Sue Fowler v Uniting Care Wesley Bowden Inc
[2017] FWC 3714
•9 august 2017
| [2017] FWC 3714 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Sue Fowler
v
Uniting Care Wesley Bowden Inc
(U2017/3369)
| COMMISSIONER HAMPTON | ADELAIDE, 9 august 2017 |
Application for an unfair dismissal remedy – preliminary jurisdictional issues – whether dismissal within the meaning of the Act – whether forced resignation – whether deed of release signed by the parties acts as a bar to the application – investigation to be conducted – suspension implemented – resignation encouraged but real choice remained to have the investigation proceed – no dismissal at the initiative of the employer – no forced resignation – deed of release binding and complete bar to the application – application dismissed.
Background
Ms Sue Fowler has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by her former employer, Uniting Care Wesley Bowden Inc (UCWB).
UCWB is a not-for-profit organisation that provides services to disadvantaged members of the South Australian community, including the elderly, people living with disabilities, and people experiencing homelessness and mental health issues.
Ms Fowler was employed by UCWB in January 2010 on a full time basis as a Case Manager for people living with disabilities. This role involved being assigned specific individuals, assessing their needs, and linking that individual to services that can meet their needs as well as monitoring the individual’s wellbeing.
There is no dispute that Ms Fowler was protected from unfair dismissal within the meaning of s.382 of the FW Act. In order to bring this application, Ms Fowler must also have been dismissed within the meaning of the FW Act. Section 386(1) provides that a dismissal has occurred where a person’s employment with his or her employer has been terminated on the employer’s initiative; or 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.
Ms Fowler provided UCWB with her written resignation on 9 March 2017, along with a signed Deed of Release that had been drafted and supplied to her by UCWB. This followed a meeting called by the respondent with Ms Fowler to suspend her from duties after a ‘spot audit’ had noted a number of irregularities in the applicant’s case files. Ms Fowler contends that her written resignation was forced by the conduct of UCWB at this meeting. She asserts that this was a dismissal within the meaning of the FW Act and that it was unfair.
Ms Fowler also contends that the deed was signed under duress and should not be upheld so as to prevent the s.394 application being heard and determined on its merits.
UCWB contends that there was no dismissal within the meaning of the FW Act. That is, Ms Fowler resigned and this was not a forced resignation, and the conclusion of the employment relationship was not at the employer’s initiative. UCWB also contends that there is no evidence on which to find that the deed signed by Ms Fowler is not fully binding on her and therefore it acts as a bar to her making an unfair dismissal application.
This decision deals with the preliminary jurisdictional issues arising from these contentions and in particular:
· Whether Ms Fowler was dismissed within the meaning of the FW Act; and/or
· Whether the Deed of Release acts as a bar to the making of this application.
The cases presented by the parties
Ms Fowler was represented by her support person, Mr Jeremy Mills. She provided a witness statement and gave sworn evidence. Ms Fowler also relied on the statement and sworn evidence of Ms Barbara Xanthopoulos, her sister who gave evidence about the circumstances in which Ms Fowler left the workplace on her last day of actual work.
UCWB was represented, with permission, by Mr Karl Luke and relied on the witness statements and sworn evidence of its following employees:
· Ms Paula Michelle, Manager, Individual Support Services; and
· Ms Sue Turner, HR Manager.
There are some factual matters in dispute, particularly those surrounding the meeting that was conducted between Ms Fowler, Ms Turner and Ms Michelle on 7 March 2017 and which ultimately led to Ms Fowler providing her resignation.
Ms Fowler accepts that she signed a resignation letter and a Deed of Release, however she contends that this was forced by the conduct of UCWB, and in particular that the following occurred:
Ms Fowler had a meeting with Ms Michelle on 3 March 2017 to sign off on her Performance Management Plan. At this meeting Ms Michelle indicated that the investigation was concluded and the parties were “moving forward”.
Ms Fowler received an electronic meeting invitation from Ms Michelle on 7 March 2017 for that afternoon, no other information was provided with this request. Ms Fowler attended the meeting which also involved Ms Turner.
At the meeting, Ms Fowler was provided with a letter suspending her from duties immediately pending an investigation. Ms Turner explained to her that this was in response to “gross misconduct” and that UCWB would be reviewing all of Ms Fowler’s case notes and that if it found one more case note without follow up, she would be terminated.
Ms Fowler was then presented with two options. The first, allow the investigation to continue, with termination the likely result if one more case note was discovered unattended to. This would also result in an adverse note being placed on Ms Fowler’s personnel file, UCWB would not provide her with a reference and she would not receive payment of the notice period. Alternatively, Ms Fowler could provide her resignation and receive five weeks’ termination pay plus any outstanding leave entitlements, an additional payment of four weeks and no negative entry would be placed on her personnel file. UCWB would also provide a positive reference.
At the end of the meeting, Ms Fowler was told that she had until 9.00 am the following day to advise UCWB of her decision otherwise the offer would be “taken off the table”.
Ms Fowler telephoned Ms Turner that evening and accepted the offer to resign provided she received the entitlements as set out at the meeting. Ms Fowler said words to the effect of “you are leaving me with no choice”. Ms Turner advised Ms Fowler to put her resignation in writing and indicated what information to provide. She also indicated that she would arrange for the relevant documents to be couriered to Ms Fowler the next day.
Ms Fowler received the Deed of Release on 8 March 2017.
On 9 March 2017, Ms Fowler contacted Ms Turner to advise that the Deed had been signed and was ready to be picked up. Ms Turner indicated to Ms Fowler that she would need to rewrite her resignation letter and provided instructions in that regard. Ms Fowler redrafted her resignation letter as instructed.
- The signed Deed of Release was returned to UCWB by courier on 9 March 2017.
Ms Fowler submits that in all of the circumstances, the Commission should find that UCWB, by its conduct, forced her resignation and as such this was a “constructive dismissal”. That is, the meeting on 7 March 2017 was constructed in such a way that there was no alternative given other than for Ms Fowler to resign. Further, she contends that the Deed of Release is unenforceable or does not represent a bar to this application.
UCWB submits that Ms Fowler is barred from making an application for unfair dismissal as she was not dismissed and, in any event, there is a fully executed deed of release between the applicant and respondent that prevents any claim being made by her. It contends that Ms Fowler’s resignation was not coerced or forced in any way and in that respect submits that the following occurred:
In March 2017, UCWB underwent a regulatory audit which included a review of several of Ms Fowler’s case files.
The review established a number of irregularities in Ms Fowler’s case files which prompted the respondent to commence an investigation into the rest of her case files. UCWB determined that Ms Fowler should be suspended on pay while this investigation was conducted.
On 7 March 2017, Ms Michelle requested that Ms Fowler attend a meeting with herself and Ms Turner. At this meeting the applicant was provided with a letter suspending her from duty.
During the course of the meeting, Ms Fowler indicated that she did not want to participate in an investigation process and sought to provide her resignation. Ms Turner advised that UCWB would not accept her resignation “on the spot” and that she ought to have time to consider her decision and seek advice.
UCWB also provided Ms Fowler with information on her entitlements should she choose to resign. In that regard, UCWB would pay her a separation payment equivalent to the amount the respondent was offering to employees as part of a voluntary separation program ahead of a departmental restructure.
That evening the applicant contacted Ms Turner and again advised her that she would like to resign and wished to accept a separation package as part of a deed of release agreement. Ms Turner advised that she would require this in writing.
The following morning, the applicant sent a text message to Ms Turner confirming her resignation.
- Later that day, Ms Fowler sent a draft resignation letter to the respondent seeking an assurance that the respondent would pay the termination payments to the applicant in a specific way as recommended by her salary packaging provider. After this was confirmed, Ms Fowler signed both her resignation letter and deed of release and provided the same to the respondent.
UCWB contends that in any event, the Deed of Release means that the application has no reasonable prospects of success and should be dismissed.
Observations on the evidence
I found that the evidence about the facts of the matter as provided by Ms Fowler to be generally reliable. Indeed, Ms Fowler is an intelligent, articulate woman who gave her evidence confidently. However, I did find some of her evidence to be exaggerated, and some conflation of events has taken place. Further, other elements of her evidence, perhaps understandably, went to her views about the impact of the events and the choices that she faced. That evidence was subjective and in the end these are matters that the Commission must objectively consider.
Ms Xanthopoulos’s evidence was of a limited scope and I accept it. This confirmed that Ms Fowler did not have her car at work on 7 March 2017 and that after the meeting on that day, she was not accompanied by Ms Turner to her car with her belongings already packed to end her employment.
I found the evidence of Ms Michelle to be given openly and honestly. There are differences of recollection with the other witnesses about some details; however, these are no more than the consequences of human recollection and the tendency to recall events according to one’s perspective.
I found that the oral evidence of Ms Turner was at odds with some of her written evidence. In particular, the details of the meeting conducted with Ms Fowler on 7 March 2017. It is evident to me that elements of Ms Turner’s written evidence about that meeting were not an accurate recollection and there has also been some conflation of different events and gloss added given the delay between those events and the making of the witness statement. Whilst I do not consider that Ms Turner deliberately attempted to mislead the Commission, I have treated her evidence with some caution in light of the above finding. However, some notes of the 7 March meeting that Ms Turner provided during the course of the hearing are in my view a more accurate summary of those events and this was acknowledged by her. Further, Ms Turner’s oral evidence about other matters was in my view more credible.
I note that it is not necessary to deal with the substantive allegations made by UCWB, except to the limited extent that they inform the preliminary issues.
I have made my findings of fact based upon all of the relevant evidence that is before the Commission, having regard to my findings on credit. As will become clear, those findings do not fully adopt all of the factual contentions of either party.
Findings about the key events
4.1The 3 February 2017 performance management meeting and the lead up to the suspension meeting
UCWB apparently received some complaints about Ms Fowler’s work as a Case Manager in December 2016 and January 2017.
A number of performance issues were raised with Ms Fowler by Ms Michelle in January 2017. Most of these discussions were not formal disciplinary or performance management meetings however in late January 2017, Ms Fowler was directed to attend a formal performance management meeting to be held on 3 February 2017. Written advice as to the nature and subject of the meeting was provided.[1]
At that same time, Ms Fowler made a complaint, by email, about the earlier “spontaneous meetings” conducted by Ms Michelle and this included concerns about the lack of notice and due process alleged to be involved.[2] I note that subsequently, Ms Michelle provided a comprehensive and plausible response to the concerns.[3]
On 2 February 2017, Ms Fowler provided a written response to the allegations outlined in the advice about the upcoming performance management meeting.
At the meeting conducted on 3 February 2017, Ms Fowler attended with a support person and Ms Turner conducted the meeting along with Ms Michelle. The meeting discussed a number of allegations about how Ms Fowler had dealt with some service requests from clients and whether there were missing or inadequate case notes on certain matters. One of the allegations was revised in light of the earlier response and put to Ms Fowler in a modified form. Notes of the meeting, which were endorsed by the parties, confirmed the final allegations and the responses provided by Ms Fowler. The notes also indicated that some of the issues would be subject to further investigation.[4]
On 15 February 2017, Ms Fowler was given a written warning[5] which indicated that UCWB considered that she had breached the relevant Code of Conduct in a number of respects that were set out in the letter. Further, Ms Fowler was advised that it was a first warning letter and that her employment may be terminated if her performance did not improve over the next two months or if further breaches of the Code were proven. Finally, the letter indicated that a meeting to agree upon a performance improvement plan would be conducted. A performance improvement plan was signed off by both parties on 3 March 2017.
In parallel with these processes an audit of some of UCWB’s client files and case notes was being conducted by, or for, the relevant Commonwealth regulatory agency. That audit included a number of files associated with clients assigned to Ms Fowler and commenced in late February or early March 2017.
That audit subsequently produced some additional concerns about the case notes and other matters relevant to Ms Fowler. UCWB took the view that these concerns were serious and determined that it would suspend Ms Fowler with pay, pending a thorough investigation of all of the applicant’s files.
Ms Fowler was sent a meeting request for a meeting to be conducted on 7 March 2017. That request did not provide details about the nature or purpose of the meeting. The fact that the audit was being conducted was well known to Ms Fowler as she assisted in the assembly of some of the files for that process and this was also discussed with Ms Michelle.
4.2(Suspension) Meeting on 7 March 2017
When Ms Fowler attended the meeting on 7 March 2017, only Ms Turner was in attendance. Ms Michelle was yet to arrive. I find that when Ms Fowler became aware that Ms Turner was to be part of the meeting, the applicant expressed concerns that this was to be a disciplinary meeting and referred to the prospect of resigning. Ms Turner indicated that Ms Fowler should not act now and should await the meeting with Ms Michelle.
There is a dispute about the details of the meeting. The only written evidence regarding the meeting on 7 March 2017 were the “minutes of meeting” noted down by Ms Turner shortly after the meeting concluded. These are summary notes rather than detailed minutes however having heard the evidence of all three who attended the meeting, I consider that they are a reasonably accurate broad summary of the outcomes of that event. Those notes were as follows:
“Minutes of meeting held 7th March 2017 at 4pm
Present: Sue Fowler, Paula Michelle, Sue Turner
Sue Fowler was advised that during the recent audit a number of her case management files were found to have failed protocol therefore putting clients at a Health and Safety risk and the standard of care endangered our clients and our business.
Sue was presented with a summary of extracts from her client files clearly showing a lack of follow through on her part, lack of regular reviews, failure to notify authorities etc. Some of these clients had severe health issues that needed thorough follow up and there was no evidence of these matters being addressed.
Sue was handed a suspension letter effective immediately.
Sue was advised that the suspension was in place to enable UCWB to conduct a thorough investigation into these files but in accordance with what was found to date the outcome would most likely be serious misconduct resulting in dismissal
Sue was offered an alternative option to consider resigning her position. She was advised not to make the decision at the meeting but to go home consider her options and contact Sue Turner, Human Resources Manager by 9am the next morning via her mobile phone number to advise whether she wished the organisation to continue the investigation and go down the performance management path or offer her resignation.
She was presented with a payout figure should she choose to resign which included all her current entitlements including lsl, annual leave, wages for hours worked, 5 weeks notice as she was over 45 years of age and an ex gratia payment of 4 weeks if she signed a deed of release waivering (sic) her rights to pursue any further claims. This document would be couriered to her once her decision was made known to Sue Turner.
She was asked whether she had any UCWB equipment in her possession. She advised she had a UCWB laptop at home and that she was “oncall” for the rest of this week.
Sue Turner advised that a courier would be organised to collect the laptop on Wednesday 8th March 2017 from her home.
Paula Michelle enquired as to her current obligations/appointments and noted these.
Meeting closed at 4.20pm”[6]
However, the following additional findings about that meeting should be made in light of the oral evidence now before the Commission:
· When advised of the suspension and the investigation, Ms Fowler raised the question about alternative options including the impact upon the investigation;
· Ms Turner offered the option of resigning and Ms Turner and Ms Michelle explained that if there was a resignation, Ms Fowler would not need to participate further in the investigation although UCWB would need to review the files and, in effect, take appropriate action if there were matters that needed to be escalated to the regulatory authorities;
· Ms Turner then explained the financial and other benefits that would come with a resignation including the additional severance payments and provided a summary of the benefits. Ms Turner indicated that Ms Fowler should not make a decision about the matter in that meeting; and
· There was no mention made of a reference being provided by UCWB and the Deed of Release was not expressly raised in that meeting.
The suspension letter provided to Ms Fowler early in that meeting was in the following terms:
“This letter is provided to you subsequent to our conversation Tuesday (7 March 2017) during which you were advised of allegations of serious misconduct which have been made against you.
This letter is confirming that from today you are suspended from all duties at UnitingCare Wesley Bowden while a full investigation is carried out. Your suspension is to enable is to conduct a thorough and speedy investigation and does not in itself carry any implication of guilt or pre-judgement. Nor does it constitute any form of disciplinary action against you.
During your suspension, you are instructed not to contact by any means (directly or indirectly) any clients, staff or colleagues and you may not attend the workplace. You may contact your representative if you require further advice in relation to this matter. If somebody contacts you about the investigation, you are to tell them that you are not able to discuss it, and refer them to Ms Paula Michelle, Business Manager Individual Support Services who may be contacted on [telephone number].
Failure to comply with these instructions may in itself constitute misconduct (or, if this investigation is undermined in any way, serious misconduct), which may result in disciplinary action against you.
I will contact you at the earliest opportunity to inform you of the outcome of the investigation. If you are required to attend a disciplinary meeting, you will be given full details of the allegations against you.
I will contact you at the earliest opportunity to inform you of the outcome of the investigation. If you are required to attend a disciplinary meeting, you will be given full details of the allegations against you and the results of the investigation in advance of the hearing. You will be provided with an opportunity to respond to those allegations.
You are required to remain available during your suspension, so that I am able to contact you if the need arises.”[7]
Ms Turner had organised the preparation of a written payment summary for Ms Fowler in advance of the meeting. I note that this was subsequently corrected and adjusted following further discussions between the parties in the lead up to the signing of the Deed of Release.
Given the timing of the meeting, Ms Fowler had put together some of her personal belongings ready to go home for the day prior to attending. I do not accept that Ms Fowler had packed all of her belongings in anticipation of her employment concluding at that time.
I will return to the detail and implications of this meeting in due course.
4.3The provision of the written resignation and Deed of Release
On the evening of 7 March 2017, Ms Fowler telephoned Ms Turner and advised that she had accepted the offer to resign provided she received the entitlements as set out at the meeting. Ms Turner advised Ms Fowler to put her resignation in writing and there was some discussion about what information should be provided. Ms Turner also indicated that she would arrange for the relevant documents to be couriered to Ms Fowler the next day. It was during this discussion that the Deed of Release was first raised by Ms Turner with Ms Fowler.[8]
Ms Fowler confirmed by text message to Ms Turner on the morning of 8 March 2017 that “she had given notice of resignation from 8/3 and accepted the resignation payment summary received to also include oncall payment for PPE 10/3/2017”.[9]
Ms Turner advised that she was away from work that day and had arranged for another employee to supply the information to Ms Fowler. In the afternoon of 8 March 2017, when Ms Fowler had not been contacted, she sent the following email to the other nominated employee:
“I thought I would sent an email as I have been unable to contact you today. In my meeting with Sue Turner on the 7/3 Sue asked me to consider my options and phone her before 9.00am on 8/3 with my decision. I contacted Sue on the evening of the 7/3 with my decision to resign and accept the leave entitlements offered to me during the meeting. Sue told me a courier would deliver documents for me to sign today 8/3. I have waited home for the courier and not been advised other wise. Could you please let me know what day this is to happen. Thank you.”[10]
During this period Ms Fowler consulted with the payroll service provider used by UCWB in the context of the salary packaging arrangements applicable to her employment. This approach was recommended to Ms Fowler by Ms Turner.
The Deed of Release was received by Ms Fowler mid-afternoon on 8 March 2017.[11]
Ms Fowler subsequently supplied UCWB with an unsigned draft resignation letter later on 8 March 2017, in the following terms:
“To whom it may concern,
I am writing to notify you that I am resigning from my position as Case Manager with UCWB effective from 8th March 2017. I consent to the Deed of Release with the following
Regarding final payment of wages and entitlements as documented by UCWB:
·Fortnightly pay for PPE 10/3/2017 plus all on-call payments and entitlements (less $15,899.00 of the total amount) to be paid to my nominated bank. Salary packaging benefit available until March 30th is $1223.00 as per conversations with CBB. Please apply this to the PPE 10/3/2017
·I am requesting that UCWB pay to me leave entitlements and notice payment entitlements amounting to $15,899 (as per conversation with CBB), and not included in the above pay period, pay date in April PPE 7/4/2017. To enable me to maximise salary packaging entitlements I would appreciate this paid to CBB.
To summarise
·$15,899.00 to be paid to CBB PPE 7/4/2017 to maximise salary packaging entitlement All other payments to be paid PPE 10/3 with $1223.00 paid to CBB for Salary Sacrifice
(Please advise me otherwise ASAP if this is not negotiable please so I can sign this letter. Renata Boumis will be able to print out the on-call log for payroll. This will not be in the final draft)
I wish UCWB the best of success in the future.” [12]
Following some discussion by email between the applicant and Ms Turner about the salary packaging arrangements and final payout figure,[13] Ms Fowler supplied UCWB with the following final letter of resignation:
“To whom it may concern,
I am writing to notify you that I am resigning from my position as Case Manager with UCWB effective from 8th March 2017. I consent to the Deed of Release and would like UCWB to consider the following:
Regarding final payment of wages and entitlements as documented by UCWB:
·$15,899.00 to be paid to CBB PPE 7/4/2017 to maximise salary packaging entitlements.
·All other payments to be paid PPE 10/3 with $1223.00 paid to CBB for Salary Sacrifice.
All the above has been discussed with CBB
I wish UCWB the best success in the future.”[14]
The applicant’s discussions with Ms Turner included that UCWB would require a written statement in particular terms in order to facilitate the delayed payment of part of the final package as sought by Ms Fowler for taxation purposes. That statement was provided by Ms Fowler in the following terms on 9 March 2017:
“I acknowledge that my employment with UCWB ceased on the 8th March 2017 as per letter of resignation and I am no longer an employee of UCWB. My consent to delay payment of $15,899 is solely my decision and this was to maximise my salary sacrifice benefits through CBB. I thank UCWB for considering and acknowledging my request.”[15]
At 11.52 am on 9 March 2017, Ms Fowler advised UCWB that the Deed of Release was signed and ready to be returned. The signed resignation and the Deed of Release were returned to UCWB (with the work laptop) by Ms Fowler via courier later on 9 March 2017.
On the afternoon of 9 March 2017, Ms Fowler advised Ms Turner as follows:
“The final calculations are fine. Thank you for all your assistance through these past weeks. I do realise that you are impartial but thank you anyway.”[16]
The Deed of Release signed by both parties was relevantly in the following terms:
“RECITALS
A. Fowler is employed by UCWB in the position of Case Manager.
B. Fowler and UCWB wish to effect a separation from employment by mutual agreement, on negotiated terms and in exchange for a full and lawful release, in favour of each party, from all claims, issues in dispute and complaints arising from or related to Fowler’s employment.
C. Fowler and UCWB have independently considered and agreed to terms to effect the cessation of employment, which shall take effect on the Termination Date.
D. Fowler and UCWB execute this Deed so as to formalise the terms upon which Fowler’s employment will cease and to resolve all matters arising from and in relation to Fowler’s employment including its cessation.
… …
3. Fowler’s Other Obligations
3.1 Fowler agrees:
3.1.1to provide a letter confirming cessation of employment by mutual agreement to be effective from the Termination Date, in accordance with clause 19 of her contract of employment, by no later than 9 am Wednesday, 8 March 2017;
3.1.2that the letter of cessation, once given to UCWB, and upon UCWB’s continued compliance with the terms of this Deed, cannot be revoked by Fowler.
3.2Fowler must not make any statement, publicly or otherwise, to disparage or criticise UCWB, its employees, officers, directors, contractors or agents or speak or write about any of them in a manner which is likely to injure their commercial, professional or personal reputation.
3.3Fowler agrees that she will continue to comply with her employment, statutory and contractual obligations as to confidentiality of confidential information of which she has become aware during her employment with UCWB, and further, not to make use of any such information or UCWB’s intellectual property after the Termination Date.
… …
5. Release from Claims
5.1 In consideration of the Settlement, Fowler will:
5.1.1accept the Settlement in full and final satisfaction, release and discharge of all claims, suits, demands, monetary entitlements, complaints and issues in dispute whatsoever (which are capable of being discharged by agreement at law whether known or unknown, which Fowler may have at any time against UCWB, in any way relating to or arising out of her employment with UCWB or its cessation up to and including the Termination Date (Fowler’s Claims);
5.1.2not commence or prosecute any proceedings, suits or causes of action of any nature whatsoever whether pursuant to the Fair Work Act 2009 (Cth), Fair Work Act 1994 (SA), the Equal Opportunity Act 1984 (SA), Long Service Leave Act 1987 (SA), any Federal anti-discrimination legislation and (without limitation) any other State or Federal Acts (Acts) or at common law in respect of any of Fowler’s Claims;
5.1.3 releases UCWB from all of Fowler’s Claims.
5.2Subject to Fowler’s compliance with the terms of this Deed, UCWB will release Fowler from all claims and complaints, whether known or unknown to UCWB and which are capable of being extinguished by agreement, which UCWB may have at any time against Fowler arising out of her employment with UCWB or its termination up to and including the Termination Date (UCWB’s Claims).
5.3The intention of this Deed is to extinguish all of Fowler’s Claims, and all of UCWB’s Claims, and it is to be construed for all purposes to give effect to that intention.
… …
7. Bar to Proceedings
7.1This Deed may be produced and relied upon by UCWB in any Court, Tribunal or Commission as a bar to any of Fowler’s Claims.
7.2This Deed may be produced and relied upon by Fowler in any Court, Tribunal or Commission as a bar to any of UCWB’s Claims.”
What is a dismissal for present purposes?
Section 386 of the FW Act provides as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(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.”
Although applied under the previous Act,[17] the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd4 in my view remains generally apposite to the consideration of s.386(1) of the FW Act:
“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. 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.”
[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. 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.”5
Although determined by the English Court of Appeal, the following approach as taken in CF Capital PLC v Willoughby[18] is generally consistent with that taken by Australian Court and Tribunals:
“37. The ‘rule’ is that a notice of resignation or dismissal (whether given orally or in writing) has effect according to the ordinary interpretation of its terms. Moreover, once such a notice is given it cannot be withdrawn except by consent. The ‘special circumstances’ exception as explained and illustrated in the authorities is, I consider, not strictly a true exception to the rule. It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be. The need for such a so-called exception to the rule is well summarised by Wood J in paragraph 31 of Kwik-Fit’s case and, as the cases show, such need will almost invariably arise in cases in which the purported notice has been given orally in the heat of the moment by words that may quickly be regretted.
38. The essence of the ‘special circumstances’ exception is therefore that, in appropriate cases, the recipient of the notice will be well advised to allow the giver what is in effect a ‘cooling off’ period before acting upon it. Kilner Brown J, in paragraph [15] of his judgment in Martin’s case understandably referred to such a period as an opportunity for the giver of the notice to recant, or to withdraw his words; and this is in practice what is likely to happen. I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.”
Accordingly, the general legal principles to be applied in this case are well settled. Stated succinctly, they include:
· A termination at the initiative of the employer involves the action of the employer as the principal constituting factor leading to the termination;
· The employer must have engaged in some action that intended to bring the employment relationship to an end or had that probable result;
· Considerable caution should be exercised in treating a resignation as other than voluntary and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign;
· In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required;
· A termination (or resignation) has effect according to its ordinary terms however in some “special” circumstances the Commission needs to be cautious to ascertain the objective intention and to consider whether it would have been reasonable to permit a retraction or clarification; and
· Subject to the above, a dismissal or resignation, once given, cannot be unilaterally withdrawn.
In terms of the potential impact of suspension and the prospect of an investigation that might lead to dismissal, a Full Bench in Davidson v The Commonwealth of Australia (represented by the Department of Climate Change and Energy Efficiency)[19] stated as follows:
“In all the circumstances we have decided not to grant permission to appeal in this matter. It has not been shown that there was any manifest error in the decision of the Commissioner or that the appeal raises any principle of general application. The Commissioner identified and applied the correct principles in reaching her decision. There was no contest as to the key factual matters relevant to the issues to be determined, namely whether the employer’s conduct was such that resignation was the probable result or that the employee had no real or effective choice but to resign. The conclusions reached by the Commissioner are consistent with the authorities and the common understanding that the institution of an investigation and the proposed taking of action to suspend an employee during such investigation would not normally provide a basis for a claim of constructive dismissal. Such processes, provided they are accompanied by appropriate protections for the rights of the employee concerned, allow allegations of concern to an employer to be properly examined and tested. Overall we are not satisfied that the Applicant has demonstrated that there is an arguable case of appealable error in the decision of the Commissioner.”[20]
Was Ms Fowler dismissed within the meaning of the Act?
Without making any findings about the ultimate substance of the various allegations, it was reasonable for UCWB to suspend Ms Fowler with pay and to conduct a comprehensive investigation. The suspension letter outlined the process and this was also reasonable in the circumstances. That process was not initiated with the intention to force a resignation and I do not consider that such had the probable result of ending the employment relationship within the meaning of the authorities.
However, I accept that UCWB, in effect, encouraged Ms Fowler to consider resigning by offering the additional payments as part of a resignation and giving the impression that dismissal following the investigation was a distinct possibility. I would also accept that the process adopted by UCWB was not ideal in some respects.
Notwithstanding that element, when all of the circumstances are considered, Ms Fowler always had the genuine choice to let the investigation continue. This was not a case of resign or be dismissed. The potential for a dismissal to eventuate was a clear possibility but not a certainty. Further, I note that if a dismissal did ultimately eventuate following that investigation and the disciplinary process that would have followed under the terms of the suspension letter, Ms Fowler could have contested any dismissal at that point.
Given Ms Fowler’s situation and her personal capacity to make a decision of that nature, the option to remain in employment was a real and effective choice in addition to the option of the resignation, which was that chosen by Ms Fowler. The conduct of UCWB also did not represent coercion or a form of undue influence that would lead to a finding that this resignation was forced.[21]
In terms of timeframes, I accept that there was an indication that Ms Fowler should confirm her intention by 9.00am the next morning. This was in the context that Ms Fowler had already indicated a desire to resign but this did not allow her to readily seek external advice; however, there is no indication that a request for further time would not have been allowed. In any event, Ms Fowler did not even wait that long before confirming her intention to resign in the context of the proposed arrangements. I also note that there was no resignation accepted during the meeting on 7 March 2017 and that it was Ms Fowler who made contact with Ms Turner on the following day seeking the documents that were promised in light of the decision communicated on the evening before. Further, Ms Fowler discussed the terms of the resignation and the agreed associated arrangements with Ms Turner before ultimately providing the final written resignation.
In terms of the role played by the additional payments, I do not accept that UCWB representatives stated or implied that Ms Fowler’s accrued entitlements would not be paid if she did not resign. The incentive was for the additional notice and payments to be made and this does not undermine the nature of the choice or the genuineness of the decision to resign. Although not discussed in the meeting of 7 March 2017, I have allowed for the fact that the investigation may have produced a finding of serious misconduct and this may have led Ms Fowler to the view that the notice to be provided under the resignation option may not have been provided under the alternative process, assuming that a dismissal was a potential outcome. I also note that a termination, if such ultimately eventuated, may have had an impact upon Long Service Leave entitlements[22] however there is no reliable evidence that this potential was discussed or considered by either party at that time.
Having regard to my findings of fact, including my impressions of the witnesses, I am not persuaded that Ms Fowler was forced to resign by the conduct or course of conduct undertaken by UCWB, or was otherwise dismissed within the meaning of the FW Act.
The impact of the Deed of Release
The above finding is sufficient to mean that the application cannot proceed. However, I propose to also deal with the related preliminary issue.
It is well established that the Commission is empowered under s.587 of the FW Act to dismiss an unfair dismissal application where a binding settlement or deed of release extinguishes the pre-exiting cause of action.[23]
Section 587 provides as follows:
“587 Dismissing applications
(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note:For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2)Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
On face value, the Deed of Release signed here represents a complete answer and bar to this application. It is a complete and executed agreement whose terms are not uncertain and which evinces all of the necessary prerequisites for a valid agreement[24]that expressly precludes the making of an application of this nature.
Ms Fowler has contended, in effect, that the Deed of Release should be treated as being unenforceable or such as to not represent a bar to this application. She does so on a number of grounds but principally contends that the deed was not entered into in good faith, and that it was signed under duress and as a result of unconscionable bargaining. In support of that proposition, Ms Fowler contends that:
· The Deed of Release was not given to the applicant nor talked about at the suspension meeting, when she was presented with the option of resigning.
· She was provided with a summary of payments including an additional incentive payment of four weeks if she were to resign.
· She was given a timeframe of 9.00 am to provide her response and she provided her resignation both verbally on 7 March 2017 and in writing on 8 March 2017 before receiving the Deed of Release.
· The Deed of Release was also not discussed when the resignation was submitted on 7 March 2017 or on 8 March 2017.
· Ms Turner requested her resignation in writing before Ms Fowler had even received or was aware of any Deed of Release.
· The applicant had submitted her resignation before having time to consider the Deed of Release and she was placed under financial (economic) duress.
· Ms Turner gave evidence that it was normally standard practice to give an employee a deed of release to consider before a resignation.
In addition, Ms Fowler contends that she was placed in a position whereby her resignation had been submitted because of a “constructive dismissal” instigated by UCWB. A timeframe was placed on the resignation, the deed was never discussed and no bargaining was entered into by the applicant. The deed was presented to Ms Fowler after her resignation had been submitted and accepted by UCWB and therefore should not be upheld.[25]
UCWB contends that there is no evidence upon which to find that deed is not fully binding on the applicant and acts as a bar to her making a claim in this jurisdiction. In particular it noted that:
· Ms Fowler was provided with, and invited to seek advice on, the Deed;
· No time limit was imposed on Ms Fowler to sign and return the Deed;
· Ms Fowler did not seek any advice despite the terms of the Deed clearly stating that she had had the opportunity to seek advice on the terms; and
· There is no evidence that Ms Fowler did not understand the effect of the Deed.[26]
I have earlier set out the factual circumstances associated with the provision and signing of the Deed of Release, including that surrounding the resignation. Whilst I have some reservations about the conduct of the meeting leading to the resignation, I have not been persuaded that there was a dismissal within the meaning of the FW Act. In any event, I have further considered whether those reservations, or the findings about how the resignation and Deed of Release came about, have impacted upon the status of the Deed.
In the end result, I consider that the Deed of Release is both binding and a complete bar to this application in its own right. The Deed was provided to Ms Fowler whilst the terms of the resignation and the additional payments were being resolved. The document provided that Ms Fowler should take advice about its content and although the terms of the Deed itself were not the subject of changes, the payments that were to be made in the context of the final settlement between the parties was discussed and amended, including in relation to how the payments would be arranged for taxation purposes. In addition, some additional payments were included following further discussions.
There was no suggestion at that point that Ms Fowler was reconsidering her resignation and there was no particular time limit established for the signing of the Deed. This also bears upon the genuine nature of the decision to accept the Deed. The Deed was not ultimately signed until after the terms of the resignation and the payments were in the process of being settled between the parties. This is also indicative of an informed and conscious decision to enter into the Deed of Release.
Further, the impact of the terms of the Deed of Release upon the capacity to potentially bring proceedings of this sort was clear and in my view it does operate in its own right to preclude this application.
In that light, the s.394 application has no reasonable prospects of success and to be further heard would be an abuse of process given the binding impact of the Deed of Release.
Conclusions and order
I have not been persuaded that there was a dismissal within the meaning of the FW Act. As a result, the application is beyond the jurisdiction of the Commission.
Further, and in any event, I consider that the Deed of Release is both binding and a complete bar to this application in its own right. Accordingly, this matter has no reasonable prospects of success and this provides an additional basis upon which the unfair dismissal application might be dismissed. In the circumstances, even if there was a forced resignation, the dismissal of this application would be appropriate.
In all of these circumstances, the unfair dismissal application must itself be dismissed and an order[27] to that end is being issued in conjunction with this decision.
COMMISSIONER
Appearances:
J Mills for Ms Sue Fowler.
K Luke, of Thomson Geer, with permission, for Uniting Care Wesley Bowden.
Hearing details:
Adelaide
2017
11 July
Final written submissions:
S Fowler: 31 July 2017
Uniting Care Wesley Bowden: 21 July and 3 August 2017.
[1] Exhibit A2.
[2] Exhibit A5.
[3] Ibid.
[4] Exhibit A4.
[5] Attachment PM8 to the Statement of Ms Michelle – Exhibit R7.
[6] Exhibit R10.
[7] Exhibit A6.
[8] Statement of Ms Fowler and Statement of Ms Turner at par 15.
[9] Attachment ST1 to the Statement of Ms Turner –Exhibit R9.
[10] Exhibit A7.
[11] Exhibit R1.
[12] Exhibit R2.
[13] Exhibits R3, R4, R5 and R6.
[14] Attachment ST4 to the Statement of Ms Turner – Exhibit R9.
[15] Attachment ST5 to the Statement of Ms Turner – Exhibit R9.
[16] Exhibit R6.
[17] Workplace Relations Act 1996 (Cth).
[18] Court of Appeal (Civil Division) per Rimer LJ [2011] EWCA 1115. See also Gunnedah Shire Council v Grout (1995) 134 ALR 145.
[19] [2011] FWAFB 6265.
[20] Ibid at [18].
[21] The application of the term ' coercion ' to an Industrial Relations setting as discussed in the matter of Hodges v. Webb [1920] 2 Ch. 70 at 86 – 87.
[22] Termination for serious and wilful misconduct may have an impact upon certain entitlements under the Long Service Leave Act 1986 (SA).
[23] See Australian Postal Corporation v Gorman (2011) 282 ALR 561 and Curtis v Darwin City Council[2012] FWAFB 802.
[24] Ibid.
[25] Ms Fowler closing submissions.
[26] UCWB closing submissions.
[27] PR595053.
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