Ms Maria Pritchard v ISS Security Services Pty Limited
[2010] FWA 1740
•4 MARCH 2010
[2010] FWA 1740 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
ISS Security Services Pty Limited
(U2009/14524)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 4 MARCH 2010 |
Summary – termination at the initiative of the employer – s.386 – whether an employer has a duty to contact employee and clarify employment status after resignation – obligations upon employee – whether disconnection from social reality –Industrial Relations Court of Australia authority distinguished.
[1] Ms Maria Pritchard (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the FW Act”) for an unfair dismissal remedy, but is said by her former employer, ISS Security Services Pty Ltd (“the Respondent”) to have resigned her employment on 23 November 2009. This, it is claimed, followed various actions having been taken in relation an allegation that the Applicant breached the company’s policies at a screening point at the Brisbane airport, at which the Applicant was stationed to perform her duties. The detail of these matters is discussed below.
[2] The Applicant, for her part, denies having resigned her employment, and that Respondent’s contention is a misunderstanding of her position when she left work on 23 November 2009. Consequently, according to the Applicant, it was the Respondent’s conduct on 30 November 2009 in not permitting her to resume work that bought her employment to an end.
[3] Given these competing claims, it falls to Fair Work Australia (“FWA”) to determine as a question of jurisdiction, whether there was a termination at the initiative of the employer, such that the Applicant can make the application under s.394 of the FW Act.
[4] The hearing in relation to this matter was held in Brisbane on 25 February 2010. The Applicant was represented by Counsel, Mr Reed and the Respondent by an Agent, Mr Cusack.
STATUTORY CONTEXT
[5] Section 385(a) of the FW Act reads as follows and, relevantly states that in order to make an application under s.394 of the FW Act an applicant must have been a person who has been dismissed from his or her employment:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed […]”
[6] Section 386 of the FW Act defines the notion of a dismissal in the following manner:
“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 […]”
DISCUSSION OF THE FACTUAL MATRIX
[7] The Applicant arrived at work on 23 November 2009 at approximately 6.00am, and requested seven days annual leave on short notice purportedly for generalised health purposes from Mr Matthews, the Site Manager. The leave was verbally granted, subject to the Applicant filling in a leave form.
[8] Mr Matthews’ evidence was that Applicant had agreed to return at a later point in the day to fill in a leave form. From the evidence led by the Respondent, the Applicant never did so:
“That's right. And you authorised that leave, didn't you? ---Yes, I asked her to submit a leave form and I'd authorised it, yes.
She completed a leave form? ---No, she didn't at that stage. She said she would come down later that day to complete that form.
But you had no difficulty with her taking a week off? ---No, I didn't.” 1
[9] The Applicant for her part believed she did complete a leave form, but her narrative is incomplete in this regard. 2
[10] Later in the Applicant’s shift, at around 10.00am, the Applicant took a break from her duties at a passenger screening point at Brisbane Airport.
[11] On walking away from her station, the Respondent was observed by the screening coordinator, Mr Ben Powell, and the Site Supervisor, Mr Bailey, dropping an object onto the tile floor whilst exiting the sterile screening area.
[12] The Site Supervisor approached the Applicant and encouraged her to return to the Supervisor’s office.
[13] The Applicant was in possession of a silver bottle of perfume that had been surrendered by a passenger.
[14] The Respondent has a policy in relation to the surrender of any liquids, aerosols and gels (“LAGs”) known as the LAGs policy. The Applicant had been trained and tested in respect of that policy and there was a record of completion or acknowledgment in this regard. The Applicant gave evidence that a particular component of her duties concerned giving effect to the LAGs procedure. 3
[15] It was put in proceedings that the LAGs policy reflected the regulatory obligations that fall upon the airport owner or contractor. As I understand the Aviation Transport Security Regulations 2005 (“Regulations”), an offence may occur for breach of a LAGS procedure once put in place (pursuant to the Regulations). 4
[16] Any items surrendered by passengers pursuant to the LAGs policy in this regard are placed in specified location in the screening area and destroyed, and are required to be so dealt with.
[17] Following an initial discussion (on 23 November 2009), a meeting was convened a short while later to make further initial inquiries into the incident by the Respondent at which the Applicant, Mr Matthews, Mr Powell and Ms Kelly Ford, the HR Manager attended, along with the Applicant. The Applicant was invited to have a witness or a support person, but expressly declined for reasons particular to her. 5
[18] The meeting appears to have been conducted over approximately a 20 minute period.
[19] The evidence supports a finding that upon seeking an explanation as to how the Applicant came into possession of the perfume, the Applicant, according to Mr Matthews and Ms Ford, stated that she had spoken to a passenger about the perfume and had been requested to take the item to her (the passenger’s) friends or relatives who were to be found at the Donut King shop on the upper level of the airport.
[20] The Applicant never informed her Leading Hand or Shift Supervisor of the request.
[21] When informed (by Mr Powell) that the CCTV footage did not appear to support the Applicant having any contact with the passenger in question, the Applicant, it is claimed, provided a different explanation. That explanation appears to have been that she was taking the perfume to the staff room for employees to use.
[22] The Applicant did not herself give evidence about her explanations for being in possession of the perfume bottle, but, but whilst she claimed her recollections were partial, did acknowledge that there had been an issue about her contradictory explanations and in the context of CCTV footage. 6
[23] The Applicant does not appear to have been overtly anxious or distressed at this point, which may explain why she was able to proffer coherent alternative explanations (regardless of their factual basis) for her conduct under questioning and shifting contexts. Mr Powell’s evidence was that the Applicant was not crying during the meeting itself. Mr Matthews did not recall her being distressed, as such, just “apprehensive”. 7
[24] Subsequently, the Applicant was informed that she would need to attend a disciplinary meeting in 24 hours, as the discussion had given rise to an issue of “a serious nature” as to the Applicant possible breach of the LAGs policy. 8
[25] The Respondent was advised by its client, the Brisbane Airport Corporation, that the on site Australian Federal Police (“the AFP”) should be informed of the circumstances, and they duly were.
[26] The AFP subsequently conducted a two hour interview with the Applicant, which resulted in the laying of charges, 9 it would appear in relation to the regulatory framework within which the airport and its contractors must operate.
[27] Upon return from the AFP interview, the Applicant’s composure was less sound. Mr Matthews stated the Applicant was “very upset” and had made statements to the effect she had been treated like a criminal and that the matter had gone too far.
[28] The Applicant, then in a distressed state, indicated that she sought to resign her employment.
[29] There is no contest this is what the Applicant stated on various occasions to both Mr Matthews and Ms Ford and Mr Powell:
“What did you say?---In words of sadness and - I said, "I want to finish. I want to resign."
Who did you say that to?---I remember I said it to Kelly and I also said it to Michael Matthews, and I said it to both Michael Matthews and Ben as well.” 10
[30] Ms Ford gave evidence that she had followed the Applicant down to her locker upon her return from the AFP interview:
“She walked to her locker room and - or through the staffroom to her locker to collect her belongings. I followed her at that point again to try and say, "Look, Maria, we would really like you to come back in." She wouldn't respond to me. She said, "I'm resigning. I'm leaving. That's it", walked out the door.” 11
[31] Ms Ford’s evidence was that the Applicant’s mood changed over the course of the exchange, from being every upset and crying upon return from the AFP interview, to anger in the locker room.
[32] Mr Matthews’ evidence was that following Ms Ford’s interaction with the Applicant he had met the Applicant at the lift exit to the car park before she left the terminal.
[33] The evidence of Ms Ford, Mr Matthews and Mr Powell was that the Applicant had settled down after she had reached the locker room and in the period in which she had thereafter approached the lift. 12
[34] Mr Matthews had asked the Applicant if she would be coming in for the disciplinary meeting tomorrow but the Respondent stated that she was resigning:
“You followed the applicant to the door and asked her to come to the disciplinary meeting the next day and the resignation wasn't repeated there from what evidence you've given so far?---Yes.
She simply stated she wouldn't be attending the meeting and said goodbye?---We asked if she would be coming back and she said no, she wouldn't.
Sorry. You asked her if she was coming back?---If she was coming back and would she be attending the further meeting and she said, "No, I won't be. Thank you very much. Goodbye." 13
[35] Mr Matthews’ evidence is corroborated substantially by Ms Ford’s recollection of this conversation shortly after the exchange at the lift. 14 That is, in effect, that the Applicant had left no door open to her returning to work.
[36] The Applicant gave evidence that whilst at the lift exit she said to Mr Matthews and Powell:
“Did you have a conversation with anyone before you got into the lift, just outside the lift?---Ben Powell and Michael Matthews were the last one to see me as I hopped in the lift, yes.
And did you say anything to them at that point?---I said I want to quit.” 15
[37] The Applicant also claimed, (at the lift exit on 23 November 2009) that she should “go sleep it off”:
“Did either Mr Matthews or Mr Powell say anything to you after you said that?---I remember Mr Matthews saying to me, "Maria, go sleep it off."
“Did he say anything else apart from, "Go sleep it off"?---I can only remember that.
she should “go sleep it off.” 16
[38] The Applicant’s further evidence was:
“What did you think he meant by that?---I thought that he contact me because prior to that I went away with the understanding that my annual leave were granted.” 17
[39] Mr Matthews’ expressly denied making any such comment (to the effect of “go sleep it off”) to the Applicant at the lift exit. 18
[40] For its part, the Respondent thereafter treated the Applicant as having resigned her employment and Ms Ford emailed the payroll services to initiate the necessary processes.
[41] Following the exchange between the Applicant and Mr Matthews at the lift exit, the Applicant subsequently met the delegate of the Liquor, Hospitality and Miscellaneous Union (“the Union”) in the car park, and after some discussion, it appears, “changed [her] thoughts” and decided that she “wanted [her] work”:
“At the time that you saw Mr Robson, or immediately after you'd seen Mr Robson, what was your thoughts about whether you wanted to return to work or whether you wanted to resign?---I sort of changed my thoughts. I knew that, you know, there are people that - they trust me and believed in me and could help me.
What did you think you wanted to do after you'd finished speaking to Mr Robson?---I wanted - at that time, I wanted my work.” 19
[42] The Applicant was given the details for the Union. 20
[43] The Applicant did not attend the Respondent’s premises or make contact with the Respondent until 30 November 2009.
[44] At that time, the Applicant appeared at the entry point to her place of work and gave copies of medical certificates to her Mr Matthews and Ms Ford. The medical certificates covered the period 26 November to 4 December 2009.
[45] The Ms Ford’s evidence was that the Applicant appeared to consider that she was still employed and made no mention of the resignation.
[46] The Applicant also revealed in her evidence that she had been on depression medication for some 8 years, and though that medication had ceased some short time earlier than these events, she claimed she was still troubled by the illness and still had possession of the relevant medication, which she had taken in the week after 23 November 2009.
[47] The Applicant had never informed the Respondent over the course of her 4 years of employment that she was under prescription medication (up until a short period before the 23 November 2009) for treatment of a depressive condition. 21
[48] The Applicant also gave evidence that at no point had either Ms Ford, Mr Matthews or Mr Powell encouraged her to resign her employment:
“MR CUSACK: I'm sorry for this digression, Ms Pritchard, but if I can take you back to where we left off, we were talking about the interview process and you confirmed that you had used the expression "resignation", that you said you wanted to resign. You also said that you did it under duress. Can you tell me whether
Mr Matthews was encouraging you to resign?---No, he didn't.
Was Ms Ford encouraging you to resign?---No.
Was Mr Powell encouraging you to resign?---No.
Did not Ms Ford suggest to you that the company could not advise you on the question of resignation?---I don't remember that.” 22
CONSIDERATION
[49] Counsel for the Applicant construed the Applicant’s evidence to suggest that the Applicant had resigned in a period of emotional instability affected by her depressive condition (despite the cessation of her prescribed medication), and that she had left the building on 23 November 2009 believing that she had been granted an opportunity “to sleep it off” and that she could thereafter take her week’s annual leave and her employment would be uninterrupted.
[50] The Respondent’s action, it was argued, in not allowing the Applicant to resume her duties when she appeared at the workplace seven days later resulted in the dismissal of the Applicant for purposes of s.386 of the FW Act.
[51] It was for this reason that the Applicant presented to work on 30 November 2009 and did not make any reference to the resignation circumstances. That is, as Ms Ford gave evidence, the Applicant appeared to act on the presumption that she was still employed.
[52] The Respondent’s agent contended that the Applicant had resigned her employment and that despite efforts by both Mr Matthews and Ms Ford to dissuade her from that course, the Applicant left work adamant as to her disposition. In such circumstances, the Respondent correctly took the Applicant to have resigned her employment voluntarily and not at as a result of the course of conduct of her employer.
[53] The Respondent’s views in this regard were buttressed by the Applicant’s failure to make any contact with the Respondent in the following seven days (that is, prior to 30 November 2009).
[54] The Applicant’s evidence that after she had left the workplace on 23 November 2009 that she “changed [her] thoughts” and “wanted [her] work” gave credence, so the Respondent’s representative contended, that when Applicant left work she was under no presumption (at the point of leaving) that she was still employed.
[55] Counsel for the Applicant took the view that the Applicant in providing this evidence was ruminating, in effect, as to her underlying attitude towards her employer and her work and was not expressing any changed presumption about the her work status (which she believed to be continuing given Mr Matthew’s alleged comment to her to “sleep it off” and her presumption that she was embarking upon one week’s approved leave).
[56] I have not found the Applicant’s evidence credible in respect of what was said to her by Mr Matthews at the lift door as she left work on 23 November 2009. I have found Mr Matthews’ evidence (as was Ms Ford’s and Mr Powell’s evidence) to have been given in a professional and straight forward manner, without ambiguity, with careful delineations between what was within his recall and what was not, and a more continuous narrative. Generally, I have preferred the Respondent’s evidence to that the Applicant.
[57] It appears to me that on the balance of probability the Applicant left work on 23 November 2009 and was adamant that she was not returning and conveyed this both to Ms Ford and Mr Matthews, despite their genuine efforts to assist her. The Applicant’s “thoughts” were only changed later as she met with the Union delegate and decided that she “wanted [her] work”.
[58] At that time (as she left work), the Applicant had conveyed with the requisite degree of finality and conclusiveness to her employer that she was no longer an employee of the Respondent.
[59] On the evidence that I have accepted, the Applicant was not at that time in a distressed state (in the sense that she was crying), though she was likely to have been angered (at that stage) by the turn of events that day. Her state of mind in the locker room and at the lift is portrayed consistently in the evidence of Ms Ford, Mr Matthews and Mr Powell.
[60] That said, it appears to me that where an employee in an emotional state (which is evidenced), resigns his or her employment and departs the workplace, and has not otherwise acted in a way that has been destructive of the employment relationship, then there may be a duty upon the employer to review the employee’s employment status, if, within a reasonable period of time, the employee re-engages the employer in a positive manner.
[61] Where there are reasonable grounds known by the employer that the employee was suffering from an medical illness or psychological condition and had resigned his or her employment in a moment of emotional intensity (barring any other circumstances) there might be reasonable grounds for the employer to assume a duty to enquire into the employees status at its own initiative in the period following the resignation before accepting the resignation (or accepting, arguably, the repudiation of the employment contract).
[62] There will be shadings within the above typology, and each case will turn on its own particular circumstances. I acknowledge that there are a number of authorities in the field that bear on similar circumstantial milieu. These include Kwik-Fit (GB) Ltd v Lineham [1992] ICR 188 and Minato v Palmer Corporation Ltd [1995] 63 IR 362. Judgements in these matters turn on the finer particulars of the resignation when considered objectively.
[63] In the circumstances before me, into which typology does the employer fall? Should the employer, as in the judgement by the Industrial Relations Court of Australia in Minato (above), assume a duty to communicate with the Respondent the following day to clarify her intentions?
[64] I find that no such duty should have reasonably fallen on the Respondent in the circumstances set out above. The Applicant had never informed the Applicant of any depressive or anxiety condition that would warrant such action. It is plainly unreasonable for the employer to be expected to act on the basis of information known only to the employee.
[65] Further, this was not a case in which the Respondent had passively observed an employee resigning their employment in a moment of emotional intensity or else through its own course of conduct caused the Applicant to resign her employment against her better judgement. The Respondent had made genuine endeavours to persuade the Applicant to desist from her course of action, but despite passing through various emotional states, the Applicant, on her own evidence, maintained her course (to resign her employment) to the point of exiting the workplace.
[66] The Applicant herself gave evidence not one of the three management level employees who interacted with her on 23 November 2009 took any steps to encourage her to resign her employment.
[67] I see no evidence from the Applicant’s movement from the locker room to the lift exit where there was “frenzied conversation” or where the Applicant (or the circumstances) were “out of control” as appeared to be the case in the Court’s decision in Minato.
[68] I am not persuaded by the Applicant’s claims that she left the workplace in the belief that she had been given time to sleep on her decision and that she was now embarking on one week’s approved leave, from which she could return without reference to any of the circumstances of 23 November 2009.
[69] I have found above that I have not accepted the Applicant’s partial recall as to what was said to her at lift exit. I have preferred the Respondent evidence, having heard the evidence of both witnesses directly (and the generally corroborating evidence of Ms Ford).
[70] I add to this, if it were necessary, that there is no evidence that the Applicant ever completed an annual leave form as Mr Matthews’ requested her to do as a condition of approving her annual leave. Consequently, there was no sound basis on which the Applicant should have surmised that she was on annual leave after such time as she exited the workplace on 23 November 2009. In this regard, I have accepted Mr Matthews’ evidence that the Applicant intended to return to the Site Manager’s office later in her shift to complete the leave request form. It can be reasonably inferred that subsequent events denied the Applicant that opportunity.
[71] On the balance of probability, therefore, I have found the Applicant never completed an annual leave form, and did not embark upon approved annual leave the day after she abruptly concluded her shift (on 23 November 2009).
[72] In the judgment in Minato, the circumstances were different: annual leave arrangements were seemingly confirmed, in place and operative in the matter before the Industrial Relations Court of Australia.
[73] Further, I have accepted the evidence of Ms Ford and Mr Matthews that the Applicant was requested to attend a disciplinary meeting the following day (despite the Applicant herself denying any recall of any such direction). 23
[74] In the circumstances in which she had become enveloped by her own conduct, the Applicant could not merely dismiss such a direction from her employer (which I have accepted was given to the Applicant), and presume to be on annual leave, irrespective.
[75] That is, the positive duty to clarify the employment status of the Applicant falls at the feet of the Applicant and not the Respondent, in the circumstantial matrix of this case.
[76] Generally, therefore, despite the Applicant’s state of mind, and her apparent medical history, I cannot find that she was so disconnected from social (or workplace) reality or otherwise so profoundly disempowered (noting her contact with her Union immediately as she left work) that she bears no obligation to her employer to seek to remedy, or at least repair, her relationship with her employer at her own initiative (following the totality of the circumstances of 23 November 2009).
[77] It appears to me that notwithstanding the Applicant’s evidence of her history of depressive illness (for which she had ceased medication a short time previously), the Applicant should have seized the opportunity to contact, at her own initiative or through a third party, her former employer the following days to clarify her employment circumstances.
[78] The Applicant gave evidence that she took depression medication and was sleeping for some of the time after she had resigned her employment. It might reasonably be contended that the Applicant, in such circumstances, should have been given a longer period in which to contact her employer and clarify her employment status, and the Respondent might have been duty bound to review genuinely her employment status if apprised subsequently of all the Applicant’s circumstances.
[79] Indeed, it might have been acceptable in the circumstances for the Applicant to have so done so on 30 November 2009, a week after the incident.
[80] But the Applicant did not approach her employer on such terms.
[81] When the Applicant attended work on 30 November 2009, she presumed that her employment status was certain, that she had been on annual leave, and that the circumstances of 23 November 2009 (including the request to attend a disciplinary meeting the following day) were no longer, it appears, a relevant or pressing matter.
[82] I add that at no point did a third party (such as the Union or a family member) contact the Respondent on the Applicant’s behalf. The Applicant gave evidence that she had established contact with the Union as she departed the workplace on 23 November 2009.
[83] In such circumstances, it was reasonable for the Respondent to have accepted the Applicant’s resignation on 23 November 2009 as being conclusive and final. Putting it another way, having considered the evidence objectively, I have concluded that the proper interpretation of the facts as adduced in this case is that the Applicant resigned her employment on 23 November 2009.
CONCLUSION
[84] On the basis of the above findings, I have concluded that the Applicant was not dismissed from her employment within the meaning of s.386 of the FW Act. I have found, instead, that the Applicant, when all the circumstances are considered, resigned her employment. Consequently, the Applicant is not jurisdictionally competent to make an application under s.394 of the FW Act. The application that is before me, as it is, is itself dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr R Reed of Counsel instructed by the Liquor, Hospitality and Miscellaneous Union for the Applicant
Mr M Cusack of EMA Consulting for the Respondent
Hearing details:
2010.
Brisbane:
February, 25.
1 Transcript of Proceedings on 25 February 2010 at PN 339-341
2 Transcript of Proceedings on 25 February 2010 at PN 953
3 Transcript of Proceedings on 25 February 2010 at PN 965-968
4 See Regulation 4.22J and 4.22K of the Aviation Transport Security Regulations 2005 (Cth)
5 Transcript of Proceedings on 25 February 2010 at PN 772-726 and 468
6 Transcript of Proceedings on 25 February 2010 at PN 731-2
7 Transcript of Proceedings on 25 February 2010 at PN 161-161, 378, 538-539
8 Transcript of Proceedings on 25 February 2010 at PN 476-7, 479-480
9 Transcript of Proceedings on 25 February 2010 at PN 284, 480
10 Transcript of Proceedings on 25 February 2010 at PN 772
11 Transcript of Proceedings on 25 February 2010 at PN 481
12 Transcript of Proceedings on 25 February 2010 at PN 218, 401-405, and 490
13 Transcript of Proceedings on 25 February 2010 at PN 299-301 see also PN 294
14 Transcript of Proceedings on 25 February 2010 at PN 484
15 Transcript of Proceedings on 25 February 2010 at PN 780-781
16 Transcript of Proceedings on 25 February 2010 at PN 782-783
17 Transcript of Proceedings on 25 February 2010 at PN 784 and see also PN 953
18 Transcript of Proceedings on 25 February 2010 at PN 406-408
19 Transcript of Proceedings on 25 February 2010 at PN 790-791
20 Transcript of Proceedings on 25 February 2010 at PN 789
21 Transcript of Proceedings on 25 February 2010 at PN 942, 1001-1017
22 Transcript of Proceedings on 25 February 2010 at PN 946-948
23 Transcript of Proceedings on 25 February 2010 at PN 950-951
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