Ms Kristina Woodiwiss v Alanvale Apartments & Motor Inn
[2015] FWC 1822
•18 MARCH 2015
| [2015] FWC 1822 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kristina Woodiwiss
v
Alanvale Apartments & Motor Inn
(U2014/16717)
DEPUTY PRESIDENT ABEY | HOBART, 18 MARCH 2015 |
Application for relief from unfair dismissal - extension of time granted - resignation application dismissed
[1] Ms Kristina Woodiwiss (applicant) filed an application under s394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy. The applicant was employed by Alanvale Apartments and Motor Inn/ Mr K Kidd (respondent) as a receptionist since 11 March 2011. Her employment came to an end on either 3 or 5 November 2014 following an incident in the workplace on 31 October 2014.
[2] The question of whether the termination was at the initiative of the employer or alternatively a resignation is in dispute. However, as the application was lodged outside the 21 day time limit prescribed in s394, this question only becomes relevant if an extension of time is granted under s394(3) of the Act.
[3] The application was the subject of a conference on 2 March 2015 at which both parties were self-represented. At the conclusion of the conference I indicated that I was satisfied as to the existence of exceptional circumstances justifying an extension time and that reasons for this decision would follow. With the consent of the parties I proceeded to hear evidence and submissions on the question of whether there was a resignation or, in the alternative, a termination at the initiative of the employer. My reasons for both matters follow.
Extension of Time
[4] The contract of employment came to an end as a consequence of correspondence from the respondent (Mr Kay Kidd) dated 3 November 2015 which the applicant states she received on 5 November 2015. Accepting 5 November 2014 as the date the employment came to an end, the application for an unfair dismissal remedy is 33 days ‘out of time’.
[5] More is said of the workplace incident on 31 October 2014 later in this decision. For the purposes of the extension of time application, it is suffice to say that the applicant was subjected to an unprovoked verbal attack and abuse from a work colleague who is the son of the proprietor. It is not contested that this attack caused Ms Woodiwiss considerable distress and anxiety, to the extent that she left work an hour or so prior to the scheduled end of the shift and consulted her doctor on 4 November 2014. According to the applicant, this was not the first time she had been verbally attacked and abused by this individual.
[6] Section 394(3) identifies the matters to be considered in determining the existence or otherwise of exceptional circumstances. I deal with each below.
The reason for the delay
[7] The applicant submitted that the incident on 31 October 2014 caused her extreme stress. She felt the need to lock herself in the office in the presence of a housekeeper whilst the police did their work. As the perpetrator of the verbal attack was not removed from the work place, Ms Woodiwiss said she felt unsafe, and left before the scheduled end of the shift.
[8] Her written submission reads in part:
“I got home at about 7 pm and fell in a heap. I was totally shattered. My husband couldn’t get through to me. I rested and waited until the next morning to explain to my husband all that went on.
It was all a blur - I went to the Doctor on Tuesday 4th November in a state of distress. He sent me home with a sick certificate for 2 weeks. I could not leave the home for 8 weeks except for short trips for instance to the supermarket or Doctors. Since that time, when my husband leaves me at home alone I insist on the house and external gates being locked. I have very little memory of these 8 weeks. I was clearly mentally unwell and had almost no contact with anyone other than my husband. I was suffering from continued sleep deprivation, nausea and extreme anxiety. I am not cured yet and am having ongoing counselling. Eventually I gained enough strength to address the issue of my job and I made contact with the Fair Work Commission. In all this time I had not received any contact or communication from the business owner.”
[9] The applicant provided correspondence from her Doctor outlining consultations on 4/11/2014, 11/11/2014, 9/12/2014, 13/1/2015, 16/2/2015 and 17/2/2015. In addition Workers Compensation medical certificates were provided which diagnosed “acute stress reaction.”
[10] From the correspondence it is clear that her doctor advised her to contact the Fair Work Commission (FWC) at the first consultation on 4 November 2014. In a subsequent consultation the doctor noted:
“I had no other suggestions, but considered her lack of action in putting in the (FWC) claim was related to her high level of anxiety and hurt at what had transpired, and her sense of powerlessness.”
[11] In relation to the 17 February 2015 consultation, her doctor noted that Ms Woodiwiss had been unable to ‘move on’, was ruminating over the incident and subsequent events, with poor mood, sleep disturbance and continuing anger at the circumstances of leaving work. A continuing certificate stating “no current capacity for work” was issued.
[12] Ms Woodiwiss contacted the FWC on or about 19 December 2014. The application was received on 29 December 2014. Given that both the FWC and the applicant were relying on the postal service, coupled with the public holidays and weekends intervening in this period, I am satisfied that Ms Woodiwiss acted with all reasonable expedition following the initial contact with the FWC.
[13] In response to a question from the Commission, Ms Woodiwiss said that during the period in question, she had fallen into a dark hole and was simply not capable of functioning.
[14] Whist the doctor’s report falls short of stating that Ms Woodiwiss was incapable of lodging an application, it does note that her lack of action was related to her high level of anxiety and sense of powerlessness.
[15] I am satisfied that applicant’s cognitive functioning and coping mechanisms were significantly compromised during the relevant period. On balance I accept that Ms Woodiwiss has provided an acceptable and credible explanation for the delay which weighs in favour of granting the application for an extension.
Whether the person first became aware of the dismissal after it had taken effect
[16] The question of whether there was a resignation or termination is in dispute. It is not contested that the applicant received the written advice from the respondent on 5 November 2014, which is the relevant date for the purpose of the time limits. This aspect is neutral.
Any action taken by the person to dispute the dismissal
[17] The applicant states that she discussed the position with the co-owner of the business who undertook to arrange a meeting with Mr K Kidd. It would seem however that Mr Kidd declined to discuss the matter further. There are of course other means by which the termination could be disputed of which the most obvious would have been an email from Ms Woodiwiss to Mr Kidd contesting the alleged resignation. This did not occur. In the circumstances I regard this consideration as neutral.
Prejudice to the employer (including prejudice caused by the delay)
[18] The respondent submitted that the demands of the business meant that steps had to be taken immediately to find a replacement for Ms Woodiwiss. An advertisement was placed in the Examiner on 5 November 2014 and a replacement engaged almost immediately. The respondent submitted that it would be prejudicial to the business and unfair to the replacement employee to be expected to defend an unfair dismissal application at this point.
[19] Whilst I readily understand the operational demands placed on the business in light of the absence of Ms Woodiwiss and the concurrent leave of the office manager, any prejudice (if that is what it is) would be no worse than it would have been if the application had been lodged in time. (i.e before 26 November 2015). Put another way, there is no additional prejudice as a consequence of the late lodgement.
[20] The respondent did not raise any issues in the nature of unavailability of witnesses as a consequence of the delay.
[21] I regard this consideration as neutral.
Merits of the application
[22] There is a dispute on the facts as to whether Ms Woodiwiss resigned, or in the alternative, was terminated at the initiative of the employer. As there has not been a full hearing on the facts in dispute, no finding as to the merits of the case can be made. This consideration is neutral.
Fairness between the person and other persons in a similar position
[23] There is nothing before the Commission relevant to this criterion.
Conclusion
[24] ‘Exceptional circumstances’ are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances need not be unique, unprecedented or very rare.1 In this case the applicant, through no fault of her own, was placed in a situation which caused significant stress and anxiety, compounded by what she perceived was a lack of empathy for her situation from the respondent. On the material before me I am satisfied the impairment of Ms Woodiwiss’ cognitive functioning and coping strategies was such that she felt unable to lodge the application within the specified time frame.
[25] The other criteria I am required to consider do not weigh against a finding that exceptional circumstances exist.
[26] In the circumstances I allow a further period until 29 December 2014 for the application to be made.
Was There a Resignation or a Termination at the Initiative of the Employer?
[27] It is the respondent’s contention that the applicant resigned from her position.
[28] Sworn evidence was taken from a number of witnesses. Because of familial relationships and the sensitivity of some of the evidence, I have decided to de-identify all individuals other than the applicant, the respondent, Mr Kay Kidd and the wife of the respondent, Mrs Vanda Kidd.
[29] There is no serious dispute as to the facts of an incident which occurred on 31 October 2014 at approximately 8.40 am.
[30] Ms Woodiwiss was working in the reception area when she was subjected to unprovoked prolonged verbal abuse from employee ‘A’ (night manager, maintenance person and son of the respondent). I am satisfied that the attack caused the applicant considerable stress and anxiety.
[31] Witness ‘B’, who was adjacent to the reception area, described the incident as follows:2
“Prior to you speaking to me there was very raised voices, quite a bit of swearing going on. I could only hear a male voice, I couldn’t hear your voice. The yelling seemed to last for about 30 seconds, died down and then started again. I was on the phone, so I actually tried to close the door, because I was on the phone to a client. I can’t recall who the client was. We did have people in the middle room, which is called Baxters, they actually laid a complaint about the noise and the swearing. I assured them that it would be dealt with. When I came out and spoke to you, you were obviously visibly shaken. You were quite pale and visibly shaking and there was quite a stammer in your voice. You were visibly very, very upset.”
[32] The applicant said there had been previous occasions when she had been verbally abused by employee ‘A’.
[33] The precise sequence of events which followed that day is not entirely clear from the evidence. The following reconstruction might be in error as to timing, but I am satisfied as to the substance of the evidence and any error in timing/sequence does not in my view have any material bearing on the outcome.
[34] Ms Woodiwiss contacted employee ‘C’ (brother of employee ‘A’) by phone. It would seem that employee C expressed empathy with Ms Woodiwiss’ position and advised her to contact the business co-owner, Mr Kay Kidd.
[35] The applicant contacted Witness ‘D’ (Manager/Supervisor) by text. The content of the text message was not made known to the Commission. Witness ‘D’, who was on leave at the time, later attended the work place and advised the applicant to “ring one of the girls and see if they can come in and sit with you.”
[36] Ms Woodiwiss contacted witness ‘E’, who agreed to return to work and stay with the applicant for the balance of the shift. Witness ‘E’ described the demeanor of Ms Woodiwiss as:3
“She was very distraught. She wasn’t functioning very well at all and she had a man come up to get a breakfast meal, which she hadn’t done yet, because she’d cleaned the pot. Yes, she was just fidgety and just couldn’t concentrate on work at all.”
[37] The applicant maintains that she did not resign, but rather, indicated that she would consider resigning if a safe work place was not established. Her evidence is:4
“I rang Kay Kidd and his wife answered the phone. I explained the situation to her and she went to Kay stating this is serious this is really serious. When Kay spoke to me I explained that I have had enough of (A’s’) behavior and described him as a loose cannon that was always about to explode and if something was not done about his behavior I would consider resigning.
I informed Kay Kidd that I was not due back to work until the following Monday Afternoon and that on Tuesday I was going to my GP to have the incident documented. I informed Kay Kidd I would consider resigning if he didn’t do something to resolve the issue. Kay Kidd informed me he would contact the police.
The police attended but (A) had left. I was asked to call the police if (A) returned. I insisted that the police told (A) when they spoke with him that I didn’t call them as I was fearful of him as he is unpredictable.
When (A) returned I contacted the police again as they requested and two more officers attended. They did not speak with me and I assume they spoke to (A) and left.”
[38] During the hearing Ms Woodiwiss said:5
“I made the threat of resignation because I felt that, as Mr Kidd - his duty of care would be why would I want to resign, he’d ask me that question, what created the situation that I would even consider resigning, which was - there was no response from him at all. It was basically - he just basically said, “I accept it.” And it wasn’t, I said, I’d consider it. My safety was at risk at work. I was under duress, I just didn’t feel - yes, we shouldn’t have been subject to having to put up with the behaviour that we were dealing with.
Rather than speaking to Mr Kidd you spoke to Mrs Vanda Kidd, is that correct?---That’s correct.
How did that conversation go?---I Just said to her - I told her, “There’s been another incident” and I don’t recall exactly - I probably said to her something about resigning, but she said to me, “I’ll put you on to Kay” and then she said to Kay, “This is serious, this is very serious” which I thought then, “Well, obviously you’re acknowledging that that, yes, this is a serious situation at the moment.” ”
[39] The evidence of Mrs Vanda Kidd is: 6
“MR KIDD: Yes. I’d like her to say exactly what Tina said to her on the phone when she rang on the Friday morning?---Well, it was very short and sweet, not sweet. The conversation - I picked up the phone and I said, “Hello.” And Tina said, “It’s Tina, Vanda,” and I said, “How are you Tina?” She said, “I’m not good, I’m going to sit the rest of my shift and I will not be coming back.” End of story. No, my husband came into the room and I said, “I’ll pass you over to Kay.” I said nothing else to Tina. There was nothing about a serious - she did not mention the incident, as stated. She said - he was there, I just passed the phone over and that was it. I just understand that Tina then repeated the same conversation to Kay. That’s all I had to do with it.”
[40] The evidence of Mr Kay Kidd is:7
“She was not dismissed. The problem arose on Friday morning 31/10/14.
The employee decided to leave of her own volition after she had had an argument with another employee.
She phoned Mrs. Kidd and said she was leaving. She said she would complete her shift but that she would not be coming back. She was aware that the site manager was on holiday and that her departure would cause problems in manning the reception desk.
She repeated this statement to me (Mr. Kidd) on the phone - again emphasising that she would not be back.
She actually left 2 hours before the finishing time of her shift on Friday afternoon.”
[41] It would seem that the Police attended the workplace but employee ‘A’ was not present. The Police attended later in the day, interviewed employee ‘A’, but apparently took no further action.
[42] At some point during the day Ms Woodiwiss sent a text message to witness ‘D’ stating:
“I have rung Kay today and resigned. I will be finishing today. Tina.”
[43] Under cross-examination, witness ‘D’ said:8
“MS WOODIWISS: Would you consider that I was in my right mind when I did that?---Not really.
Do you feel that I would have felt threatened at work and wasn’t - I didn’t feel safe?---Yes, that’s why I asked you ring (witness E), yes.
Did you really think that I wanted to resign?---No.
That’s all I have to ask?---I did say to you, “You do what you feel you need to do.” “
On Sunday 2 November 2014 Mr Kidd contacted witness ‘D’ by telephone to discuss the situation. His evidence is:9
“I rang (employee D) over the weekend to discuss what we would do and we agreed that we had no option but to accept the situation and we took urgent action to find a temporary replacement and to advertise for a permanent receptionist.”
[44] The evidence of witness ‘D’ in relation to this conversation is:10
“MR KIDD: I had a discussion with you on Sunday night on the phone and I said to you, “She’s resigned, we’re going to have to accept the resignation.” You said, “Yes, well we will reluctantly accept it.”?---I said, “I don’t want to lose her.”
That’s right?---Yes. And I said, “But - - -
“But we have no option, we’ve got to fill that vacant space.” Is that correct?---Yes.”
[45] It is clear that Mr Kidd was incensed by what he perceived as a ‘resignation’ without notice at a time when the manager (employee D) was on leave. His evidence is: 11
“THE DEPUTY PRESIDENT: Is there anything further, in your own words, that you wish to add to that statement?---On the grounds that Tina obviously knew that she was causing a major problem, I felt that we had to take this whole suggestion that she had resigned seriously and we had to do it urgently because there was a need to replace people on the Tuesday, in fact on the Monday, which was still part of the long weekend, as I remember. So we discussed it with (D), who - she was reluctant to let her go because (D) said she was a good worker and I think that’s probably mainly true. But, on the other hand, I think it was a rotten thing to do, to leave, knowing that she was leaving us without appropriate people on the desk. Then a little bit later, after she had convinced (C) and he had had a run in with me, calling me a liar, because of what I said she’d said, it became obvious that the reconciliation wasn’t on. In fact, neither was reinstatement.
You acknowledge that there was some incident involving your son?---Yes, obviously there was and that - just to check the seriousness of the incident, I’m the one who rang the police and asked them to come and check him out. They did and they went away quite happy that there wasn’t a problem.
Why wasn’t there any contact between yourself and Ms Woodiwiss over the next day or three?---Well, it was fairly obvious. She’d spoken to two of us and sent a text to a third and she knew what she was doing was rotten. What was I going to say to her?
Well, a possibility might have been that the problem is no longer there, can you come back to work?---That was not the case over the next two or three days. It wasn’t until Wednesday the following week that he’d actually decided to go.”
In closing submissions, Ms Woodiwiss said:12
“MS WOODIWISS: If it’s about resignation, my intention was not to resign, as such, it was to create attention, if nothing else, that something would be done, and done immediately. I was quite prepared to be back at work on the Monday afternoon, had Mr Kidd have rung me and said, “Look, (A) is leaving on Wednesday, come back to work Thursday.” I would have - nobody contacted me so I just stayed home and just pondered on what was going on. I did tell Mr Kidd that I will be going to the doctors and getting - having it documented with the doctor.”
Consideration
[46] In order for there to be access to a remedy for unfair dismissal, the employee must have been dismissed in accordance with s386 of the Act. Accordingly I am required to determine on the evidence whether Ms Woodiwiss was dismissed at the initiative of the employer, or whether she resigned. The alternative consideration is whether the applicant was forced to resign because of conduct engaged in by the employer. However this circumstance, often referred to as a ‘constructive dismissal’, was not advanced as a contention in this case and hence does not require consideration.
[47] An examination of the authorities in relation to these issues point to the following overriding principles:
- To be effective, a resignation must be clear and unambiguous. Account needs to be taken of the context in which statements are made and the ensuing circumstances;13
- If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such. However when words are spoken or actions expressed in temper or in the heat of the moment or under extreme pressure, a reasonable period of time should be allowed to elapse, and if circumstances arise during that period which gives rise to a question as to whether the resignation was really intended and that further inquiry is warranted, then such inquiry is ignored at the employer’s risk;14
- If the employee’s words are not ambiguous, or have a clear meaning, he or she will be treated as having resigned, irrespective of whether they were intended to bear that meaning, unless the words of resignation were uttered in the heat of the moment or as a result of pressure exerted by the employer;15
- There is no general duty on an employer to ensure that an employee, using apparently unambiguous words of resignation, intended to resign.16
[48] Turning the evidence before the Commission, there is a conflict between as to what occurred in the telephone conversation between the applicant and the respondent. Both Mr and Mrs Kidd maintain that Ms Woodiwiss resigned in clear and unambiguous words. On the other hand, the applicant maintains that she did no more than threaten to resign in the event that what she perceived as a safe workplace was not restored.
[49] In the absence of anything else, this would be a difficult issue to determine. However the subsequent text message from the applicant to witness ‘D’ is pivotal. The text states in unambiguous language that “I have rung Kay today and resigned. I will be finishing today.”
[50] Witness ‘D’, as manager and supervisor of Ms Woodiwiss, is a person in authority. It was witness ‘D’ who the respondent telephoned on Sunday 2 November 2014 to discuss a replacement strategy. From the evidence it is clear that witness ‘D’ was reluctant to lose Ms Woodiwiss, but nonetheless agreed that there was no alternative but to advertise for a replacement. Had she been in any doubt as to the genuineness’ of the resignation, that was the opportunity to raise such doubts with Mr Kidd, and perhaps advocate an alternative course. It would seem that this did not occur.
[51] I have no doubt that Ms Woodiwiss was genuinely concerned for her safety and was dismayed as to the respondent’s apparent lack of empathy for her position. Ms Woodiwiss said her intention was to “create attention”. Whilst her motivation is readily understood, it was nonetheless a risky strategy. No issue of duress or ‘heat of the moment’ arises, nor was there any attempt to subsequently withdraw her action. In such circumstances it is that which was actually said or done, rather than the motivation for the actions, which is critical.
[52] In all the circumstances I conclude that that Ms Woodiwiss resigned her employment with the respondent. Accordingly the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
K Woodiwiss on her own behalf
K Kidd for the respondent
Hearing details:
2015
Launceston
March 2
Final written submissions:
Received from the respondent on 4 March 2015
1 Nulty v Blue Star Group Pty Ltd [2011] 203 IR 1 at [5]
2 Transcript PN 116
3 Transcript PN 97
4 Exhibit A3
5 Transcript PN 31-33
6 Transcript PN 133
7 Exhibit R1
8 Transcript PN 159-162
9 Exhibit R1
10 Transcript PN 164-167
11 Transcript PN 190-193
12 Transcript PN 229
13 Gupta v Koukourou Pty Ltd [2012] FWA 8755 Hampton C
14 Kwik-Fit (GB) Limited v Lineham 1992 IRLR 156 Wood J
15 Middleton v Valvoline (Australia) Pty Ltd IRCA unreported NI 908 of 1194 Waler JR
16 Birrell v Australian National Airlines Commission [1984] 5 FCR 447 Grey J
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