Susana Centofanti v Assisi Centre Inc

[2011] FWA 6123

Note: An appeal pursuant to s.604 (C2011/6046) was lodged against this decision - refer to Full Bench decision dated 22 December 2011 [[2011] FWAFB 9128] for result of appeal.

[2011] FWA 6123

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susana Centofanti
v
Assisi Centre Inc
(U2011/5097)

SENIOR DEPUTY PRESIDENT KAUFMAN MELBOURNE, 9 SEPTEMBER 2011

Application for unfair dismissal remedy - s 386(1)(b)- meaning of dismissed - forced to resign - course of conduct.

[1] Mrs Susana Centofanti worked as a diversional therapist in the Assisi Centre, an aged care facility, from 8 October 2009 until she was suspended with pay on 1 December 2010.

[2] On 24 December 2010 Mrs Centofanti posted a letter to her employer whereby she resigned from her employment. In the letter, to which I will return later, Mrs Centofanti denied certain allegations of bullying that had been levelled against her and stated that she could no longer work in such an environment. The letter was apparently sent to the wrong address and was returned to her on or about 16 or 17 January 2011. However, prior to that occurring, Mrs Centofanti, on 4 January 2011, filed an application for an unfair dismissal remedy. On or about 18 January 2011, she mailed her letter of resignation again under cover of a letter explaining that it had originally been sent to the wrong address. However, at a conciliation conference on 10 February 2011, it became apparent that her application had been filed before her employer had become aware of her resignation. She withdrew her application for relief and filed the application in this matter on 15 February 2011. It is not necessary that I decide the precise date that Mrs Centofanti’s employment ended.

[3] There is no doubt that Mrs Centofanti was a person protected from unfair dismissal under Division 2 of Part 3 of the Fair Work Act 2009. The first issue that I must decide is whether she had been dismissed. Section 386(1)(b) provides that a person has been dismissed if 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. Mrs Centofanti contends that she was forced to resign in the circumstances set out in s 386(1)(b).

[4] At the hearing, which extended over four days, Ms S Thomas, of counsel, appeared for Mrs Centofanti and Mr R Millar, of counsel, appeared for the Assisi Centre.

[5] In January 2010 the respondent terminated the employment of a priest who was providing pastoral services to the residents of the aged care home. That event proved to be unpopular with many residents and staff. Ultimately a petition was organised in support of the priest. Mrs Centofanti was one of the people who openly supported the priest. Mrs Centofanti believes that since that time the management of the Assisi Centre displayed a negative attitude towards her.

[6] On 31 May 2010, Mrs Centofanti indicated to Mr Peter Staples, the executive manager of the respondent, that she would prefer that the voting for an upcoming enterprise agreement be by secret ballot rather than by a show of hands, as it had been in the past. On 1 June 2010 Mr Staples informed her that a secret ballot would be held. 1

[7] Inferentially, Mrs Centofanti contends that her request somehow antagonised Mr Staples. There is no objective evidence to suggest that that is indeed the case.

[8] The Assisi Centre utilises the services of a consulting psychologist, Bernie McCarthy. Apparently Mr McCarthy provides a “thought of the week” which on Wednesday 16 June 2010 was a suggestion that “bon appetite” be said to residents at meal times. He sent his thought of the week to the respondent’s director of care, Ms Eileen Kielty, who forwarded it on to several people including the applicant. Ms Kielty noted that the phrase might need to be changed in order to make it culturally specific to the Assisi Centre, 2 which is an Italian-Australian facility. On 24 June 2010 Mrs Centofanti sent an email to Mr McCarthy and Ms Kielty noting that the correct words are “buon appetito” and that “we are Italian culture not French.”3 This led to an email response from Mr Staples on 28 June observing that Mrs Centofanti’s comments were somewhat condescending and suggesting that if she had any comments about external providers they should be communicated through the proper channels.4

[9] Mrs Centofanti contends that Mr Staples’ rebuke was unwarranted and heavy-handed.

[10] This was not Mrs Centofanti’s first interaction with Mr McCarthy. In May 2010 he had been conducting staff training, a component of which was bullying in the workplace. Whilst he was discussing what might constitute bullying and what people could do about it Mrs Centofanti says that she asked him what would happen if the bullying was by management. According to Mrs Centofanti, Mr McCarthy “responded in an abrupt way: ‘if all you are going to do is complain, you should move on.’” Mrs Centofanti was hurt and embarrassed to have been spoken to in that manner in front of other people. 5 Mr McCarthy denied that he had made the comments attributed to him, or anything like them.6

[11] On 29 June 2010 a meeting was held for the purposes of discussing a proposed enterprise agreement. At that meeting there were approximately 40 members of staff and some union officials present, as well as a few management representatives in the initial stage. Mrs Centofanti, as well as Ms Mairead Greaney, the Assisi Centre’s payroll officer, was in attendance. Ms Greaney was taking notes for her own purposes. She alleges that during the course of the meeting Mrs Centofanti said: “Excuse me there is someone writing notes. She will probably take them to management.” 7 The comments were directed at Ms Greaney who felt bullied and intimidated by them given that they had been made in the course of enterprise bargaining discussions at which there were many members of staff present. She said that she was very distressed about being singled out and attacked as if she were a spy for management at the meeting. She was left shaking afterwards. Ms Greaney, on the same day, made a formal complaint against Mrs Centofanti, utilising the Assisi Centre’s internal computerised complaints system. 8

[12] On 14 July 2010, Ms Kielty wrote to Mrs Centofanti in the following terms: “Can I please request your attendance at a meeting on Wednesday the 28th at 3:30 PM to discuss an issue that was raised by another staff member regarding how you treated them during the EBA meeting on June 29. Peter Staples will also attend the meeting. You may bring a representative to the meeting. If you are bringing a representative or support person please advise me. This meeting may result in disciplinary action.” 9 That was the first that Mrs Centofanti says she knew of the complaint against her. Mr Staples, who took the allegations very seriously, because they involved bullying, engaged an independent facilitator, a solicitor, to convene the meeting. At the meeting Mrs Centofanti was accompanied by a priest, Father Mario DeRosa. Mr Staples and Ms Kielty were the management representatives present. Mrs Centofanti brought a tape recorder with her and, with permission, recorded the meeting and undertook to provide a transcript of it. The transcript extends to some 49 pages. Mrs Centofanti was concerned that it had taken in excess of two weeks for her to have been informed of the complaint. Indeed, she made a complaint of her own to the effect that the internal policies of the Assisi Centre had been breached by the length of time it had taken to notify her of the complaint. She also complained that the delay between her receipt of the notification of the complaint and the hearing (approximately 2 weeks) had severely stressed her.

[13] Although the transcript is difficult to understand, especially at lines 28 to 31, it is reasonably clear that Mrs Centofanti denied that she had said that Ms Greaney would take the notes to management. Mrs Centofanti states that she had noticed that Ms Greaney was taking notes and asked whether she could have a copy of them. She also asserted that there were three other women involved in that conversation.

[14] Father DeRosa was called as a witness for Mrs Centofanti. In his view the entire meeting of 28 July was mishandled. It was far too formal and, because it was facilitated by a solicitor, was intimidating towards Mrs Centofanti. He observed during the meeting that the matter could have been better handled had it been dealt with in a far less formal, more conciliatory, manner. His evidence was to like effect. I note from reading the transcript, 10 that, far from being intimidated, Mrs Centofanti, to a large extent, appeared to control the meeting.

[15] Because of Mrs Centofanti’s assertions, Mr Staples asked the facilitator to take statements from other people who were allegedly involved in the incident. Mrs Centofanti declined to provide the names of the other people and a further meeting was convened for 9 September 2010. At that meeting Mrs Centofanti was also accompanied by Father DeRosa. However, the meeting did not get very far. Mr Staples indicated that he preferred Ms Greaney’s version of what had allegedly occurred at the enterprise bargaining meeting.

[16] In the meantime, Mrs Centofanti had engaged solicitors who wrote to her employer on 20 August 2010 stating:

“We act for Mrs Centofanti who has instructed us that she has been in your employment for the (sic) seven months. During the last few months she has been constantly bullied by intimidation placing her under a great deal of stress.

“Our client has instructed us to put you on notice that if no positive action is taken by you and the bullying continues, she will report the matter to Work Safe Australia as well as investigating legal action against you.

“We await your urgent advise (sic) that steps have been taken to stop the offending behaviour and an outline of the steps taken.” 11

[17] This prompted a reply on 27 August 2010 from the Assisi Centre’s solicitors denying Mrs Centofanti’s allegation of bullying, noting that an allegation of bullying had been made against her and suggesting a meeting between the parties. 12

[18] A meeting, to which I have already referred, took place on 9 September 2010. This was followed by another letter from Mrs Centofanti’s solicitors, again denying the allegation of bullying against her and asserting that since the enterprise bargaining meeting incident Mrs Centofanti “has been constantly intimidated by members of management namely Peter Staples and Eileen Kielty. The incidents have been recorded by our client and passed on to management. However, no action has resulted from her reports and instead she is constantly being pressured to admit wrongful actions which our client strenuously denies.” The letter concluded by demanding an apology, the failure of receipt of which within seven days would result in a formal complaint being made to WorkSafe Victoria. 13

[19] The Assisi Centre’s solicitors replied on 28 September 2010. They referred to the bullying allegations against Mrs Centofanti, again sought the names of the other three employees who had allegedly asked questions of Ms Greaney and requested, apparently not for the first time, a copy of the transcript of the tape recorded meeting of 28 July. The letter further noted that as far as the Assisi Centre was concerned Mrs Centofanti had made only two complaints. The first being that Ms Kielty had not dealt with Ms Greaney’s complaint in a timely fashion as well as in relation to the contents of the complaint. It was noted that Ms Kielty had apologised for any delay during the 28 July meeting. The second complaint was that Ms Kielty had yelled at Mrs Centofanti and a fellow employee Ms Tonin. It was pointed out that both Ms Kielty and Ms Tonin denied the allegation and that it had also been raised at the 28 July meeting. 14

[20] On 27 October 2010, by letter, Mr Staples gave Mrs Centofanti a first warning about her inappropriate behaviour. The letter noted the correspondence between solicitors and outlined the intervening events. He concluded that Mrs Centofanti had behaved inappropriately towards Ms Greaney at the enterprise bargaining meeting and that she had embarrassed Ms Greaney in front of her colleagues by the manner and content of the questions that Mrs Centofanti had asked. He found that Ms Greaney was intimidated and had found the situation to be distressing, confronting and demeaning. The letter informed Mrs Centofanti that she had breached her responsibility under the Assisi Centre’s code of conduct and bullying policy, particularly those aspects of it that required that employees respect the workplace that they share with their colleagues, treat each other with respect, courtesy and civility at all times and ensure that employees, residents and others are treated equitably and are not subject to bullying or violence.

[21] Mrs Centofanti contends that the warning was not warranted.

[22] In the letter, Mr Staples asked her to reconsider her behaviour and apologise to Ms Greaney, but noted that, whether she apologised or not, any future inappropriate behaviour might result in disciplinary action which might lead to the termination of her employment. He also indicated that he rejected Mrs Centofanti’s assertions that Ms Tonin and Ms Kielty had yelled at her and that he preferred their version of the events that had transpired on 12 July 2010. 15 This is a matter to which I will now turn.

[23] On 12 July 2010, Ms Luciana Tonin, an activities officer at the Assisi Centre, had a gastric upset. She informed Mrs Centofanti of this who in turn reported it to Ms Kielty. Ms Kielty instructed Ms Tonin to go home. As Ms Tonin was leaving, she asked Mrs Centofanti to show her where the aromatherapy boxes were kept, whereupon Mrs Centofanti took her into the appropriate room. According to Mrs Centofanti: “Eileen Kielty and Peter Staples were in the office Eileen screamed at me stating: ‘she needs to go home as she is contagious, she’s got gastro, you should know better, just get out, you will be infecting other people!’ I tried to explain to Eileen that I was quickly showing Lucy where to find the boxes, but she would not listen. Peter Staples did nothing. As I left the office, I quietly commented ‘that really is bullying behaviour’. Peter Staples just smirked at me as I left. I felt upset to be yelled at this way and not given an opportunity to explain myself, and unsupported by management in the context of this behaviour directed towards me.” 16 According to Ms Tonin, “Susanna opened the door and Eileen was there with Peter Staples. Eileen said to me ‘what are you still doing here? Go home.’ It was not said angrily. It was said in a way that conveyed to me that she was concerned for the residents and other staff.” The following week, Mrs Centofanti asked Ms Tonin whether she remembered the day that she was going home sick and “Eileen yelled at us.” Ms Tonin retorted that they had not been yelled at; rather Ms Kielty was just concerned for the residents. According to Ms Tonin, Mrs Centofanti said that she would be taking the matter further and asked Ms Tonin to be a witness, which she declined to do.17 Ms Kielty’s version of events is broadly consistent with that of Ms Tonin.18

[24] Mrs Centofanti also complains that her work was not acknowledged by her employer. She points to a flyer which acknowledged the organisational activities of another woman. She complained to Mr Staples that she had also organised many activities for the residents, but had received no formal recognition. Mr Staples pointed out that the other person was a volunteer, not an employee, who had given much of her time to the centre. 19

[25] There were several other matters referred to by Mrs Centofanti in her witness statements, as well as in her oral evidence, which she asserted demonstrated the allegedly harsh treatment that had been meted out to her in the workplace. I have referred to some of these matters and it is not necessary to detail all of the others.

[26] On 31 October 2010 an article which was highly critical of the Assisi Centre appeared in the Sunday Age. Part of the article stated: “Another employee, therapist Susanna (sic) Centofanti, has hired lawyers because she claims she has been bullied and harassed by Mr Staples and other staff members.”

[27] Mrs Centofanti took leave for the month of November. Whilst Mrs Centofanti was on leave, there was a minor reorganisation which, amongst other things, resulted in Mrs Centofanti being reallocated to the dementia unit. She asserts that this is yet another example of her ill-treatment by her employer. Ms Sheila Cheary, the clinical services manager, said that this was merely part of a routine organisational change. She noted that it involved other employees and denied that it was directed at Mrs Centofanti. 20

[28] On Mrs Centofanti’s return to work on 1 December, she was advised by Ms Cheary of the reorganisation and told that she was to commence work in the dementia unit. Mrs Centofanti asserts that the nature of her job had changed and complains that as a result of the change she would have very little contact with residents beyond those in the dementia unit. She asked Ms Cheary why such a restriction had been imposed upon her, but says that she received no satisfactory answer. 21 Ms Cheary’s evidence was to the effect that a proposed reorganisation had been discussed prior to Mrs Centofanti going on leave and should have come as no surprise. Later that day, whilst working in the dementia unit, she discussed with two staff members in the unit the manner in which residents were moved from room to room if they were reluctant to be moved. The two staff members were offended by Mrs Centofanti’s remarks, alleging that Mrs Centofanti had accused them of being rough with residents. Although, in my view, it is possible that the remarks had been misconstrued or misinterpreted, one of the staff members, Anna De Lorenzo, contacted Ms Kool, the unit manager, in a distressed state, asserting that Mrs Centofanti had accused her of mistreating residents. Ms Cheary and Ms Kool spoke with Ms De Lorenzo who was clearly upset.22 Shortly thereafter, Ms Kool and Ms Cheary spoke with Mrs Centofanti who denied that anything untoward had occurred. However, Mrs Centofanti was insistent on finding out who had raised the issue and kept demanding to be told who had made the complaint.23 Ms Cheary said that Mrs Centofanti was being aggressive and would not listen to anything that either she or Ms Kool was saying. They did not disclose the source of the complaint, but asked Mrs Centofanti to speak respectfully to staff members.

[29] According to Ms Cheary, she and Ms Kool left the dementia unit and when they were outside the secure door they heard loud shouting from within the unit. They went back into the unit and observed Mrs Centofanti yelling at Ms Kongas, the other staff member, who was in tears. Mrs Centofanti, who was shaking with anger stopped yelling at Ms Kongas when Ms Cheary and Ms Kool re-entered. Ms Cheary asked Mrs Centofanti to leave the unit and go to her office whereupon she left. Ms Kongas was cowering against the wall, visibly distressed and in tears. She said to Ms Cheary that she was really scared of Mrs Centofanti who terrified her. 24

[30] Ms Kool’s evidence was largely corroborative of that of Ms Cheary. 25 Ms Kongas’ evidence was to like effect.26 Ms De Lorenzo says that she heard Mrs Centofanti yelling, Ms Kool called her name and when she went over to her she observed that Ms Kool was crying. Ms Kool told Ms De Lorenzo that Mrs Centofanti had abused and yelled at her.27

[31] Ms Cheary and Ms Kielty then spoke with Mrs Centofanti in Ms Cheary’s office. This resulted in Ms Kielty telling Mrs Centofanti to go home and not to return until she was contacted. 28 Mrs Centofanti indicated that as she was not working she would immediately visit her aunt who was a resident in another unit at the facility. She was not permitted to do this.

[32] That day, 1 December 2010, Ms Kielty sent a letter to Mrs Centofanti advising her that allegations of inappropriate workplace behaviour had been levelled against her. It was noted that the allegations needed to be put to Mrs Centofanti and that she needed to be provided with an opportunity to respond. An urgent meeting was sought.

[33] Whilst Mrs Centofanti was suspended, Ms Kielty conducted an investigation which involved speaking with Ms Kool and Ms Kongas, as well as taking statements from them. Due to Mrs Centofanti’s unavailability, the meeting did not take place until 7 December 2010. Mr Staples and Ms Kielty were present as well as Mrs Centofanti’s union representative, Ms Cook. The various statements were given to Mrs Centofanti, who denied any wrongdoing. Mr Staples also raised the issue of The Age article indicating that he might be taking action in defamation against The Age, and Mrs Centofanti says, but Mr Staples denies, against her.

[34] On 10 December 2010, Mrs Centofanti received a second warning letter. As the letter is pivotal to Mrs Centofanti’s decision to resign it is necessary to turn to it in some detail. It referred to the incident in the dementia unit on 1 December 2010 and to the meeting of 7 December. Mr Staples noted that after reading the statements of the four women involved, Mrs Centofanti had denied all of the allegations against her. He noted that as there was an inconsistency between Mrs Centofanti’s version of events and that of the other women further enquiries were to be made. The further enquiries were made by Ms Catherine Healy, the solicitor for the respondent, who then told Mr Staples that she had no doubt that the four employees involved were telling the truth. The letter continued:

“Having considered your responses at the meeting and the results of Mrs Healy’s interviews with the staff members mentioned above, I have come to the following conclusion:

• I believe the allegations made by the staff members to be true;



• I do not believe your version of events;



• Your behaviour is completely unacceptable and constitutes serious workplace bullying and victimisation. It also breaches the Occupational Health and Safety standards at the Assisi Centre.



• You have either chosen to ignore the policies and procedures applicable to your employment or you do not understand the importance of them. Either situation is completely unacceptable, especially after 12 months employment and support training.

As a result of your behaviour I am providing you with a second written warning. I am so concerned about your behaviour, even with appropriate training, policies and procedures and a previous warning having been provided to you, that I do not believe that you are safe to return to the workplace. Therefore, you are suspended without pay immediately. You cannot return to work until you have agreed to undertake an anger management assessment and, support therapy, if necessary. This is to be conducted by McCarthy Psychology Services who can be contacted on [telephone number provided]. Once I am informed by you and appropriate therapy has commenced, you will be returned to suspension on pay. When McCarthy Psychology Services provides written clearance of your suitability to return to the workplace, we can discuss your re-entry and appropriate duties.

You are further warned, any inappropriate behaviours such as those demonstrated to date are considered very serious and may lead to further disciplinary action and ultimately your termination of employment.

Please let me know when you have contacted Mr Bernie McCarthy to organise your assessment.”

[35] On 20 December 2010, not having heard from Mrs Centofanti, Mr Staples again wrote asking to be contacted on whether Mrs Centofanti intended to undertake the assessment required. He concluded by asking her to: “let me know immediately when you will be attending for your assessment, and support therapy, if necessary.” Shortly after receipt of this letter Mrs Centofanti telephoned Ms Cook and told her that she felt that she was being forced to resign. In her oral evidence she said that she felt that if she went back to work she would be given a third and final warning. 29

[36] Mrs Centofanti did not reply to that letter and on 24 December 2010 posted her letter of resignation. In her letter Mrs Centofanti asserts that she has never and will never bully anybody. After detailing how she is a virtuous person she concludes by saying:

“I find the allegations made towards me, as stated before untrue, and as such find I can no longer work in such an environment, that has refused to hear my plea of unjust (sic). It certainly is a matter that should be looked into more closely. It saddens me that a person who has worked in the aged care sector for a very long time and is quite knowledgeable in this field now resigns, thus, I hereby tender my resignation.” 30

[37] As I indicated at the commencement of these reasons, the first issue for decision is whether Mrs Centofanti was forced to resign because of conduct, or a course of conduct, engaged in by her employer.

[38] As Mrs Centofanti’s version of the various incidents to which I have referred differs from that of the other witnesses in almost every respect it is necessary that I make findings as to the credibility of the witnesses. Where there is a discrepancy between the evidence of Mrs Centofanti and the other witnesses I prefer the evidence of the other witnesses. Despite Ms Thomas’ attempts to attribute a malevolent motive for the witnesses called on behalf of the Assisi Centre to vilify Mrs Centofanti, having had the benefit of seeing them in the witness box, I accept that they generally gave their evidence in a forthright and honest manner. Ms Thomas suggested that after the publication of the article in The Age, the attitude of the staff towards Mrs Centofanti soured. There is no objective evidence to support such a view and the witnesses for the respondent generally denied it. It does not, to me, seem to be the case that Mrs Centofanti’s co-workers bore her any ill will, albeit some of them were upset by the article. In order that I could accept Mrs Centofanti’s evidence about the enterprise bargaining meeting I would have to reject that of Ms Greaney and Ms Iorfino. In order that I could accept Mrs Centofanti’s evidence about the 1 December incident I would have to reject that of Ms De Lorenzo, Ms Kongas, Ms Cheary, Ms Kool and Ms Tonin. Whilst the skilful cross-examination by Ms Thomas highlighted every possible discrepancy in their evidence, I am satisfied, on more than the mere balance of probabilities, that the incidents occurred largely as described by those witnesses. On the other hand, Mrs Centofanti was wont to seek to emphasise her virtuosity and quick to complain about what she considered to be inappropriate behaviour towards her, but reluctant to accept that she had erred even when confronted with confirmation that she had. For example, in relation to the “bon appetite” email 31 Mrs Centofanti’s evidence was that she replied to Ms Kielty’s email of 18 June 2010, but that she did not deliberately send it to Mr McCarthy.32 She said: “we got an e-mail and so I just automatically – sent – type an email back (sic) so I think it went straight to Mr McCarthy.” Even when confronted with the e-mail she had sent on 24 June 2010,33 which was addressed to Ms Kielty and cc’d to Mr McCarthy and addressed “Dear Eileen and Bernie” she at first denied that she had deliberately sent it to Mr McCarthy, suggesting that she had merely pressed the “reply” button on her computer. When pressed, she dissembled by suggesting that she didn’t realise it was going to everyone.34 She seemed unable to accept that it might have been inappropriate for her to contact an outside contractor in that manner. She maintained that having been admonished about it by Mr Staples was one of the examples of the conduct of her employer that forced her to resign.

[39] Mrs Centofanti appears to have viewed her employment relationship, especially after the sacking of Father Bellia, through the prism of self righteous indignation.

[40] In my view, it was not the conduct, or a course of conduct, of the employer that led to Mrs Centofanti’s resignation. Rather, it was her perception of how she had been treated that led her to conclude that it was untenable for her to continue in her employment.

[41] Although I was taken by counsel to several authorities, in my view, cases of this nature fall very much to be decided on their own facts. That said, the leading case of P. O’Meara v Stanley Works Pty Ltd 35 nevertheless provides guidance on the factors to be taken into account in deciding whether a person was forced to resign from his or her employment. A note of caution should be sounded because O’Meara was decided under the legislation as it was prior to the Workplace Relations Act 1996 being amended by the Workplace Relations Amendment (Work Choices) Act 2005. It is trite to say that O’Meara was decided prior to the enactment of the Fair Work Act 2009. Under the legislation as it then was, a person could apply to the Industrial Relations Court of Australia for a remedy in respect of termination of his or her employment. By virtue of the definitions in that Act the terms “termination” and “termination of employment” meant termination at the initiative of the employer.36

[42] The Full Bench concluded that there needed to be some action on the part of the employer which is intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. 37 Under s386 of the Fair Work Act 2009 a person has been dismissed if the 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. In my view, the matters to be taken into account in ascertaining whether action on the part of the employer was intended to bring or had the probable result of bringing the employment relationship to an end are much the same as those to be taken into account in deciding whether a person was forced to resign.

[43] The observations of the full bench at paragraph 22 are apposite:

“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.’”

(Footnote omitted)

[44] For Mrs Centofanti it is put that the response of her the employer in relation to the incidents whereby it is alleged that Mrs Centofanti behaved inappropriately was disproportionate and inexorably led to her being forced to resign. In particular, Ms Thomas relied on the incidents that led to the second warning letter of 10 December 2010. She also submitted that the first warning letter was inappropriate and an overreaction. I disagree. Ms Thomas submitted that even if the incident had occurred as described by Ms Greaney, it could not have amounted to bullying as there had been no course of conduct engaged in by Mrs Centofanti. Rather only one incident of misbehaviour led to the warning letter. Although generally, before bullying is demonstrated a course of conduct by one person against another will have occurred, one such incident can constitute bullying. The Macquarie Dictionary relevantly defines a bully as a blustering, quarrelsome, overbearing person who browbeats smaller weaker people. It defines the word bullying as to act as a bully towards.

[45] Given the nature of Mrs Centofanti’s remark, the context in which it was made as well as the effect it had on Ms Greaney, I accept that a first warning was appropriate.

[46] Ms Thomas also submitted that the process leading to the second warning was unsatisfactory and that was one of the factors that informed Mrs Centofanti’s view that she had to resign. I do not accept that the process was unsatisfactory. The delay was explained. During the two-week period prior to having been told of the complaint as Mrs Centofanti was unaware of the complaint she could not have been stressed. The two week period between the notification to her of the complaint and the meeting was not unduly long.

[47] As to the second warning letter, Ms Thomas submitted that not only was the warning not warranted, but that suspending Mrs Centofanti without pay until she agreed to undergo anger management therapy placed Mrs Centofanti in an untenable position whereby she was left with no option other than to resign. Mr Millar submitted that the letter required that Mrs Centofanti undergo assessment and only undertake therapy if Mr McCarthy considered it to be necessary. Whilst the letter is internally inconsistent, I accept that it required an assessment in the first place. This view is confirmed by the letter of 20 December 2010 38 which requests that Mrs Centofanti contact Mr Staples “when you will be attending for your assessment, and support therapy, if necessary.”

[48] In any event, Mrs Centofanti was quite capable of questioning the intent of the letter, either herself or through her solicitors.

[49] Given the events that had led to the issue of the second warning it was not unreasonable for the Assisi Centre to require that Mrs Centofanti be assessed in relation to her ability to control her emotions.

[50] Ms Thomas also submitted that the choice of Mr McCarthy, having regard to Mrs Centofanti’s previous interactions with him, was inappropriate. I do not accept this. In any event, a request for a different assessor could have been made.

[51] In my view, Mrs Centofanti’s decision to resign was based largely on her perceptions and her subjective responses to treatment by her employer that she perceived to be inappropriate. She was not forced to resign and her application for relief must be dismissed.

[52] In any event, if I am wrong and Mrs Centofanti was dismissed within the meaning of s 386(1)(b), her employer had a valid reason for so doing and the termination of her employment was not unfair. Although she had not been notified of the reason, as in the circumstances it is clear she could not have been, it is clear that Mrs Centofanti had refused to undergo the assessment that was required by her second warning letter. The failure to do so provided her employer with a valid reason to terminate her employment. Prior to the issue of each warning letter Mrs Centofanti had had an opportunity to respond to the allegations made against her and she was able to and did have a support person accompany her. Further, her comments to The Age reporter constituted a breach of her duty of fidelity towards her employer that, in any event, warranted termination of her employment.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms S Thomas, of counsel, for the applicant.

Mr R Millar, of counsel, for the respondent.

Hearing details:

2011
1, 2, 3 & 4 August
MELBOURNE

 1   Attachment SC 5 to Exhibit A1

 2   Attachment 7 to Exhibit R2

 3   Attachment 7 to Exhibit R2

 4   Attachment 7 to Exhibit R2

 5   Exhibit A2

 6   Exhibit R4

 7   Exhibit R6

 8   Exhibit R6

 9   Attachment SC8 to Exhibit A1

 10   Attachment SC 12 to Exhibit A1

 11   Attachment SC 14 to Exhibit A1

 12   Attachment SC 16 to Exhibit A1

 13   Attachment SC 18 to Exhibit A1

 14   Attachment SC 18 to Exhibit A1

 15   Attachment SC 19 to Exhibit A1

 16   Exhibit A2

 17   Exhibit R9

 18   Exhibit R13

 19   Exhibit A1; Exhibit R3

 20   Exhibit R10

 21   Exhibit A1

 22   Exhibit R10

 23   Exhibit R10

 24   Exhibit R10, paragraphs 9 to 11

 25   Exhibit R12

 26   Exhibit R7

 27   Exhibit R11

 28   Exhibit R10

 29   Transcript PN 309-312

 30   Attachment SC 29 to Exhibit A1

 31   Attachment SC6 to Exhibit A1

 32   Transcript PN 585

 33   Attachment 7 to Exhibit R3

 34   Transcript PN 596 ff

 35   Print PR 973462, Giudice J, Watson VP and Cribb C, 11 August 2006

 36   Mohzab v Dick Smith Electronics (1995) 62 IR 200 at 203

 37   Print PR 973462 at [23]

 38   Attachment SC 28 to Exhibit A1

Printed by authority of the Commonwealth Government Printer

<Price code C, PR514351>