Solveig Ligrov v National Hearing Centres Pty Ltd T/A Amplifon

[2021] FWC 6023

[2021] FWC 6023

FAIR WORK COMMISSION

DECISION

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

Solveig Ligrov
v
National Hearing Centres Pty Ltd T/A Amplifon
(U2021/6771)

DEPUTY PRESIDENT LAKE BRISBANE, 30 SEPTEMBER 2021

Application for an unfair dismissal remedy – whether out of time – whether the applicant resigned – the Applicant resigned – jurisdictional objection upheld

[1] Solveig Ligrov (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which her employment ended with National Hearing Centres Pty Ltd T/A Amplifon (the Respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] The Applicant commenced employment with the Respondent on 9 August 2006. It is uncontentious that the Applicant’s employment ended on 9 July 2021 after she sent the Respondent an email stating that, “It is with great regret that I will be resigning as of today 9/7/2021. I will return all Amplifon’s belongings to Helensvale Clinic on Monday 12^th July.”

[3] The Applicant says that when one considers the context in which that email was sent, she was dismissed. The Respondent asserts that she voluntarily resigned. To bring an unfair dismissal application, it is necessary for an applicant to demonstrate that they were dismissed within the meaning of s.386 of the Act. Section 386 provides that a person has been dismissed if the person's employment with their employer has been terminated at the employer's initiative or the person has resigned from their employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. It was determined that the Respondent’s jurisdictional objection would be dealt with prior to any consideration of the merits of the Applicant’s case.

[4] The jurisdictional objection was listed for hearing before me on 28 September 2021 by telephone. Both had the opportunity to provide any submissions and evidence upon which they intended to rely. At the hearing, the Applicant appeared for herself and OmairKhan, the Respondent’s Human Resources Manager Field Operations, appeared on behalf of the Respondent.

Events leading to the termination of the Applicant’s employment

[5] On 1 July 2021, Mr Khan called the Applicant, on the Respondent’s behalf and to inform here that she would receive an email invitation to a formal meeting to discuss performance concerns. He told her there had been some issues raised regarding her performance and accordingly, the Respondent wanted to implement a performance improvement plan (PIP). The Applicant was surprised and upset by this news.

[6] The Applicant’s evidence was that upon hearing this news, she felt the Respondent was trying to push her out after 15 years of loyal service. That was particularly so given no performance concerns had ever been raised on an informal basis. Further, she says, her performance was not lacking.

[7] Mr Khan’s evidence was that the intention of the call had simply been to alert the Applicant to the fact there were concerns about her performance and that she would soon be receiving an email to arrange a meeting to discuss those issues and the implementation of the PIP. However, the call went for approximately 40-50 minutes because the Applicant was upset by the news and asked Mr Khan some questions. Mr Khan states that upon receiving the news, the Applicant became emotional and defensive. She wanted to know where the complaints had come from and asked for specific examples. Mr Khan did not have specific information (as he had not intended to speak about the detailed allegations during this call) but said generally that issues had been raised by several people and that he would have provide more specific information at the meeting. Mr Khan thought the Applicant was in denial because she vehemently maintained her performance was fine. She made complaints about the Respondent’s operations and said it was not fair to put someone of her tenure on a PIP when the store was meeting budget. Mr Khan stated that the fact that the store was meeting budget was not indicative of her individual performance.

[8] The call progressed and and the issues about the Applicant’s performance were further discussed. Again, the Applicant became quite upset. She maintained the Respondent was trying to push her out of the company. Mr Khan said that was not the case. Following some questions from the Applicant, Mr Khan explained that the PIP was a standard process which would involve the Applicant having weekly meetings with her manager for a month. At the end of the month, the Human Resources team would evaluate the reports regarding the Applicant’s progress. If the Applicant’s performance had not sufficiently improved, a warning might be issued, and a further plan put in place for another month. If her performance still did not improve, disciplinary action up to and including termination could be considered. However, Mr Khan’s evidence was that he told the Applicant that in the two years that he had been with the Respondent, no PIPs had resulted in termination (despite many being commenced) given the amount of support, trainings and opportunities available to those on PIPs.

[9] The Applicant’s evidence was that she thought she would fail the PIP because the Respondent wanted her to leave the business. She maintained this was clear because no issues had been raised informally with her before and she would have expected that to occur before a PIP was implemented. The Applicant says that Mr Khan told her that her other option was to resign and, if she did so, he would provide her with a “great” reference.

[10] Mr Khan has a different recollection. His evidence was that the Applicant said she could no longer work in the store. He was surprised by that comment and asked her to clarify whether she meant that she wanted to be transferred to another store. That is not uncommon when a PIP is implemented. He says the Applicant said she did not want to come back at all and that she would not come back. She did not even want to return to complete her notice period. She told him that she was unhappy with those who raised the feedback and did not want to work with them again. Mr Khan states that he never posed resignation as an alternative option for the Applicant to take but rather simply responded to the Applicant’s comments about not wanting to come back and her questions regarding what her pay-out would be if she resigned. Mr Khan stated he did not know but would ask payroll to find out. The Applicant was particularly concerned about her financial future. Given her length of service, Mr Khan stated that in addition to her entitlements, she would be provided with an extra four weeks pay as a gesture of goodwill. It would not be the subject of a deed but was just indicative of his care for the Applicant and recognition for her length of service. Mr Khan recalls the Applicant being appreciative of this gesture. Mr Khan also assured her that he would be a reference for her if required, as he would for any other employee. Despite their different recollections of what transpired, both parties agreed that the discussion ended amicably. Mr Khan says at the end of the meeting he said he would ask payroll to calculate the Applicant’s outstanding entitlements.

[11] On 6 July 2021, Mr Khan provided to the Applicant the estimated calculation of her entitlements upon resignation, as requested by the Applicant. He says she seemed satisfied with those figures and said she would let him know. The Applicant stated that she had been unwell around this time but did have a discussion with Mr Khan. By this point, the Applicant’s evidence was that she thought it was clear that she was being pushed out so took the opportunity to raise concerns about a colleague, whom she alleged had been bullying her. She did so because, given she was leaving the company, she would not have any repercussions for doing so. Mr Khan listened to the allegations made by the Applicant and suggested that they should be the subject of another meeting so that those matters could be properly investigated.

[12] On 9 July 2021, the Applicant indicated by email that she was resigning, effective immediately.

[13] A further meeting occurred on 14 July 2021 between Mr Khan and the Applicant regarding the allegations made by the Applicant in respect of other colleagues.

Was the Applicant dismissed?

[14] Section 386 of the Act has created two clear grounds on which a claim could potentially proceed. In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (Bupa v Tavassoli), the Full Bench of the Commission explained that:

“(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.” 1

[15] 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.”  2

[16] 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.”

Consideration

[17] I have had regard to the submissions and evidence given by both parties both in writing and at the hearing. It is not for me to decide at this stage whether the Respondent had sufficient concerns about the Applicant’s performance to warrant the implementation of the PIP. However, when that decision was communicated to the Applicant she became, understandably, upset and offended. She formed the view that the Respondent was trying to push her out of the business. Whether that is true or not does not impact the question I must ask myself, which is whether she was “dismissed” within the meaning of the Act on or before 9 July 2021, when she resigned by email.

[18] Based on the evidence before me, I am satisfied the Applicant freely made the decision to resign on 9 July 2021. She may have been concerned that the implementation of the PIP could have eventually led to her dismissal. However, I accept Mr Khan’s evidence, that he had simply articulated to the Applicant what was involved in the PIP process and that, should there be insufficient improvement following two months, that disciplinary action up to and including termination might be considered by the Respondent. Even then, it was discretionary and not an absolute. Further, I accept that Mr Khan reassured the Applicant that in the two years he had been working with the Respondent no one had been terminated following the implementation of the PIP because with support, training and assistance, their performance had improved.

[19] Had the Applicant resigned during the phone call of 1 July 2021 it could perhaps have been characterised as a resignation in the “heat of the moment”, given the Applicant’s understandably heightened emotions., However, the fact that the Applicant received the calculation of her entitlements on 6 July 2021 and then sent the Respondent an email on 9 July 2021 stating that she had resigned, persuades me that this is not such a case.

[20] While I have no doubt that the Applicant was offended and upset by the allegations that she had not been performing sufficiently, based on the evidence before me, I am satisfied that her employment was not terminated by the Respondent. Perhaps it may have been sometime in the future if, as the Applicant perceived, they were trying to push her out (though the evidence before me did not presently suggest that). However, as at 9 July 2021, the Respondent’s conduct was not such as to either have dismissed the Applicant or forced her resignation. Consequently, I am satisfied that the Applicant was not dismissed within the meaning of the Act.

[21] Accordingly, I order that the jurisdictional objection is upheld.

[22] It is therefore unnecessary for me to consider whether an extension of time ought be granted. For completeness, I note that the Applicant lodged her application on 31 July 2021, one day outside of the 21 days required under s.394(2) of the Act. She admitted she was aware of the 21-day time limit following a conversation with the Fair Work Commission on 26 July 2021 and, on 28 July 2021, asked her partner to send the application by email on her behalf as she was not very good with computers. They thought that had occurred. However, she asked him a couple of days later whether he had received confirmation of receipt from the Commission. It was then they discovered the email remained in the email outbox. They then resent it and that is why it was lodged on 31 July 2021. The Respondent opposed the granting of an extension of time. Had I not been satisfied that the Applicant had resigned, I would have had to determine whether a further period should be allowed under s.394(3) of the Act. It is unnecessary for me to conclude on that point in this case.

[23] Given my findings in respect of the first jurisdictional objection, I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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

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