Ms Megan Lyons v Any Signs and Printing

[2013] FWC 2384

[2013] FWC 2384

FAIR WORK COMMISSION

DECISION

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

Ms Megan Lyons
v
Any Signs and Printing
(U2012/17156)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 22 APRIL 2013

Summary: whether repudiation of employment - whether service in breach accepted precipitously - not objectively demonstrated - special circumstances - warrant for further inquiry by Respondent.

[1] On 27 December 2012, Ms Megan Lyons (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in respect of the alleged termination of her employment by Any Signs and Printing (“the Respondent”).

[2] The Applicant had been an employee with the Respondent since May 2011, and performed duties including sign installation, printing, manufacturing, quoting, client relations, amongst other responsibilities.

[3] The Respondent contends that the application is outside of the jurisdiction of the Fair Work Commission (“the Commission”) for reason that the Applicant was not dismissed at the initiative of the Respondent as the employer, but rather that the Applicant abandoned her employment.

385 What is an unfair dismissal

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

(a) the person has been dismissed;

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 [...]

[4] The reason the Respondent alleges this jurisdictional impediment to the application is because the Respondent asserts that the Applicant, following a particular interaction with her manager, abandoned her employment on 11 December 2012. I infer from the materials before me that the Respondent, as represented by the co-owner Mr Ben Taylor, accepted the alleged repudiation of the Applicant’s employment on 13 December 2012.

[5] Before considering this matter further, it is necessary to set out some background to the events referred to above. On Friday, 7 December 2012 the Applicant met with the Respondent’s management and discussed her general unhappiness in her position. The causes of that unhappiness are not directly salient to this jurisdictional issue, though the Applicant largely asserts that the Respondent was disrespectful of her role within the business.

[6] The Applicant contends that at the conclusion of that meeting she had reached an agreement with the Respondent that she would conclude her employment on 20 December 2012. The Applicant confirmed this to be the case in her viva voce evidence. An email sent by the Applicant to the Respondent on 13 December 2012 also demonstrates that the Applicant had agreed that her employment would cease at the end of that day (20 December 2012).

[7] The Applicant states that she informed the Respondent on 10 December 2012 of a medical appointment she had that afternoon. Ms Tamara Willemsen, the General Manager for the Respondent, appeared to have some partial or poorly formed recollection of the Applicant attending a medical practitioner on the Monday (the day prior to the incident on 11 December 2011). But Ms Willemsen’s evidence in this respect was ambiguous as she oscillated between admission of an apparent recollection that the Applicant may have attended a medical practitioner on Monday 10 December 2012 and what the consequences of that visit had been for the Applicant’s attendance at work and whether a medical certificate had been presented. 1

[8] Upon attending at the medical practitioner the Applicant received a medical certificate (which formed part of her evidence in these proceedings) to the effect that she would be unfit for work owing to her medical circumstances for three days.

[9] The Applicant did not act upon her medical certificate immediately and continued to perform her duties.

[10] Over the course of 11 December 2012, the Applicant was requested to perform certain tasks enumerated on a list left with her to complete by the Respondent (represented by Ms Tamara Willemsen in this case).

[11] The Applicant states that owing to a requirement to act upon a prioritised job she did not complete all the tasks identified for her by Ms Willemsen.

[12] The Applicant states that on upon her return to the workplace, Ms Willemsen was “very unreasonable” and acted “angrily” towards her because the duties as specified had not been completed.

[13] The Applicant states that in turn she became “sad and upset and stated that [she] had had enough and that [she] would be taking the next two days off as recommended by her doctor.”

[14] Upon so advising Ms Willemsen, Ms Willemsen is said by the Applicant to have responded with the comment:

“Oh f...k off then.”

[15] There is some dispute between the parties as to the precise context in which the Applicant ceased work that afternoon.

[16] Firstly, the parties disagree on whether the Applicant ceased work following the incident around 4.00PM or nearer to the ordinary time of ceasing work, which was 5.00PM. Secondly there is disagreement as to whether or not the Applicant completed a drop off on the way home from work that day, and whether or not that task if carried out required any significant diversion from the Applicant’s ordinary route home. Thirdly, the parties also disagree that the Applicant informed Ms Willemsen that she would be absent on 12 and 13 December owing to a medical condition certified by a medical certificate. Fourthly, the parties are in dispute as to whether or not the Applicant stated she would not be returning to work whatsoever or whether she was only temporarily absent. Fifthly, the parties disagree as to whether or not the Applicant was approached to provide handover advice in relation to a significant job the following day before such time as she left work on 11 December 2012.

[17] Putting these matters to one side for the moment, the Applicant did not present for work on 12 December 2012.

[18] On the morning of 13 December 2012, Mr Taylor forwarded an e-mail message to the Applicant stating that as she had left the company on Tuesday, 11 December 2012 that he was writing to her to provide her with information about her full entitlements, which would be paid to her by Thursday, 20 December 2012. The Applicant was informed that her salary was based on a 50 hour week and that because she had abandoned her employment without giving notice she had forfeited 100 hours of her accrued salary entitlement.

[19] There is some uncertainty as to whether or not the Applicant saw this e-mail message before such time as she despatched a text message to Ms Rachael Atkinson, the owner/director, who worked with the Applicant, at 1.36PM on 13 December 2012.

[20] That text message read as follows:

Hi rach will be in the morning as i said. Not sure if thats what you guys want from what you last said. Wont be able to work Monday morning as in hospital till about 2 PM then find that tues till thurs. I know you guys don’t understand But not sure how else to explain. Let me know if this is what you want me to do? I will call you later on for a chat. (sic)

[21] The Applicant states that upon receiving Mr Taylor’s e-mail as referred to above she informed him by reply e-mail that she had not abandoned her employment and that she intended to serve out the remainder of her notice period.

[22] Her e-mail of 3.10PM that day, in reply to Mr Taylor, reads as follows:

On Friday, 7 December in mutual agreement with rach and tamara I was to finish on 20 December [2012]. Then worked monday, tuesday and told tamara and rach that I won’t be at work for the next two days as I need a break and have a medical certificate and I will be back Friday. The last thing spoken to me was “f..k off” from Tamara. As far as I’m aware I were back at work tomoro unless told otherwise. (sic)

[23] Later that afternoon on 13 December 2012, the Applicant received a further e-mail from Mr Taylor which claimed that the Applicant had left work without notice and was no longer permitted to access the premises.

[24] That e-mail read as follows:

I am sorry for your unfortunate events but our business has suffered enough u walking out on your employment was a blessing for our Company. You gave a great service for a few year but in the last six months mistakes after mistakes has cost this Company dearly. U walked out without prior telling any of your bosses that u where sick we have looked into the matter with the proper authorities and we stand solid on the position u have taken. If have anything that u need from the shop personnel property ect. I will be happy to make a time for u to come in so I can escort u to get your effects. (sic)

[25] The Applicant replied to Mr Taylor stating that she was on sick leave and had not abandoned her employment as alleged. The Applicant afforded this message by email to Mr Taylor on 13 December 2012. That e-mail read as follows:

Here is a copy of my medical certificate. Everyone was aware of my doctors visit the previous day in my upcoming hospital visit. And had made it clear I was taking medical leave for the Wednesday and Thursday. The nature of your previous e-mail implies you are denying the access to my employment to finish the remainder of my notice period. (sic)

[26] That night, a little after 9.00PM, the Applicant states that she received a further e-mail from Mr Taylor indicating that she had been denied access to the workplace to perform duties and that she could not work out her notice period.

[27] The e-mail actually read as follows:

Thank you for your reply this will be my last e-mail correspondence to you as we have consulted the management team that you are to report to in the director of the Company. They will sign a step back to the effect of I am sick of this I can’t deal with this I am leaving as well is no notification of a medical condition. If you have any issues with this feel free to contact fair work Australia. As for returning to collect personnel items from the premises since you left your employment your induction has expired and you can no longer proceed past the front desk without a manage team member to accompany you as it will be trespassed on premises. Uniforms will need to be returned as well the keys are fine as the locks have been changed. (sic)

[28] The Applicant’s characterisation of the circumstances (as I construe it to be in effect) is that she had merely exercised her entitlement to access the period of absence authorised by her medical certificate. The Applicant claims, in effect, that she had not repudiated her employment and the Respondent had no right to claim acceptance of the repudiation as a consequence.

[29] Further, the Applicant claims that (on 11 December) she left work close to the time at which work ordinarily ceases (around 5.00PM) and fulfilled a delivery for the Respondent on the way home. The Applicant also claimed – and it was accepted by the Respondent – that she was distraught at the time. She claims further that despite her state of mind, she had been open to take calls subsequently that evening (and had indeed had entertained a telephone call from the sister of Ms Atkinson, an owner/director of the Respondent).

[30] The Respondent characterises the circumstances somewhat differently, which is unsurprising.

[31] The Respondent contends that following a very busy week and a low level dispute of an operational kind the Applicant had decided that she no longer wished to be employed by the Respondent and abandoned her employment (by leaving up to an hour earlier than the ordinary finish time). Ms Willemsen claims that she endeavoured to calm the Applicant down at this point and to dissuade her from resigning because her role was particularly important during that period of time and the business could not afford to lose her.

[32] Despite these efforts, the Applicant, according to Ms Willemsen, simply walked out of the workplace on 11 December 2012 and did not proffer any medical certificate or otherwise refer to a medical certificate. Ms Willemsen claims that she warned the Applicant that by abandoning work in the circumstances she may forfeit her entitlements (such as to her notice period which was operative).

[33] Further, the Applicant’s manner of departure was problematic for the business because the Applicant would not provide any handover information about a significant job scheduled for the following day.

[34] Ms Rachael Atkinson gave evidence that she witnessed the Applicant walking out of the workplace following an incident over some production difficulties. Ms Atkinson states that she witnessed Ms Willemsen attempting to placate the Applicant and making an effort to calm her down from her elevated state.

[35] Ms Atkinson went on to give evidence that the Applicant refused to complete any duties or to provide any handover advice as to jobs that were in production and that this caused difficulties.

[36] According to both Ms Willemsen and Ms Atkinson the Applicant was an extremely hard-working and valuable employee and her loss to the Company has been to the detriment of the business (though Mr Taylor’s evidence suggests that this value had been more an historical comment than a contemporary one).

[37] Ms Atkinson corroborated the Applicant’s evidence that she (the Applicant) had agreed to finish up her employment later in the year. Indeed, the Applicant’s e-mail to Mr Taylor at 3.10PM on 13 December 2012 states that she had reached agreement with the Respondent to “finish on 20 December” 2012.

[38] Ms Atkinson’s evidence under examination went further than this, however. Ms Atkinson claimed that she could recall, though not in great detail, that there had been an exchange between the Applicant and Ms Willemsen as the Applicant made her way from work on 11 December 2012 in which a reference to a medical certificate was made:

And Tamara said, "You can't just walk out on us like that. If you do you do you forfeit your entitlements." She didn't reply, not - nothing that I heard anyway. No indication of coming back - maybe - she said she might - Tamara has asked her something about a medical certificate and she said she'll bring one back in or something like that. "I'm sick" that was her last - she needed to go, she'd had enough. 2

[39] And then later under cross examination:

But your evidence appears to be that the topic of the medical certificate may have come up in that conversations?---Tamara saying that, "Are you walking out on us, leaving us?" She said, "I've had enough," and I'm just trying to recall the conversation. It was a while ago.

Do you recall the applicant referring to a medical certificate in the conversation, one way or another?---I have a mind blank, I’m sorry, I just don't want to say what didn't happen, I'm just trying to think of - I recall the medical certificate coming in with the email, and Tamara saying that she never got a medical certificate off Megan at the end of that day, or 4 o'clock in that day, whatever - about that time.

But in that course of that conversation, as Ms Lyons was leaving, do you recall the reference being made in some way or another to a medical certificate?---I think she's on - I'm quite certain that Tamara said the - that she's - has she got a medical certificate to supply. And Megan said, on the lines, she'll being one in on Monday and Tamara said that, "If you haven't got a medical certificate then you just can't walk out on us." Like, this is on their way out to the car going down the ramp, out to the car. 3

Consideration

[40] Clearly, in this case, issues have arisen between the parties and they were managing their relationship over the period before such time as the Applicant and the Respondent would part ways on agreed terms. The agreed terms it appears from the Applicant’s material to be that her employment relationship with the Respondent would come to an end on 20 December 2012.

[41] On the evidence that I have heard I am of the view that the Applicant was a recipient of the comment “f..k off then” from Ms Willemsen on the afternoon of 11 December 2012. It appears to be too contrived by far for the Applicant to have made such a passing reference to the use of the phrase by Ms Willemsen in her e-mail of 13 December 2012. Indeed, the manner in which the reference is made in the e-mail strongly suggests that what the Applicant claimed was genuine and not fabricated for the purposes of achieving a contrived effect.

[42] Ms Willemsen was of the view that she said the words under her breath as she turned away from the Applicant and that they were not directed at the Applicant as such. I doubt this was the case. The Applicant clearly heard the words and considered them to have been directed at her in the context of the exchange. The Applicant’s subsequent communications with the Respondent show this to be the case. I very much doubt that Ms Willemsen’s words were uttered in the muted manner in which she claimed.

[43] It appears to me also that the exchanges that occurred were in an emotionally charged context. The Applicant being in a distressed state, which is accepted by the parties, and Ms Willemsen being angered by the Applicant’s reluctance to provide any handover information for the next day or to attend duties that next day.

[44] It appears to me on the evidence, therefore, that the Applicant did have an altercation with her nominal supervisor-cum-manager on 11 December 2012 and that in a moment of some emotional intensity removed herself from the work site.

[45] It appears that she was well intent on so doing before such time as Ms Willemsen said “f..k off then” to her. That is to say the expletive was not the cause of the decision to remove herself from her workplace and that decision had already been made when Ms Willemsen made the comment. In essence, the Applicant was in the process of removing herself from the workplace irrespective of the comment that was made to her. Indeed, the Applicant’s e-mail of 13 December 2012 does not suggest that she abandoned the workplace because of that comment other than she says it was the last thing Ms Willemsen said to her. Rather, the Applicant seemed to question the Respondent’s attitude towards her given Ms Willemsen’s comment.

[46] As follows from the above, it appears to me to that the Applicant made reference (in her conversation with Ms Willemsen) to her having a medical certificate arising from a visit to the medical practitioner the day prior and that she would be availing herself of personal leave pursuant to that certificate. Ms Atkinson’s evidence (to which I have referred above) sufficiently corroborates that evidence of the Applicant in this regard.

[47] It appears to me further that the Applicant conducted herself the next day consistent with her claim to be on personal leave. It was only on the second day of her medically approved personal leave – 13 December 2012 – that the Applicant sought to clarify her employment status with the Respondent, given the events of 11 December 2012.

[48] Her text messages and e-mails of 13 December 2012 as set out above demonstrate that she made a considerable effort to explain to the Respondent that her conduct should not be construed to have been a resignation or that she had abandoned her employment, that her absence was consistent with a medical certificate, and that she intended to resume duties the following day.

[49] Though the Applicant may have acted in an intemperate manner at this time (she should have provided the hand over information as requested and she should have provided the medical certificate she had in her possession), I do not consider that her conduct constituted a resignation or otherwise suggested that she had repudiated her contract of employment.

[50] The Applicant was in contact with the Respondent within a relatively short period and particularly so after her employment status was called into question by Mr Taylor. The Applicant sought to explain that her conduct ought to be properly contextualised, that her absences were subject to a medical certificate and that she did not intend to abandon her employment.

[51] Despite these efforts being made on her behalf to explain the circumstances, her employer acted to accept (precipitously in my view) her conduct as constituting a repudiation of the Applicant’s employment contract.

[52] The evidence in this matter demonstrates that the Applicant left work without the authorisation of her employer and without expressly explaining the reasons for her conduct or that she was in possession of a medical certificate. The Respondent was right to express significant concern about the Applicant’s conduct in this respect.

[53] However, I think that before such time as an employer might accept an employee’s conduct as repudiating the entirety of the employment relationship, some caution should be taken to investigate the surrounding facts where issues arise that suggest that the employee’s intention and motivation may be ambiguous or uncertain.

[54] The approach in this regard is discussed somewhat in the Full Bench decision of ABB Engineering: 4

Thus in Minato v Palmer Corporation Ltd Murphy JR referred to a number of cases dealing with the situation where “special circumstances” arise. He referred in particular to a UK decision where Wood J stated:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision”) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] I.R.L.R. 313. These we refer to as “special circumstances”. Where “special circumstances” arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objective,” (sic) [footnotes removed]

[55] Generally, special circumstances appear to apply to this case.

[56] I think in the circumstances before me there was sufficient warrant for the Respondent, Mr Taylor specifically, to consider the circumstances which had led it to believe the Applicant had repudiated her employment contract. The act of ostensible abandonment had occurred in an emotive context in which all parties were under considerable stress, which had culminated with Ms Willemsen telling the Applicant to “Oh f...k off then”.

[57] Further, there is good reason to assume that Ms Willemsen knew that the Applicant had been to a medical practitioner the day prior, and I have also found (on the evidence before me) that the Applicant had brought to Ms Willemsen’s attention a medical certificate authorising some days personal leave at the time she left work on 11 December 2012. The existence of this medical certificate had been the subject of their exchange as the Applicant left work. The evidence of Ms Atkinson and the Applicant support this finding.

[58] It must be taken therefore that the Applicant had indicated an intent to resume work (as a logical consequence) once fit to resume her duties pursuant to the medical certificate.

[59] Largely, this was all information known at the time of the Applicant leaving work on 11 December 2012. This information alone, let alone the further information provided to the Respondent over the course of 13 December 2012 through the text messages and emails set out above, should have given cause for Mr Taylor to make further inquiries about the reasonableness of his assumption the Applicant had abandoned her employment. But he made no such further enquiries.

[60] No doubt Mr Taylor was frustrated - as were Ms Willemsen and Ms Atkinson - with the Applicant’s conduct, especially given that the Applicant did not divulge prior to her departure any details that would assist the Respondent to carry out a significant job that was scheduled the following day and about which only the Applicant possessed the detailed knowledge.

[61] While not all responsibility in this matter should be placed at the feet of the Respondent, given the circumstances I have set out immediately above, the Respondent could nonetheless have taken steps to contact the Applicant after she had left work on 11 December 2012 or else on the morning of 12 December 2012 to see whether the relevant information could be garnered. No such steps were taken by the Respondent. Ms Atkinson stated that she was too angry with the circumstances of the Applicant’s departure from work that day to make any contact with the Applicant to ascertain this information. This is hardly a good reason for failing to make further contact (even if the next day) with the Applicant when a pressing business need was in question. On the Applicant’s own evidence she was receptive to talking calls subsequently, and, indeed, Ms Atkinson’s sister appears to have contacted her (but the information exchanged in that telephone call was of a personal kind, possibly concerning the Applicant’s medical circumstances).

[62] The refusal on the part of the Applicant to provide any handover information does not assist in persuading me that the Applicant had set out to repudiate her employment contract on 11 December 2012. In the intense emotional context of her departure, it is unrealistic to expect that any of the parties would have been sufficiently composed to conduct an orderly exchange of information about an operational issue. Both Ms Atkinson and Ms Willemsen were angry and the Applicant was in tears at the time.

[63] In saying as much, I do not intend to condone the Applicant’s conduct, or loss of control at the time. She left work somewhat earlier than usual (though it appears she carried out a delivery on the way home) and she did not provide any information about the next day’s job when so requested (though in the emotional context that may have been explicable).

[64] But that conduct, on its own, did not have the effect on the employment relationship Mr Taylor presumed it to have had.

Conclusion

[65] In my view the evidence does not support a finding that the Applicant repudiated her employment. The Respondent therefore cannot be said to have accepted (on an objective basis) any conduct by the Applicant in repudiation of the employment relationship. This is because such conduct did not exist. Instead the Respondent, in the circumstances I have outlined, dismissed the Applicant on 13 December 2012, and by so doing satisfied the requirement of s.385(a) of the Act.

[66] In light of this finding, the application before me is within jurisdiction and it is open to the Commission to consider the substantive merits of the case. I will turn to that task by way of separate decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms M. Lyons, Applicant

Mr B. Taylor, for the Respondent

Hearing details:

2013

16 April

Mackay

 1   Transcript of proceedings dated 16 April 2013, see PNS179-181; 193-195 and 207-208.

 2   Transcript of proceedings dated 16 April 2013 at PN276.

 3   Transcript of proceedings dated 16 April 2013 at PNS282-284.

 4   Print N6999.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR535814>