Ms Lisa Richman v Quackhouse Pty Ltd T/A Hotel Ingleburn

[2012] FWA 5670

[2012] FWA 5670

FAIR WORK AUSTRALIA

DECISION

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

Ms Lisa Richman
v
Quackhouse Pty Ltd T/A Hotel Ingleburn
(U2011/14696)

COMMISSIONER MACDONALD SYDNEY, 5 JULY 2012

Application for unfair dismissal - jurisdictional objection - Applicant resigned her employment - Jurisdictional Hearing - no choice but to resign submission from Applicant - Jurisdictional Objection upheld - application dismissed.

[1] This decision arises from an application by Ms Lisa Richman (the Applicant) pursuant to section 394 of the Fair work Act 2009 for a remedy in respect of her dismissal by Quackhouse Pty Ltd T/A Hotel Ingleburn (the Respondent).

[2] The unfair dismissal application was lodged with Fair Work Australia (FWA) on 16 December 2011.

[3] The application was listed for conciliation before an FWA Conciliator on 23 January 2012. The matter was not settled and programmed for a Hearing.

[4] On 24 February 2012, the Respondent filed a Form F4: Objection to Application for Unfair Dismissal Remedy. The ground for the objection was the Applicant’s letter of resignation.

[5] The Jurisdictional Hearing took place on 22 May 2012.

[6] The Applicant, Ms Richman, represented herself and gave evidence in the proceedings. She also called as a witness, Mr Mark Adams, former employee of the Respondent. He held the position of Off Licence/Retail Outlet (Bottle shop) Manager. Ms Richman also tendered, without objection, a witness statement of Detective Senior Constable Felgate who was not available to give evidence but was not required for cross-examination.

[7] The Respondent was represented by Mr Peter De Angelis, Hotel Supervisor, who gave evidence and also called the following witnesses:

Campbell Hood - Supervisor

Marc De Angelis - Manager and part owner of DHI Hotels and Investments

Phillip De Angelis - Sole Trader

BACKGROUND

[8] The Applicant began employment at the Hotel Ingleburn in 1998 as a Bar/Gaming Attendant. In 2005, she was promoted to the position of Duty Manager.

[9] In 2010, the leasehold was purchased and taken over by DHI Hotels and Investments. The Applicant was appointed Licensee.

[10] On 11 June 2011, a Duty Manager stole a large sum of money from the hotel safe. There was a police investigation and the Duty Manager was arrested and charged.

[11] The Applicant deposed that the business relationship between her and Mr Peter De Angelis changed for the worse following the robbery event.

[12] On 24 November 2011, an incident occurred between the Applicant and Mr Phillip De Angelis. He made a highly inappropriate offensive remark towards the Applicant who understandably reacted adversely and tendered her resignation in person to her supervisor - giving two weeks’ notice. She left the worksite and attended a doctor the next day, Friday 25 November.

[13] Mr Peter De Angelis telephoned the Applicant on the Friday and apologised for his brother’s conduct. He said his brother would also apologise to the Applicant at a meeting amongst the three of them to be held on the Monday. Other matters raised by the Applicant were to be discussed at the Monday meeting. The Applicant returned to work, as scheduled by her roster, on the Monday. No meeting took place but Mr Phillip De Angelis apologised for his conduct. The failure to have a meeting and the failure of Mr Peter De Angelis to speak to the Applicant over the Monday and Tuesday caused the Applicant to confirm her oral resignation of the previous Thursday, with a written resignation.

[14] On Friday, 28 November, Mr Peter De Angelis telephoned the Applicant at work. The conversation came to an end when the Applicant hung up the telephone. She then approached Mr Campbell Hood, her Supervisor and advised that she had had enough and could no longer work for the company and a short while later, she left her employ of the Respondent.

FINAL SUBMISSIONS

For the Applicant

[15] The Applicant, in final submissions, gave as her belief, that the attitude of Mr Peter De Angelis changed towards her following the robbery. The level of communication between him and her dropped and she was kept out of the loop as to things occurring at the hotel.

[16] Following the conduct of Mr Phillip De Angelis towards her on Thursday, 24 November 2011, Mr Peter De Angelis telephoned her and promised a meeting would take place between him, her and Mr Peter De Angeles, but this meeting never occurred. If the meeting had taken place, as promised, then she would still be working there as the Licensee.

[17] The Applicant said she was very passionate about her position with the hotel and she was hurt by not working there anymore.

[18] The Applicant stated that she thought she had no other choice but to leave because they did not respect her as an employee at all.

For the Respondent

[19] Mr Peter De Angelis put the following in final submissions:

(a) The applicant’s case hinged on two separate incidents:

the robbery of 11 June 2011 and the verbal altercation between her and Mr Phillip De Angelis on 24 November 2011.

(b) He, Mr Peter De Angelis was upset because of the robbery (some $65,000), not being fully insured against the amount stolen and in particular was upset because hotel procedures were not followed. But being upset and angry at being robbed does not constitute forcing someone to resign. Further, the Applicant continued working for another five months. He denied he changed his attitude towards her following the robbery. He saw less of her, and hence less communication existed, because his role at the hotel changed.

(c) Shortly after the robbery, the Applicant asked for time off from work because of stress and bullying from her ex-boyfriend. She was granted time off and had a job to come back to at the hotel. She was not forced to resign because of her personal circumstances.

(d) As to the incident with his brother, Mr Phillip De Angeles, he had apologised for his brother’s conduct and had asked the Applicant not to resign. He told the Applicant that his brother was being reprimanded for his conduct. He thought that his initial proposal over the telephone of having a meeting of the Applicant, his brother and himself was no longer necessary once later in the telephone conversation, the Applicant agreed not to continue on with her resignation. The Applicant had a different view about that cancellation.

(e) The Applicant had resigned her employment twice before, mainly as a result of stress and intimidation from her ex-boyfriend and each time the Applicant had come back to work. He genuinely felt that like those incidents, the Applicant would quickly get over this incident.

(f) During the mediation of the Applicant’s unfair dismissal application, the Applicant was offered jobs at other hotel venues within the Respondent’s operations. These jobs were as Duty Manager because her position as Licensee at the Ingleburn Hotel had been filled. These offers are not the conduct of an employer forcing the employee to resign.

Applicant in Reply

[20] The Applicant made no response to the foregoing.

CONSIDERATION

[21] This case involves a preliminary jurisdictional finding as to whether the Applicant can proceed with her unfair dismissal application given that the Respondent raised the jurisdictional objection that the Applicant had not been dismissed but had resigned her employment. Consequently, FWA must consider that jurisdictional objection before, if at all, considering the merits of the case brought by the Applicant. The Act lays down certain preliminary, jurisdictional matters that must be considered and one of those legislative matters is whether an employee was dismissed or was forced to resign. Set out below are the relevant legislative provisions/matters going to the issue of jurisdiction.

[22] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[23] Section 394(2) states that an unfair dismissal application must be made within 14 days after the dismissal took effect for the purpose of considering section 396(a). The Applicant resigned her employment but says she was forced to resign. Her unfair dismissal application states that her resignation took effect on 2 December 2011 and the Applicant filed her application on 16 December 2011. No issue was raised as to whether the Applicant had filed within time.

[24] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. Therefore, the Applicant is a person protected from unfair dismissal.

[25] Paragraphs (c) and (d) of section 396 have no relevance in this case.

[26] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy”.

[27] In this case before FWA, section 385(a) is the jurisdictional issue for my consideration. The Applicant was not dismissed by the Respondent but resigned her employment. She claims that she had no choice but to resign. In that respect, the Applicant is claiming that her forced resignation comes within the meaning of dismissed as defined by the Act: section 386(1)(b). Thus,

“A person has been dismissed if:

(a)…; 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.”

Termination of Employment Due to Conduct of the Employer.

[28] There is a large body of case law dealing with the situation advanced by the Applicant that she had no choice but to resign her employment - that is, the employer engaged in conduct that resulted in the Applicant submitting her resignation. The Full Bench Decision in P O’Meara and Stanley Works Pty Ltd sets out the relevant case law on that issue. 1 Thus:

"[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

No Effective or Real Choice But to Resign?

[29] I will now apply the foregoing case law reasoning to the facts before FWA by way of asking if there was some action on the part of the employer which either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.

[30] The Applicant complained that the relationship between herself and Mr Peter De Angelis changed for the worse following the robbery in June 2011. She said that there was less business communication between them. This was significant because she held the position of Licensee. In turn this was relevant to her eventual resignation. Mr Peter De Angelis gave evidence that explained the lessening of communication. That is, his role within the business changed subsequent to the robbery - around August 2011. 2Given the five months hiatus between this incident and the Applicant’s resignation and the explanation for the lessening communication, I form the view that this robbery incident and its aftermath does not go to the issue as to the Applicant being left with no choice but to resign.

[31] The immediate incident which gave rise to the Applicant’s resignation was that of Thursday, 24 November 2011 and involved the moving of an ATM for building purposes. There was a difference between the Applicant and Mr Phillip De Angelis as to how the ATM was damaged but whilst Mr Phillip De Angelis was on the telephone to the ATM Company, he turned to the Applicant and told her to try and lock the ATM (which contained a large sum of money).

[32] The Applicant deposed she said she could not lock the ATM because it had been broken through the attempt to move the ATM. Mr Phillip De Angelis responded: “Just lock the fucking thing.” The applicant responded: “I can’t because you fucked it like you fucked everything else in here.” (She claimed but he denied that he and two other workers were attempting to move the ATM, without authorisation to relocate the ATM, and in the process damaged the ATM.) The Applicant stated that he kept yelling to fix the ATM but she responded she could not. Mr Phillip De Angelis then said: “Shut the fuck up, you stupid fucking slut” and then walked off. 3

[33] The Applicant deposed she reacted in disbelief, was shaking in anger, and was insulted and humiliated because this had been said in front of the two other workers. She then went to her supervisor, Mr Campbell Hood and said she would not be called a slut by any De Angelis, she was going home and gave two weeks’ oral notice of resignation. She said she left the hotel crying.

[34] The next day, Friday 25 November, the Applicant attended the doctor because she was still upset, angry and shaking. She obtained a medical certificate. She was not rostered to work the Saturday and Sunday. Her next rostered day at work was the Monday.

[35] Mr Peter De Angelis made contact by telephone with the Applicant on Friday 25 November. He apologised for his brother’s behaviour. During that telephone conversation, Mr Peter De Angeles suggested having a meeting on the following Monday 28 November, involving himself, his brother and the Applicant. At this meeting, his brother would apologise to the Applicant. He also asked the Applicant not to resign her employment. The Applicant gave evidence concurring with this request. 4

[36] Crucially for the Applicant she understood that the meeting on the Monday would also deal with the issues of concern raised by her in this Friday telephone call: “...some drugs and money and banking, et cetera. You said that we would talk about that on Monday as well. To my knowledge we were going to sit down on Monday, discuss what had happened with Phillip and discuss the other issues like you said to me on the Friday.”  5

[37] The Applicant returned to work on the Monday. No meeting took place but Mr Phillip De Angelis approached the Applicant and apologised for his conduct.

[38] It is this lack of a Monday meeting to discuss the Applicant’s concerns (raised in the telephone conversation) and the failure of Mr Peter De Angelis to approach her, that became the catalyst for the applicant confirming her resignation in person the next day (Tuesday) to Mr Campbell Hood and in writing on Wednesday.

[39] The Applicant approached her Supervisor, Mr Campbell Hood on Tuesday afternoon and advised him that “I had no choice but to stand by my resignation as I felt that the De Angelis’ were making the incident with Phillip seem like nothing and that I had had enough of the way I was being treated, ignored and punished for the last six months and was not going to put up with it anymore. He then proceeded to call both Peter and Arch de Angelis to inform them. He said that I should put it in writing.” 6

[40] The Applicant handed in her resignation letter on Wednesday, 30 November. The content of the letter gives no reason for the resignation - other than to refer to the “conversation held between Campbell Hood and myself, Lisa Richman, on Thursday ....”. (Ex. 2) The “conversation” can be read narrowly as being a reference only to her notice to him of her resignation or widely as being a reference to the entire conversation (which went to the event with Mr Phillip De Angelis that caused her to put in her notice.)

[41] No matter whether the letter is read narrowly or widely, it confirms that the oral notice of resignation given on the Thursday stands. Relevantly, for the issue as to whether the Applicant had no choice but to resign, then that incident with Mr Phillip De Angelis is the incident against which to consider whether the Applicant had no choice but to resign because of the conduct of the employer.

[42] Having reviewed the evidence surrounding the giving of the oral notice of resignation and its aftermath, I find that the Applicant cannot sustain the argument that she had no choice but to resign.

[43] The evidence was not disputed as to what caused the Applicant to put in her oral notice of resignation. Mr Phillip De Angelis had described the Applicant in highly inappropriate language: “Shut the fuck up, you stupid fucking slut.” The Applicant reacted adversely to this highly offensive insult - she was shaking in anger, she had been insulted and she had been humiliated in front of others. It appears that she immediately approached her supervisor, Mr Campbell Hood, and gave her resignation with two weeks’ notice attached. She raced out to her car because she was crying and did not want anyone else to see how humiliated she was. As she was leaving in the car, she nearly smashed her car because she was upset and angry.

[44] The next day she attended the doctor and later that day, she had a telephone conversation with Mr Peter De Angelis. It is this conversation which decides the matter for FWA making the finding that the Applicant was not forced to resign through the conduct of the employer.

[45] Mr Peter De Angelis advised that his brother would apologise to the Applicant at a meeting to be held on the Monday. The Applicant raised other issues that needed to be discussed at this proposed meeting. In agreeing to return to the work site for an apology (and the other issues), the Applicant watered down the impact of the incident to an extent she was no longer able to argue that she had no option but to resign. Thus the applicant was willing to physically return to the worksite before receiving any apology from the perpetrator.

[46] In my view, given the highly inappropriate offensive language used by Mr Phillip De Angelis, then the Applicant’s response to the offer of an apology to be given on the Monday should have been along the lines of unless and until the perpetrator gives me an apology (and sincerely) beforehand, then I will not return to the worksite. The applicant needed to put that ultimatum in order to sustain her claim that she had been given no choice but to resign. If the apology had not been given beforehand, then the Applicant would have been in a better position to argue she had no choice but to resign.

CONCLUSION

[47] Having considered all of the evidence and for the reasoning set out above, I find that the Applicant has not proven that she resigned her employment because she was forced to do so through the conduct, or course of conduct, engaged in by her employer.

COMMISSIONER

Appearances:

Ms Richman represented herself

Mr Peter De Angelis represented the Employer

Hearing details:

Sydney
2012
22 May

 1   PR973462, 11 August 2006, per Guidice J, Watson VP and Cribb C

 2   Transcript PN 66, 67 and 506

 3   Exhibit 2, para 15

 4   Transcript PN 1713-175

 5   Transcript PN 200

 6   Exhibit 2, para 23

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