ms Braun, and the evidence of Ms Sangster and Mr Abbott provided a consistent description of Ms Wynne’s resignation, and Ms Braun’s evidence was she heard the second request from Ms Sangster to confirm the resignation.

[132] The Respondent submitted that Ms Wynne at one point during her oral evidence stated that she did not sign her letter of offer until after she had spoken with Ms Boyd, however later stated that this conversation occurred in the 20 minutes between the 11.33am email on 14 September from Ms Boyd and Ms Wynne’s email reply at 11.53am on the same day.

[133] The Respondent submitted even if there had been a phone call there must be significant doubt about Ms Wynne’s version of the phone call as it is inconceivable that an experienced manager such as Ms Boyd would provide the advice that Ms Wynne claims she did within 20 minutes of an email being sent that was contradictory. The Respondent submitted it is also inconceivable that Ms Wynne would not have made some reference to this alternative position given the email Ms Wynne sent at 11.33am.

[134] The Respondent also submitted that toward the end of her oral evidence Ms Wynne claimed that she had accepted that she would be working two days a week in Pine Creek and three days a week at Katherine and that her inquiries had been solely about seeking clarification of which two days would be at Pine Creek, however this is inconsistent with her witness statement where she said during her entire time in the position of Grants Officer she had been trying to clarify when she would commence full time in Pine Creek.

[135] The Respondent submitted that the Commission had given Ms Wynne multiple warnings that if she failed to challenge the evidence of the Respondent’s witnesses that it would accepted. It is true that I advised Ms Wynne at the commencement of her evidence that if there were any matters contained in each of the witness statements filed by the Respondent, now was the time for her to give evidence about those matters. I directed Ms Wynne to address each statement individually and the hearing proceeded on that basis. On a number of occasions I advised Ms Wynne while she was giving evidence that she needed to provide evidence in response to matters in the statements she contested.

[136] I again advised Ms Wynne when she indicated that she had finished her cross examination of Ms Braun that there were parts of Ms Braun’s statement that she had not challenged and they would have to be accepted as unchallenged. Ms Wynne then put a further matter to Ms Braun. Ms Wynne advised that she did not wish to cross examine Mr Abbott. Again I advised Ms Wynne that if she did not challenge Mr Abbott’s evidence it would be taken as such. Ms Wynne then did ask Mr Abbott about his evidence concerning her having resigned and his oral evidence was consistent with his written statement.

[137] The Respondent also submitted that Mr Abbott’s evidence concerning the 22 November was not challenged by Ms Wynne, and contradicts her claim that all along she was merely trying to clarify which two days would be at Pine Creek.

[138] The Respondent also submitted that Ms Wynne did not challenge Mr Abbott’s evidence that at the first meeting on 11 January Ms Wynne said that she would not accept anything less than one day a week in Katherine.

[139] In regard to whether Ms Wynne resigned the Respondent submitted it is necessary to look at all of the circumstances leading up to, and subsequent to the meeting.

[140] The Respondent submitted that Ms Wynne did not challenge Mr Abbott’s evidence that Ms Wynne threatened to resign at the meeting on 22 November if he did not agree to her working at Pine Creek.

[141] The Respondent also submitted that Ms Wynne did not challenge Ms Sangster’s evidence at paragraph 12 of her statement that Ms Sangster asked Ms Wynne if she was resigning. The Respondent points to Ms Wynne’s Form F8 application and her submission which stated that Ms Sangster had asked her whether she would be tendering her resignation “today”.

[142] The Respondent submitted that it was far more likely that words such as were used by Ms Sangster would be in response to a resignation rather than being inserted into the conversation without context.

[143] The Respondent also submitted that Ms Wynnne’s resignation on 11 January was a natural extension of her earlier threats to resign if she could not secure an agreement based on working from Pine Creek. The Respondent also submitted that it is agreed between Ms Wynne and Mr Abbott that Mr Abbott had asked her to resign in writing, and that this is much more likely to be in response to Ms Wynne having resigned compared to the remote likelihood that Mr Abbott would ask her to put her resignation in writing when she had not resigned.

[144] The Respondent submitted that Mr Abbott provided unchallenged evidence that he had not approved Ms Wynne working at Pine Creek during the week commencing 14 January 2019, however Ms Wynne attended work at Pine Creek on the morning of 14 January and this is consistent with an employee who has resigned and has no further incentive to comply with work requirements they are not happy with.

[145] The Respondent submitted that Ms Wynne offered a clear and unambiguous resignation, and a reasonable period of time had elapsed before Ms Wynne initiated an attempt to withdraw her resignation, and relies on the decision in Ngo v Link Printing 8to support that submission.

[146] In the alternative the Respondent submits that were the Commission to find a dismissal had occurred, the evidence is clear that the actions of the Respondent in announcing her resignation on the Monday morning were because the Respondent genuinely believed that she had resigned and for no other reason. The Respondent pointed to the unchallenged evidence of Ms Sangster and Mr Abbott to this effect. The Respondent relied on the decision in Strydom v CBD Refrigeration & Air Conditioning Pty Ltd & Ors [2019] FCCA 1444in support of its submissions.

Conclusion

[147] It was put to Ms Wynne that none of the conversations she had with anyone from the Respondent indicated anything different to what was said in the email of 11.33am on 13 September. Ms Wynne said that they also didn’t clarify what days would be in Katherine and which days would be in Pine Creek and she was seeking guidance and direction. This evidence appeared to be suggesting a concession on her part that she was not explicitly told by anyone that the position was to at some point to be primarily based in Pine Creek.

[148] The exception to this is her alleged conversation with Ms Boyd on 13 September between 11.33am and 11.53am. I prefer Ms Boyd’s evidence that she never advised Ms Wynne orally in a phone call if one did occur that the position being based in Katherine was temporary. Even at its highest, the proposition that Ms Wynne put to Ms Boyd about this alleged conversation at the hearing appeared to be on Ms Wynne’s version more to the effect that Ms Boyd had an open mind about future arrangements, not that she made any commitment. All of the evidence makes it more likely that Ms Boyd never made any commitment or promise to Ms Wynne as claimed.

[149] Ms Wynne described the real issue as that she was not getting an answer. Ms Wynne also said she had been led to believe something different. The evidence indicated there were multiple occasions were the working arrangements were discussed and the Respondent maintained a consistent position about the issue which was at odds with Ms Wynne’s preference.

[150] I prefer the evidence of Ms Sangster, Mr Abbott and Ms Braun to that of Ms Wynne concerning whether she resigned at the meeting on 11 January. Their evidence was more consistent, and is more logical where inconsistencies arise between the competing versions.

[151] Ms Wynne’s credibility was also undermined somewhat by some changes to her evidence about earlier events as summarised above, including the events on the day she accepted the offer.

[152] I am satisfied that Ms Wynne offered a clear and unambiguous resignation, and later after the initial meeting returned to clarify the notice period. The Respondent refers to the decisions in Sovereign House Security Services v Savage [1989] IRLR 115 and Ngo v Link Printing 9 where consideration has been given to circumstances where a resignation has been expressed. I am satisfied that Ms Wynne resigned on Friday 11 January and took no action to seek to retract that resignation until after overhearing a conversation at approximately 9.30am on 17 January. The initial attempt to seek to retract the resignation was by making contact with Ms Braun at approximately 11.00am followed up by an email at 2.39pm claiming she had not resigned.

[153] I am satisfied, consistent with the decision in Ngo v Link Printing 10that a reasonable time had elapsed before Ms Wynne attempted to withdraw her resignation and on that basis there are no special circumstances that would warrant regarding the Respondent’s decision not to allow a retraction as a dismissal.

[154] If I were to be wrong about Ms Wynne having resigned, then I also accept the Respondent’s submission that the evidence supports a conclusion that relevant representatives of the Respondent genuinely believed that Ms Wynne had resigned and that is what motivated her termination, and not for the reasons asserted by Ms Wynne.

[155] It appears reasonably clear that Ms Wynne was dissatisfied with the Respondent’s decision that her position was to be located at Katherine. The evidence does not support that any action taken by the Respondent could have offended any of the general protections provisions and on that basis the application is dismissed.

COMMISSIONER

Appearances:

Ms K. Wynne appearing on her own behalf

Mr R. Davidson of Davidson Workplace Solutions Pty Ltd for the Respondent

2019,

Brisbane:

June, 19 and 20.

Final written submissions:

2019

June 28.

Printed by authority of the Commonwealth Government Printer

1 Exhibit 5.

2 Exhibit 3.

3 Exhibit 6.

4 Exhibit 7.

5 Exhibit 4.

6 Exhibit 2.

7 Exhibit 1.

8 Canh K. Ngo v Link Printing Pty Ltd [1999] AIRC 57.

9 Ibid.

10 Ibid.

Ms Kathryn Wynne v Victoria Daly Regional Council

[2019] FWC 4657

3 JULY 2019

DECISION

Complaint or inquiry