Narelle Norman v Kresta Holdings Limited

[2020] FWC 5405

[2020] FWC 5405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Narelle Norman
v
Kresta Holdings Limited
(U2020/5280)

COMMISSIONER WILLIAMS PERTH, 14 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Ms Narelle Norman (Ms Norman or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 20 April 2020. The respondent is Kresta Holdings Limited (the Respondent).

[2] This matter was conciliated by a staff conciliator however, was not resolved and was referred for determination.

[3] The Respondent objected to the application on the ground that the Applicant was not dismissed but resigned.

[4] At the hearing of the matter the Applicant was self-represented and the Respondent was represented by Ms Carrie Zhu (Ms Zhu), an employee of the Respondent.

Factual findings

[5] The Applicant gave evidence on her own behalf and the Respondent called as a witness Ms Tao Li, also known as Lucy (Ms Li), the Respondent’s Chief Financial Officer (CFO).

[6] Ms Norman had been employed with the Respondent since 1993.

[7] At the time her employment ended she worked in the position of Accounts Payable Officer.

[8] On 4 March 2020 she was notified of a disciplinary action meeting she was required to attend on Friday, 6 March 2020. A letter from the CFO was attached which detailed the reasons for the meeting which centred on outstanding overseas invoices dating from June 2019 to January 2020 totalling RMB 11.2 million.

[9] Present at the 6 March 2020 meeting was the CFO, her Assistant, the Financial Controller (FC) and Ms Norman.

[10] The issues raised in the CFO’s letter were discussed and Ms Norman put her arguments in response which were recorded by the CFO.

[11] The evidence of Ms Li, the CFO, as to what occurred towards the end of the meeting was detailed in her witness statements and submission in response to the Applicant’s outline of argument 1 and was not challenged in cross-examination. I accept this evidence.

[12] The CFO’s evidence is that she advised Ms Norman that given the amount of money involved and the negative impacts on the business that the decision of what was to occur stayed with the Managing Director. She said she would ring him after the meeting and present Ms Norman’s arguments to him and await his decision. She says she told Ms Norman they would have a second meeting at 1:30 p.m. and she would let her know of any developments.

[13] The CFO’s evidence was that Ms Norman then said she would like to know the likely outcome and what she can do.

[14] The CFO replied that they knew she had been with the company for a long time and they were shocked to discover these errors. Unfortunately, this had a huge impact on the company and the Finance team. She told Ms Norman that this incident alone was ground for serious misconduct which the Managing Director might consider warranted dismissal.

[15] She told Ms Norman that even if the outcome was not a misconduct dismissal there will be a warning given and that she had already received a first written warning on 14 February 2020 and that the company can dismiss her if she receives three warnings.

[16] The CFO told Ms Norman that personally she would consider resigning if she was in the situation and at least get paid for her notice period.

[17] The CFO’s evidence was that Ms Norman was in tears and thanked her for her honesty and said she will wait for the Managing Director’s decision. The meeting then concluded.

[18] The CFO, with her Assistant, then rang the Managing Director and presented Ms Norman’s arguments. They then waited for his decision.

[19] At 12:40 p.m., before the Managing Director had contacted the CFO, Ms Norman came into the CFO’s office and handed her a written resignation. The CFO sat Ms Norman down in her office and asked her whether she was aware that she has the right to go to Fair Work with any decision the Managing Director will make, but if she resigned now she won’t be able to make a case at Fair Work because she has resigned before any disciplinary action was made by the company. The CFO’s evidence was that she wanted to make sure Ms Norman understood her rights and knew what she was doing.

[20] Ms Norman told the CFO that she had made up her mind and she is aware of what she is doing.

[21] The CFO told Ms Norman that if she had made up her mind, she would not require her to work the period of notice.

[22] Afterwards the CFO reported Ms Norman’s resignation to the Managing Director.

[23] At 1:53 p.m. the CFO drafted a letter accepting Ms Norman’s resignation and emailed this to her.

[24] The Applicant’s evidence was that after the CFO had explained the likely outcome would be instant dismissal by the Managing Director she felt she had no choice but to resign. 2

The legislation

[25] Section 386 of the Act, which is set out below, defines when a 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; 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.”

[26] Relevantly, a person who has resigned from their employment, but was forced to do so because of conduct or a course of conduct engaged in by their employer is deemed to have been dismissed.

Consideration

[27] The facts of this matter are quite straightforward.

[28] Notably, Ms Norman knew the final decision concerning her employment was to be made, not by the CFO, but by the Respondent’s Managing Director.

[29] It was Ms Norman who asked the CFO her opinion of the likely outcome. This was before the CFO had any discussions with the Managing Director about what had been said during the disciplinary action meeting.

[30] The CFO told Ms Norman the Managing Director might decide to dismiss her or at least give her another written warning.

[31] The CFO said if it was her she would consider resigning and at least get paid her notice.

[32] The Applicant went away and shortly afterwards tendered a written resignation.

[33] This resignation was accepted by the Respondent after a discussion with Ms Norman.

[34] At no time did Ms Norman attempt to withdraw her resignation.

[35] Situations such as this involving disciplinary meetings are not uncommon. In Pacific National (NSW) Limited v Bell 3 a Full Bench of the Commission upheld a decision that an employee who was subject to a disciplinary procedure but acted on the advice of the union and resigned before the employer had come to a decision was not forced to resign.

[36] There is no doubt that Ms Norman tendered her written resignation and consequently the onus is on her to prove that she did not resign voluntarily but rather the Respondent forced her resignation.

[37] In this case the CFO’s personal opinion about the possible outcomes and what she would consider doing was only proffered because Ms Norman asked for her opinion. There is no evidence that the action or words of the CFO were intended to bring the employment relationship to an end. Neither was a resignation by Ms Norman the probable result in circumstances where the CFO had said it was possible that the Managing Director would only give Ms Norman a second written warning rather than a dismissal.

[38] Ms Norman clearly had the option of waiting for the Managing Director’s decision.

[39] Ms Norman chose not to do that. Ms Norman asked the CFO for her opinion and later made a choice to voluntarily resign.

[40] Ms Norman was not dismissed by the Respondent.

[41] Consequently, I uphold the Respondent’s jurisdictional objection and this application will now be dismissed. An order [PR723539] to that effect will be issued.

Appearances:

N. Norman on her own behalf.
C. Zhu on behalf of the Respondent.

Hearing details:

2020.
Perth:
August 2020.

Printed by authority of the Commonwealth Government Printer

<PR723451>

 1   Exhibits R1 and R2.

 2   Transcript at PN81.

 3   [2008] AIRCFB 555.