Rebecca Wilson v St George Aboriginal Housing Company Limited & Adam Osborne

[2021] FWC 6080

[2021] FWC 6080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Rebecca Wilson
v
St George Aboriginal Housing Company Limited & Adam Osborne
(C2021/2761)

DEPUTY PRESIDENT LAKE BRISBANE, 7 OCTOBER 2021

Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether Applicant resigned – whether the application was lodged within time – jurisdictional objections dismissed

[1] Rebecca Wilson (theApplicant) lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by St George Aboriginal Housing Company Limited (theFirst Respondent) and Adam Osborne (Mr Osborne / the Second Respondent) (collectively, the Respondents).

[2] Both parties agreed that the Applicant was employed by the First Respondent as a cleaner from December 2020. What is in contention is how her employment came to an end.

[3] The Respondent raised two jurisdictional objections. First, that the Applicant was not dismissed and second, that her application was lodged in the Commission outside the requisite time. It was agreed between the parties that these matters should be determined by way of video hearing on 12 August 2021.

[4] Both parties sought to be represented at the hearing. Granting permission to be represented under s.596 requires the satisfaction of two elements. 1 The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3 Given the complexity and sensitive nature of some of the matters to be discussed, I was satisfied that it was appropriate to grant both parties permission to be represented. Accordingly, the Applicant was represented at the hearing by Dr Haddrick of counsel, instructed by Hunter Trotman of Queensland Workplace & Workplace Injury Law and the Respondent was represented by Chris Lowe of Murdoch Lawyers.

Was the Applicant dismissed?

[5] Section 386(1) of the Act relevantly provides thata 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.”

[6] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (BUPA v Tavassoli), the Full Bench expanded on the content of the two limbs:

“[47] 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.”  4

[7] The case of Mohazab v Dick Smith Electronics (No 2) is a foundational case in determining 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.”  5

[8] In BUPA v Tavassoli, the Full Bench helpfully expounded on Mohazab in the following terms:

“[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 as follows:

“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.” 6

Respondent’s material

Evidence of Adam Osborne (the Second Respondent)

[9] Mr Osborne provided evidence in this matter based on his own recollections and having reviewed the First Respondent’s records. By way of background, Mr Osborne has been a police liaison office for the Queensland Police Service (QPS) since 5 March 2016 and has held the voluntary position of chairperson of the board of directors for the First Respondent since 1 July 2018. He previously served in the New South Wales rural fire service for over a decade.

[10] Mr Osborne disputes much of what is said about him in the Applicant’s application lodged on 21 July 2021. In respect of the phone conversation between himself and the Applicant on 20 April 2021, Mr Obsourne recalls the Applicant calling him while he was at work for QPS and saying words to the effect of, “Can you come and speak with me about Gummy [Chris Lamb]. I’m having troubles with him at work.” Mr Osborne says he was unaware the Applicant’s mother was listening to the conversation. Mr Osborne says the Applicant was not specific regarding what those troubles were and denies that the Applicant told him then that Mr Lamb had been kissing or grabbing her crotch. Mr Osborne states he was not made aware of the specific allegations until he attended the Applicant’s home. Further, Mr Osborne denies telling the Applicant to write a letter for him about the allegations during the call.

[11] Mr Osborne states that he was only about five houses away from the Applicant’s home when she called. He was still at work so it would have been before 4pm in the afternoon, because that is when he normally finishes. He decided to go to her house to speak with her. The Applicant’s mother (Mrs Wilson) was there. Mr Osborne stated that in his experience with the Applicant, she is often not as forthcoming with information with her mother present so he asked to speak with the Applicant privately. He recalls Mrs Wilson then saying, “I’ll let you two talk” and going inside so he and the Applicant could speak privately. He maintains that Mrs Wilson was not visibly present during his conversation with the Applicant but concedes that when Mrs Wilson went inside and the Applicant and he spoke alone, it is possible that she could have overheard the conversation from inside the house as the patio is only separated by a screen door/windows in areas.

[12] Mr Osborne states that he and the Applicant stayed in the undercover area at the back of the house. The Applicant then disclosed to Mr Osborne that Mr Lamb had made inappropriate advance towards her of a sexual nature. The allegations ranged from kissing her to rubbing his hand against her crotch. The Applicant was upset and could not clearly detail what had happened. Mr Osborne says he asked the Applicant if she was ok, asked her what she wanted to do about it and asked that if she wanted him to act on it, he would need it in the form of a written complaint. He then told her to write it all down and he would be back later to collect it. The Applicant told him she would do it immediately. Mr Osborne also encouraged the Applicant to make a formal complaint with QPS given the seriousness of the allegations. Mr Osborne told her that in the meantime he could speak to the QPS. The Applicant told him that she was happy for him to do so. The first visit to the Applicant’s house probably only lasted for 15 minutes.

[13] Mr Osborne denies swearing and saying, “he had no fucking right to be touching you” but admits he would likely have said words to the effect of, “he had no right to touch you”. Further, Mr Osborne denies saying words to the effect of “I had been trying to get rid of Chris for ages because I fucken hated Chris and has been trying to find a reason for ages to get rid of him”. He says, firstly, he does not speak like that and secondly, he does not hate Mr Lamb. He asserts that the Applicant told him that Mr Lamb was trying to get rid of him from the board, to which Mr Osborne did not respond, given it was not up to him and his focus was on the Applicant’s complaint.

[14] Mr Osborne left the Applicant’s house, returned to work for QPS and informed the detectives of his conversation with the Applicant. He told them the nature of the allegations and sought guidance as to what he should do, mindful of the fact that given she had reported the conduct to him, that he might be a witness. His colleagues said they would go and see her the following day.

[15] Mr Osborne returned to the Applicant’s house about an hour or an hour and a half later. It was still before 4pm because he was still in uniform. He asked the Applicant if she had prepared the letter and she said yes and handed it to him.

[16] That letter set out the sexual harassment and assault alleged by the Applicant. I will not repeat the allegations here. With respect to these proceedings, it is sufficient to note the instances of sexual harassment and assault were detailed, and the final sentence read, “This has been going on since not long after I started my employment at aboriginal housing and this is the reason I am resigning from my employment [sic].”

[17] The Applicant told Mr Osborne more about the complaint as he skimmed the letter and did not at that time pick up her resignation at the bottom of the letter. The Applicant’s mother was present but there was no discussion about her resignation. Mr Osborne asked the Applicant if she was ok and whether he could provide a referral to a counsellor so she could talk about it. She was hesitant but then told him she would like to see someone. Mr Osborne suggested Adam Donoghue, who the Applicant had seen before and was comfortable with. The Applicant was happy to see Mr Donoghue and Mr Osborne said he would set it up the following day. Mr Osborne explained that the board would be meeting the following day (21 April 2021) at 5pm and that, with her permission, he would bring this complaint to their attention. The Applicant was happy for this to occur but in the meantime, they discussed the Applicant making a statement to police. The Applicant also stated that Mr Lamb would expect her at work the following day. Mr Osborne told her not to worry about coming into work but denies saying she did not have to return to work until Mr Lamb was sackedor that she would be paid for any time off. The Applicant asked what to do if Mr Lamb rung her. Mr Osborne told her not to worry, to block him from her phone and call the police if he comes looking for her.

[18] Mr Osborne denies the allegation that he told the Applicant what to write in that letter of complaint. His evidence is that he was not there when she wrote it and that his only suggestion was to write what happened on paper. Further, Mr Osborne states, that much of what is written in the complaint letter was not known to him until after he read it so he could not possibly have told her what to write. He specifically denied any allegation that he told the Applicant to write that she was resigning from her employment.

[19] At the hearing, Mr Osborne maintained that he did not say that her job was safe. The only comment he made was about safeguarding her from Mr Lamb if he attempted to contact her. Mr Osborne told her that he could not take action without a letter of complaint and that the board was meeting the following day. He maintained that he did not tell her what to write or that he would use the letter (with its reference to her resignation) to persuade the board to get rid of Mr Lamb. Mr Osborne does not have authority to do so as a quorum of the board is required for any such decision. Mr Osborne admitted he told the Applicant she did not have to go to work the following day, but avers that he did not say she did not have to return until Mr Lamb was sacked or that she would continue to be paid. Mr Osborne says there was no conversation regarding the Applicant’s pay or future employment. She never asked. In any event, Mr Osborne says he would not be in a position to give that assurance given it would require a quorum of the board. That was why he said he would inform her of the board’s decision.

[20] On 21 April 2021 at 5:20pm the First Respondent’s board meeting was held and the Applicant’s complaint was tendered (after Mr Lamb had left the meeting). The Applicant’s letter was read out loud by Mr Osborne and passed around. The board noted that the Applicant had decided to resign, which was accepted, effective immediately. The Board had decided that action needed to be taken in respect of Mr Lamb but that advice needed to be taken in respect of how.

[21] Mr Osborne states that he continued to be in contact with the Applicant to offer support.

[22] On 27 April 2021, the Applicant sent him a message asking, “Hey Adam, did U end up speaking to Donna last week about my pay?” Mr Osborne told the Applicant he would contact Donna, who is responsible for payroll, as she was on leave.

[23] Mr Osborne agrees that he attended the Applicant’s premises on 28 April 2021 to tell her that Mr Lamb had been stood down as of 22 April 2021, pending the outcome of the police investigation. He denies telling the Applicant she had been dismissed. He also denies saying that, “because of your mental health, it would be in your best interest to find another job”.

[24] At 2:30pm, Mr Osborne received a message from the Applicant asking, “Am I terminated from work or am I still employed?” He thought this was odd so did not respond. The Applicant has a history of drug use and given their previously close relationship, he was concerned enough to attend her home to speak to her and provide support. When he arrived, the Applicant asked, “Have I still got a job” to which he replied, “you resigned and the board accepted your resignation”. He then asked, “would you really want to go back given what has happened?” to which the Applicant responded, “No. No really. I’m hoping to move to Toowoomba soon anyway with my partner”. Mr Osborne told her he would be happy to be a referee.

[25] Mr Osborne states that he and the Applicant had a close relationship, so he has been surprised by some of the statements made in her material and also that she waited until April 2021 to disclose what was happening with Mr Lamb.

[26] Mr Osborne’s evidence was that he never told the Applicant that she had been dismissed nor is he aware of any discussions relating to the termination of her employment until the board accepted her resignation.

Evidence of Donnalee Newton

[27] Ms Donnalee Newton gave evidence in these proceedings. She has been the manager of the First Respondent since 10 May 2021. Prior to that, she was the First Respondent’s accounts and finance officer and previously, she was an administration officer and receptionist. Ms Newton provided evidence in this matter based on her own recollections and having reviewed the First Respondent’s records.

[28] Ms Newton stated that on 22 April 2021, Mr Osborne had advised her that the Applicant had resigned the day before (on 21 April 2021) following which she marked the Applicant in the First Respondent’s payroll system as no longer been an employee. She was provided with a copy of the Applicant’s complaint by Joy Weatherall, who asked her to keep it in her office.

[29] The First Respondent’s pay cycle is run from Wednesday to Tuesday each week. Consequently, the Applicant’s final pay date was 20 April 2021. As at that date, the Applicant had no accrued leave so none was paid out. Ms Newton received a text from Mr Osborne asking, “Hey did we pay Bec Wilson up to date?” to which she responded by calling to say that the Applicant would have received her final pay for the last pay run and no accrued leave was paid out because she did not have any.

[30] Ms Newton states that on 20 May 2021, she received a letter from BEST employment agency titled, “Approved Leave Verification for Wage Subsidy – Employer” which she signed and returned as requested. That letter stated that, “Rebecca then resigned on her last day of employment 20/04/2021”. Ms Newton believed that this would have been inserted based on what Applicant had told BEST as to why she was no longer employed. Though the First Respondent had recorded her final date as 21 April 2021, Ms Newton verified the statement, as 20 April 2021 was the day on which she understood the Applicant had resigned. She had not spoken to BEST prior to receiving this form.

[31] On 27 April 2021, Ms Newton contacted BEST regarding a query in relation to the reporting process for the termination or resignation of employees receiving subsidies for employment. During that conversation, Ms Newton states that Ms Petra Stride told her on 27 April 2021 the Applicant had informed Ms Stride she had resigned from her position with the First Respondent.

Submissions

[32] The Respondents submit that the Applicant’s employment was not terminated at the employer’s initiative and that neither of them ever communicated verbally or in writing that the Applicant’s employment was terminated. Rather, the Applicant tendered her resignation on 20 April 2021, which was accepted by the First Respondent the following day, on 21 April 2021. The Respondents insist that the Applicant’s contention in the updated application that she was dismissed from her employment on 29 April 2021 after her resignation was accepted is therefore nonsensical and without any merit or factual basis. Accordingly, the Respondent submits that as it relates to s.386(1)(a), there was no dismissal at the initiative of the First Respondent, or the Second Respondent on behalf of the First Respondent.

[33] In respect of s.386(1)(b), the Respondents submit that a mere allegation that the employee was forced to resign is insufficient. Rather, the onus is on the employee to prove that there was action taken by the employer that either intends to bring the relationship to an end or has that probable result. Only then can the employee be taken to have resigned involuntarily or that the employer forced the resignation. The Respondent acknowledges that the Applicant’s application infers elements of constructive dismissal. However, the Respondent submits that the Applicant tendered her resignation in writing on 20 April 2021 to the Second Respondent and that the Applicant has not made any clear submissions to suggest that the Respondents engaged in conduct or a course of conduct with the specific intent to force the Applicant to resign. The Second Respondent denies any allegation that he told the Applicant what to write when she tendered her resignation on 20 April 2021. The Second Respondent’s evidence was that he clarified that the Applicant was comfortable with her resignation on 28 April 2021. The Respondent also pointed to the Applicant’s representations of the nature of her termination being a resignation to BEST employment as evidence of the true events. The Respondent thus submits that as there has been no dismissal that has occurred at the initiative of the Respondents and the Applicant was not forced to resign from her employment because of conduct, or a course of conduct, engaged in by either of the Respondents, the Application lacks a crucial element in a general protections application involving dismissal and should not proceed.

Applicant’s material

[34] The Applicant submits that she was not dismissed, within the meaning of either ss.386(1)(a) or 386(1)(b) of the Act, from her employment on 20 April 2021 or 21 April 2021. Rather, she asserts that she was dismissed from her employment on 29 April 2021 and that the Application was made, that is the Application was lodged with the Commission on 14 May 2021, that is within the 21-day statutory timeframe.

The Applicant’s evidence

[35] The Applicant gave evidence on her own behalf in these proceedings. I have had regard to the evidence she has provided in respect of the conduct of Mr Lamb and the course of her employment but do not intend to repeat it here.

[36] On 21 April 2021, the Applicant was not at work. Her mother, Mrs Donna Wilson (Mrs Wilson) asked her why she was not. The Applicant told her that what Mr Lamb was doing to her had taken its toll and she could no longer handle it but that she wanted to keep her job. Mrs Wilson suggested that she tell Mr Osborne what Mr Lamb had done to her.

[37] On 21 April 2021, the Applicant called Mr Osborne and put the call on speakerphone so that her mother could hear the conversation. She told Mr Osborne that she wanted to speak to him about the reason she had not been at work and that she had enough of Mr Lamb kissing her and grabbing her crotch at work. During the telephone call, Mr Osborne told her that he could not believe that Mr Lamb had done those things to her, that he [Mr Lamb] had no fucking right to be touching the Applicant. Mr Osborne told her he would deal with it, that he was so sorry that this had happened and asked if he could come and see her at home.

[38] The Applicant denies that Mr Osborne came to her home on 20 April 2020.

[39] On 21 April 2021, the Applicant asserts that about 15-20 minutes after the phone call had ended with Mr Osborne, he arrived at her home and entered by walking around to the back patio area where the Applicant and her mother were seated. Mr Osborne saw Mrs Wilson and asked her how she was. The Applicant denies that her mother told Mr Osborne “I’ll let you two talk.” She says that her mother was there the whole time and heard everything Mr Osborne said.

[40] The Applicant told Mr Osborne that not long after she commenced her employment, Mr Lamb started forcing her to kiss him and that it got worse when Mr Lamb started grabbing her crotch and moving his hand back and forth and offering to pay her for sex. She told Mr Osborne that Mr Lamb had come to her home uninvited and had offered her the receptionist job in return for sex.

[41] Mr Osborne asked the Applicant why she had not told him about these things earlier. She told him she had been worried that if she made a complaint, she would lose her job. The Applicant states that Mr Osborne told her she would never lose her job for making a complaint about what Chris did because she was not in the wrong. Mr Osborne also told her that he had been trying to get rid of Mr Lamb for ages because he hated him and that he would use what Mr Lamb had done to her to get the board to sack him. The Applicant was comforted by Mr Osborne's words. The Applicant says her mother said to Mr Osborne, repeatedly, words to the effect, that it was rubbish what Mr Lamb had done to the Applicant, that she had been telling the Applicant for ages to ring Mr Osborne to tell him what was happening but that the reason that she had not done so was for fear of losing her job. The Applicant says Mr Osborne told her that she did not have to return to work until Mr Lamb was sacked and that she would be paid for any time she was absent in the meantime. The Applicant was greatly comforted by this offer, believing that he was genuinely concerned about her and would facilitate her return to work. The Applicant says that Mr Osborne told her that he needed her help to get rid of Mr Lamb and for this purpose, he needed her to provide a written statement. He told her to get a pen and paper. The Applicant says that Mr Lamb told her to write on the paper what he was about to say. She says she complied with Mr Osborne's directions and this included to write the final sentence which states, “I resign my employment”. The Applicant says that her mother objected to that sentence, but Mr Osborne assured her that her job was safe and that the purpose of the letter was to persuade the board to get rid of Mr Lamb.

[42] The Applicant says the only reason she wrote the final sentence of the letter was because Mr Osborne expressly directed her to do so and because Mr Osborne assured her that the only purpose for which he would use the statement would be to get rid of Mr Lamb. Had Mr Osborne told her he would use the letter to bring about the end of her employment, she would not have agreed to write it. She did not intend to resign.

[43] Upon completing the letter, the Applicant handed it to Mr Osborne who took a minute or two to read it. He then said that her job was safe and that she had nothing to worry about. He confirmed the only use for the statement was to get rid of Mr Lamb. Mr Osborne then told her that if she needed anything to let him know and he would do what he could. Mrs Wilson left the Applicant’s house at the same time as Mr Osborne.

[44] The Applicant denies that Mr Osborne told her to make a complaint to the police or that she ought to block Mr Lamb’s phone number. Whilst Mr Lamb had caused her distress, the Applicant had no interest in making a criminal complaint against him. She simply wanted to return to work and for Mr Lamb not to be there. The Applicant believed that by assisting Mr Osborne by giving him the written statement which he directed her to write she would be helping Mr Osborne bring about that outcome.

[45] On 21 April 2021, Melinda, a detective from the St George police station visited the Applicant’s home. She told the Applicant that she had spoken with Mr Osborne and consequently, wanted to speak with the Applicant about Mr Lamb. They went to the back patio area and Melinda took notes as the Applicant explained what had occurred in respect of Mr Lamb. This lasted 20 minutes. Melinda said she would speak with Mr Lamb and then left.

[46] On 22 April 2021, the Applicant attended the police station on Melinda’s request and made a call to Mr Lamb, with the intention of having him make admissions and to record them. Mr Lamb answered the call. The Applicant said words to the effect that she could not handle him kissing or grabbing her crotch anymore. Mr Lamb said that he did not know what to say and then asked if he could come to her house. He said that if the Applicant agreed to him coming over, he promised that he would not touch her. The Applicant said no and the call ended.

Submissions

The Applicant submits that her case is not that she was dismissed or forced to resign her employment on either 20 April 2021 or 21 April 2021. She admits to writing the complaint letter, which is the mechanism that the Respondent rely upon as giving effect to the Applicant's resignation, but asserts that the author was Mr Osborne. She says she was dictating what Mr Osborne told her to write. She had denied that the complaint letter was her expression of an intention to resign from her employment or that it was sufficiently certain so as to be capable of acceptance by the First Respondent. She claims that Mr Osborne induced her to write the letter by saying that it was necessary to remove Mr Lamb from the organisation and that it would not result in the termination of her employment. The Applicant relies on her summary of representations made by Mr Osborne and the evidence of her mother, Mrs Donna Wilson.

[47] The Applicant submits that should the Commission prefer the Respondents’ case, including Mr Osborne's account of the events of 20 and 21 April 2021, then the Commission would accept that the Applicant voluntarily resigned her employment on 20 April 2021. The Applicant asserts it would be counterintuitive for the Applicant to invite the Commission to then find that there are alternate dismissal dates, that is if the Commission is not persuaded that the Applicant was dismissed or forced to resign on 20 April 2021 or 21 April 2021, then the Commission is invited to find that she was dismissed on 29 April 2021.

[48] Should the Commission prefer the Applicant's case that she did not resign her employment on 20 April 2021 or 21 April 2021, is then for the Commission to determine how and when the Applicant's employment did end. The Applicant invites the Commission to adopt her evidence that on 29 April 2021, Mr Osborne dismissed the Applicant from her employment by saying to the Applicant that she was to find another job. Further, she submits that whatever the Commission’s findings in respect of the events of 28 April 2021, that is on Mr Osborne’s evidence, or the Applicant's version of events of 29 April 2021, it is unnecessary for the Applicant to press an out of time application. It is for these reasons that the Applicant does not respond to the Respondents’ out of time jurisdictional objection.

Evidence of Donna Wilson

[49] Mrs Wilson provided evidence in these proceedings in support of her daughter’s claim. She recalls the Applicant telling her about Mr Lamb’s attempts at kissing her from soon after she commenced employment. She told the Applicant to make a complaint, but the Applicant did not want to for fear of losing her job.

[50] In or about April 2021, the Applicant said to Mrs Wilson that Mr Lamb's assaults had gotten worse and because of this she was taking some time off. On 21 April 2021, Mrs Wilson went to the Applicant’s home and asked why she had not returned to work. The Applicant told her mother she was distressed and did not want to return if Mr Lamb was there.

[51] Mrs Wilson told the Applicant to make a complaint to Mr Osborne. She repeated that she did not want to make a complaint because she would be sacked and started to cry. Mrs Wilson assured her that would not happen, and the Applicant called Mr Osborne on speakerphone so they could both hear. Mrs Wilson says the Applicant told Mr Osborne that the reason she had not been to work was because Mr Lamb had been kissing her and grabbing her crotch. Mr Osborne swore and said that Mr Lamb should not have been touching the Applicant and that Mr Osborne was coming to the Applicant’s home.

[52] Mrs Wilson was present when Mr Osborne arrived. She and the Applicant were in the outdoor patio area. People who know the Applicant walk around the back of the house. That is how Mr Osborne entered. He only came over once on 21 April 2021.

[53] Mrs Wilson denies she said she would leave the Applicant and Mr Osborne to speak privately. She was incensed at the way that her daughter had been treated and wanted Mr Osborne to know her thoughts. Mrs Wilson told Mr Osborne that it was rubbish how the Applicant had been treated and that despite her encouraging the Applicant to make a complaint she refused to do so because she was scared of losing her job. She repeated this statement more than once. Mrs Wilson recalls Mr Osborne saying, “It's ok Donna, she won't lose her job and she'll get paid while we sort it out.” The Applicant told Mr Osborne the things that Mr Lamb had done to her. Mr Osborne asked why she had not said anything sooner. The Applicant said she was scared of losing her job and had just tried to do her job and avoid coming into contact with Mr Lamb but that it had got to a point where Mr Lamb would search for her.

[54] Mrs Wilson recalls Mr Osborne saying that he hated Mr Lamb, had been trying to get rid of him for some time and would use what Mr Lamb had done to the Applicant to get rid of him. However, he said, he needed the Applicant’s help. He needed her to provide a written statement today so he could present it to the board at their meeting that evening. Mr Osborne told the Applicant to get a pen and paper.

[55] Mrs Wilson said Mr Osborne then told the Applicant what to write on the paper, which she did. Mrs Wilson expressly recalls Mr Osborne telling the Applicant to write that she resigned her employment. Upon hearing this, Mrs Wilson asked Mr Osborne why the Applicant should lose her job because of the things done to her. Mr Osborne said that her job was safe but that he needed the Applicant to say the reason she was resigning was because of the things Mr Lamb had done because this would persuade the board to sack him. Mr Osborne said he would only use the Applicant’s letter to get the board to sack Mr Lamb.

[56] Mrs Wilson states that when the Applicant finished the letter, she handed it to Mr Osborne to read. He said he would speak with Donna, the Respondent’s payroll officer, and tell her to pay the Applicant even though she was not at work. Mrs Wilson and Mr Osborne then left the Applicant’s house at the same time. As they were leaving, Mrs Wilson again said to Mr Osborne that it was rubbish how the Applicant had been treated. Mr Osborne said he would get it sorted out.

[57] That afternoon, Mrs Wilson collected the Applicant’s kids from school and took them home. When she arrived, there was a female police officer speaking with the Applicant.

[58] Later that evening, Mrs Wilson was cleaning the building next to the Respondent’s business address. She saw persons whom she knew to be board members, including Mr Osborne, at the premises between 5.00 and 6.00 pm.

[59] Though Mrs Wilson cannot recall the date, she does recall the Applicant calling her sometime later to say that Mr Osborne had been to her home and told her to look for another job. Mrs Wilson assured her daughter they could not sack her for complaining about being sexually assaulted and that was wrong.

Consideration

[60] It is undisputed that the Applicant experienced sexual harassment whilst working for the Respondent. I understand that the matter was referred to the police and dealt with appropriately. However, this decision concerns only whether the Applicant was dismissed. The jurisdiction objection turns entirely upon whose evidence the Commission prefers. I have had regard to the submissions and evidence given by both parties. Each witness was plainly spoken and provided considered evidence. All appeared credible. However, I have been presented with two very different narratives. For the reasons stated below, I prefer that presented by the Applicant.

[61] In short, the Respondent contends that Mr Osborne, having received a call from the Applicant, attended her house where she disclosed to him that Mr Lamb had sexually harassed and assaulted on several occasions during her employment. Mr Osborne says he told her to write those allegations down so he could present them to the board and then left while she did so. He says he returned later to pick up the letter and skimmed it before leaving again. It was only at the board meeting that he noticed the Applicant had included that she was resigning, which was subsequently accepted by the Board on 21 April 2021. He says while saddening, this was an understandable response from someone in the Applicant’s position, particularly given she had told him previously that she was contemplating relocating to a different town.

[62] Conversely, the Applicant asserts that she disclosed to Mr Osborne some of the allegations against Mr Lamb over the phone, that he then arrived at her house and had a discussion with her about the allegations. She says he then dictated a letter to her, which she duly wrote by hand, so that he could take it to the board that evening. That letter included the Applicant’s resignation. Mrs Wilson challenged why Mr Osborne required the Applicant to write that she was resigning but was assured by him that it was necessary to ensure Mr Lamb was removed. Further, the Applicant says, Mr Osborne assured both her and her mother that her employment would be not impacted. She says Mr Osborne also stated that she did not have to attend work and would be paid while the sorted out these issues. The Applicant thus states that she had not resigned in a way that was capable of acceptance by 21 April 2021 at the Board meeting. Rather, her employment was terminated by the Respondent on 29 April 2021, when Mr Osborne told her to look for another job.

[63] I have considered the possibility that the Applicant wrote – unprompted – that she was resigning to add gravity to the allegations made and reflect the seriousness of the consequences that Mr Lamb’s conduct had on her. It is indeed unusual and regrettable that when notified of the Applicant’s allegations, the Board’s primary concern – on Mr Osborne’s evidence – was about Mr Lamb and his wife, rather than upon how best to support the Applicant. A more prudent Board may have seen the purported resignation and tasked someone with checking on the Applicant’s welfare before accepting it. However, with respect to the Applicant writing that she resigned at Mr Osborne’s behest, the Applicant and her mother’s evidence was clear and consistent. Their evidence was closely aligned. I have had regard to the closeness of the relationship between the Applicant and Mrs Osborne and the impact it may have had on their evidence. However, ultimately, their evidence was largely unchallenged in the hearing. The evidence thus demonstrates that the Applicant did not resign on 21 April 2021.

[64] During the hearing, the Applicant’s representative expressly drew the Respondent’s representative’s attention to the fact that he had not put the Respondent’s version to the Applicant, thereby testing or challenging the Applicant and her mother’s evidence. The Respondent’s representative was offered the opportunity to do so but declined. Had the Respondent’s version of events been expressly put to the Applicant or her mother, any organised narrative (if one existed) or other deficiencies in the Applicant’s evidence may have come to light and perhaps the Respondent’s alternative narrative would have been more persuasive. However, in the absence of such evidence, I am left with the unchallenged evidence of the Applicant, which in turn is corroborated by her mother. Both provided credible and reliable evidence which I am inclined to adopt.

[65] I have also considered the Applicant’s assertion that Mr Osborne disliked Mr Lamb, so much so that he wanted him removed from the organisation and that he took the Applicant’s allegations as an opportunity to bring about that result. Mr Osborne’s evidence was that such accusations were not true. Mr Lamb asked Mr Osborne to be his support person when interviewed by police. Given the Applicant had disclosed the allegations to him, Mr Osborne declined. However, it is unlikely that Mr Lamb would have asked had he detected strong feelings of distrust and dislike from Mr Osborne. Given the findings on the bases made above, this issue is a peripheral one. That said, I do not accept there was enough evidence of any particular malice on the part of Mr Osborne. While I do not weigh this matter particularly strongly, I note the Applicant’s submission that such circumstances – which they alleged exist – would be suggestive that the Applicant’s version of events may be the correct view.

[66] For the reasons set out above, I favour the Applicant’s evidence and submissions to the effect that she her employment was terminated on 29 April 2021 by Mr Osborne, and by extension, by the First Respondent. Accordingly, I find that the application was made within time.

[67] I will list the matter for further conference and attempt to conciliate the matter. If that is unsuccessful, a certificate will be issued pursuant to s.368(3).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.

 2   Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.

 3   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268 at [48].

 4   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

 5   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 6   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.