Ms Luddawan Prince v The Kingsbury Group Pty Ltd T/A Lumineye Nailcraft Innovations
[2021] FWC 3939
•6 JULY 2021
| [2021] FWC 3939 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Luddawan Prince
v
The Kingsbury Group Pty Ltd T/A Lumineye Nailcraft Innovations
(U2020/9457)
DEPUTY PRESIDENT LAKE | BRISBANE, 6 JULY 2021 |
Application for unfair dismissal remedy
[1] This decision concerns an unfair dismissal application brought by Luddawan Prince (the Applicant) made under s. 394 of the Fair Work Act 2009 (the Act). Ms Prince was employed as a Production Coordinator for The Kingsbury Group Pty Ltd T/A Lumineye Nailcraft Innovations (the Respondent).
[2] The Applicant commenced employment with the Respondent on around 12 December 2011 and her employment came to an end on 24 June 2020. The Respondent raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed, submitting that she voluntarily resigned on 24 June 2020.
[3] It is not in dispute that the application was made within time, the person was protected from unfair dismissal, the Small Business Fair Dismissal Code does not apply, and the dismissal did not involve a genuine redundancy. 1 These matters were not raised by the parties as issues in dispute. The matter for determination is therefore whether the Applicant was dismissed on 24 June 2020 in circumstances that constituted constructive dismissal.
[4] Directions were set for the filing of material and the matter was dealt with by way of hearing on 21 May 2021. Both parties sought permission to be represented at the hearing. Permission was granted on the basis that I was satisfied it would allow the matter to be dealt with more efficiently having regard to its complexity, particularly involving the jurisdictional objection. The Applicant was represented by Mr Aaron Santelises, from the Australian Workers’ Union (AWU), and the Respondent was represented by Mr Robert Hall-Boman from IR in Motion.
RELEVENT LEGISLATION
[5] Section 382 of the Act sets out when a person is protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[6] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
“(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.”
[7] Section 386 of the Act sets out when a person has been dismissed from their employment and states:
“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.
(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
(c) the person was demoted in employment but:
(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.”
[8] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[9] It is first necessary to determine if the Applicant was dismissed pursuant to s. 386 of the Act. If I find she was not dismissed pursuant to s. 386 of the Act, the application will be dismissed.
APPLICANT’S MATERIAL
Applicant’s Submissions
[10] The Applicant was engaged by the Respondent on or about December 2011. Friction between the Applicant and the Respondent began in around March 2020 when two changes occurred at the workplace: a new supervisor was appointed and the Respondent instructed it employees choose the new Enterprise Bargaining Agreement representative. The Applicant’s evidence (set out below) provides a detailed timeline of her version of events.
Constructive Dismissal
[11] The Applicant submitted that she was dismissed by the Respondent by way of constructive dismissal. That is, the Respondent forced the Applicant to leave by providing no real choice, but to resign.
It was submitted by the Applicant that the key elements of a constructive dismissal were the following:
• employee did not resign voluntarily;
• employer forced the resignation; and
• the employer must take action with the intent to bring the relationship to an end or that has that probable result.
[12] In addition to the items above, the Applicant cited the case of Western Excavating (ECC) Ltd v Sharp where Lord Denning MR described the basis of constructive dismissal as follows:
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. …” (emphasis added)
[13] The Applicant submitted that this approach had been adopted in Australia and should be considered in the dispute between the parties.
Employee did not resign voluntarily
[14] The Applicant submitted that she did not resign ‘voluntarily’ or ‘willingly’ from the Respondent. The Applicant cited the case of Australian Hearing v Peary provided the following:
“The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer’s intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied.” 2
[15] In consideration of the Applicant’s dispute, the Applicant stated that she did not resign voluntarily and was forced to resign. In particular, the Applicant referred to the events that occurred on 24 June 2020 where:
• The Applicant asked the Respondent how much notice she needed to provide if she were to resign and what her entitlements would be if she did so; and
• In response, the Respondent drafted a letter of resignation, and at the start and end of the shift, said to the Applicant that she had been processed as a resignation, despite no action or conduct by the Applicant indicating that she intended, or indeed, consented to the resignation.
[16] As such, it was submitted by the Applicant that the evidence did not show a resignation done voluntarily. Rather, the Applicant was coerced by the Respondent via the actions of Ms Boyle.
Employer forced the resignation
[17] That Applicant submits that the facts presented by the Applicant demonstrate that the Respondent forced the resignation. The Applicant drew attention to the following conduct of Ms Boyle:
• “no, you do not need to give any notice, you can just leave and Mr Herring has accepted your resignation straight away”;
• providing a letter of resignation to the Applicant; and
• when the Applicant attempted to retract the letter of resignation, the Respondent stated “no, you have to leave you better leave because your name gone through the system already”.
[18] The Applicant submitted that the Respondent made no attempts to assist the Applicant, who had no real understanding what was occurring and what the Respondent had done. The issue was further compounded when considering the language barrier between the parties.
[19] Essentially, the Applicant submitted that the Respondent ignored the warning signs that the Applicant had displayed, such as asking about returning to work and what was needed to be done in terms of providing notice if she were to resign from the Respondent.
[20] The Applicant stated that the Respondent placed the Applicant in a position where she had no choice but to resign.
[21] The Applicant submitted that it was clear throughout the events on 24 June 2020:
• the Applicant was making constant enquires with the Respondent;
• the Applicant was confused and had no understanding as to what was occurring;
• the Applicant had no intention to resign from the Respondent; and
• the Respondent made no attempts to resolve the issue, rather, forced the Applicant out of the organisation as evidenced by:
• Ms Boyle drafting the resignation letter and stating that the Applicant had resigned from the Respondent; and
• Ms Boyle’s statement of “no, you have to leave, you better leave, because your name has gone through the system already”.
Harsh, Unjust and Unreasonable
[22] The Applicant cited Bostik (Australia) Pty Ltd v Gorgevski (No 1), whereSheppard and Heery JJ said of the phrase ‘harsh, unjust or unreasonable’ as it appeared in the Manufacturing Grocers Award 1985:
“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decided whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.” 3
[23] Additionally, the Applicant submitted that further guidance is provided regarding ‘harsh, unjust and unreasonable’ via the judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Limited:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonable have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 4
[24] In Stark v P & O Resorts (Heron Island), Chief Commissioner Hall (as his Honour then was) stated:
“Where…an application...is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, it formed on reasonable grounds, will be held immune from interference by the Commission…” 5 (emphasis added)
[25] In consideration of the provided excerpts from decisions, the Applicant submitted that the dismissal by the Respondent was harsh, unjust and unreasonable on the basis that:
• the resignation was not intended by the Applicant, as she only requested how much leave/notice she is required to provide if she were to resign from the position;
• it was not a genuine resignation from the Applicant; and
• the Respondent did not consider the impact of the language barrier of the Applicant and her understanding of the actions undertaken by the Respondent on 24 June 2020.
Remedy
[26] The Applicant sought that the Commission make an order that the Respondent pay the employee an amount of compensation the Commission considers appropriate under section 392 of the Act.
Evidence of Ms Luddawan Prince
[27] Ms Luddawan Prince, the Applicant in this matter, made a witness statement and gave evidence on her own behalf at the hearing.
[28] Ms Prince stated that she was a Production Coordinator with the Respondent and was dismissed on 24 June 2020.
[29] Ms Prince stated that she immigrated to Australia in or around December 2011 and English was her second language. She said she struggles to understand the English language at times, and requires additional assistance.
Events Before 24 June 2020
[30] On 27 March 2020, Ms Prince said that she spoke to Ms Boyle and Ms Amanda Philp about being unhappy at work just after Ms Baker had started working with the Respondent. Ms Prince stated that Ms Baker made almost everyone feel uncomfortable because of the way she spoke and treated people.
[31] On 31 March 2020, Ms Prince said the Respondent summoned her to the office and provided her with a pay increase. In the hearing, Ms Prince stated this was a $3000 pay rise. She did not know and did not ask why she was receiving it.
[32] On 14 May 2020, the friction between her and Respondent started when they instructed the employees to pick a new Enterprise Bargaining Agreement representative without even seeing the new agreement. She said that it came down to two people, Mr Mark Vihermaa and Ms Jampa Phiniram, but they declined because they felt uncomfortable and they did not want the responsibility. As a result, the Respondent had to conduct a re-vote.
[33] On 18 May 2020, the Applicant spoke to her husband, Mr Daniel Prince, about the events on 14 May 2020 and he suggested that she get an outside representative. Consequently, she signed up with the AWU and then others did the same.
[34] Over the next few weeks, the Applicant said they had to do another vote and all the AWU members wrote down that they wanted the AWU to be their representative during the bargaining process. At around that time, they were having workplace meetings almost daily.
[35] The Applicant stated that Mr Herring would speak down to them and tell them that if they wanted to leave, they could just leave. She further stated that he would “badmouth” the unions saying they were “evil” and “no good” because he knew who had signed up to the union. Ms Prince stated that Mr Herring attempted to make everyone feel guilty for signing up to the union.
Events of 24 June 2020
[36] On 24 June 2020 at about 10:00am, the Applicant said that she enquired with Ms Boyle and Ms Philp regarding how much notice she needed to give if she wanted to leave and Ms Philp replied stating it was about three or four weeks depending how long she had worked. The Applicant noted that with her accent, it sounded like “note” instead of “notice”.
[37] The Applicant noted that Ms Boyle replied to this stating that, “no you do not need to give any notice, you can just leave and Mr Herring has accepted your resignation straight away.” The Applicant stated that Ms Boyle also asked if she wanted her to organise letter for her and the Applicant stated “okay” because she thought it was going to be paperwork on what to do, not an immediate resignation.
[38] The Applicant stated that Ms Boyle then went upstairs and returned with a letter stating that she had resigned from the Respondent.
[39] The Applicant said that after she was provided with the letter alleging she had resigned, she asked if she could take it home for her husband to see, whether she had to sign it and whether she could still come to work if she did not sign it. The Applicant said Ms Boyle told her to change the date to 25 June 2020, if she wanted to resign then.
[40] The Applicant stated that on her break, she was confused, so she spoke to her husband on the phone. He told her not to sign it or change anything until he had read what the Respondent had given her. The Applicant stated that her husband said to ask Mr Vihermaa what it said. The Applicant stated in the hearing that it was only Ms Minehan that was sitting with her during this break. The Applicant further stated that the other witness statements, including Ms Minehan’s were incorrect and this conversation with her husband was only about the letter and not about wanting to quit.
[41] The Applicant’s evidence was that Mr Vihermaa had explained what the letter said, and he could not believe what was happening and how fast it unfolded. The Applicant said that after she went back to work and just before she finished for the day, she went and asked Ms Boyle again if she needed to sign the letter or not and if she could still work if she did not. She said Ms Boyle replied “no, you have to leave, you better leave because your name [has] gone through the system already.”
[42] Thereafter, the Applicant said she realised and understood what the letter said. That is, she was no longer employed by the Respondent. The Applicant said she had no intention to resign. Rather, her original query was how much notice she would have to give if she resigned.
[43] Additionally, she stated that if she had intended to resign from the Respondent, she would have alternative employment to attend but she did not. Subsequently, she said that the AWU instructed her to file an unfair dismissal application.
[44] In the hearing, when asked about speaking to her friends at work regarding the resignation letter, the Applicant stated that:
“I just walk out and say, 'Oh, today my last day. I not come back working any more,' and they say, 'Why, what's going on?' I say, 'Oh, I get a letter here say today my last day. They say I'm resign, but I'm not, but I have to leave because I get a letter in my hand already. Nothing I can do.' That's what I tell my friend and we all just say goodbye, and just hug each other. That's it.”
[45] When asked about past examples of when she had threatened to quit, the Applicant stated that it was a joke, and everyone would often say the same thing. She said that no one ever took it seriously.
[46] I asked the Applicant why all the other witnesses had said in their statements that she had told them she had quit. The Applicant stated that she did not tell anyone she had quit. She had instead said that day was her last day and she had been told to leave. The Applicant further stated that:
“What I told everybody was that day was my last day; 'I'm not coming back here to work because I received a letter that I resign and I quit, but I did not, but I have to leave.' With Jumpar, I didn't tell her at all because she was outside. I ran into her when I was leaving and I just say goodbye. With Mark I also didn't say I quit. I just said goodbye as normal.”
Events after 24 June 2020
[47] On 29 June 2020, Ms Boyle rang the Applicant and asked how she was. She replied with “I am okay” to which Ms Boyle said that her pay would be fixed up by Monday. The Applicant said she thanked Ms Boyle and the conversation ended.
[48] The Applicant stated that her friend, Ms Wissuta King, came over to drop some food off and she said to the Applicant she had spoken to Ms Boyle about what was happening. The Applicant said that Ms King relayed to her that Ms Boyle had admitted she was angry on 24 June 2020 and reacted in an aggressive manner because she was having problems at home and brought them to work.
[49] On 21 July 2020, the Applicant said Ms King asked her if she remembered what she spoke to Ms Boyle about on her last day. The Applicant said she did. Ms King noted that Ms Boyle said she was angry and did not remember was exactly had happened.
Subsequent Employment
[50] On 4 December 2020, the Applicant stated she was engaged by another employer working as a ‘wet packer.’
RESPONDENT’S MATERIAL
Respondent Submissions
[51] The Respondent submitted that the Applicant was not dismissed at the Respondent’s initiative, but rather the Applicant resigned from her employment with the Respondent on her own free will and not in the manner prescribed at s.386(1)(b) of the Act.
Events of 24 June 2020
[52] The Respondent submitted that the Applicant resigned from employment at her own free will and without duress. Specifically, the Respondent said that on 24 June 2020, the Applicant approached her immediate supervisor, Ms Philp, stating that she wanted to quit and that she wanted to know how much notice she would be required to give.
[53] The Respondent further submitted that the Applicant met with the Company General Manager, to whom she further stated that she wanted to resign and asked how to do so and how much notice was required. The Respondent submits that the General Manager advised that resignations are usually given in writing and that the Applicant would not be required to work a notice period if she did not want to stay.
[54] The Respondent submitted the Applicant then requested the General Manager to assist her with preparing a letter of resignation. Despite the Applicant confirming her resignation on 24 June 2020, the General Manager gave the Applicant the opportunity to take the resignation letter home and seek advice from her husband, confirming with her that she could change the date of resignation if she wanted to.
[55] It was submitted by the Respondent that the Applicant was asked by a colleague whether she was sure of her decision to resign and that the Applicant told that colleague she had been considering resigning for two or three days.
[56] Furthermore, the Respondent stated that when asked by a colleague on 24 June 2020 why she had chosen to leave, the Applicant replied that she felt tired, uncomfortable with the idea of continuing to work at the Respondent, and that she had been thinking about it a lot. The Applicant alleged said that she did not feel sad but relieved and free.
[57] The Respondent submitted that the Applicant was given the opportunity to reconsider her position and confirmed her resignation verbally to the General Manager and her direct manager later on the same day.
[58] Further, the Respondent submitted that at the time the Applicant spoke with her manager and the General Manager, a colleague was asked by the General Manager to check with the Applicant to confirm whether she was committed to her decision to resign, and that she understood the contents of the letter prepared for her (at her request).
[59] The Respondent submitted that evidence from multiple witnesses demonstrates the Applicant informed colleagues on 24 June 2020 that she had resigned, after having threatened to do so on previous occasions, due to her dissatisfaction with her employment.
Respondent’s final attempt to confirm Applicant’s decision to resign
[60] The Respondent submitted that the General Manager contacted the Applicant on 29 June 2020 to confirm whether her 24 June 2020 decision to resign remained unchanged. Following that confirmation of the Applicant’s decision to resign, the Respondent paid the Applicant her final pay and entitlements.
Other matters
[61] The Respondent rejected the Applicant’s assertions that the Company Director ‘badmouthed’ the AWU and acted in an intimidatory manner towards employees who signed up as AWU members, claiming that such allegations are vexatious and without merit.
[62] The Respondent submitted that the Applicant had threatened to resign on other occasions during employment, due to dissatisfaction with her employment.
[63] The Respondent stated that the Applicant’s conduct manifested an intention to no longer be bound by her contract of employment and to no longer render service to the Respondent.
[64] The Respondent submitted there was no dismissal at its initiative and the requirement of s.385(a) of the Act has not been made out.
Merits
[65] The Respondent submitted that if the Commission found that the Applicant was dismissed at the Respondent’s initiative, the Respondent submits the dismissal was not an unfair dismissal, within the meaning prescribed at section 385 of the Act.
Remedy
[66] Where the Commission finds the Applicant was dismissed at the Respondent’s initiative, and that the Applicant’s dismissal was an unfair dismissal, within the meaning prescribed at s.385 of the FW Act, the Respondent submits that the Commission should not award a remedy on the basis that:
• the Applicant has indicated that she does not seek reinstatement;
• the Applicant has she secured alternative employment, as of 4 December 2020;
• regarding s.392(2)(d), the Respondent submits there is no evidence of the Applicant’s efforts to mitigate her losses through seeking alternative employment between 24 June 2020 and 4 December 2020. The FWC should take this into account when making its considerations under this criterion; and
• regarding s.392(2)(e), the Respondent submits that the Applicant has not demonstrated or disclosed any earnings between 24 June 2020 and 4 December 2020, or at any point thereafter.
Joint Witness Statement of Amanda Philp and Suzanne Boyle
[67] Ms Philp and Ms Boyle filed a joint Witness Statement in these proceedings relating to the Applicant’s last day of work. Both also gave evidence at the hearing on behalf of the Respondent.
[68] Their evidence was that the Applicant asked early in the day if she was able to take leave immediately. Ms Boyle said she stated “no” as they were much too busy and needed her skills and to apply for a later date.
[69] Then, at approximately 9:00am on the morning of Wednesday 24 June 2020, told Ms Philp that she wanted to quit. Ms Philp stated that she said she would go get Ms Boyle and they would all talk about it.
[70] Ms Boyle and Ms Philp stated that the Applicant had offered to resign on several times before and they would sit down and ask if she was sure, work through the issues bothering her and after resolution, she would always change her mind and stay.
[71] Consequently, Ms Boyle and Ms Philp said they spoke to the Applicant and asked if she was very sure she wanted to resign. They say she said she was and that she had had enough. They asked if she was really sure because she had done this before. They stated the Applicant then confirmed she wanted to quit, enquired how she could do so and how much notice she had to give. They explained to the Applicant that usually people resign in writing and give it to their manager. They also told her she did not have to serve her notice period if she did not want to.
[72] Ms Boyle and Ms Philp stated that the Applicant asked if she could finish today. They said she could if she really wanted to. They then checked again if she was sure and the Applicant said she was and asked if Ms Boyle and Ms Philp could help her with the writing of the letter. They said they prepare a simple letter stating the Applicant wished to resign today.
[73] Ms Boyle stated that she rubbed the Applicant’s arm and asked again if she was very sure. Ms Boyle stated that the Applicant went downstairs and told a number of people that she had quit.
[74] Ms Boyle stated that she wrote a very simple, one-line letter stating that the Applicant wished to resign immediately. She printed it for the Applicant and asked if she could speak to her at the dining table with Ms Philp.
[75] Ms Boyle said they all sat down and read through the letter and explained that it was nothing other than a resignation letter and all she needed to do was sign, if that was what she really wanted. Ms Boyle said that the Applicant could take it home to her husband and show him first if she wanted to and would feel more comfortable. Ms Boyle said that the Applicant then asked if she had to sign the letter to quit as she did not like signing this, to which Ms Boyle said she did not have to do anything. Ms Boyle stated the Applicant asked if she could just tell her she resigned and Ms Boyle stated that of course she could and that it would be called a verbal resignation.
[76] Ms Boyle stated that she confirmed again that she wished to resign and that it was effective from today. Ms Boyle stated that the Applicant later came and checked that she had resigned. Ms Boyle confirmed this. Ms Boyle then said the Applicant asked if she did not sign the letter could she work whenever she wanted. Ms Boyle stated that she said no, she had resigned, and the Respondent had accepted it. Ms Boyle said the Applicant asked about the date on the letter and if it could be the next day. Ms Boyle stated she said of course and to just cross out the date and make it for tomorrow.
[77] Ms Boyle and Ms Philp stated that afternoon they noticed that there was a lot of hugging and tears in the carpark surrounding the Applicant. They stated that on the following Thursday, the Applicant did not attend work as they had agreed. Ms Boyle stated she asked the Applicant’s friends and they said she had decided the day prior was her last day.
[78] Ms Boyle stated that on Friday the Applicant did not attend work. On Monday, Ms Boyle and Ms Philp called the Applicant and confirmed with her that she had resigned. Ms Boyle stated that she again asked if the Applicant was sure, to which replied “yes”. Ms Boyle further confirmed the situation by asking if Wednesday was her last day, and she said agreed. Ms Boyle stated that they told the Applicant that they expected her on Thursday so they could say goodbye, and she said she did not want to. Ms Boyle said that she told the Applicant that they would pay her all entitlements due to her because of her resignation and asked if she was ok with that and if she was sure. The Applicant said yes, and they said goodbye.
Further evidence of Amanda Philp
[79] Ms Philp gave evidence that she supervised the Applicant for 3.5 years fulltime. Prior to that, Ms Philp had supervised the Applicant for 3 years, during which the Applicant was employed as a casual.
[80] Ms Philp’s evidence was that the Applicant was not happy before she quit and she did not like training sessions for improvement or refreshing the basics. She stated that the Applicant had threatened to quit on many occasions due to wanting more money, full time employment and being unable to have time off when it was busy.
[81] It was Ms Philp’s evidence that the Applicant was not dismissed, as she was witness to all conversations she had with Ms Boyle. Ms Philp said that it was normal for any dismissal to involve several meetings, verbal coaching, warnings and paperwork with the final stages of written warnings and ultimately a letter of dismissal.
[82] Ms Philp stated that a number of employees had expressed a dislike to the manner and changes being made by their new supervisor, Ms Baker. Ms Philp said that she was not acting or speaking inappropriately, just in a stronger manner than they were used to.
[83] Ms Philp said the Applicant requested a wage review, approximately three months prior to the date provided. She said that there was no agreement to review.
[84] It was Ms Philp’s evidence that an employee election was to take place to elect representatives to assist in the construction of the new agreement. She stated that the Applicant took the training session as a personal attack, and Ms Philp said that she did not witness anything that would have resulted in this other than the Applicant’s defensive approach to everything. Ms Philp said that there was clearly confusion and the election was delayed while information sessions were held to understand the different functions of the Australian Award and Enterprise agreement processes.
[85] Due to the varied ethnic background of the employees, Ms Philp stated that it was important that everyone was given the opportunity to understand before elections were reorganised. Ms Philp stated that at no stage did Mr Herring say that Unions were ‘evil’ or ‘no good’, and they were told that they had freedom of association and could act as they chose.
[86] Ms Philp stated that the Applicant told her she wanted to quit and enquired of her how much notice she needed to give. Ms Philp does not accept the Applicant’s version of her response (ie, that she told her three to four weeks). Rather, Ms Philp she said she told the Applicant the notice period would be one to four weeks depending on how long she had worked. Ms Philp said she would get her Manager to discuss exactly how much notice she would need to give. She wanted to discuss it with her Manager because in the past people had not been required to work out their notice period.
[87] Ms Philp stated Ms Boyle asked the Applicant if she was sure she wanted to quit and explained that if she really wanted to go, she did not have to work out her notice period.
[88] When asked about the Applicant not signing the letter of resignation at the hearing, the following exchange occurred:
Deputy President | Just to clarify that point regarding the signing of the document. |
Ms Philp | Yes. |
Deputy President | A draft was prepared and it was stated that she could take it home and sign it. What did you understand, was that in order for her to make the decision to quit or |
Ms Philp | Not at all. That she could actually speak with her husband in regards to it. She at no point said that she did not want to quit. She goes she just wasn't comfortable signing the piece of paper. When we were talking with her we - she asked her to - Suzanne to help her with the letter and write one, so she's done that. We take it, we sat down with her about it. She goes I don't want to sign it but I want to quit but in-between that we had said look, you can take it home, you don't have to sign it today, you can date it tomorrow if you want to come back and have a party like we always do. |
Deputy President | Right |
Ms Philp | She goes no, I don't want to sign it and then |
Deputy President | Did you clarify it again if she didn't want to sign it that the resignation was still effective? |
Ms Philp | We could - we would accept her verbal resignation if that's she wanted, yes. |
Deputy President | And that was a clear understanding |
Ms Philp | Yes, absolutely |
Deputy President | That she didn't have to sign it or |
Ms Philp | Correct, yes. We were happy to accept the |
Deputy President | So what was the point - right. So what was |
Ms Philp | She had asked us to write it so that's why we helped her. |
Evidence of Chanatcha Wangkumklang
[89] Ms Chanatcha Wangkumklang, Production Coordinator for the Respondent, gave evidence in these proceedings. Ms Wangkumklang said she is employed as a Production Co-ordinator with the Respondent.
[90] Ms Wangkumklang stated that when she heard the Applicant say she was going to join the Union and she thought the Union could help her as well. Ms Wangkumklang stated that Mr Herring did not say that the Union was ‘evil’ or ‘no good’. He said that they could do whatever they wanted to and what they thought was good for them.
[91] Ms Wangkumklang stated that the Applicant had told everyone she had quit and that her husband made enough money to look after her.
[92] Ms Wangkumklang stated that the Applicant said that she wanted to resign because there was too much work and it was too stressful. Ms Wangkumklang further stated that, “she [the Applicant] just came down and she said she resigned; there's a letter that upstairs gave to me [the Applicant] and today is my [the Applicant] last day.”
Evidence of Jampa Phiniram
[93] Ms Jampa Phiniram gave evidence in this matter. She stated that Mr Herring told the employees that it was fine if they wanted to join a Union. Ms Phiniram also noted that she did not want to be a representative for the agreement because she did not understand the policies and English was their second language. She said she was not happy with the Union because she felt they were trying to change everything, and it made her uncomfortable.
[94] Ms Phiniram stated that the Applicant was a good worker and she did not think she would be terminated. Ms Phiniram said the Applicant had said that she had quit her job because she was not happy. Ms Phiniram also noted that she heard the Applicant call her husband and say she had quit her job.
[95] Ms Phiniram’s evidence was that she had thought the Applicant had resigned on that day because that was what she had said, and later the Applicant said to her that she did not sign the letter so did not resign on that day.
Evidence of Kornkanok Minehan
[96] Ms Kornkanok Minehan gave evidence in this matter. Ms Minehan stated that she did not hear Mr Herring say anything bad about the Union and he said it was up to them if they wanted to join a Union.
[97] Ms Minehan said that she heard the Applicant call her husband and say she was not happy at work. She said the Applicant had told her that her husband said that if she was not happy, she could leave. Ms Minehan stated that the Applicant had stated she quit.
Evidence of Peter Herring
[98] Mr Peter Herring, Managing Director of the Respondent, gave evidence in this matter. He stated that on 15 July 2020, he received an unfair dismissal application notice from the Commission on behalf of the Applicant.
[99] Mr Herring said that the Applicant commenced work with the Respondent as a casual employee on 12 December 2011 on the recommendation of her friends who were already employed at the Respondent.
[100] Between 12 December 2011 and 7 September 2016, Mr Herring said that the Applicant commenced and ceased employment with the Respondent on nine separate occasions, working a combined total of approximately 61 weeks only out of 245 during that period. He stated that her work with the Respondent was not continuous during this five year period and the Applicant would routinely notify the business that she was not available for further employment on each of the occasions she ceased work.
[101] During this period, Mr Herring said that the Respondent grew rapidly and they employed the Applicant on each occasion she notified she was available. On 7 September 2016 when the Applicant joined again as a casual employee, Mr Herring stated that she had not worked at the Respondent since 19 December 2014.
[102] Mr Herring stated that the Applicant was re-employed as a casual on 7 September 2016 and was offered a full-time role with the business on 16 June 2017 which she accepted.
[103] Mr Herring stated that the Applicant was a production worker who performed basic process tasks for the majority of the time she worked at the Respondent. He said that the Applicant had never presented to the business any qualifications or formal training records she has completed during her time working in Australia.
[104] With additional in-house training, Mr Herring stated that the Applicant commenced a nail polish blending role responsible for making small batches of coloured nail polish to a specification recipe written in English. The Applicant reported to a Production Manager or General Manager during her employment. These roles reported through to the Managing Director.
[105] Mr Herring stated that one of the reasons for providing this in house training to the Applicant to commence the blending role, was due to her competency in English and her proven ability to correctly interpret the paper based English work instructions. While English is the Applicant's second language, the employee group in the factory is predominantly Thai speaking and of the 11 full time Thai employees, the Applicant was rated by her peers as the 4th best speaker of English, the most fluent being three employees who had completed their three final years of high school in Australia.
[106] Mr Herring stated that he was aware of the comments about Ms Baker made by the factory employees. The Applicant, as one of a group of several employees, spoke with Ms Philp on several occasions about the management style of Ms Baker. Mr Herring stated that Thararat (Than) approached him on two occasions directly to also discuss the supervisor's behaviour. Management discussed the behaviour directly and respectfully with Ms Baker on several occasions informally in March and April and formally on 27 to 29 May. She ultimately agreed her approach to managing the team was not a good fit and left the business.
[107] Mr Herring said that statements provided by others confirm that the Applicant voiced her desire to resign on several occasions during her period of full time employment. Mr Herring stated that he was informed of these comments made by the Applicant to both management and work colleagues at various times, however, was not directly spoken to by the Applicant about resigning.
[108] On 7 April 2020, Mr Herring stated that the site was visited by two representatives from the AWU who conducted a ‘marketing call’ because they were in the area. He stated that no right of entry permit was received prior to the site visit. Mr Herring stated that he met the two representatives with Ms Boyle. The AWU representatives confirmed that the visit was not in response to any member contact, any complaints from employees regarding working conditions or safety investigations. During the meeting, Mr Herring stated that the AWU representatives described the collective agreement as antiquated, they refused to recognise multiple third party social, ethical and workplace audits conducted by SEDEX certifying bodies that demonstrated total compliance with workplace, employment and safety best practice, the Respondent Employee Handbook or other compliance documents demonstrating the business' commitment to right of association. The AWU was offered the opportunity to leave marketing materials in the lunchroom.
[109] Mr Herring stated that he did not work directly with the Applicant, however, he filled the role at the business of being the most experienced and technically qualified person to advise on technical, chemical and quality issues associated with nail polish colour blending. During the period April and May of 2020, several customer complaints were received because colour batches supplied by the Respondent did not meet the customer's colour specification. Batch manufacture at this time was the responsibility of the Applicant and a co worker Chanatcha (Palm). The complaint investigation showed that the colour specification testing procedures for blending colour as part of the quality management process were not completed correctly.
[110] Mr Herring stated that while the workers responsible for the blending were reasonably competent, it was decided that colour batch accuracy could be improved by him coaching and training the two workers involved to build their testing skills and technical experience focused on these test procedures. Mr Herring stated that he organised with Ms Philp that on Thursday, 18 June 2020, a training session would be held with Ms Philp, the Applicant and Palm (as the two workers directly making colour blends), to revisit the importance of the tests conducted, the correct techniques in completing the tests and training around the interpretation of the test results that may lead to batch adjustments to achieve colour correctness.
[111] Mr Herring stated that the training focused on manual technical tasks to complete the testing correctly and visual referencing of colour, there was no English text to read or interpret. The tasks to complete were well within the competencies of the trainees with Palm immediately available to assist the Applicant where any English interpretation was required.
[112] Mr Herring stated that while the training was well received by the Production Manager and Palm, the Applicant was a reluctant participant, defensive and dismissive of the feedback and training. He stated that an example of her indifferent behaviour during one of these sessions included the Applicant, who has very competent English-speaking skills, unexpectedly interrupting the training to ask Palm a question in Thai. Palm then told Mr Herring that the Applicant had told her to ask Mr Herring in English to stop the training immediately because it was time for the Applicant to go on a break. The training stopped immediately and recommenced at a suitable time when the Applicant was available following her break. Mr Herring stated that the in-house training sessions were considered the most appropriate approach and no performance management action was taken in relation to the process errors or training behaviour.
[113] Mr Herring stated that the 2009 Agreement, while still listed as a compliant and approved agreement by the Commission, was identified as lacking several recent sections such as domestic violence leave provisions. He stated that most of the Respondent’s employees (including the Applicant) had received a lot of flexibility with work attendance and direct assistance, all as ordinary paid time for a variety of personal situations throughout their employment that have not been classified as annual or personal leave. Immigration matters, marriage separation processes, traffic infringements, dealings with the coroner's office and child custody and safety matters are all situations where the business has assisted team members, regardless of their ethnic background. Mr Herring stated that the business took a wholistic, fair and generous approach to employment and updating the agreement was appropriate.
[114] Mr Herring stated that he was not aware of any "friction" between the Applicant and any other employee and himself or management at that time. The management team and employees had let me him know directly that the production supervisor Ms Baker displayed a communication style that some found frustrating, however, the Respondent was a business where people communicate openly about behaviour, work practices, flexibility of employment and safety matters almost on a daily basis. With a majority female workforce many of whom have children in their care, Mr Herring stated that changes to working hours and flexibility were required constantly. Mr Herring stated that this behaviour of listening, checking in with people and encouraging the team to let management know where their problems were continued to occur during this process also. The business was overwhelmed with work at this time with the pandemic, and open and regular communication was essential.
[115] Prior to 10 May, Mr Herring said he had engaged CCIQ to commence an update of the Agreement. On 10 May 2020, he said he received from CCIQ documents to inform employees of the representative nomination process. CCIQ advised the first steps were to communicate with the employee group that a bargaining process was to commence and they had the opportunity to nominate representatives of their choosing. No discussion about the actual contents of any new agreement were held at this time.
[116] On 14 May 2020, Mr Herring said he conducted a meeting with all full-time employees (and Ms Philp as witness) to announce the commencement of the Agreement update process. At this meeting, an explanation was provided of the bargaining process and the need for the employer and the employees to be represented throughout the process. Mr Herring stated that he advised the group that he would be working with the representatives chosen by the employees and would be advised by CCIQ in helping draft a new agreement. He said he also described the process the employees would need to go through to nominate representatives to work with me on the new agreement. He stated his commitment to the group at that time was that the fundamental benefits they enjoyed in the current agreement would be preserved and we would like to update the agreement to include the additional statutory benefits such as domestic violence leave provisions that the current agreement was lacking.
[117] Mr Herring stated that Fair Work Commission compliant, CCIQ approved representative nomination forms were provided to all attendees except an employee on Workcover leave. This employee received her form via email. The group had no questions.
[118] On 14 May 2020, Mr Herring stated that a private meeting was held by the full-time employees themselves to discuss the nomination process. Mr Herring said that he was not aware of the discussion that took place at that meeting and the business was not aware of the matters discussed at that meeting. Mr Herring stated on this same day, all full time employees completed a representative nomination form and provided it to the Production Manager. These forms indicated that the group had nominated Jampa Phiniram and Mark Viheerma as their preferred representatives.
[119] On 15 May 2020, Mr Herring stated that he held a meeting with the full-time employees (with Ms Philp as witness) to advise them that Jampa Phiniram and Mark Viheerma had been elected as representatives. None of the representative nomination forms nominated an employee association or union or other party as bargaining representatives and the group had no questions. On 16 May 2020, Mr Herring said that the employee on Workcover leave emailed him to advise she did not require representation.
[120] On 18 May 2020, Mr Herring stated that an email arrived from the AWU advising of their right to act as default bargaining representatives based on having one or more members on site. Mr Herring said that he was not aware then and is still not aware now of which employees were, are or have been members of any union. Freedom of association is enshrined in the Respondent’s Employee Handbook and is a core company policy according to employment best practice. He said that this right had been certified to exist and was available to all employees through third party audits completed by global audit firms as part of social and ethical audit programs required by their major trade partners, where company policies and handbooks are sighted, and private interviews are held with employees on site confirming these rights exist.
[121] On 21 May 2020, following a demand from the AWU sent 20 May 2020, Mr Herring stated that he sent an email to the AWU representative advising them that none of the employees (including the Applicant) had nominated the union representative or anyone at the AWU as their bargaining representative and had all in fact nominated other employees as their representative. On 22 May 2020, the AWU representative sent a right of entry notice for a site visit 26 May 2020.
[122] Mr Herring stated that as at 22 May 2020, no draft agreements or agreement changes had yet been prepared or discussed, and no new agreement existed as the representative nomination process had only just occurred.
[123] On Monday 25 May 2020 at 3.45pm, Mr Herring stated that one of the two representatives nominated, Jampa Phiniram, requested a meeting with him and advised him with Ms Philp as witness, that she wished to withdraw from the role of bargaining representative. During the meeting he said that they reassured Jampa Phiniram her decision was absolutely okay, and she should not be concerned or nervous about changing her mind and the whole process would not be affected. He said they advised her they would meet with the rest of the team on Tuesday 26 May at 10am to advise them of her decision. He stated that any employee who nominated Jampa Phiniram would need to change their nomination and they asked Jampa Phiniram is she would also like to change her nomination and she said, no, she would leave it as is as she wanted Mark Viheerma to represent her.
[124] On Tuesday 26 May 2020 at 8:00am he stated that he met with Mark Viheerma to advise him that JP had withdrawn as one of the two employee nominated representatives. Mark Viheerma told Mr Herring that he would think about whether he would be the sole representative or whether he would prefer to work with another nominated representative especially as he believed it would be valuable for a native Thai speaker to be part of the process.
[125] On Tuesday 26 May 2020 at 10:00am, Mr Herring stated that he met with the full time employees with Ms Philp as a witness and advised them that Jampa Phiniram had withdrawn as a nominated bargaining representative and they could submit new forms if they wished to and change their nominee. Forms were provided to all employees who wished to change their nomination.
[126] On Tuesday 26 May 2020, Mr Herring stated that two representatives from the AWU conducted a site visit. At that meeting, he stated that one representative accused him of:
• underpaying staff
• conducting a fraudulent and flawed employee representative nomination process
• pressuring staff to nominate their colleagues as representatives
• operating a collective agreement that was obsolete
• and conducting a bargaining process where no one knew what they were doing
[127] Mr Herring stated that he was told by the AWU representative that he was there to meet with workers and not management and when Mr Herring challenged his comments about the validity of the bargaining representative nomination process, asking him to provide specific details of where the process was incorrect and also advising him it had been conducted in a compliant manner overseen by employment specialist legal advisors, he did not provide any details of non-compliances and said "that's what I'd expect you to say".
[128] During this site visit, Mr Herring stated that the same AWU representative also made offensive comments to their warehouse manager while operating a forklift (a piece of high-risk equipment she has been licenced to operate for over 25 years with an impeccable safety record) and an employee who herself has been a union representative during previous employment.
[129] During this second visit, Mr Herring stated that the second AWU representative, while observing the team on the factory floor from the lunch room, made racially derogatory remarks about the predominately Thai female workforce. Mr Herring stated that these remarks were witnessed by Ms Baker, the production supervisor, who was sitting in the lunchroom at the time immediately next to the representative and reported to Mr Herring in an email. Mr Herring stated that he was very upset by the remarks and immediately requested support from Ms Philp while in the lunch area with the representative.
[130] On 26 May 2020, Mr Herring stated that several employees (including the Applicant) submitted revised nomination forms with changes to their representation. One employee changed their nomination form twice on this same day.
[131] On 27 May 2020, several employees submitted revised nomination forms again changing their nomination from the forms received previously. On this same day, Mr Herring stated that he received an email describing the inappropriate comments made by the union representative while on site.
[132] On 28 May 2020, several employees submitted revised nomination forms again changing their nomination from the forms received previously.
[133] On 28 May 2020, based on the evident confusion around the nomination process, Mr Herring stated that direct feedback he received from factory employees and comments made by both union representatives at various times, he consulted with their employees and agreed to increase the level of understanding about the agreement bargaining process and education before any further progress.
[134] Mr Herring stated that he also received feedback from employees at this time that several factory employees had raised instances of unwelcome and repetitive, bullying-type behaviour from other factory employees around the representative nomination process and union membership. The employees requested no formal action be taken.
[135] On 28 May 2020, Mr Herring stated that he emailed CCIQ to advise that we would be halting the collective agreement bargaining process and conducting education sessions for all employees including contracted, full time and casual employees.
[136] On 29 May 2020, Mr Herring stated that he met with the entire employee group on site. During this meeting he thanked them for their hard work during a particularly challenging time, provided a business update to them and advised we would be halting the agreement bargaining process until at least 30 June and conducting education sessions to increase understanding of the industrial relations system and employee rights at work. In particular, he stated that he stressed that freedom of association rights were part of their employment rights at the Respondent. He said he also conducted a Harassment and Bullying training session including material from Fair Work Commission website.
[137] On 10 June 2020, Mr Herring stated that a ROE notice was received from the AWU for a site visit on 12 June 2020. He stated that two representatives from the AWU visited the site and told management they had no interest in speaking to them and met only with workers.
[138] On 16 June 2020, Mr Herring stated that he conducted a training session for all employees, regardless of the nature or terms or conditions of their employment attending the workplace on that day. This session included generic industrial relations information to assist every worker understand their rights and responsibilities as an employee, the nature of their employment and the financial responsibilities of me as an employer to them. The reason for this education session was to inform every worker of their rights at work, increase the understanding of the basics of employment law under the industrial relations system operating in Australia and the different instruments used to employ people. Specific information and examples were provided about individual contracts of employment, namely, the 2009 Agreement and the MA000010 Award.
[139] Mr Herring stated that comparisons were made between these instruments and an example of another agreement for a national hardware retailer to provide context and understanding. A comparison was made between the processes attached to the quality system, manufacturing documents and processing systems in the factory and the payroll system with sign in documents and systems, pay rate and conditions instruments and the payroll financial processes. This example was used because every person attending the session knew and understood the various processes that made up the quality system for making products however, they did not realise how many documents, processes and systems were involved in making sure they were paid correctly each week.
[140] Mr Herring’s evidence was that particular sections of the FWA and the Commission websites were regularly demonstrated throughout the meeting, including where all employees could locate the applicable award and the Agreement. During this session, freedom of association was reinforced as a right of employees amongst other rights such as a safe work environment and the correct payment of entitlements. Mr Herring said he was aware that several employees had noted his comments about freedom of association in their statements.
[141] Mr Herring stated that it was false that he "badmouthed the unions" and said unions were "evil and no good". He said that during this session, it was encouraged that questions could be asked in any language at any time and answered in real time to ensure understanding. He stated it was common for meetings at the Respondent to be held in English and translated as they happen into other languages.
[142] To assist with understanding of the training provided, Mr Herring said that each and every employee, including the Applicant, was provided the Fair Work resource document "Starting a New Job Checklist", and asked to return it completed to the General Manager.
[143] Mr Herring stated that workplace meetings were being held daily, however, not because of the bargaining process, but to keep the entire workforce updated on how the Covid-19 pandemic was affecting them as individuals, the community and the business and their employment.
[144] During February to July 2020, Mr Herring stated that the Respondent processed nearly 200 tonnes of flammable liquids servicing customer pandemic hand sanitiser orders. A typical 5-month period previously was 28 tonnes. The business was conducting daily meetings to keep the team totally informed of rosters, Qld Health advice and community and workplace safety protocols. Mr Herring said that the Respondent workforce was, and still is supplying national grocery, pharmacy and other retailers with hand sanitiser. Daily meetings were essential to continue to educate and reassure our workforce during this difficult time. During the period April 2020 to September 2020 (128 working days), Qld Health issued 102 Covid-19 Updates.
[145] Mr Herring stated that the factory at times ran multiple shifts per day, requiring constant, essential and timely communication with the workforce. At these meetings, native Thai speakers who were also fluent in English were asked to help translate the information provided to ensure understanding. He said that the Applicant did not ask any questions in English or Thai during any of these meetings or communication sessions.
Events of 24th June 2020
[146] On 24 June 2020, Mr Herring stated that he arrived at work to be informed by Ms Philp and Ms Boyle that the Applicant had asked to resign. Mr Herring stated he said immediately "Are you sure?" because of the employee's history of threatening to resign on regular occasions. He said he was also questioning them regarding the Applicant's intentions because the factory area in which she worked was very busy (nail polish sales during the pandemic grew strongly), she was in secure, full time work, was well regarded and in a lot of other areas of the economy, fewer jobs were available.
[147] On discussing the events on that morning, Ms Philp advised she had been approached by the Applicant directly in the factory and asked in clear English "How do I quit", "How much notice do I have to give to quit" and "I want to quit". He said that Ms Philp made it quite clear to him and had witnesses to the events in the factory, that the Applicant wished to resign and had initiated their own resignation. Based on the Applicant's competency with English and employment history with the Respondent, he said he was extremely confident that the Applicant totally understood what she had initiated and the content of the conversation she was having with Ms Philp to formally, verbally resign. Ms Philp then made sure Ms Boyle met with the Applicant with Ms Philp as a witness to consult with the employee to confirm her intentions.
[148] Mr Herring stated that he was aware that the Applicant, when meeting with Ms Boyle later again verbally stated that she wanted to resign and asked Ms Boyle what did she need to do to finalise her resignation. Ms Boyle advised her that she did not need to give any notice if she chose not to and normally employees resign in writing. The Applicant then asked Ms Boyle to write a letter for her because she did not know what to write and Ms Boyle typed up and printed a simple letter for the Applicant. The Applicant asked if she could take it home to her husband and Ms Boyle said she could.
[149] Mr Herring stated that he did not accept the Applicant’s resignation, nor did Ms Boyle make a statement because the meeting referred to by the Applicant where her resignation was accepted had not even happened at that point. He said that he knew that Ms Boyle had discussed with the Applicant the process of resignation and that a notice period was not required and that was the extent of the discussion. He said there was no acceptance of a resignation at this point and there was certainly no involvement from me as to accepting the Applicant's resignation.
[150] Mr Herring stated he had spoken directly with Ms Boyle regarding the situation of the typing of the "fraudulent" letter of resignation and it was typed for the Applicant by Ms Boyle in response to a direct request from the Applicant for assistance in formally resigning from her employment. Mr Herring said that the statement that the Applicant "thought it was going to be paperwork on what to do" was false. Mr Herring stated that he knew from the previous employment experience that the Applicant was very clear about the process of resigning her employment. He stated that the Applicant clearly knew what the letter was and what it had typed on it - she requested it.
[151] Mr Herring stated that he was confident the letter was provided in good faith at the request of the Applicant based on the employee initiating their resignation. The letter has subsequently been described a "fraudulent" in submissions by the Applicant's representative, but Mr Herring stated that it was not a letter created without the consent of the Applicant. He said that the Applicant requested it, the letter was created and provided to them and they also asked questions about it and sought advice from other employees.
[152] Mr Herring stated that he was aware that Ms Boyle met with the Applicant with Ms Philp as a witness and questioned her at length to make sure she was certain that she wanted to resign. He stated that based on the employee's history of employment, this was known behaviour, and he was confident that Ms Boyle repeatedly checked with the Applicant that she wished to formally resign and on each occasion the Applicant responded that that was her clear intention. At this meeting the Applicant had a clear opportunity to change her decisions and clearly had a choice provided about the decision being made, that is why the meeting was held. He stated that history showed the Applicant threatened to resign all the time so consulting with the employee to provide the opportunity to change their mind or choose a different approach occurred immediately.
[153] Mr Herring stated that he was also aware that Ms Boyle, in addition to meeting with the Applicant directly with Ms Philp to check that resigning was her clear intention, also asked Jampa Phiniram (JP) to speak to the Applicant immediately on the same day as a personal friend, work colleague and Thai speaker to confirm that resigning from her full-time role on that day was her absolute intention. He stated that Ms Boyle told him that JP confirmed to her that the Applicant confirmed with her during a discussion in Thai that she intended to resign.
[154] Mr Herring stated he spoke with Ms Boyle regarding the timings of the Applicant actually ceasing her employment and Ms Boyle advised him that she had told the Applicant she could go home on 24 June and speak with her husband further if she wished and then return on Thursday 25 June. He said that the instruction provided was to simply change the date on the letter of resignation.
[155] Mr Herring stated that he spoke with Ms Boyle on that day repeatedly and at every stage, any discussion she had with the Applicant was witnessed by Ms Philp. He stated that at no stage had Ms Boyle or Ms Philp reported to him that they told the Applicant they had to leave the premises.
[156] Mr Herring stated that at no stage had any discussions even occurred regarding processing of the Applicant's resignation at a payroll level. The comment "because your name has gone through the system already" was false and did not occur.
[157] Mr Herring stated that following the notification email on Friday 26 June from Ms Boyle, he received an email from the CFO with details of the entitlements due to the Applicant based on his review of the agreement and her resignation entitlements. The Applicant provided the business with no notice period and ceased employment on the day the applicant tendered her resignation. In good faith, he said he instructed the CFO to make a payment in lieu of notice to the applicant as part of entitlements to be paid of one week's pay as per the 2009 Agreement.
[158] On Monday 29 June 2020, Mr Herring stated that Ms Boyle phoned the Applicant and again, based on the Applicant's known behaviour, asked her to confirm she still intended to resign. He said that Ms Boyle had a discussion with the Applicant again with Ms Philp witnessing the call with the Applicant's consent and detailed all the entitlements that were to be processed on behalf of the Applicant, including the additional payment in lieu of notice for an additional 1 week's pay.
[159] Mr Herring stated that on 30 June 2020, the Applicant was paid all her entitlements according to the agreed amounts confirmed 29 June 2020. He stated that the monies transferred were received in full by the Applicant as confirmed by banking transaction records, payroll journals and payroll advice slips detailing all the payments were emailed to the Applicant.
[160] Mr Herring stated that at no stage was the Applicant dismissed or forced to resign and there was no evidence of any action taken to support force or coercion. He said that the Applicant freely admitted to her colleagues that she has resigned on multiple occasions. Mr Herring stated that the Respondent has a documented process of employee performance and behavioural management that contains model forms, letters and templates that forms part of the business HR systems.
Events after 24th June 2020
[161] Mr Herring stated that at no stage between 24 June and the departure of the Applicant from work that day and the time of the call made to the Applicant on 29 June did the Applicant contact the business, any of her friends at work to say she felt forced, instructed, coerced or pressured to terminate her employment.
[162] Mr Herring stated that at no time in the 17 years Ms Boyle had been employed at the Respondent has she been observed or reported as behaving in an aggressive or angry manner towards any customer, supplier, visitor or employee. Mr Herring stated that the statement that Ms Boyle "was having problems at home and brought them to work" is patently false. He stated that he was at work with Ms Boyle the entire day of 24 June 2020. Her behaviour was directly witnessed by all employees throughout the entire working day with all the discussions held with the Applicant witnessed by Ms Philp and other employees.
[163] Mr Herring stated that if a person was angry and aggressive towards a person, it is highly unlikely they would sit with that other person and gently rub their arm, show genuine concern and ask if they are really intended to go through with their resignation. In addition, he said he conducted the conciliation hearing with the Applicant on 4 August, 2020 with Ms Boyle and the Applicant present on the call and at no stage throughout that discussion was the Applicant's claim that "she (Ms Boyle) was angry that day and reacted in an aggressive manner" raised or commented upon. He stated that the submission by the Applicant's representative for the mediation hearing attached to the initial unfair dismissal application did not mention this angry or aggressive behaviour or interaction with Ms Boyle at all.
[164] Mr Herring further stated that this angry and aggressive behaviour by Ms Boyle in dealing with the Applicant was not mentioned by any witness in the factory to the events of that day, or mentioned by the Applicant at all since 24 June 2020 until 19 February 2021.
Evidence of Phanpaphorn Patsareeya
[165] Ms Phanpaphorn Patsareeya, Production Coordinator for the Respondent, made a statement in this proceeding. Ms Patsareeya said that she did not remember Mr Herring saying Unions were ‘evil’ or ‘no good.’
[166] Ms Patsareeya stated that the Applicant called her husband on a lunch break on 24 June 2020 and when the call had finished, she said she could quit because her husband made $65 per hour. Ms Patsareeya said the Applicant stated she quit her job and had been thinking about it for a long time. Ms Patsareeya further stated that there were three of them sitting with the Applicant at lunch when this conversation occurred.
[167] Ms Patsareeya’s evidence was that the Applicant said, “I'm going to see the boss to resign” and Ms Patsareeya asked her, “Are you sure you think it through properly?” and she said, “Yes. I've already talked to my husband.”
Further evidence of Suzanne Boyle
[168] Ms Suzanne Boyle gave evidence in these proceedings. She stated that the Applicant was a casual employee with breaks in her employment (following requests of the Applicant), of up to two years until she was re-employed as a casual and then given a permanent position in 2017.
[169] Ms Boyle said that the Applicant was not dismissed. For any performance management process, Ms Boyle said she would be required to make diary notes, complete coaching documents, complete paperwork and consult with Peter Herring (Managing Director) and Chris Whitecross (Chairman and HR specialist) prior to any disciplinary process or dismissal.
[170] Ms Boyle stated the Applicant was not being performance managed at the time of her resignation. She said that Mr Herring and Ms Philp had done some training with the Applicant and Palm after some customer complaints about quality. Ms Boyle stated that there was no evidence of performance management or dismissal process occurring with the Applicant.
[171] Ms Boyle stated that the Applicant’s spoken and written English was very good. She said that while it is her second language, she was able to read and follow complex instructions, like the blending recipes she works with and write records and discuss matters related to her role. In the hearing, Ms Boyle noted these blending recipes had a mixture of numerical and written components. She said the cards had descriptions of ingredients with numbers and codes.
[172] Ms Boyle stated that the Applicant did not speak to her regarding her relationship with their new supervisor.
[173] Ms Boyle stated that the Applicant had previously threatened to quit if she did not get a wage increase, and after review of her work she was given the increase. This happened in March 2020 and Ms Boyle stated she spoke to Mr Herring at the time about the Applicant’s threat and worked with him on looking at the various hourly rates that different workers received in the factory.
[174] Ms Boyle stated that she was not at the agreement meeting, however she was informed prior that the meeting was to discuss the development of a new agreement. Ms Boyle stated that Mr Herring told her before she left on leave that he had spoken to CCIQ and it was time to update the collective agreement with additional clauses like Domestic Violence Leave which Ms Boyle said was a good thing for our team because at various times over the years we had people in situations that needed this help. Ms Boyle stated Mr Herring was working with CCIQ to start a representative election process only and no agreement had even been drafted.
[175] Ms Boyle stated that Ms Philp, the Applicant’s supervisor, came and told her that the Applicant wanted to quit and asked if Ms Boyle could speak to her. Ms Boyle stated that this had occurred previously with the Applicant and Ms Boyle had spoken with her a number of times regarding 'quitting' and she has stayed.
[176] At all times on this day when she spoke to the Applicant, Ms Boyle stated that Ms Philp was with her as a witness. Ms Boyle said that she categorically did not say to the Applicant “no you do not need to give notice, you can just leave and Mr Herring has accepted your resignation straight away”. Ms Boyle said that the Applicant had said she wanted to quit and asked how much notice she needed to give. Ms Boyle stated that she explained to her that it is their procedure to not force anyone to serve their notice period if they did not want to.
[177] In the hearing, Ms Boyle stated that she did tell the Applicant she did not have to give notice as it was common for people not to work their notice period. She further stated that she did say to the Applicant that she did accept her resignation as she was entitled to in her job. However, Ms Boyle also confirmed her written evidence that she did not tell the Applicant that Mr Herring has accepted her resignation straight away.
[178] Ms Boyle stated that the Applicant said to her that she wanted to quit. She then asked Ms Boyle "what the way to do that, how do I do that?" Ms Boyle stated that she said to her that it was usual for someone to resign in writing, by writing out a letter to say they resign. She said to me "Can you help me do that?". Ms Boyle stated that the Applicant definitely requested that she assist by writing a resignation letter for her. Ms Boyle stated that she commonly assisted employees with completion of forms, applications, immigration matters and day to day bills, so this was not an unusual request. Ms Boyle stated that at the Applicant’s request, she assisted the Applicant by writing a simple resignation letter for her, but at no time did Ms Boyle insist she sign it.
[179] As part of the above conversation, Ms Boyle said she told the Applicant she could just change the date if she wanted to take the letter home and bring it back tomorrow. They agreed with her that she would come to work on Thursday and they would hold a farewell for her with her friends.
[180] Ms Boyle stated that the Applicant was very clear during their discussions, as witnessed by Ms Philp, that she wanted to quit, was indeed quitting and requesting assistance with the process. She was very intentionally, with full understanding, resigning from her position. The existence of the letter was irrelevant as she had also verbally resigned which she told her was acceptable also. She did not retract this position at anytime.
[181] Ms Boyle’s evidence was that the Applicant did not sign the resignation letter but had stated that she wanted to quit which was an intention to resign. Ms Boyle also said later, the Applicant verbally resigned and asked Ms Boyle if that could be accepted to which Ms Boyle said it could be.
[182] Ms Boyle further stated that she did not say “no, you have to leave, you'd better leave because your name's gone through the system already.”
[183] On the day of the Applicant’s resignation, Ms Boyle said that she had heard that the Applicant had told a number of other employees that the Applicant would be fine as her husband had started a well-paying job and was happy to support her decision to resign.
[184] When asked if she would have taken the Applicant back if she had changed her mind during the day, Ms Boyles evidence was that:
“She's a really good worker. I certainly would have considered it. Given the whole process of the day I would have sat down with Peter first and discussed it. There was no issue with her work. She was - she's a good worker. She's actually spectacular, so - and there was no disciplinary action going on, there was nothing. This was initiated by her. She had resigned. So we had accepted that.”
[185] Ms Boyle stated that other employees had told her that the Applicant had resigned from the Union at the time of her resignation and that re-joining was an afterthought of her husband to enable them to file a claim.
[186] Ms Boyle said she and Ms Philp called the Applicant on Monday 29 June 2020 to confirm with her that she had resigned. Ms Boyle said she asked the Applicant how she was and if she was sure about resigning. She said yes, and Ms Boyle said she explained how the Applicant’s entitlements were to be paid. Further, Ms Boyle stated she did not say to Mrs King she was angry and acted aggressively because of problems at home on the day of the Applicant’s resignation.
[187] Ms Boyle stated that the Applicant had a number of close personal relationship with the employees, as did she. Ms Boyle said a number of them had approached her and said how disappointed they had been with the Applicant taking the action she had and assured her the truth will show through.
Evidence of Thararat Winchaihan
[188] Ms Thararat Winchaihan, Production Coordinator for the Respondent, gave evidence in this proceeding. She stated that Mr Herring did not say the Union was ‘evil’ and that it was their choice whether to sign up. Ms Winchaihan stated that she decided not to sign up to the Union because it cost money.
[189] Ms Winchaihan stated that her friend asked her to check up on the Applicant. Ms Winchaihan asked the Applicant what had happened, and she stated she had quit her job and asked for a holiday but was denied.
Evidence of Wanassanan Junlason
[190] Ms Wanassanan Junlason, another employee of the Respondent, gave evidence that Mr Herring said that it was okay if they signed up to a union because it was their choice. Ms Junlason stated that Mr Herring did not say that the union was bad and he was respectful of their decisions.
[191] Ms Junlason stated that the Applicant said to her that she had quit her job. Ms Junlason asked if she was serious as she had said it a lot previously. Ms Junlason said the Applicant said she was serious and there was no point coming back. Ms Junlason stated that the Applicant said she was tired and uncomfortable, and she had been thinking about leaving a lot.
Evidence of Mark Vihermaa and Ms Wisuta King
[192] Mr Mark Vihermaa and Ms Wisuta King provided a witness statements in this matter but were not called at the hearing. Accordingly, this evidence was not be relied on.
CLOSING SUBMISSIONS
[193] Following the hearing, the parties were invited to file written closing submissions.
Applicant’s closing submissions
[194] The Applicant relied on the submissions already filed in this matter. In addition, her representatives continued to submit that she was constructively dismissed by the Respondent by outlining the elements of a constructive dismissal, then events of 24 June 2020, other considerations for the Commission to take into account, including the Applicant’s emotional state, the language barrier between the parties and the structure of the statements made by each of the Respondent’s staff. As to that final matter, the Applicant pointed to the structure of those statements which took the form of questionnaires that asked each statement maker, “was [the Applicant] happy at work before she quit? I not, explain why not” and “Has [the Applicant] threatened to quit before? When? What happened? Why”. The Applicant further detailed how her termination was harsh, unjust and unreasonable and if so found, that appropriate compensation be awarded.
[195] The Applicant pointed to the case of Western Excavating (ECC) Ltd v Sharp which describes the basis of constructive dismissal. 6
[196] The Applicant submits that her version of events of 24 June 2020 ought be accepted on the basis that the key events have been validated by the Respondent’s witnesses, namely Ms Junalson in respect of the Applicant asking Ms Boyle for information about how to resign. The passages of the transcript cited by the Applicant were:
MS JUNALSON ‘I don't really understand a lot about this, but I have heard that she just asked Suz to give her, like, some more information about how she resign, what she has to write for a resign.’
…
MR SANTELISES ‘So on that day, you understand that Bea went upstairs to ask how to resign because she wasn't sure, is that - - -?’
MS JUNALSON ‘Yes’
…
MR SANTELISES ‘But you are confident that Bea told you that she said she went up there to ask how to resign, but not to resign?’
MS JUNALSON ‘She just asked for Suz to help her, because she didn't know how to write a letter. That's all. And she just helped her, because she needed it.’
[197] As to the conversation between Ms Boyle and the Applicant following the alleged resignation, the Applicant points to Ms Boyle’s evidence that, “Later in the day she asked me if she didn’t sign the letter could she just work when she wanted to. I said that as she resigned verbally, in words, I had accepted and therefore tomorrow would be her last day. She said ok and nodded.” While the Applicant disputes and submits that she had no intention to resign, the parties do not dispute that the Respondent would not rescind or allow the Applicant to return to work, and the same was confirmed via cross examination as well, which is noted within these submissions.
[198] The Applicant further submits that the evidence does not demonstrate that she voluntarily resigned but rather that she was coerced by the Respondent via the actions of Ms Boyle. The conduct referred to was the providing of the letter of resignation, the statement that, “no, you do not need to give any notice, you can just leave and Mr Herring has accepted your resignation straight away,” the refusal to allow the Applicant to return to work.
[199] The Applicant drew significance from the fact that the resignation letter had not been signed by the Applicant. That is, that the non-execution of the letter pointed to an absence of intention to resign by the Applicant. To that end, the Applicant pointed to the evidence of Ms Phiniran who, through the Thai interpreter, stated that the Applicant “told me that she didn’t resign on that day, because she didn’t sign.”
[200] By contrast, the Applicant says, when Ms Winchaihan resigned from the Respondent, Ms Winchaihan gave one week’s notice and provided a written and signed resignation letter.
[201] The Applicant acknowledges that Jumpa Phiniran, Amy Patsareeya, Tharat Winchaihan,
Chinacha Wangkumklang and Wanatsanan Junalson all state that the Applicant “quit”. However, she submits that their evidence should be given no weight because:
• all stated that there were no comments before and after the words ‘I quit’;
• all were directed to provide evidence to the Commission initially in questionnaire form directing them to the comments of “when [the Applicant] quit”;
• the language barrier should be taken into consideration and on that basis, their written submissions should be given no weight;
• they are in some cases contradictory – for example Ms Phiniran, under cross-examination, stated that the Applicant had quit around 9:30am but the events involving the Applicant resigning were said to have occurred at around 10am. Another example of contradictory evidence was that of Ms Junlason who stated that she worked on the factory floor, despite her witness statement indicating that her role was that of “data entry”. The Applicant submits that this contradiction alone seriously calls into question the reliability of this particular witness’s evidence as a whole and therefore its probative value is ‘dangerous’ and ought be completely disregarded.
[202] The Applicant maintains that her dismissal was harsh, unjust and unreasonable in light of the relevant authorities because it was not intended by the Applicant, nor was it a genuine resignation and no consideration was given to the language barrier and the Applicant’s understanding of the Respondent’s actions.
[203] Finally, as to whether the Applicant’s initial request for reinstatement in her Form F2 evidenced her desire to return at the time (or as Mr Herring said, could have reflected a change of heart), the Applicant submits that if the Respondent were to contest the Applicant’s position about the reason for filing the Form F2 or allegedly, ‘changing her mind’, the Respondent should have tested the evidence, and they did not, and such assertions should be dismissed.
Respondent’s closing submissions
[204] In the Respondent’s closing written submissions, the Respondent maintains that the Applicant was not dismissed at the Respondent’s initiative. Rather, she resigned from her employment at her own free will and not in the manner prescribed in s.386(1)(b) of the Act.
[205] Further, the Respondent states that the evidence from the witnesses shows that on the morning of the day the Applicant resigned, she informed the Respondent she wanted to resign and enquired with the Respondent how she could resign. The Respondent rejects the Applicant’s suggestion that on the day she resigned she was simply inquiring as to what she would have to do, should she decide to resign, but had no intention to actually do so. The Respondent submits that if the Applicant's question about how much notice she was required to give (if she resigned) was a question in isolation as she alleges, then nothing further would have occurred once an answer was provided by the Respondent. However, during cross-examination, Ms Philp confirmed the Applicant had approached her at around 9am to inform her that she wanted to quit and how much notice she would need to give the Respondent. Ms Boyle was then brought into the discussions with the Applicant, who told the Applicant that resignation would usually be in writing. The evidence of Ms Boyle and Ms Philp was that the Applicant then asked and if Ms Boyle could prepare a letter of resignation on her behalf.
[206] In cross examination Ms Boyle and Ms Philp both confirmed that the Applicant was given the letter to sign and was told she did not have to sign the letter if she did not want to and that she could take the letter home to consider her decision.
[207] The Respondent submits that the evidence from Ms Philp and Ms Boyle during the hearing confirmed that the Applicant was told she could give a verbal resignation instead of a written resignation if she wanted to, and that she clearly communicated to Ms Boyle and Ms Philp her intention to resign.
[208] Further, the Respondent states that the evidence of the other witnesses showed that, on the morning of the day the Applicant resigned, the Applicant told her colleagues she was going to resign from employment as she was not happy in her employment with the Respondent.
[209] Ms Jampa Phiniram gave evidence during the Hearing that the Applicant approached her at around 9:30am on the day she resigned, telling Ms Phiniram that she had resigned. In cross-examination, evidence was given by five other witnesses for the Respondent - Ms Kornkanok Minehan, Ms Phanpaphorn Patsareeya, Ms Jampa Phiniram, Wanassanan Junlason and Ms Chanatcha Wangkumklang – also said the Applicant had told them she had resigned. They also said the Applicant was not happy in her employment leading up to her resignation, and that she stated to them that she was relieved that she was leaving.
[210] The Applicant initially stated during cross-examination that none of her colleagues were present during her lunch break when she phoned her husband. However, the Applicant later claimed that only one of her colleagues was present during the phone call, Ms Kornkanok Minehan. In cross-examination the Applicant also claimed that she did not speak to any of her colleagues throughout the day about her discussions with Ms Boyle and Ms Philp, or tell anyone that she wanted to resign.
[211] However, in cross-examination, three of the Respondent’s witnesses confirmed they were present at the table with the Applicant when she phoned her husband on her lunch break (being Ms Minehan, Ms Patsareeya, and Ms Wangkumklang). Each said they witnessed the Applicant speaking to her husband by telephone and after the call ended, the Applicant told the witnesses she was going to resign and informed them her husband had said to her “it’s up to you”.
[212] The further evidence of Ms Philp and Ms Boyle was that the Applicant maintained she wanted to resign later in the day and that she would return for a farewell morning tea (as was common practice when someone left the workplace) but the Applicant did not return.
[213] The Respondent pointed to the evidence given during cross-examination, that Ms Philp, Ms Boyle and Mr Herring all acknowledged that the Applicant was a good worker, with the latter two stating that had the Applicant had changed her mind and decided not to resign, the Applicant was welcome to continue employment with the Respondent. Ms Boyle gave evidence that she called the Applicant on 29 June 2020 and asked if she had changed her mind about resigning. Ms Boyle’s evidence was that the Applicant confirmed she would not be returning. This was confirmed by Pa, who gave evidence of having a similar exchange with the Applicant on that day.
[214] The Respondent submits that the Applicant's intentions were clear when she decided to resign; she gave a clear indication to the respondent that she was not retracting her resignation, despite being given numerous opportunities to do so. The Applicant asked for a resignation letter to be prepared for her, asked questions about resigning, notice and when it took effect, and if she could choose when to work, asked her colleagues and friends for advice about the letter, and phoned her husband about resigning and about the letter prepared for her.
[215] The Respondent argues that evidence from witnesses shows there was no directive or coercion from the Respondent to sign the letter, or to hasten her exit from the workplace. Further, as the Respondent had told the Applicant a verbal resignation would be accepted, it did not matter that the letter was unsigned, or that it existed at all. The Applicant had decided she was resigning, had informed her managers and colleagues throughout the day of her decision, despite claiming during cross examination that she did not speak with any colleagues during the day about her employment.
[216] The Respondent submits that the Applicant’s conduct as a whole manifested an intention to no longer be bound by her contract of employment and to no longer render service to the Respondent, and that accordingly, there was no dismissal at the initiative of the Respondent. On that basis, the Respondent submits that the Commission must exercise its powers and dismiss the s.394 Application for want of jurisdiction.
RELEVANT CASE LAW
[217] Section 386 of the Act has created a clear “bifurcation in the definition of ‘dismissal’” and has created two clear grounds on which a claim could potentially proceed. The Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan provided clarity as to these two distinct grounds: 7
“[9] The distinction between a dismissal falling under s.386(1)(a) and one falling under s.386(1)(b) is sought to be explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:
Clause 386 – Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[10] It seems clear from the above that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“…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.’’
[12] Importantly, in Mohazab the Court did not decide that the termination of employment in that case was at the initiative of the employer because there had been a constructive dismissal. Indeed, the Court expressly observed that it was “. . . unnecessary to consider whether the facts fall within or without the notion of constructive dismissal.”
[13] As s.386(1)(b) is intended to capture or reflect the common law concept of constructive dismissal and as the Commissioner concluded that “the applicant was constructively dismissed” because she had accepted the Appellant’s repudiation of the contract of employment and thereby brought the contract and the employment under it to an end, we consider that when read in its entirety the Commissioner concluded that the Respondent had been dismissed within the meaning of s.386(1)(b) of the Act.”
[218] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli, the Full Bench expanded on the content of the two limbs:
“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” 8 (emphasis added)
[219] The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 is foundational, considering what is classified as a ‘forced resignation’. There it was stated:
“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.” 9 (emphasis added)
[122] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli , the Full Bench helpfully expounded on Mohazab:
“[31] The approach taken in Mohazab that a termination of employment at the initiative of the employer could be constituted by a “forced” resignation was followed in numerous decisions made in respect of the various iterations of the termination of employment scheme in the Workplace Relations Act 1996. These decisions most notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to Mohazab and said:
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.
[32] In the latter decision, a Full Bench of the Australian Industrial Relations Commission said:
[23]... 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.”
[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill…” 10 (emphasis added)
[220] The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred. Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”
CONSIDERATION
[221] I have considered the evidence provided by each of the witnesses, in written statements and at the hearing. In respect of those witnesses who gave their evidence with the assistance of the Thai interpreter, I place more weight on what they said at the hearing rather than the written statements. I have also considered the very helpful and extensive written submissions provided by each party.
[222] The case as put by the Applicant was essentially that she went to work, asked how she would go about resigning and how much notice would be required if she decided to do so. She says the Respondent handed her a resignation letter that set events in motion of which she had no real understanding, particularly given the significant language barrier between the parties. She says her attempts to clarify or alter the situation were rebuffed or ignored by the Respondent. She claims she had no intention to actually resign on that day.
[223] By contrast, the Respondent says the Applicant had clearly decided to resign and communicated her decision to leave the organisation to her friends and colleagues, and management. I acknowledge that, as pointed to by the Applicant, Ms Phiniran’s evidence was that the Applicant told her she had not resigned on that day because she did not sign the letter provided to her. However, overwhelmingly, the evidence of the all the other witnesses called by the Respondent, including those who were friends of the Applicant, was that the Applicant had been unhappy in her employment for some time, that she had made up her mind to resign and that she did so on 24 June 2020. I prefer their evidence which was given at the hearing following questions from both the Applicant’s representative and I, with the assistance of a Thai interpreter where necessary. They were consistent with one another but not so uniform as to appear orchestrated. Each of those women gave evidence of having spoken with the Applicant at different times throughout the day and having been told that she had made a decision to leave the Respondent. Some also overheard her side of the phone conversation with her husband. The fact that multiple individuals were nearby when that conversation transpired – and each gave evidence of that fact – but the Applicant was only willing to accept in cross-examination that one was there, led me to favour the evidence given by the other employees.
[224] I also accept the evidence of Ms Boyle, Ms Philp and Mr Herring. I have outlined their evidence above and do not propose to restate it here. Suffice to say that their evidence demonstrated that the Respondent asked the Applicant multiple times throughout the day and then in the days following her purported resignation whether she was certain of her decision to resign. They say she confirmed that she was on each occasion.
[225] I accept that some allowance must be made for the language barrier that existed. However, it must also been acknowledged that the Applicant had worked at the Respondent’s business over the course of a number of years. They had seemingly managed any language barriers up until that point, likely through both the Applicant’s English-speaking skills or through other employees acting as translators. The number of times that the resignation was discussed, and the consistency of the Applicant’s responses, suggest that she understood what she was doing. It is particularly significant that she had conversations with several other Thai-speaking employees who now say the Applicant had indicated that she “quit” or resigned.
[226] I am satisfied that the Applicant freely decided that she was going to resign on 24 June 2020 and indicated that to Ms Philps initially and then to Ms Boyle. I am satisfied that the document prepared by Ms Boyle was in response to the Applicant’s request for the letter of resignation to be prepared. However, the letter itself – and the signing of it – was not material to the resignation. It was simply symbolic of it. That is because the Applicant had already resigned verbally and the Respondent, through Ms Boyle, had indicated that it was willing to accept the Applicant’s verbal resignation.
[227] Accordingly, I am satisfied that the Applicant resigned her employment on 24 June 2020 and I therefore have no jurisdiction to hear the matter further. I order that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR731405>
1 Fair Work Act 2009 (Cth) s.396.
2 Australian Hearing v Peary [2009] AIRCFB 680.
3 (1992) 26 FCR 20.
4 (1995) 185 CLR 410
5 (1993) 144 QGIG 914.
6 [1978] QB 761 at 769.
7 City of Sydney RSL & Community Club Ltd v Balgowan[2018] FWCFB 5, [9]-[13] (Balgowan).
8 [2017] FWCFB 3941 at [47].
9 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200, 205-206 (Mohazab).
10 [2017] FWCFB 3941.
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