Sherman v Sunrise Health Service Aboriginal Corporation

[2016] FWC 8903

[2016] FWC 8903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sally-Ann Sherman
v
Sunrise Health Service Aboriginal Corporation
(U2016/9827)

COMMISSIONER WILSON MELBOURNE, 15 DECEMBER 2016

Application for Unfair Dismissal Remedy. Whether Applicant resigned or was “dismissed” within the meaning of s.386 of the Fair Work Act 2009.

[1] This decision concerns an unfair dismissal application by Ms Sally-Ann Sherman against her former employer, Sunrise Health Service Aboriginal Corporation, (Sunrise Health Service or the Corporation) with the matter requiring determination in this decision being whether or not Ms Sherman was “dismissed” within the meaning of s.386 of the Fair Work Act 2009 (the Act).

[2] For the reasons set out below, I find that Ms Sherman was not dismissed and so her unfair dismissal application is unable to proceed further.

BACKGROUND

[3] Ms Sherman worked for Sunrise Health Service from 14 January 2013 until 13 July 2016. During that time she worked as a Registered Nurse at the Corporation’s Mataranka Health Centre near Katherine in the Northern Territory. In that capacity Ms Sherman worked with a number of other employees providing health services to the local community.

[4] A number of her work colleagues made a complaint to Sunrise Health Service about alleged bullying on the part of Ms Sherman. Sunrise Health Service advised Ms Sherman that complaints alleging bullying and harassment had been received by it about her conduct. In the same advice the Corporation’s Chief Executive Officer, Edward Dean, advised Ms Sherman that she would be suspended on full pay while the matters were investigated.

[5] On 28 June 2016, Sunrise Health Service retained the services of an external consultant, Ms Chenoa Ellison from the Chamber of Commerce Northern Territory. Ms Ellison conducted an investigation into the allegations, which concluded on 11 July 2016. A copy of Ms Ellison’s investigation report provided to Sunrise Health Service was included within the Corporation’s submissions in relation to this application.

[6] The investigation report provides the following context to the allegations of bullying;

“NATURE AND CONTEXT OF COMPLAINT IN RELATION TO SALLY ANN SHERMAN:
It was reported by numerous staff members that there is a consistent pattern of unprofessional behaviour and conduct that has been observed and /or experienced by colleagues over a long period of time to current day (especially the last few months}, that the behaviour is creating a workplace environment that is uncomfortable, embarrassing, disrespectful, intimidating and causing negativity and high anxiety within the work team.

The alleged behaviours for Sallyann Sherman to respond to were reported as follows;

• Verbally aggressive communication / communication styles directed at colleagues that is perceived as bullying which occurs on a daily basis.
• An abrupt manner (short and direct communication) when dealing with team members, that is offensive and intimidating. particularly towards Rosemary Blake on a daily basis.
• Physical stand over tactics used towards staff repeatedly.
• Behaviour which is Intimidating and belittling of Rosemary Blake in front of Clients and other team members.
• Repeated physical finger pointing at staff when addressing them in a aggressive tone .
• Frequent use of criticism (rather than constructive feedback) towards the team members and the way they perform their duties, in particular Rosemary Blake, and this criticism is delivered in front of other team members as well as clients/patients.
• Sharing an inappropriate opinion openly about indigenous people and white people in the community that at times has included use of derogatory terms and racial vilification.
• Threats of physical violence and victimisation towards Rosemary Blake.
• Repeatedly referencing ''I'm sick of white cunt Nurses".
• Creating a health and safety risk to the Remote Area Nurses at Mataranka Health Service.
• Taking adverse action against team members when they exercise a workplace right -(threat to take them off of the oncall rosters when they have raised safety concerns).
• The frequent use of Inappropriate language.
• Derogatory language used about another team members physical attributes, namely Andrew Guy.
• Discriminating- treating Rosemary Blake less favourably and targeting her because she is Aboriginal.” 1

[7] The report sets out the process for the conduct of the investigation, being broadly to clarify the complaint with the complainant; identify and clarify the allegations and related incidents or events; provide a procedurally fair process to all concerned; and support findings with any potential recommendations and associated risks. The investigation report indicates that six witnesses were interviewed by Ms Ellison with a further three managerial representatives being contacted for further information and that finally Ms Sherman and her representative from the Australian Nursing and Midwifery Federation (the ANMF) were interviewed about the matters. The construct of the investigation report is to test whether the evidence before the investigator substantiated either of two propositions;

● Whether there had been any breach of “EEO workplace Policy/Legislation which includes workplace bullying, harassment or discrimination”;

● Whether there had been breaches of the Sunrise Health Service Code of Conduct.

[8] The investigator found that both propositions had been “established” employing the following definition of the term;

“Established: This confirms that the allegations/complaint made have either been proven to have occurred or can be determined by a reasonable person that the allegation/complaint is true or likely to have occurred.” 2

[9] After referring to the evidence received by her from the various witnesses and evaluating its meaning, Ms Ellison then found that it was her opinion “that the breaches of the Equal Employment and Opportunity Laws/SHS policies is severe”. While the report does not provide a definition for the term “severe” it characterises the findings as being serious and in particular that;

“Conclusion

The Investigator concludes that there have been several Severe breaches and that Sallyann Sherman was unable to provide any clarity or reasonable explanation to the allegations provided.

It would be in SHS best interest to consider actions to take in line with the breaches noted in the Policy documents and if the discipline actioned should be consistent with the behaviours exhibited or the employees at SHS may feel that SHS does not take their safety and wellbeing seriously in the workplace.” 3

[10] The investigator, Ms Ellison, did not give evidence in these proceedings.

[11] The evidence given by the Applicant, Ms Sherman, the Respondent’s Chief Executive, Mr Dean and its Human Resources Manager Tony Hopp show that Ms Sherman was aware of the detail of the allegations against her and was provided with an opportunity to provide such matters to the investigator as she desired to answer them. In particular Ms Sherman was provided with a summary of the allegations against her on 5 July 2016 and that an interview with the investigator about the allegations took place the next day, 6 July 2016, on which occasion Ms Sherman attended with Julie Doyle an organiser from the ANMF as her support person.

[12] The evidence generally shows that Ms Doyle assisted Ms Sherman not only by giving advice to her, but also by making representations on her behalf to Sunrise Health Service and Ms Ellison, the investigator. The evidence also shows that with the investigation report having been concluded on 11 July 2016 was provided to Sunrise Health Service shortly thereafter and that Ms Doyle was briefed, to some level at least, about its contents before a meeting with Ms Sherman was arranged for 13 July 2016. It is to be noted that Ms Doyle did not give evidence in these proceedings.

[13] The evidence on behalf of the Respondent’s witnesses, Mr Dean and Mr Hopp shows that neither Ms Doyle or Ms Sherman were provided with a copy of the report and that the communication with Ms Doyle amounted to a summary of the findings made by the investigator. While the summary does not appear to be much greater than that the allegations of bullying were substantiated and that a recommendation of disciplinary action of some kind was recommended against Ms Sherman, a summary of that nature nonetheless conveyed to her that the matters were serious and may well have significant consequences for her ongoing employment.

[14] A meeting by telephone with Ms Sherman was arranged for 13 July 2016. Mr Dean describes the purpose of that meeting, at the time it was arranged, as being to communicate to Ms Sherman the investigations findings and give her an opportunity to respond to them before Sunrise Health Service made a decision as to what should occur about the investigator’s recommendation. There is no reason for me to not accept Mr Dean’s evidence in this regard.

[15] The evidence indicates that prior to the meeting on 13 July 2016, Ms Sherman had the benefit of receiving advice from the ANMF both as to the findings of the investigation as well as what might be expected in the course of the meeting with Sunrise Health Service and what, in all the circumstances, may be done by Ms Sherman given the situation in which she found herself. The nature of that advice is not before the Commission; however there is no reason to find that Ms Sherman was not aware of what her rights might be or what she may do in response to anything that may be done by Sunrise Health Service.

[16] Mr Dean and Mr Hopp’s evidence is that Ms Doyle communicated to Mr Dean that before he moved into the matters that he wished to, she wanted to raise a matter directly with Sunrise Health Service, being the desire of Ms Sherman to avoid a sanction from the result of the investigation. The evidence of the Respondent’s witnesses is that Ms Doyle’s question became the only significant part of discussion of the telephone call. Ms Sherman’s evidence is that, instead of a resignation being offered as the first and only item of significant discussion, that Mr Dean told her that she could either resign or be sacked.

[17] Mr Hopp’s evidence is that, prior to the telephone meeting, he or Mr Dean had briefed Ms Doyle about the outcome of the investigation and that the allegations had been substantiated. Mr Hopp’s evidence is also that the purpose of the meeting, had a resignation not been offered at the start, would have been for the Corporation to have Ms Sherman “show cause” about the investigation outcomes and why her employment should not be terminated.

[18] I accept and prefer the evidence of Mr Dean and Mr Hopp in this regard, noting that the evidence of Mr Hopp, that Ms Doyle had been briefed about the outcome of the investigation, was not contradicted by Ms Sherman and that the meeting’s purpose was for it to be a “show cause” meeting. Accordingly, the version of events put forward by the Respondent’s witnesses is plausible. In the absence of greater evidence on behalf of Ms Sherman it appears less likely that the meeting commenced with a demand by Mr Dean that she resign or be sacked.

[19] In any event, the evidence of all concerned is that Ms Doyle advised the meeting that Ms Sherman would resign. There is no evidence that, having heard the statement of Ms Doyle being made, Ms Sherman said anything to suggest resignation was not her choice. Mr Dean and Mr Hopp indicated their acceptance of the resignation.

[20] Within the meeting there was a short discussion about Ms Sherman being given some time to leave the accommodation she rented from Sunrise Health Service.

[21] Shortly after the conclusion of the telephone meeting, at 3:07 PM, Mr Hopp received an email from Ms Doyle confirming Ms Sherman’s resignation effective the same day, 13 July 2016. The email attached a signed letter of resignation from Ms Sherman, also stating that the date of effect of the resignation was 13 July 2016.

[22] The evidence indicates that both parties proceeded to treat the phone discussion and correspondence as having ended Ms Sherman’s employment with Sunrise Health Service. Ms Sherman conceded in giving evidence that when her representative said Ms Sherman would resign, that such was her intention at the time; however she also puts forward that the resignation was given in response to what she perceived as a demand from Mr Dean.

[23] After having left Sunrise Health Services employment, Ms Sherman was provided with a final payment and payslip, which indicated a deduction for cleaning of the accommodation she rented from Sunrise Health Service. Ms Sherman disputes the amount of the deduction or that it was reasonable that any amount be deducted. She considers that the house was left in an acceptable state and that a deduction should not have been made.

[24] Ms Sherman’s central contention is that she was forced to resign, and that what happened to her should be construed as a dismissal of her at the initiative of the employer.

LEGISLATION

[25] The central question to this matter is whether Ms Sherman was dismissed at the initiative of the employer. Relevant to the Commission’s consideration of this question are the provisions in s.386 of the Act;

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.

CONSIDERATION

[26] That a person’s forced resignation may be a dismissal is well established, and is explicitly identified in s.386(2) of the Act.

[27] The principles of forced resignation, or constructive dismissal, have been extensively analysed in many cases, including by the Full Bench of the Fair Work Commission (the Commission) Those principles require all of the circumstances of a termination to be examined, and not only the actions of the employer. The employer’s conduct must be weighed objectively and arising from that it “may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal”. 4 While there it is the case that an employer is generally able to treat a clear and unambiguous resignation as a resignation,5 there is also a recognition that where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise for further consideration.6 In such special circumstances an employer may be required to allow a reasonable period of time to pass and an employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.7

[28] Terminations on the initiative of the employer have included those in which an act of an employer either directly or consequentially has led to the departure of an employee; namely, had the employer not taken the action it did, the employee would have remained in the employment relationship.

[29] In relation to what is meant by a termination at the initiative of the employer, the Full Court of the Industrial Relations Court of Australia found the following in an early case, Mohazab v Dick Smith Electronics Pty Ltd (No. 2) 8;

“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.”

[30] In doing so, the Commission must carefully consider what has occurred, with the Full Bench finding as follows;

“Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.” 9

[31] In all though, a resignation that may be involuntary in and of itself may not be sufficient on “an objective analysis of the employer’s conduct” to be said to form a constructive dismissal;

“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.” 10

[32] The Full Bench developed on these matters in the matter of Bruce v Fingal Glen Pty Ltd (in liq) in which the following was said about the paragraph above from Rheinberger;

[23] The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but “would, on any reasonable view, probably have that effect”. Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient 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”. 11

[33] I take the following from my analysis of the relevant authorities;

● the employer’s conduct must be weighed objectively;

● forced resignation may result from some action on the part of the employer intended to bring the employment to an end or an action which would, on any reasonable view, probably have that effect;

● an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign;

● while an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of employment and the employment relationship is not voluntarily left by the employee”

[34] In Ms Sherman’s case, it is not put forward that hers was a resignation in the heat of the moment. Ms Sherman also accepts that she had the opportunity to receive advice from her union, the ANMF and that she acted after considering that advice.

[35] The evidence about Sunrise Health Service’s actions and motives includes that it had received and acted upon complaints of bullying and harassment by Ms Sherman against other employees of the Corporation. The evidence shows that it properly received the complaints and decided to investigate them through the appointment of an arms-length investigator. The report provided by the investigator shows her work to have been undertaken in a measured and methodical manner, having regard not only to the complaints that were made, as well as to principles of natural justice and procedural fairness. The report provided to Sunrise Health Service by Ms Ellison shows that she spoke with numerous witnesses and took into account the matters each had to say. She sought a response from Ms Sherman and appeared open to the matters that Ms Sherman wished to address. While Ms Ellison made findings of fact and expressed opinions about the matters she had found, and recommended her findings be considered by Sunrise Health Service for disciplinary action, she did not recommend specific action.

[36] I have accepted that Mr Hopp’s evidence is that the purpose of the meeting, had a resignation not been offered at the start, would have been for the Corporation to have Ms Sherman “show cause” about the investigation outcomes and why her employment should not be terminated. Despite that disclosure, there is no evidence that either Mr Hopp or Mr Dean had already settled on dismissal as being the only available course of action.

[37] I therefore consider it more likely than not that, at the time Ms Sherman resigned, Sunrise Health Service had not decided on dismissal as being the only available sanction.

[38] I do not consider that Sunrise Health Service’s actions in investigating the bullying and harassment allegations against Ms Sherman, or in inviting her to a meeting to discuss the results of the investigation, or in disclosing to Ms Doyle the findings of the investigation, were done with the intention of bringing Ms Sherman’s employment to an end. Nor do I consider that those actions would, on any reasonable view, probably have that effect. Each of the actions by Sunrise Health Service in these regards were proper and in accord with its obligations to receive and investigate allegations of bullying and harassment.

[39] Likewise, I am unable to find there was, at the relevant time, evidence of any subjective intention of forcing Ms Sherman to resign. The actions of Sunrise Health Service, while no doubt headed in a direction with serious consequences for Ms Sherman were not such as to cause an involuntary departure from employment.

[40] At the time Ms Sherman put forward her resignation, she plainly apprehended that the results of the investigation complaint may have serious consequences for her. There is little evidence before me about the range of possible disciplinary actions that may have been available to Sunrise Health Service, or which were the ones that were troubling her. The apprehension that dismissal was a possible consequence appears obvious, however there is insufficient evidence before me that such would be the only available outcome from the findings made by the investigator. On the other hand, there is evidence that Sunrise Health Service were contemplating that result, and that it sought to discuss Ms Sherman’s response to the matter.

[41] The overall circumstances of this matter, unfortunate though they may be for Ms Sherman, are that following an investigation that appears to have been fairly conducted made adverse findings against her, she decided to resign. She received advice before making that decision. Her decision to resign was plainly to avoid the opprobrium following from those findings becoming generally known. She knew at the time that her decision had the consequence both of giving up her employment, as well as giving up her rented accommodation, both in a remote locality, and then being required to relocate to another town for employment and residence. These are not insignificant consequences, but each was plainly known to Ms Sherman before she announced her decision. There was no retraction of her resignation, and then no contest about the situation until her application for unfair dismissal remedy was filed in the Commission on 28 July 2016.

[42] It has previously been held by the Commission that circumstances in which an employee resigns rather than attend a disciplinary meeting with their employer may be a voluntary resignation. 12 In the circumstances of Ms Sherman’s departure from employment with Sunrise Health Service, I must make the same finding. Ms Sherman’s termination of employment was a voluntary resignation on her part and she was not was forced to do so because of conduct, or a course of conduct, engaged in by Sunrise Health Service.

[43] I find that Ms Sherman was not “dismissed” within the meaning of that term as defined within s.386(1) of the Act.

[44] Accordingly I must dismiss her application for unfair dismissal, which I now do.

COMMISSIONER

Appearances:

Ms S Sherman on her own behalf

Ms C Phillips for the respondent

Hearing details:

2016.

Melbourne:

22 November.

 1   Exhibit R1, Submissions by the Respondent, Attachment 3.

 2   Ibid.

 3   Ibid.

 4   Doumit v ABB (1996) AIRCFB N6999

 5   Ngo v Link Printing Pty Ltd (1999) 94 IR 375 [12]; citing Minato v Palmer Corporation Ltd (1995) 63 IR 357, pp.361‒362.

 6   Ngo v Link Printing Pty Ltd (1999) 94 IR 375 [12]; citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183, 191.

 7   Ibid.

 8 (1995) 62 IR 200, at pp.205-206

 9   Doumit v ABB (1996) AIRCFB N6999

 10   Rheinberger v Huxley Marketing Pty Ltd (1009) 67 IR 154

 11   Bruce v Fingal Glen Pty Ltd (in liq)[2013] FWCFB 5279, at [23]

 12   Love v Alcoa of Australia Limited[2012] FWAFB 6754, (2012) 224 IR 50.

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