Ms Kelsey O'Toole v Cameron Pastoral Company

[2015] FWC 2763

[2015] FWC 2763

FAIR WORK COMMISSION

DECISION

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

Ms Kelsey O'Toole
v
Cameron Pastoral Company
(U2015/2122)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 27 APRIL 2015

Summary: Whether dismissal at the initiative of the employer - whether ambiguity in employee’s intention - whether “special circumstances”.

[1] This decision concerns an application by Ms Kelsey O’Toole under s.394 of the Fair Work Act 2009 (“the Act”). Ms O’Toole is seeking an unfair dismissal remedy in relation to her alleged dismissal by Cameron Pastoral Company (“the Company”).

[2] Ms O’Toole commenced employment with the Company on or about 17 July 2013 (as a casual receptionist) and contends that she was dismissed at the initiative of the employer on or about 17 December 2014.

[3] Ms O’Toole contends that she made a complaint to the company’s HR manager, Ms Madeleine Walsh, about bullying carried out against her by (who Ms O’Toole described as being) the office manager. Ms O’Toole claimed that the office manager had made disparaging remarks about her tattoos before he left to be employed with another employer. The office manager, however, ultimately resumed work with the Company and after a few days back had demonstrated his dislike for Ms O’Toole by allegedly ignoring her at a point, which she found embarrassing.

[4] Upon informing Ms Walsh of the bullying complaint, Ms O’Toole argues that she (Ms Walsh) informed her (Ms O’Toole) that she needed to make a decision about her job, and after being so directed, was informed promptly that she could finish up at that time or later that day.

[5] Ms O’Toole contends, therefore, that she was dismissed at her employer’s initiative, and at no point ever indicated that she wished to resign her position.

[6] Ms O’Toole states that following the meeting with Ms Walsh she was beginning to have what she subsequently came to realise was a panic attack. She telephoned her mother who picked her up from the office.

[7] Ms Susan O’Toole, the Applicant’s mother, gave evidence that upon arriving to collect her daughter (and notwithstanding her daughter’s panic attack and breathing difficulties) she entered the workplace to have a conversation - albeit a brief one - with Ms Walsh about the circumstances that had had come to pass. Ms O’Toole claimed she was taken into a room and the door was closed and that Ms Walsh informed her that, “Kelsey had to go home and think about her job.” Upon being so informed Ms O’Toole left Ms Walsh’s office and returned to attend to her daughter (who had remained in the car), who was subsequently taken to hospital for treatment for a panic attack.

[8] Ms Susan O’Toole said that she returned to her daughter’s place of work that afternoon, and that in response to a question as to whether her daughter was still employed by the Company, Ms Walsh had indicated, “yes absolutely”. Ms Walsh organised a meeting for the next day with Ms O’Toole and her mother and was said to have indicated that Ms O’Toole could return to work following that meeting.

[9] During the course of the meeting the following day (which was attended by Ms O’Toole, her mother, Ms Walsh and Ms Tracy Trost, the accounts payable officer), Ms O’Toole contends that she voiced her concerns about being bullied, but these were brushed off by Ms Walsh.

[10] Ms Walsh had instead indicated to Ms O’Toole, “You no longer have a job here. I will call you.”

[11] Ms O’Toole’s mother claimed that both Ms Walsh and Ms Trost had spoken very loudly and rudely to her daughter and herself over the course of the meeting - and indeed they were screamed at - and were eventually asked to leave the premises.

[12] Ms O’Toole contended that she was unaware of any claim that she had resigned her employment until such time as she received the email from Ms Walsh later that day, in which Ms Walsh accepted the Applicant’s resignation.

[13] Ms Walsh’s evidence was contrary to that of Ms O’Toole and her mother. Ms Walsh contended that Ms O’Toole was moody and rude over the course of her employment with the Company (an observation shared by Ms Tracy Trost in her evidence), and was unusually so in the period leading up to 17 December 2014. Immediately prior to that date, Ms Walsh contended that she had enquired of Ms O’Toole the reasons for her poor disposition and whether its causes resided inside or outside the workplace.

[14] On Wednesday 17 December 2014, Ms Walsh stated that she was working at her desk when Ms O’Toole “threw” a timesheet on her desk. Ms Walsh claimed she enquired as to whether Ms O’Toole wanted to talk to her at that point and Ms O’Toole responded by saying, “I’ll talk to you later.” Ms Walsh replied that, “I’m free now.” But in response to that Ms O’Toole was said to have walked away and yelled out in a loud voice, “No.”

[15] Ms Walsh claimed that only a short time later she met with the Applicant in the boardroom and enquired of her as to what was wrong. Ms O’Toole was said to have replied in an aggressive tone as follows:

“I don’t want to fu**ing be here.”

[16] Ms Walsh claimed that she replied by saying:

“No one is forcing you to be here.”

[17] Ms O’Toole replied, “Mark hates me”, and went on to explain that:

“He just hates me, I know he does, didn’t even say goodbye to me yesterday afternoon.”

[18] Ms Walsh then stated, she says:

“It is obvious you haven’t been happy working here for some time, why don’t you have a think about what you want to do.”

[19] Sometime later, Ms Walsh checked on Ms O’Toole once again and enquired as to how she was getting along. At that time Ms Walsh claimed Ms O’Toole ignored her and refused to make eye contact with her. Because of this, Ms Walsh said,

“Kels, what is it you want to do?”

[20] Ms Walsh claimed that in response to this question Ms O’Toole stated:

“I don’t want to fu**ing work here but I have no choice, I’ve got no choice.”

[21] Ms Walsh stated in reply that:

“You have a choice Kelsey, everyone has a choice, if you really don’t want to be here.”

[22] In reply, Ms O’Toole was said to have stated:

“I’ll finish up now.”

[23] Ms Walsh claimed that Ms O'Toole then left the room, picked up her possessions from her desk and left the premises. According to Ms Walsh, this exchange took place around midday on 17 December 2014. Ms Trost stated that she observed Ms O’Toole exit the building in a hurry at this time (though she was unaware of the circumstances that led to Ms O’Toole’s conduct in this regard). Ms Trost also gave evidence that shortly after this incident Ms Walsh had approached her and explained that Ms O’Toole had resigned her position with the Company.

[24] Shortly after Ms O’Toole left the premises, Ms O’Toole’s mother entered the workplace and asked Ms Walsh, “What is going on?”

[25] Ms Walsh claimed that she responded to the question in the following manner:

“Is everything okay with Kelsey, she has told me she doesn’t want to be here and she has resigned.”

[26] Ms Susan O’Toole was said to have replied:

“She is upset, she has got a large quote for elective jaw surgery that she wants to have.”

[27] Ms Walsh replied, she says, in the following terms:

“It is obvious to me that she doesn't want to be here, she is making everyone uncomfortable and I have accepted her resignation.”

[28] Ms Susan O’Toole was said to have replied in the following terms:

“No she really likes her job. I know she can be a b***h, I have to live with her. Mark hates Kelsey, he always has and has made comments about her tattoos.”

[29] Ms Walsh replied:

“You are making serious allegations, I have often asked Kelsey if anything was wrong and up until this morning she had never mentioned anything about Mark or her tattoos. If Kelsey wants to pursue this then perhaps we should talk further tomorrow.”

[30] At the meeting the following day, Ms Walsh claims that the Applicant indicated that she was now feeling much better and wished to press her bullying complaints. One she had articulated these Ms Walsh indicated that she would undertake to investigate the claims as made.

[31] Following this, Ms Walsh claimed that Ms O’Toole asked:

“I just want to know if I can have my job back.”

[32] Ms Walsh said in response:

“Kelsey, to be honest I accepted your resignation yesterday, considering the way you spoke to me yesterday nothing you have said today makes me want to reconsider. I will consider what you have said here today and will investigate your claims and then get in touch with you.”

[33] Ms Walsh claims that Ms O’Toole was upset at that time and had indicated to her mother, “Can we just leave?”

[34] Ms Trost gave evidence that reflected that of Ms Walsh in these respects.

[35] Ms Walsh went on recollect that Ms O’Toole’s mother stated:

“Kelsey calm down, don't worry about the money will get it elsewhere, it is obvious that the problem here is the women in the office.”

[36] Ms Walsh did concede that the meeting ended in an emotional manner. She explained that this situation arose because Ms O’Toole’s mother invited Ms O’Toole to make a further complaint about the way in which she was dealt with by Ms Trost at the time of a funeral of one of her (Ms O’Toole’s) friends.

[37] In essence, Ms O’Toole claimed that she was dealt with in an abrasive manner at the time of the funeral. Ms Trost was upset by this claim because she felt it entirely misstated the situation that arose and did not admit to the considerable sympathy that was extended to Ms O’Toole at the time.

[38] Once the meeting concluded, Ms Walsh claims that Ms O’Toole and her mother left the premises, but only after Ms O’Toole stated:

“I don’t want to work here, I will return my uniforms and I don’t want this investigated any further.”

[39] Ms Trost also overheard words to the same effect, so she claimed in her evidence.

[40] Ms Walsh contended that claims that there was screaming were greatly exaggerated, though both she and Ms Trost were shocked and upset by the allegations made by Ms O’Toole in relation to the extent to which they sympathised with her at the time of the death of her friend.

[41] As is evident from the preceding discussion, this application turns at first instance on a question of jurisdiction, namely whether the Applicant’s employment was terminated by her employer. This matter arises under s.385 of the Act, which relevantly reads as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed [...]

[42] Section 386 goes on to provide:

386 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.

[43] To determine this issue, I need to reach a conclusion in respect of the competing evidentiary claims, which were commended to me with equal vigour and commitment.

[44] Having had the benefit of hearing the evidence, I have no reason to dismiss Ms Walsh’s elaborate and detailed account of her conversations with Ms O’Toole and her mother between 17 and 18 December 2014. At a general level, Ms Walsh’s evidence was given candidly (though she was not subject to any particularly onerous cross examination), and her narrative was persuasive and cogent, and was said to have been derived from contemporaneous notes. Ms Walsh’s claims were corroborated by Ms Trost. I add that Ms Walsh did not seek to contrive her evidence to suit her interests - she freely conceded that she became emotional and “visibly upset” at the end of the meeting of 18 December 2014, although she does not concede that she was shouting.

[45] On the other hand, Ms O’Toole’s evidence left me unpersuaded as to its internal consistency.

[46] Ms O’Toole firstly invited me to accept that she was dismissed by Ms Walsh without any substantive cause. This was so even though in the course of the conversation in which Ms O’Toole gave account of the alleged bullying, Ms Walsh was not unsupportive of Ms O’Toole. That is, Ms O’Toole - on her account - invited Ms Walsh to consider a bullying complaint, to which she responded to the effect that she (Ms Walsh) would not have acted that way, but shortly after found herself being directed by Ms Walsh to “make a decision about [her] job.”

[47] This construction of events appeared to me to lack authenticity as it is too abstracted from a wider context (which was accommodated by Ms Walsh’s narrative with its emphasis on Ms O’Toole’s personal conduct).

[48] This is similarly the case in Ms O’Toole’s construction of the conversation in the meeting of 18 December 2014, in which Ms Walsh was said have simply have uttered words to the effect that Ms O’Toole “no longer had a job any longer.” Ms O’Toole’s construction of the exchange lacks any context for such a comment. If Ms Walsh had not dismissed Ms O’Toole on 17 December 2014, and had made the comments to Ms O’Toole’s mother as alleged (that Ms O’Toole was still employed etc), what rationale would Ms Walsh have in declaring that Ms O’Toole “no longer had a job any longer” the following day? After all, there had been no substantive developments that could warrant Ms Walsh having adopted such a change in perspective.

[49] Again, the exchanges lack reasonable context and the narrative lacks authenticity.

[50] Much the same difficulty arose in Ms O’Toole’s construction of the exchange between herself and Ms Walsh. Ms Walsh was said to have invited Ms O’Toole to make a decision about her job (as I have said above), but then given her no time to deliberate and informed her that she could finish up now or later that day (as Ms O’Toole said in her written statement) or “Fine [...] leave now” (as Ms O’Toole said in her viva voce evidence):

So you had the meeting in the boardroom and you say you raised these issues, did you?---Yes, I did.

What response did you get from the HR manager?---Her response was that I needed to think about - I needed to make a decision about my job, which I had no idea why she would say that, considering this wasn’t about my job, it was about bullying which I wanted to stop.  Not about whether or not I wanted to work there or not.

What did you say in reply to that proposition?---I didn’t get to make a decision.  She straight out just said, “Fine, leave now.  You can finish now or this afternoon.”

So she said you needed to think about your job, is that right?---Yes, but she didn’t really give me an opportunity to think about it or question why I needed to think about my position because she just answered straight - she kind of just jumped in and said, “Fine, you can finish now or this afternoon.”

So she said you had to think about your job, then she jumped in and said, “Fine, finish now”?---Yes.

Well, did you say anything in response to her proposal that you need to think about the job, or she just jumped in and said, “Fine, finish now”?---She just jumped in and said it straight away.  So I had - I just grabbed my phone and walked outside so that I could call my mum and deal with the panic attack before - because I couldn’t really speak about it or talk because I couldn’t breathe properly. 1

[51] This strikes me as an improbable exchange for reason that there was no development that followed Ms Walsh’s request for Ms O’Toole to make a decision about her job that would have caused Ms Walsh to suddenly change her approach. I provided Ms O’Toole with an opportunity to supplement her narrative (as is evident immediately above), but her construction of the exchange with Ms Walsh, in the end, lacked authenticity.

[52] I also add that Ms O’Toole’s evidence was that Ms Walsh asked her to think about her commitment to her job but quickly interrupted any prospect of this consideration by promptly dismissing Ms O’Toole. Ms O’Toole’s evidence was compacted in a single exchange with Ms Walsh, in effect. However, under cross examination Ms O’Toole conceded - consistent with Ms Walsh’s narrative - that there had been two meetings that morning. Ms O’Toole’s interests were served by presenting a compacted version of events which dramatised the apparent irrationality of Ms Walsh’s conduct.

[53] Ms Walsh was also said in the evidence to have been of great assistance to Ms O’Toole earlier in the year when one of Ms O’Toole’s friends passed away. Ms O’Toole was described in the evidence as being “brilliant” and accommodating at this time. But Ms O’Toole invites me to characterise Ms Walsh in a wholly different manner for the current purposes - and this time as a person who hurriedly dismisses her for reason she raised a complaint about a co-worker who had only been in the workplace a few days following an extended absence.

[54] This is an improbable set of circumstances.

[55] Generally, Ms O’Toole’s viva voce evidence came to accept the broad structure of Ms Walsh’s evidence. Ms O’Toole agreed that she had refused to meet with Ms Walsh at the time of their initial exchange on 17 December 2014, and that there were indeed two separate meetings that day, as Ms Walsh’s evidence indicated. And that the first meeting in the boardroom arose when Ms Walsh had enquired into Ms O’Toole’s well-being. These concessions very much suggest that Ms Walsh’s explicit, written and detailed version of events (including as it went to Ms O’Toole’s unhappy disposition on 17 December 2014) is to be preferred.

[56] I would not consider the case against accepting Ms O’Toole’s evidence to be overwhelming. But on the balance of probability, I do prefer the detailed and cogent construction of the events provided by Ms Walsh to the more ad hoc and less continuous and less authentic narrative provided through Ms O’Toole’s evidence (including that of her mother).

[57] That said, having found that Ms O’Toole resigned her employment, was the employer on sound footing in accepting the resignation without further inquiry or review? There are some often quoted words of the English Employment Appeals Tribunal on such matters. These words are as follows:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure [...] And indeed the intellectual make-up of an employee may be relevant [...] These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objectively.” (Kwik-Fit (GB) Ltd v Lineham [1991] UKEAT 250_91_2410 (24 October 1991), Wood J presiding)

[58] In the above case, it was ultimately decided (though “not without considerable hesitation” on the part of the presiding judge) that there were circumstantial grounds that demonstrated that the employee concerned had not intended to issue a resignation and that before accepting the resignation the employer should have embarked on further enquiries before assuming the employee’s intention. The hesitation of the Employment Appeal Tribunal seemingly was because the the circumstances for the ambiguity of the resignation were not expressly in existence, the direct evidence before the tribunal at first instance was not at hand, and that it appears that the employee concerned may not have been disposed to provide further information in the period following the dismissal about his intentions.

[59] Putting this aside, it is enough to conclude, I think, that when there is a contest as to whether a dismissal at the initiative of an employer or a resignation took effect, all the relevant circumstances should be considered.

[60] Were there “special circumstances”, or other relevant circumstances, that warranted the employer investigating Ms O’Toole’s actual intentions?

[61] Firstly, as stated above, Ms O’Toole’s language as I have found it to be, indicated that she had conceded that she had by her words and actions resigned her employment, and was seeking to be re-employed notwithstanding. That is, in the current case, Ms O’Toole by her words and actions resigned on the 17 December 2014 in unambiguous terms. She did so by informing her employer, after some interaction about her commitment to the workplace, that she would “finish up now.” The following day, Ms O’Toole requested the restoration of her employment.

[62] Further to this, Ms O’Toole’s declaration was made after a period of time during which she had an opportunity to reflect on her circumstances. Ms O’Toole’s declaration was not made in the “heat of the moment” or under some form of duress from the employer: Ms Walsh had counselled Ms O’Toole to take time to consider her situation. This is not to contend that Ms O’Toole was not in an elevated state of mind at the time of her decision, but it was an elevated state that had endured for some time.

[63] Ms O’Toole’s language at the time she stated she would resign her employment (or “finish up now”) suggest she was seeking to reconcile in her own mind forces upon her to remain in her position and the forces which were compelling her to leave (“I don’t want to fu**ing work here but I have no choice”). Ms O’Toole eventually opted for resignation, at her own volition. Ms O’Toole’s decision was not the result of some particular course of conduct by her employer that left her with no reasonable option other than to resign her employment.

[64] The following day Ms O’Toole met with Ms Walsh and after some discussion about her complaints about the conduct of other staff, Ms O’Toole ultimately enquired as to whether she could have her job restored. That is, Ms O’Toole stated, “I just want to know if I can have my job back.”

[65] Ms Walsh was unpersuaded. Given that the Applicant had provided no explanation for her conduct the previous day, gave no indication of being remorseful or apologetic for that conduct, and gave no evidence of a revised perspective on the desirability of remaining an employee, there was no duty upon Ms Walsh to withdraw or to refuse the acceptance of Ms O’Toole’s resignation the previous day.

[66] In my view this was not a set of circumstances which invoked the description of “special circumstances”. There was no obligation on the part of Ms Walsh to reinstate Ms O’Toole to her original position: as her employer, the Company was entitled to accept her resignation on the terms on which it was put the previous day and no intervening circumstances gave reasonable cause for it to revisit its (Ms Walsh’s) position in this respect.

[67] Ms O’Toole was not dismissed by her employer for the purposes of s.385 of the Act. That is, Ms O’Toole was not dismissed at the initiative of her employer (s.386(1)(a) of the Act) nor were her circumstances such that she was forced to resign because of a course of conduct by her employer (s.386(1)(b) of the Act). As a consequence, Ms O’Toole’s application under s.394 of the Act is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K. O’Toole, Applicant

Mr R. Kellow, on behalf of the Respondent

Hearing details:

By telephone

2015

20 April

 1   Transcript of proceedings dated 20 April 2015, at PN81-86.

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