Ms Shana Quayle v Aboriginal Health and Medical Research Council of New South Wales
[2025] FWC 393
•11 FEBRUARY 2025
[2025] FWC 393
The attached document replaces the document previously issued with the above code on 11 February 2025.
“Mr G Pichen, solicitor for the Applicant” has been updated to “Mr G Pinchen, paid agent for the Applicant”
Gopi Iyer
Associate to Deputy President Roberts
Dated 11 February 2025
| [2025] FWC 393 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Shana Quayle
v
Aboriginal Health And Medical Research Council Of New South Wales
(C2024/6382)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 11 FEBRUARY 2025 |
Application to deal with alleged contraventions involving dismissal under Part 3-1 – whether Applicant dismissed – termination on the employer’s initiative – ‘heat of the moment’ resignation – whether resignation forced by conduct of employer
The Applicant, Ms. Shana Quayle, has applied under s.365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute relating to her alleged dismissal by the Aboriginal Health and Medical Research Council (Respondent, or AHMRC). The Applicant claims that her alleged dismissal by the Respondent was in contravention of Part 3-1, General Protections, of the Act. The Respondent objects to the application on the basis that the Applicant was not dismissed.
The Respondent’s jurisdictional objection must be determined before the Commission can proceed to deal with the dispute by conducting a conference under s.368 of the Act.[1] This decision deals with that objection.
For the reasons that follow, I have concluded that the Applicant was not dismissed for the purposes of s.365 and that Respondent’s objection to the application should be upheld.
Brief factual background and chronology
The Respondent provides specialist Aboriginal health related services. At the time the Applicant’s employment came to an end, she was employed by the Respondent in the position of Acting Director of Operations. Prior to that and until approximately April 2024, the Applicant had been the Respondent’s acting CEO. From May 2024, the Respondent’s CEO was Ms. Nicole Turner.
The Applicant alleged that from about November 2023 when there was a change in the composition of the Respondent’s board, she had begun to experience difficulties at work involving other work colleagues. The allegations related to various forms of alleged mistreatment, ostracism, victimisation and bullying behaviour. She made a formal complaint about some of these incidents on 26 March 2024. An investigation process was commenced as a result.
On 13 August 2024 the Applicant was contacted by a print media journalist for comment about a news article (media article) that was to be published relating to various events at and persons associated with, the Respondent, including the Applicant. The report was damaging to the Applicant’s reputation. The Applicant became distressed at the prospect of the publication of the article.
Various written exchanges and a telephone conversation occurred between the Applicant and Ms. Turner about the media article on 13 August 2024.
On 14 August 2024 the Applicant sent a message to Ms. Speiser, an external human resources advisor to the Respondent, to the following effect:
“I’m done and was just going to ask you to get me some help with removing my access from the AH&MRC server… I’d also like the assets picked up & clarity of when my last pay will be and whether I can get a separation certificate…Note I don’t want any money at all paid out. I just want the above and to be left alone plz.”
Ms. Spieser, who was on leave at the time, responded:
“Have you resigned? Or what’s happened? …Are you ok? Please let me know how I can help you. I can definitely organise everything you need.”
On 15 August 2024 the Applicant sent an email to Ms. Turner saying “I’d like to resign please. Thank you.” Ms. Turner was also on leave at the time and was overseas. Later that day the two spoke by telephone. Ms Turner said the Applicant was in a distressed state and was “yelling and screaming.” Ms. Turner suggested that the Applicant take a week of annual leave. The Applicant agreed to take the leave.
On 16 August 2024 the media article was first published online. On the same day, the Applicant sent a text message to Ms. Speiser saying “Hey, Can you please ask for a separation certificate for me. I already resigned.” Ms. Speiser responded “I’ll arrange that for you. How are you holding up?” The Applicant said that Ms. Turner had told her to take some leave but that she would “rather just get out now before they do anything else against me.” The Applicant also sent a text message to Ms. Turner saying “Can I at the very least have a separation certificate so I can go on Centrelink? I need to pay my bills…”
On 17 August 2024 the media article was published in newspaper form.
On Monday 19 August 2024 at 12.03pm the Applicant sent a text message to Ms. Turner that included the following:
“Sorry about last week. I was a complete mess… completely frantic. Nothing I was saying was obviously real. I just became so crazy and spiralled and thought everyone was against me. I spoke with who I needed too and I finally calmed down after 2 days of whatever type of episode that was…But I need to move on. I am hoping you can please help me with providing my final pay and entitlements + a separation certificate. That’s all I ask. And again I apologise for my mental breakdown.”
On the same day, the Applicant sent a screenshot of the above message to Ms. Speiser asking if there was ‘any news on this yet?’
At 2.44pm on 19 August 2024 the Applicant sent an email to Ms. Turner saying that she wanted to retract her resignation. At 3.37pm that day the Respondent emailed the Applicant to confirm a resignation of 19 August and indicating that the Applicant’s employment would end on that day. At 3.59pm and 4.01pm, the Applicant emailed Ms. Sturgess, copying Ms. Turner, saying that she had revoked her resignation and in the latter case, included a screenshot of the 2.44pm email.
Summary of evidence and submissions
The Applicant’s evidence in chief was given in a witness statement dated 19 November 2024. The statement was lengthy and, in some respects, detailed. Nonetheless there are a range of allegations and assertions in the statement that are very general in nature and lack the necessary detail and clarity that would enable an opposing party to respond in a meaningful way. For example, there are numerous instances in the statement where the Applicant alleges that she was subjected to adverse comments and neither the content of the comments nor the person or person making the comments were identified. I make no criticism of the Applicant personally on this account. She is not legally trained and was assisted in the preparation of her material by her representative. The Respondent justifiably took issue with this form of evidence as being in nature of assertion and submissions. Although the statement was admitted in its entirety, I accept that there are numerous passages in the statement that can be afforded little if any weight in establishing some of the factual matters asserted by the Applicant. This is particularly the case in relation to any alleged course of conduct engaged in by the Respondent with the intention of bringing the Applicant’s employment to an end, a matter discussed in further detail below.
The Applicant gave evidence that from December 2023 she experienced bullying from the Respondent’s chairperson, Mr. McKenzie. She said that Mr. McKenzie had unfairly attributed blame to her to shield himself from responsibility. The Applicant also gave evidence about alleged workplace misconduct by Mr. Roberts and counter-complaints that Mr. Roberts had made against the Applicant. The Applicant gave further evidence about being excluded from board meetings by Mr. McKenzie, a reduction in her responsibilities, the failure of the Respondent to adequately address her concerns and her decision to step down from the CEO role in April 2024.
The Applicant said that from May 2024 the Respondent engaged in a ‘more aggressive strategy’ to remove her from her employment. She said she was excluded from consultations including in relation to the handover of her CEO role, her access to executive folders was revoked and she was removed from the Respondent’s website. The Applicant said that her complaint against Mr. Roberts was unnecessarily delayed and not handled properly. She said she complained to Ms. Turner about the process, but her further complaints were disregarded. The Applicant alleged that the information about her that appeared in the media article was leaked to the media by persons within the Respondent in a further attempt to undermine her position.
The Applicant gave evidence as to the effect of the media article on her and her state of mind at the time of, and after, its release. She said she was overwhelmed and unable to get out of bed and experienced a psychotic episode. She said that the Respondent, including Ms. Turner, whom she regarded as a mentor, offered no support and left her feeling abandoned. She said her messages were a ‘cry for help’ which went unanswered and that her resignation of 19 August was made in the ‘heat of the moment’. The Applicant said the ‘cumulative neglect and abandonment’ by the Respondent had an impact on her mental health and made her decision to resign completely involuntary.
The Respondent’s evidence was given by Ms. Turner. Ms. Turner gave evidence of previous instances where the Applicant had indicated she wanted to leave the Respondent or was seeking alternative employment. This included a meeting on 19 July 2024 during a review of the Respondent’s operations where the Applicant said “Just give me a redundancy, let me get out of here and that will solve everyone’s problem” and a request by the Applicant on or about 25 July 2024 for a reference so she could seek alternative employment. She said that at no stage did she suggest that Ms Quayle should move on from AHMRC or that her job was somehow in danger.
Ms. Turner said the Applicant’s formal complaint was against Mr. Roberts only. She said she referred the matter to an independent national law firm in June 2024 after her appointment. Ms. Turner gave evidence about her written exchange with the Applicant in August about the Applicant withdrawing her complaint and said the Applicant’s responses had caused confusion the result of which was that the process has not been completed. She denied suggesting to the Applicant that she should withdraw the complaint. Ms. Turner said no formal complaint had ever been made by the Applicant against Mr. McKenzie who had in any event resigned from the board in April 2024.
Ms. Turner said that she had spoken with the Applicant on 13 August about the forthcoming media article and that the Applicant was hysterical and frantic. Ms. Turner said she asked about the Applicant’s safety and whether she wanted someone to talk to her later in the day. She said she was concerned about the Applicant’s state of mind. Ms. Turner said the conversation occurred just before her departure for her overseas holiday and that from that time until her return on 26 August she only had her mobile phone for receiving calls and emails.
Ms. Turner said she received the Applicant’s email of 15 August in the afternoon of that day and saw no other emails from her after that. According to Ms. Turner she spoke to the Applicant on that day and she again appeared distressed. Ms. Turner said she ‘gifted’ the Applicant a week of paid leave because of her distress and then called the Applicant’s uncle to do a welfare check on the Applicant. She said she spoke to her external HR advisor and directed that Ms. Speiser deal with the resignation email in her absence. Ms. Turner said she spoke with the Respondent’s HR advisors after she received the Applicant’s text message on 19 August and in view of the previous communications from the Applicant saying she was resigning, and the Applicant’s inquiry as to the processing of the resignation on 19 August, she instructed that a letter be sent to the Applicant confirming the resignation later that day.
Ms. Turner gave evidence that emails sent by the Applicant on 19 August at 2.44pm, 3.59pm and 4.01pm in which the Applicant purported to retract her resignation were not seen by her until 21 August because a number of emails from the Applicant had been found in the spam folder of the shared AHMRC HR email inbox.
Ms. Turner denied that the Applicant’s access to executive files had been revoked or that the Applicant had been removed from the website, or from key projects. According to Ms. Turner, the Applicant had been provided with various forms of support from the Respondent including working from home arrangements, approval of numerous requests for various forms of leave during May to August 2024, granting of additional leave and access to the employee assistance programme.
The Applicant submitted that she had been dismissed because her employment had been terminated on the Respondent’s initiative or, in the alternative, that she had resigned but was forced to do so because of conduct or a course of conduct engaged in by the Respondent. The Applicant contended that ‘resignations’ that had been submitted by the Applicant were invalid on the basis that they were made in the heat of the moment.
The Respondent submitted that both arguments must fail because the Applicant had made a considered decision to resign at the time she texted Ms. Turner on 19 August and because the evidence did not establish that the Respondent had engaged in conduct with the intention of bringing the employment to an end.
Consideration
Section 386 sets out the circumstances in which an employee is taken to have been dismissed for the purposes of s.365. It provides, relevantly, as follows:
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.
In Bupa Aged Care Australia Pty Ltd v. Tavassoli[2] (Bupa) the Full Bench described the approached to be applied to the application of s.386(1) as follows:
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 the termination of the employment was the probably (sic) result of the employer’s conduct such that the employee had no effective real choice but to resign.[3]
‘Heat of the moment’ resignations
The Applicant contended that four instances of ‘resignation’ by the Applicant (14, 15, 16 and 19 August 2024) were ‘heat of the moment’ resignations in respect of which the Respondent had an obligation to clarify or confirm that a resignation was intended and failed to carry out that obligation. One difficulty with that argument is that the Applicant’s own contention was ultimately that the dismissal of the Applicant took effect on 19 August 2024 and not before. A second difficulty is that Respondent did not treat the ‘resignations’ of at least 14 and 15 August as terminating the Applicant’s employment. Ms. Turner’s evidence was that she was concerned for the Applicant’s wellbeing, did not take immediate steps to accept these resignations and had expected the Applicant to reconfirm her resignation. Ms. Turner also said she arranged for the Applicant’s uncle to do a welfare check on the Applicant. I accept this to be the case. It was also uncontroversial that Ms. Turner had suggested to the Applicant that she take some leave and granted her additional paid time off to allow her to do that. I do not think it can be reasonably argued that the Applicant was dismissed on 14 or 15 August because of a heat of the moment resignation that the Respondent treated as a resignation.
The text messages to Ms. Speiser and Ms. Turner from the Applicant on 16 August were characterised by Ms. Turner in her evidence as the third and fourth resignations respectively. Ms. Turner said she regarded the Applicant to be serious, particularly in relation to the second of those messages. She said the Respondent accepted these messages as resignations. The evidence clearly establishes that the Applicant was in a very heightened state of anxiety in the lead up to 16 August when the media article was first published. Ms. Turner’s evidence was that the Applicant was very distressed when she communicated with the Applicant at this time. The fact that the Applicant was in this heightened state is understandable given that she did not know exactly what was going to be said about her in the article and how personally damaging the article would be. It is likely that she was expecting the very worst.
As it turned out, the references to the Applicant in the article, while serious and damaging, were relatively brief and appeared in the context of a wide-ranging piece about numerous people and events associated with the Respondent. There was no evidence of any telephone contact by the Applicant with the Respondent after the initial publication on 16 August. The text messages sent by the Applicant on that date, while still evidencing distress, had moderated to some extent and were more focused on practicalities such as obtaining a separation certificate. Although the Applicant had been provided with a week of additional leave to consider her position, she appears to have decided by that point that she would leave her employment. By the time of the text messages on Monday 19 August, the tone of the messages had become more measured and coherent. The Applicant expressed that she had recognised that she had been in an irrational state, that she had seen medical practitioners for help,[4] had ‘calmed down’[5] and needed to ‘move on.’ I accept the Respondent’s submission that by 19 August 2024 any ‘moment’ had passed. The Applicant had been given the option of taking paid leave to consider her position. Instead, she followed up on her messages on 16 August with further messages to Ms. Turner and Ms. Speiser on 19 August indicating that she wanted to resign and ‘move on.’ I do not consider that the events of 16 to 19 August constituted a ‘heat of the moment’ resignation in the terms discussed in Bupa.
Retraction of resignation/s
Almost three hours after the Applicant tendered her final resignation on 19 August 2024, the Applicant sent an email seeking to retract the resignation. The Applicant submitted that the resignation had been withdrawn ‘immediately after the heat had died down’ although there was little to suggest that there had been any material change in circumstances other than the passage of time and Applicant’s apparent change of heart. The Respondent pointed out that the retraction was made after the Applicant had followed up with Ms. Speiser to assist her with processing the resignation and that the Applicant had not retracted previous messages of resignation that had been sent before 19 August.
I accept Ms. Turner’s evidence that the retraction email did not come to her attention until after the Applicant’s employment had been confirmed by the Respondent as being at an end. But in any event, the general position is that a unilateral withdrawal of a notice of termination is not possible.[6] I do not regard this as a situation where the resignation was given in the heat of the moment and retracted immediately after the heat had died down.[7] A resignation had been given and there was no consent to its withdrawal. The purported unilateral withdrawal was ineffective.
Forced resignation/s
The Applicant submitted that the Respondent engaged in conduct with the intention of bringing the employment to an end. The Applicant referred to the Respondent’s inaction and conduct from December 2023 to 19 August 2024 as being taken with the intent to end the employment relationship.[8] The Applicant referred to the alleged bullying by Mr. McKenzie, exclusion from key workplace activities including a retaliatory demotion for raising complaints and a failure on the Respondent’s part to investigate or remedy the circumstances surrounding the media article. I am not satisfied on the evidence that these alleged grounds establish that the Respondent engaged in a course of conduct with the intention of ending the Applicant’s employment.
The Applicant ultimately accepted that she had made no formal written complaint against Mr. McKenzie. She accepted that she was aware of the policy which required that a formal written complaint was required before an investigation was undertaken. The Applicant also accepted that she had been told that Mr. McKenzie had resigned because of her allegations against him and that the resignation took effect some 4 months before the Applicant’s employment ultimately ended making any causal connection between the alleged bullying and the ultimate resignation doubtful. To the extent the Applicant might be said to have relied on the complaint process involving Mr. Roberts I accept there was some delay, but the Applicant herself was not assisting because of the ambiguity of her messages as to whether or not she wished to press the complaint.
The allegations of exclusion and ostracism are not established by the evidence. I prefer Ms. Turner’s evidence that the Applicant was not removed from the website or executive folders or excluded from significant projects. Text messages showed that the Applicant was attending meetings with regional coordinators and the CEO in August 2024. There was evidence that the Applicant remained on the website as at late July and further evidence from Ms. Turner explaining that the ability to send company-wide emails was revoked for all employees, not just the Applicant. As to the media article, while the Applicant may have thought the information about her had been ‘leaked’ to the media by persons connected to the Respondent, the evidence did not establish that this was the case. In any case, it is difficult to see how any ‘investigation’ by the Respondent could have prevented or ameliorated the effects of the media article. Such a process is unlikely to have been able to have been undertaken in the time available and before 19 August. Even if it had, it is unclear what effect, if any, such a process would have had. The allegations were wide-ranging and damaging to the Respondent itself. The publication was in the hands of a third-party media outlet and short of urgent legal action, the Respondent had no control over the content.
Finally, I do not think that the Respondent’s conduct towards the Applicant demonstrated that the Respondent left the Applicant abandoned or “intentionally orchestrated circumstances to drive (the Applicant) to resign.” The Respondent provided additional leave at a critical time, made enquiries about the Applicant’s well-being, organised a welfare check on the Applicant, provided flexibility with working arrangements and approved extensive leave requests without questioning. This is not the conduct of an entity seeking to force a resignation. The Applicant may have felt the Respondent should have done more. The Applicant may have been hoping that by saying she was resigning she would draw a different response to what she ultimately received. The Applicant may have regretted her actions after her resignation was given. But the Applicant ultimately resigned of her own accord and not because of any conduct engaged in by the Respondent to bring the employment to an end.
The Applicant was not dismissed by the Respondent under s.386(1)(b) of the Act.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr G Pinchen, paid agent for the Applicant.
Ms Y Truong, Counsel for the Respondent.
Hearing details:
By Video using Microsoft Teams at 10:00am AEDT on Wednesday, 27 November 2024.
Final written submissions:
Filed by Applicant and Respondent on 5 December 2024.
[1] Coles Supply Chain Pty Ltd v. Milford (2020) 279 FCR 591 and see Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101.
[2] [2017] FWCFB 3941.
[3] At [47].
[4] See also transcript PN370.
[5] See also transcript PN371.
[6] Ngo v. Link Printing Pty Ltd (1999) 94 IR 375 at 378.
[7] Birrell v. Australian National Airlines Commission (1984) 9 IR 101 at 110-111.
[8] Submission paragraph [61].
Printed by authority of the Commonwealth Government Printer
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