Sydney Water Corporation v Reem Yelda - [2022] FWCFB 67

[2022] FWCFB 67

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Sydney Water Corporation
v

Reem Yelda

(C2021/8885)

DEPUTY PRESIDENT MASSON

COMMISSIONER sIMPSON

COMMISSIONER MIRABELLA

MELBOURNE, 5 MAY 2022

Appeal against decision [2021] FWC 6589 of Deputy President Beaumont at Perth on 10 December 2021 in matter number C2020/9121.

Introduction

The Sydney Water Corporation (the Appellant) seeks permission to appeal and if granted, appeals a decision[1] of Deputy President Beaumont dated 10 December 2021 (the Decision). The Deputy President found Ms Reem Yelda (the Respondent) was dismissed as per s.368 of the Fair Work Act 2009 (the FW Act) and entitled to apply under s.365 for the Fair Work Commission (the Commission) to deal with her dismissal dispute.

In determining the application before her, the Deputy President identified the discreet issue for determination was “whether Ms Yelda was ‘dismissed’ from her employment within the meaning of s.386(1)(a) or (b) of the Act”[2]. She concluded that the Respondent was dismissed by the Appellant within the meaning of s.386(1)(b). Section 386(1) relevantly states as follows;

(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.

It is the Deputy President’s conclusion that the Respondent was forced to resign because of conduct, or a course of conduct engaged in by the Appellant that is the focus of the appeal.

Background

The Respondent commenced employment with the Appellant in or around October 2004 and held various positions over the period of her employment, the most recent being that of a Customer Liaison Officer (CLO) in the Field Response Networks. Her role of CLO required her to respond to incidents across the Appellant’s Sydney network including with respect to sewer surcharges and broken water mains.

While attending with a colleague (Mr Mead) at a water main repair job in September or October 2015, at which a service delivery crew was attending, the Respondent was approached by a Ms McMahon who was a representative of Vitaity Works Australia Pty Ltd (Vitality). It was explained by Ms McMahon to the Respondent that Vitality were seeking volunteers to participate in a campaign called ‘Safespine’ which Vitality had been engaged by the Appellant to roll out. ‘Safespine’ was a program aimed at promoting stretching and warmup exercises by employees of the Appellant before commencing physical activity. The Respondent had previously participated in internal promotional campaigns for the Appellant.

The Respondent and Mr Mead agreed to have their photos taken for the purposes of the campaign. They were not advised how the photos would be used in the campaign. The Respondent was subsequently alerted by a colleague on 11 April 2016 that her picture had been used on a poster, which it emerged, had been distributed and posted in at least three of the Appellant’s depots. The poster showed the Respondent smiling with her right arm outstretched above her head. Above her photo were the words ‘Feel great’ and below her image in larger print was the word ‘Lubricate.’

On 12 April 2016, the Respondent complained to senior managers of the Appellant following which apologies were proffered by the Appellant and Vitality. The Appellant sought to remove the posters immediately. The Respondent commenced a period of leave in April 2016 but apart from a few days where she returned to work, she remained absent from work until her resignation.

The Respondent made a workers compensation claim which was accepted by Allianz on 22 April 2016. She continued to receive workers compensation payments until advised by Allianz on 1 March 2017 that she would not be entitled to receive payments from 21 April 2017, on which date her workers compensation payments ceased. Following cessation of workers compensation payments, the Respondent was on paid personal leave until November 2017.

Due to the Respondent’s extended absence from the workplace, the Appellant recovered various company equipment from her including her company issued laptop and company motor vehicle on or around 13 May 2016. The Respondent was also subsequently required to return her work issued mobile phone, which requirement she complied with in August 2016.

An off-site meeting took place on 8 August 2017 between the Respondent, a Ms Halpin who was the Appellant’s Manager Injury and Rehabilitation and a HR representative, Mr Connolly. During the meeting Mr Connolly explained the Appellant’s medical termination process to the Respondent. The discussion in relation to a medical termination did not progress beyond being discussed at the meeting.

Subsequent to the above-referred meeting there was some communication between Mr Connolly and the Respondent regarding the Respondent’s leave arrangements in October 2017 and some communication in respect of group certificates in 2018. That latter communication aside, there was almost no direct communication between the Appellant and the Respondent between November 2017 and the date of the Respondent’s resignation on 18 December 2020.

The Respondent filed a number of applications in different jurisdictions in relation to the use of her image on the poster by the Appellant. This included a complaint with the Australian Human Rights Commission (AHRC) on 15 December 2016 alleging sexual harassment and sex discrimination. That claim was subsequently referred to the NSW Anti-discrimination Board given the Appellant’s status as a state government employer. A complaint filed on or around 1 March 2017 with the NSW Anti-Discrimination Board was initially rejected, was reconsidered on order of the NSW Supreme Court and rejected again in June 2018 by the NSW Anti-Discrimination Board.

The Respondent also filed a claim in the NSW Civil and Administrative Appeals Tribunal (NCAT) against the Appellant and Vitality alleging she had been subject to sex discrimination and sexual harassment. That claim was upheld by NCAT at first instance on 1 October 2019[3] (the NCAT Decision), affirmed by the NCAT Appeal Panel on 13 October 2020[4] (the NCAT Appeal Decision) and confirmed on appeal in a decision of the Court of Appeal Supreme Court NSW (the Supreme Court Decision) on 19 July 2021[5]. The Respondent was awarded the maximum compensation able to be awarded under the relevant legislation of $100,000, that amount to be paid by each of the Appellant and Vitality.

The decision

After setting out a brief history of the Respondent’s employment, the poster incident and the various litigation that had been launched by the Respondent, the Deputy President identified that in respect of the Respondent’s s.365 application made on 18 December 2020, there were two jurisdictional objections that had been raised by the Appellant. It was the first objection that was relevant to her decision, that being the Respondent had not been dismissed within the meaning of s.386 of the FW Act. After setting out the relevant section of the FW Act, that being s.365, the Deputy President identified the matter to be determined by her in the following terms;

“[13] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act. Therefore, the discrete issue for determination is whether Ms Yelda was ‘dismissed’ from her employment within the meaning of s 386(1)(a) or (b) of the Act.”[6]

The Deputy President then proceeded to provide a detailed summary of the background to the Respondent’s employment, the events that led to her resignation from the Appellant and her general protections application. In doing so she relevantly identified that;

·     the Respondent commenced her employment with the Appellant in October 2014 and during her various roles had developed her professional image and received positive performance feedback[7];
·     to enable her to do her role, the Respondent was provided with a vehicle, mobile phone, a laptop and remote access to the Appellant’s IT network[8];
·     the Respondent had her image used in the Appellant’s internal advertising campaigns on four previous occasions, and where this had occurred her consent had been sought, a release form had been signed and she had on most occasions been shown the final promotional material before it was released[9];
·     following the Respondent becoming aware of the display in the Appellant’s workplace of the previously described poster with her photo and the caption “Feel great….lubricate” on 11 April 2016, she complained to management of the Respondent[10];
·     shortly after becoming aware of the poster on 11 April 2016, the Respondent left the workplace and apart from a brief return, remained absent from the workplace until her resignation;
·     apologies from both Appellant and Vitality were proffered to the Respondent on 12 April 2021 and the Appellant took steps to have the poster removed from depots where it had been put up[11];
·     the Respondent was referred on 16 April 2016 to Resilia, a rehabilitation specialist acting on the Appellant’s behalf[12], and also made a workers compensation claim that was subsequently accepted by the Appellant’s insurer Allianz on 22 April 2016[13];
·     on the basis that she did not require the company issued equipment while on an extended absence, the Respondent was requested to return her company car and laptop on or around 13 May 2016 and was subsequently requested to return her mobile phone on 31 August 2016, each of which requests were complied with[14];
·     a consequence of the Respondent’s return of the company laptop was that she was unable to access the Appellant’s employee self-service system or Iconnect, which was the Appellant’s intranet[15];
·     after Allianz had foreshadowed the cessation of workers compensation benefits in January 2017, payments ceased on 21 April 2017[16], following which the Respondent was on paid sick leave until November 2017[17] ;
·     various medical assessments were undertaken and reports produced which identified that the Respondent’s medical condition was such that she was unable to return to work with the Appellant, and that her best prospects lay in securing work with a different employer[18];
·     at a meeting held with the Respondent in early August 2017, at which a Mr Connolly, who was a HR representative, and a Ms Halpin attended on behalf of the Appellant, an explanation of the Appellant’s medical termination process was provided to the Respondent by Mr Connolly along with an assurance from him that the Appellant was not going to end her employment at that stage[19];
·     on 9 August 2017 Mr Connolly forwarded a copy of the medical exit procedure to the Respondent and also subsequently emailed her in October 2017 in relation to her leave arrangements[20];
·     two investigations were carried out by the Appellant into the poster incident, one of which was apparently carried out by Allianz. The Respondent provided a statement for the first investigation but declined to provide a further statement for the second investigation[21]; and
·     prior to the Applicant’s resignation on 10 December 2020, there had been an “evident void of communication” between the Appellant and Respondent from October 2017 until her resignation, aside from some apparent dialogue over group certificates in 2018[22].

The Deputy President then proceeded to detail the submissions of the Respondent which she succinctly summarised as follows;

[119] Ms Yelda also submitted that examined objectively, the conduct in which Sydney Water, Mr Gillett, and Mr Nicholson engaged in from the display of the poster until her resignation (including their omissions) had, at least, the probable result of bringing the employment relationship to an end. That conduct effectively left her with no real choice but to resign.

The relevant conduct engaged in by the Appellant and its officers that was pointed to by the Respondent included;

·     Mr Gillet’s sharing of the Respondent’s complaint about the poster to Mr Nicholson[23];
·     the instructions issued to the Respondent for the return of the company car, laptop and mobile phone with the consequent loss of the Respondent’s access to the Appellant’s intranet[24];
·     the Appellant’s omission in failing to impart information to the Respondent regarding organisational restructures[25];
·     the Respondent’s isolation from the workplace while on personal leave and otherwise absent and the absence of any return to work plan having been presented to her[26];
·     the exclusion of the Respondent from any performance review process[27];
·     the lack of communication by the Appellant with the Respondent regarding the investigation into the poster and the lack of an adequate investigation[28];

The Deputy President then said as follows;

“[147] In view of the foregoing conduct, Ms Yelda contended that it was clear that (to adopt the language of Peary) the sum total of the Respondents’ conduct toward her following the display of the poster made her situation so insufferable (including by damaging her health) that her continued employment became untenable. That is, her resignation was the probable result of the Respondents’ conduct and she had no effective or real choice but to resign.”[29]

The Deputy President then summarised the Appellant’s case including the following relevant submissions;

“[169] As to the Respondents’ conduct that Ms Yelda had relied upon in support of her arguments under ss 386(1)(a) and (b), Sydney Water emphasised that the Commission would need to consider whether or not such alleged conduct could be characterised as having some intent to bring the employment relationship to an end or would have had that probable result. Further, it said, the Commission would need to consider whether the alleged conduct taken together could be characterised as displaying an intent to bring the employment relationship to an end or would have had the probable result.
[170] However, as it was, the Respondents denied the alleged conducted as characterised and perceived by Ms Yelda. It was submitted that Ms Yelda’s subjective views and responses reflected and were a product of her sense of grievance and dissatisfaction, ‘phobic responses,’ ‘resolute anger towards Sydney Water,’ ‘demonising of Sydney Water and its process,’ ‘sense of nihilism about her future with Sydney Water,’ ‘personalisation of the situation,’ resolve ‘in not wishing to engage in a process of rectifying the situation’ and ‘narcissistic injury.’ The Respondents referred to that which was reported by Associate Professor Michael Robertson, who noted ‘(T)here is clearly complexity to Ms Yelda’s psychological response to the difficulties in her previous workplace and in particular the manner in which she has demonised the employer and situated herself as being victim of “injustice”’.
[171] The Respondents pressed that, on an objective analysis of the evidence, Ms Yelda’s characterisation and views about their alleged conduct were without basis, there being no conduct on the part of Sydney Water which could be characterised as displaying an intent to bring the employment relationship to an end or would have had that probable result (including as at the date of resignation on 10 December 2020).
…
[174] Sydney Water highlighted that each of the instances relied upon by Ms Yelda went back several years and, for the most part, occurred during 2016. It continued that even if each of the alleged conduct occurred as described and perceived by Ms Yelda (which, on an objective analysis, had been denied), there was immediately a temporal disconnect. Given that the act of resignation did not occur until 10 December 2020, the various alleged conduct could not be described, in Sydney Water’s view, as being the principal constituting factor, which led to the termination. There was no causal connection between the alleged conduct and the resignation which occurred many years later.”[30]

In turning to her consideration, the Deputy President then identified the relevant authorities including; Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[31] (Bupa), City of Sydney RSL & Community Club Limited v Mrs Roxana Balgowan[32] (City of Sydney RSL) and Mohazab v Dick Smith Electronics Pty Ltd [No 2][33] (Mohazab). After addressing the authorities, the Deputy President proceeded to make a number of findings and observations including that;

the Appellant was responsible for commissioning the promotional poster, which was part of the Safespine campaign, that showed the Respondent’s image accompanied by the slogan “Feel great….lubricate”[34];
a reasonable person would discern a double entendre in the slogan at the Respondent’s expense[35];
no evidence was adduced by the Appellant to show it had investigated the process that led to approval and distribution of a poster that sexualised a female employee[36];
it became apparent during the proceedings before the Deputy President that there had been two investigations into the circumstances of the poster’s approval and distribution but it appeared to her that there was no outcome to the investigation and that no outcome was communicated to the Respondent[37];
it was incumbent on the Appellant to conduct an adequate investigation and report the outcome to the Respondent[38];
the email apology proffered by the Appellant did not reflect the gravity of what it had allowed to occur, made no commitment to investigate the matter, did not inform the Respondent of the number of posters distributed, the scope of poster distribution or the process for removal and permanent disposal of all posters[39];
actions taken by the Appellant in 2016 and 2017 were consistent with maintaining the employment relationship, by the provision of psychological support, engaging a third party specialist in Resilia to engage with the Respondent over her return to work, considering roles for her redeployment and job seeking support[40];
in the context of medical reports adduced that considered the Respondent could not return to work for the Appellant, Mr Connolly’s raising medical separation as an option in the August 2017 meeting was appropriate[41];
Mr Connolly’s response to the Respondent’s leave requests in late 2017 was appropriate and professional[42];
Mr Gillett’s sharing of the Respondent’s initial complaint with Mr Nicholson was not out of the ordinary course and it was not apparent there was an instruction in place precluding Mr Nicholson from communicating with his direct report[43];
the Appellant’s request for the Respondent to return the company car, laptop and mobile phone was understandable given the context present, that being the requirement for those resources to be available for use by the Respondent’s replacement while she was absent[44];
the inadvertent consequence of the Respondent’s loss of the laptop, that of losing access to the Appellant’s intranet, could have been overcome by her accessing the Appellant’s ‘Business Connect’ remotely which she did in late 2019[45];
there was no contact between the Appellant and the Respondent from at least early 2018 until her resignation, which the Deputy President described as an “inept approach to managing an ill and injured employee – who was litigating against it”[46]; and
no fault lay with Mr Nicholson or Mr Gillett regarding the lack of communication regarding the two organisational restructures as Mr Gillett retired in July 2018 and Mr Nicholson ceased to be the Respondent’s manager in August 2017[47].

The Deputy President then dealt with the Appellant’s submission regarding the temporal gap between the alleged conduct and the Respondent’s resignation when she stated as follows;
“[212] Sydney Water highlighted that each of the instances relied upon by Ms Yelda went back several years and, for the most part, occurred during 2016. However, that is not an entirely adequate or accurate depiction of what had occurred. Whilst Sydney Water initially responded in an appropriate and legitimate manner for a period whilst Ms Yelda was absent from work, it remains that it was its decision to publish and promulgate the poster of Ms Yelda that sexualised her, it failed to investigate the incident and proffer to Ms Yelda the outcomes of such report - by way, for example, action it would take to avoid future recurrence, and for a period of two years it made no contact with Ms Yelda, save the contact referred to in this decision. The absence of communication extended to the point proximal to Ms Yelda’s resignation. A temporal connection is therefore established.
…
[216] There is no denying that Sydney Water was placed in a difficult circumstance of managing an employee who was not fit for work for a period, who was not fit to return to its workplace, and who had opted to litigate. However, ultimately it fell upon Sydney Water to manage the situation and there was no suggestion from Sydney Water that Ms Yelda had abandoned her employment or otherwise repudiated her employment contract. While the conduct it engaged in was at times appropriate and acceptable in managing Ms Yelda for a period in 2016 and 2017, it does not negate the conclusion that Ms Yelda’s resignation was the probable result of its conduct, her having no effective or real choice but to resign in the face of Sydney Water’s prolonged silence from 2018. On an objective analysis of the evidence, the conduct of Sydney Water displayed an intent to bring the employment relationship to an end or would have had that probable result (including as at the date of resignation on 10 December 2020).”[48]

The Deputy President then dealt with contended similarities between the Respondent’s circumstances and those dealt with by a Full Bench in Australian Hearing v L Peary[49] (Peary) where she stated as follows;

“[223] Like Peary however, Ms Yelda premised her case upon more than a single incident – although at times she proposed that a singular act could have the probable result of bringing the employment relationship to an end. The Commissioner ultimately found that the cumulative effect of Australian Hearing’s conduct had made Ms Peary’s situation so insufferable as to make her continued employment untenable – such that her resignation was the probable result. He also observed that the reason for resigning was the Ms Peary’s poor health but viewed objectively it was safe to conclude that her condition was significantly contributed to by her employment and that employment included the significant conduct of Australian Hearing.
[224] The conduct embarked upon by Australian Hearing clearly differed to that of Sydney Water. However, the commonality was that both Ms Peary and Ms Yelda suffered from poor health during the employment relationship and at its end. While Ms Yelda’s health played a part in the reason for her dismissal, it appeared to be not the only reason. Ms Yelda referred to the events that transpired in 2016, her treatment by Sydney Water following those events, and the damage to her health, professional image and career.”[50]

The Deputy President then relevantly concluded as follows;

“[225] On the balance of probabilities, I have concluded that Ms Yelda did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by Sydney Water. Therefore, Ms Yelda was dismissed. In arriving at this conclusion, I have considered several incidents as being critical. The first, the approval, publication and promulgation of the poster by Sydney Water. The second, the failure of Sydney Water on receipt of Ms Yelda’s grievance about the poster and enquiries about the same, to conduct a workplace investigation culminating in outcomes that were communicated to Ms Yelda. The third, the failure of Sydney Water to communicate an apology to Ms Yelda post investigation and to specify in writing the number of posters distributed, returned and destroyed. The fourth, the failure of Sydney Water to communicate with Ms Yelda after 2017 up until the point of her resignation.
[226] In respect to the litigious approach that Sydney Water took in response to the various applications that Ms Yelda launched against it, I consider nothing turns on such conduct. Once a litigious route has been adopted the parties are free to pursue their own strategic direction as permitted by the law. However, outside of the legal arena an employee remains just that – an employee.”[51]

Having determined that the Respondent was dismissed within the meaning of s.386(1)(b) of the FW Act, the Deputy President then indicated that she would list the matter for conference in order to explore whether the matter was capable of resolution through conciliation.

Grounds of appeal

The Appellant’s notice of appeal sets out six grounds of appeal as follows;

1. In determining the application under s.386 of the Act the Deputy President made errors of fact and law in applying s.386(1)(b). In concluding that the Respondent was forced to resign because of conduct or a course of conduct engaged in by the Appellant the Deputy President relied on factors that;

(a)were not supported by the evidence and could not be characterised as having forced the Respondent’s resignation whether taken together or separately;
(b)involved conflating the various factors and erroneously finding there was a link between the historical factors and a failure of the Appellant to communicate with the Respondent such that it provided a temporal and causal connection to the resignation; and

(c)that the various conduct relied on had generally occurred years earlier and were not proximate or principal contributing factors, objectively viewed, in the resignation decision of the Respondent.

2. As to the Deputy President’s reliance on the Appellant’s conduct of approving, publishing and promulgating the poster;
(a)that conduct occurred in early 2016 which was brought to the Respondent’s attention on 1 March 2016, was not proximate to the resignation on 10 December 2020;
(b)that conduct was not a principal contributing factor, objectively assessed, to the Respondent’s resignation; and

(c)the Respondent had been separately compensated for that conduct in the NCAT Decision.

3. As to the Deputy President’s finding at [226] of the Decision that the Appellant had failed to conduct a workplace investigation culminating in outcomes communicated to the Respondent;
(a)the evidence does not support such a finding;
(b)the evidence supported a conclusion that two separate investigations were conducted, and that various information had been provided to the Respondent in respect of the first investigation while the Respondent declined to participate in the second investigation;

(c)the Respondent did not raise in her general protections application the failure of the Appellant to conduct a proper investigation as a contributing factor to her resignation;

(d)the observations made by the Deputy President at [190] of the Decision were not relevant considerations and irrelevant to the statutory question arising under s.365 of the Act; and

(e)in the alternative, any failure of the Appellant to communicate the outcome of the investigation was in the context of the Respondent refusing to participate in the investigation and; the alleged conduct of the Appellant was not proximate to or a principal contributing factor to the Respondent’s resignation decision.

4. As to the findings of the Deputy President at [226] of the Decision that the Appellant failed to communicate an apology to the Respondent post investigation and specify the number of posters distributed, returned or destroyed;
(a)the evidence does not support such a finding;
(b)the evidence supports that the Respondent was variously informed about the sites at which the posters were placed and provided with confirmation that the posters were taken down;

(c)by engaging in an inquiry during the hearing and making findings in relation to this matter, the Deputy President misunderstood the statutory question arising under s.386 of the Act;

(d)further and in the alternative, the alleged conduct of the Appellant was not proximate to or a principal contributing factor, objectively assessed, to the Respondent’s resignation decision.

5. As to the finding of the Deputy President at [226] of the Decision that the Appellant failed to communicate with the Respondent after 2017 up to the date of her resignation;

(a)That finding fails to take into account at all, or adequately, the evidence that, inter alia;
i.    The Appellant appointed a third party (Resilia P/L) to manage the Respondent’s return to work and rehabilitation;
ii.   the Respondent had directed various managers not to make contact with her and had issued relating to other managers who contacted her;
iii. the Respondent had refused further assistance, whether from Resilience P/L or directly from the Appellant, in relation to any return to work either with the Appellant or another employer throughout 2016 and 2017;
iv. the Respondent had commenced proceedings against the Appellant in NCAT and the parties were engaging in the litigation from July 2016;
v.   at no stage did the Appellant seek, request or invite the Respondent’s resignation; and
vi. at no stage prior to 9 December 2020 did the Respondent indicate or suggest that she would resign or feel compelled to resign;

(b)the Respondent did not raise in her application any failure of the Appellant to contact her after 2017 as a contributing factor to her resignation decision;
(c)by engaging in an inquiry during the hearing and making findings in relation to this matter, the Deputy President misunderstood the statutory question arising under s.386 of the Act;

(d)further and in the alternative, any failure by the Appellant to contact the Respondent after 2017 was not proximate to or a principal contributing factor, objectively assessed, to the Respondent’s resignation decision; and

(e)to the extent the Deputy President found at [218] of the Decision that the Appellant ‘displayed an intent to bring the employment relationship to an end or would have had that probable result”, the evidence does not support such a finding and also misunderstands the definition of dismissal ins.386(1)(b) of the Act inasmuch as it posits that that conduct of an employer at a point in time can provide the basis of a forced resignation many years after such conduct occurred.

6. Further to the above grounds the Deputy President;
(a)at [212] of the Decision, conflated the various factors relied upon and erroneously found that there was a link between other historical factors and a failure by the Appellant to communicate such that it provided temporal and causal connection to the resignation;
(b)misunderstood the statutory question arising under s.365 of the Act;

(c)erroneously applied the definition of ‘dismissal’ in s.386(1)(b) of the Act with regard to factors which were either not supported by the evidence and/or could not be characterised as having forced (whether taken together or separately) the Respondent’s resignation;

(d)misunderstood and/or misapplied the definition of ‘dismissal’ in s.386(1)(b) of the Act inasmuch as the reasoning adopted has the effect that conduct by an employer at a point in time can provide the basis of a forced resignation many years after such conduct took place (and the conduct was no acted on at the time it occurred).

Principles governing an appeal under s.604 of the Act

An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[52] There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission to appeal may otherwise be granted on discretionary grounds.

The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[53] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[54] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[55]

Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[56]

It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[57] However, as earlier stated, the fact that the Member at first instance made an error is not necessarily a sufficient basis for granting permission to appeal.

Consideration

It is useful at this stage to say a few things about the Appellant’s broad criticism of the Deputy President’s Decision and set out some relevant authorities. The first thing to be said is that it is uncontroversial that the focus of the appeal is with respect to s.386(1)(b) and the Deputy President’s conclusion that the Respondent was ‘forced’ to resign due to conduct or a course of conduct engaged in by the Appellant.

We discern no criticism of the Deputy President’s identification at [13] of the Decision the discreet question to be answered by her. Nor does either party contend that the Deputy President failed to identify the relevant authorities and principles to guide her in her decision making which she set out at [182]-[185] of the Decision.

As stated above, it is not the failure of the Deputy President to identify the statutory question to be answered that is complained of by the Appellant. Rather, it is that she erroneously applied s.386(1)(b) of the FW Act by having regard to factors which were either not supported by the evidence and/or could not be characterised as having ‘forced’ (whether taken separately or together) the Respondent to resign from her employment as of 9 December 2020.

It is further contended by the Appellant that the Deputy President impermissibly relied on criticisms and/or apparent deficiencies regarding the Appellant’s approach to their dealings with and management of the Respondent. By doing so, it is submitted by the Appellant that the Deputy President improperly conflated those with other historical factors to find there was a causal connection and that the Respondent was left with no effective or real choice but to resign.

Before turning to the specific grounds of appeal we wish to highlight relevant authorities that are now well settled. In a decision made prior to the passage of the FW Act, the Full Court of the Industrial Relations Court of Australia Mohazab v Dick Smith Electronics Pty Ltd[58] (Mohazab) was considering whether an employee had been forced to resign in circumstances where the employee signed a letter of resignation drafted by the employer shortly after being interviewed in relation to allegations of dishonesty. After setting out the findings of fact the Full Court said the following when considering the meaning of ‘termination at the initiative of the employer’;

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of the employee”.

and at 5:-
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”

More recently a Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[59] (Bupa) was dealing with an appeal of a decision in which the member at first instance found that the dismissal was within the meaning of s.386(1) and that the dismissal was unfair. The Full Bench in Bupa was concerned with a ‘forced’ resignation and how the passage of the FW Act impacted prior authorities when it stated as follows;

“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations;

· where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

· where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

Having identified there were two elements to s.386(1) and extensively considered the authorities, the Full Bench then said;

“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” (our emphasis added)

Grounds 1 and 6

Turning to the grounds of appeal, it is convenient for us to deal with grounds 1 and 6 together.

By grounds 1 and 6 the Appellant submits that the Deputy President found at [212] of the Decision a temporal connection between the historical conduct of the Appellant and the resignation of the Respondent by virtue of purported failures of the Appellant. In relation to that temporal link, the Appellant firstly contends that the finding was not supported by the evidence and failed to take into account a number of factors including;

· the circumstances of the Respondent’s refusal (and inability) to return to work since July 2016;

· attempts by the Appellant to engage with the Respondent;

· the involvement of the parties at NCAT; and

· that the Appellant did not at any stage seek, request or procure the Respondent’s resignation.

The Appellant’s contention that the Deputy President failed to take into account a number of relevant matters is rejected. The Deputy President was clearly alive to and referenced the Respondent’s capacity and attitude to returning to work for the Appellant[60]. The Deputy President also had regard to attempts of the Appellant to engage with the Respondent[61] and the fact that the parties were engaged in litigation[62]. With respect to the last point raised, it was not raised at first instance and no error is disclosed by the Deputy President not taking into account that the Appellant did not at any stage seek, request or procure the Respondent’s resignation. In any case, the fact that the Appellant did not seek, request or procure the Respondent’s resignation does not mean that its acts or omissions were not the principal contributing factor in the Respondent’s resignation.

The temporal link between the Appellant’s historical conduct and the Respondent’s resignation, found by the Deputy President at [212] of the Decision, must also in our view be considered in the context of the unique facts of this case. The various acts and omissions of the Appellant over a period of some four years were carefully considered by the Deputy President. She concluded that some acts and omissions of the Appellant constituted conduct or a course of conduct that caused the Respondent to resign while other acts and omissions did not. In regard to the latter, see for example the Deputy President’s findings in relation to the required return by the Respondent of the company motor vehicle, laptop and mobile phone when it became clear to the Appellant in mid-2016 that the Respondent would be absent from the workplace for an extended period of time[63]. See also her comments in relation to Mr Connolly’s “appropriate and professional” response to the Respondent’s initial requests regarding sick leave and annual leave[64], Mr Gillet’s sharing of the Respondent’s initial complaint with Mr Nicholson which she found was not contrary to any confidentiality obligation[65] and the lack of communication by the Appellant with the Respondent regarding a performance review and organisational restructures[66].

It is clear that the Deputy President weighed all of the relevant matters including the various conduct of the Appellant alleged by the Respondent at first instance. She carefully considered which of those factors constituted conduct or a course of conduct that left the Respondent with no real choice but to resign. The submission that the Deputy President failed to take into account relevant matters or that her findings were not supported by the evidence is rejected.

The Appellant further contends that s.386(1)(b) requires an analysis as to whether the employer behaved in such a way as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment or forced the resignation. The Appellant submits that having regard to the evidence it cannot be said that the Appellant’s purported failures forced the Respondent’s resignation. We disagree. The Deputy President’s analysis of the evidence was detailed and sound in our view and the conclusion that she reached was open to her on the evidence. The Appellant’s desire for a different outcome does not reveal error on the part of the Deputy President.

The Appellant also raises a corollary question, that being would the Respondent have remained in employment if the employer had not taken the action that it took? That question does not in our view assist the Appellant. It seems to us that one plausible answer to the corollary question is that but for the course of conduct engaged in by the Appellant, the Respondent’s employment with the Appellant would have continued. Had the Appellant not authorised the publication and promulgation of the poster, had it effectively communicated the outcome of a comprehensive investigation, proffered an adequate apology that recognised the gravity of the poster publication and continued to engage with the Respondent as an employee from early 2018 onwards, it seems entirely plausible to us that the employment relationship may have continued.

Nor is there any basis to find, according to the Appellant, that the Respondent would have remained in employment if, for instance there had been further communication by the Appellant with the Respondent from late 2017. In circumstances where the Respondent had made clear that she would not be returning to work it is implausible that the Respondent would have remained in employment given her many other complaints.

Contrary to the Appellant’s submission, there was evidence led by the Respondent at first instance that the employment relationship could and would have continued but for the conduct of the Appellant. That can be seen by evidence given by the Respondent before the Deputy President that was not subject to cross examination, where the Respondent relevantly stated the following;

“…
86.At [63] of the Connolly Statement, Mr Connolly refers to an email which I sent him on 20 November 2017…………………At this point I had not received a formal apology as Ms Halpin had promised in 2016 nor was I told how many Posters were posted or where. I continued to feel unsupported by Sydney Water especially by Mr Connolly and Ms Halpin. Sydney Water could have done these things instead of threatening me with medical termination. If it had done these things, I may have been able to return to work for it.
…
140.As I told NCAT during the costs proceedings, I did not accept that settlement offer because I thought that, since I had won the Liability Proceedings (and my counsel had argued my case well at the Appeal hearing), that Sydney Water might apologise to me and try to fix our relationship so that I could return to work for it at some point in the future. NCAT recorded my evidence to this effect at [69] and [76] of its Costs Decision. I had loved my job at Sydney Water and I did not want to walk away from it.
…
152.If things had happened differently in terms of me receiving adequate support which may have included the apology Ms Halpin had promised, together with Sydney Water presenting me with a plan for protecting me from any ridicule as a result of the Poster by training Sydney Water’s workforce that the sort of sexualised objectification in the Poster was utterly unacceptable and anyone caught saying anything about it would face disciplinary action; and Sydney Water not being so aggressively litigious, I would have had a choice not to resign. More than that, I would have returned to work for Sydney Water. However, this did not happen.
…”[67]

The Appellant also submits that the Deputy President’s criticisms of the Appellant’s conduct of the investigation and communication with the Respondent are not matters that properly arise for consideration in addressing the statutory question. Moreover, the Deputy President was, according to the Appellant, unduly influenced by other considerations including the efficacy of the investigations and observations about the poster.

Beyond the assertion that the conduct which drew criticism of the Deputy President relating to the investigation are not matters that properly arise for consideration, the Appellant does not support that assertion with relevant authorities or reasoning. In our view the failure of the Appellant to either adequately investigate and/or communicate the outcome of the investigation were highly relevant matters for the Deputy President to consider in the circumstances of this case.

The publication and distribution of a poster that publicly sexualised, demeaned and humiliated the Respondent, was an act that demanded a thorough investigation, the outcome of which ought to have been communicated to the Respondent clearly and in a timely manner. While it was unclear on the evidence before the Deputy President how comprehensive or adequate the investigation was, what was clear is that the Appellant completed its own investigation in November 2016 but failed to promptly communicate or discuss the investigation outcome with the Respondent. The Deputy President was correct to take that failure into account.

Finally, the Appellant submits that while there may have been good reasons for the Respondent to resign on 9 December 2020, that does not mean that the employment was not voluntarily left. We agree with the submission that a good reason or good reasons to resign does not mean that the resignation was not voluntary. So much is clear from the authorities, and in particular the caution urged by the Full Bench in Doumit v ABB Engineering Construction Pty Ltd[68] (Doumit) when they stated as follows;

“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.”

We accept that the line between conduct that leaves no choice but to resign and conduct that cannot be held to cause the resignation must be “rigorously observed”. We note that it was accepted by the Full Bench in Peary that a course of conduct that made continuation of the employment relationship intolerable was a basis for finding that the termination of employment was at the initiative of the employer. The facts of Peary may be distinguished from those in the present matter in that the employee claiming to have been dismissed in Peary remained at work up to the point of her resignation. At first instance the presiding member found that the “cumulative effect” of the employer’s conduct made the applicant’s situation insufferable as to make her continued employment untenable. That finding was not disturbed on appeal.

While the facts in Peary may be different to those in the present matter, the Deputy President similarly concluded that the conduct or course of conduct of the Appellant was such as to leave the Respondent no choice but to resign. We would also observe that the cumulative effect of the course of conduct engaged in by the Appellant, both acts and omissions, was ongoing at the date of resignation and we do not accept that a temporal link was not established. Furthermore, and having regard to the particular facts of this case and the lack of communication by the Appellant with the Respondent from early 2018, it is unclear what other outcome, other than resignation, might have been expected.

It follows from the above that no appealable error by the Deputy President is disclosed and we decline to grant permission to appeal in respect of grounds 1 and 6.

Ground 2

By ground 2 of its appeal the Appellant contends that the Deputy President’s reliance on the Appellant’s approval, publishing and promulgation of the poster as a basis for the establishment of the necessary jurisdictional fact in s.365 of the FW Act was misplaced. That submission is made firstly on the basis that the Respondent was said to have elected to affirm her contract of employment with the Appellant after the poster was drawn to her attention in April 2016. Secondly, the Appellant argues that the Respondent was compensated in a decision issued on 30 April 2021 by NCAT[69] (the NCAT Damages Decision) by way of damages pursuant to s.108(2)(a) of the Anti-Discrimination Act 1977 (NSW) in an amount of $100,000 for the Appellant’s conduct in approving, publishing and promulgating the poster.

The Appellant submits that having regard to the above, the Appellant’s conduct of approving and publishing the poster was not a principal contributing factor, objectively assessed, which ‘forced’ the Respondent to resign from her employment. We disagree for the reasons set out below.

On one view, the significant passage of time between the Respondent becoming aware of the poster and tendering her resignation rightly raises a question as to the contribution of that initial conduct to the decision of the Respondent to end her employment. To take such a narrow view would be to ignore the fundamental point in the unique circumstances of this case to which the Deputy President was clearly alive to at [212] of the Decision, that being the approval, publishing and promulgation of the poster was the seminal event from which all subsequent conduct of the Appellant flowed.

As to the employment affirmation point now argued by the Appellant, that point was not raised by the Appellant at first instance and no error is disclosed in the Decision by the Deputy President not engaging with that argument. In any case, it was in our view open to the Deputy President on the evidence before her to conclude that a temporal link was established between the original publication of the poster and the Respondent’s decision to resign her employment. That is so because the issue of the poster clearly remained a live and unresolved issue up to a point proximate to the Respondent’s resignation. That is evident from the lengthy litigation, the fact that the NCAT Damages Decision was not issued until after the Respondent’s resignation and the fact that the Respondent was absent from the workplace from April 2016 until her resignation on 10 December 2020.

The fact that the Respondent maintained her employment for a brief period after the 13 October 2020 NCAT Appeal Decision was explained by the Respondent in her evidence in the proceedings at first instance as being due to her hoping that the Appellant would, in the wake of that decision, render an apology to the Respondent and attempt to mend the relationship[70]. Having regard to the short delay between the 13 October 2020 NCAT Appeal Decision, the fact that the poster’s publication in early 2016 was the seminal event from which all other conduct and subsequent events flowed, and the Respondent’s evidence referred to above, the Deputy President’s finding as to a temporal and causal link between the poster and the Respondent’s resignation was open to her in our view.

As to the submission that the Respondent was compensated in a decision of NCAT by way of damages, we discern from this point that any concerns the Respondent may have held regarding her treatment by the Appellant in terms of the poster publication and promulgation were remedied by the NCAT damages award. We disagree. In doing so we note that the NCAT Damages Decision was not issued until 30 April 2021 and the Supreme Court Decision on 19 July 2021, well after the Respondent’s resignation. The fact that the Respondent may have ultimately achieved some compensation for particular conduct of the Appellant does not alter the original conduct or the subsequent course of conduct engaged in by the Appellant including the lengthy period from early 2018 when it ceased to engage with the Respondent. Nor is the NCAT Damages Decision a barrier to the Respondent’s reliance on that relevant conduct in these proceedings.

It follows from the above that we discern no error in the Deputy President’s reliance on the Appellant’s approval, publishing and promulgation of the poster as a basis for the establishment of the necessary jurisdictional fact in s.365 of the FW Act. We decline to grant permission to appeal in respect of ground 2.

Ground 3

Turning to ground 3, the Appellant contends that the Deputy President’s reliance on the Appellant’s failure to “conduct a workplace investigation culminating in outcomes that were communicated to Ms Yelda”, which in turn depended on two discreet findings of fact, was misplaced and erroneously applied the statutory question the Deputy President was required to answer.

The two discreet errors of fact referred to by the Appellant are as follows. Firstly, the Appellants submits that the Deputy President’s conclusion at [212] of the Decision that the Appellant “failed to investigate the incident and proffer to Ms Yelda the outcomes of such report - by way, for example, action it would take to avoid future recurrence” was contrary to the evidence which was referred to at [107] of the Decision where the Deputy President said the following;

“[107] During the hearing it became evident that there had been two investigations into the circumstances of the poster and Ms Yelda’s subsequent absence. It appears that one of the investigations had been conducted by Allianz. By all accounts Ms Yelda had provided a written statement for the purpose of that investigation. The second investigation commenced in August 2016 and concluded in November 2016.” (our emphasis added)

The second discreet error raised by the Appellant is said to be found at [191] of the Decision where the Deputy President stated as follows;

“[191] There was mention of an investigation having taken place in the correspondence of Ms Halpin to Ms Simson in May 2016, and then again on 20 October 2016. During the hearing it was evident there had been two investigations into the circumstances of the poster, but Counsel for Sydney Water was unable to inform as to the outcome for either. It therefore appeared that there was no outcome to an investigation, that no outcome was relayed to Ms Yelda, that no one from Sydney Water met with Ms Yelda to discuss the outcome of the investigation, and no one appeared responsible for the decision made to publish and distribute an image of Ms Yelda which had been sexualised by a slogan.” (our emphasis added)

The Appellant contends that the Deputy President’s observation that it “appeared that there was no outcome to an investigation” was in circumstances where there was no evidence led by either party as to the outcome of the investigations. The absence of evidence as to an outcome of the investigations did not in the Appellant’s submission support the Deputy President’s conclusion, which accordingly it says was in error.

The Appellant also submits that the ‘censure’ of the Appellant expressed by the Deputy President at [190] and [197] of the Decision in relation to the quality and communicated outcome of the investigation was also irrelevant to answering the statutory question. That ‘censure’ was as follows;

“[190] Perhaps strikingly, Sydney Water adduced no evidence to show it had investigated the process which culminated in the approval of the poster for publication and distribution of the same. A poster, which in my view, sexualised one of its female employees as part of what would appear to be part of an occupational health and safety work campaign. It appears that no one was held accountable for the decision to allow this to happen.

…

[197] In my view, Sydney Water’s failure to investigate the poster incident and report on the same to Ms Yelda demonstrated marked indifference to a serious incident within the workplace. Such conduct was inconsistent with the maintenance of the employment relationship. From the time of the incident until the date of Ms Yelda’s resignation, there was some four years whereby Sydney Water could have investigated this matter, promulgated a report, and discussed in person with Ms Yelda its actions in allowing her image to be used in the manner it did, and what it had introduced by way of process or procedure to prevent such occurrence reoccurring.”

The Appellant further contends that the above-referred matters relating to the investigation were not raised by the Respondent at first instance and that contrary to the views expressed by the Deputy President at [190] and [197] of the Decision , the Respondent was made aware of the location and number of posters in May 2016 and obtained a copy of the investigation report by December 2018. It therefore follows according to the Appellant that the Deputy President’s findings at [191] were telling as to error.

The Respondent also submits in the alternative that any failure of the Appellant to communicate the outcome of the investigation to the Respondent was in the context where she had refused to participate in the second investigation and further that the conduct was not proximate nor a principal or contributing factor to the Respondent’s decision to resign her employment.

Dealing firstly with the contended errors we turn to the Deputy President’s conclusion at [212] of the Decision that the Appellant “failed to investigate the incident and proffer to Ms Yelda the outcomes of such report - by way, for example, action it would take to avoid future recurrence”. On its face that statement appears incorrect to the extent that it refers to an investigation not having been undertaken. It is apparent on a fair reading of the Decision that the Deputy President was aware that two investigations were “apparently” conducted. She acknowledged this at [107], went on to make the unremarkable observation at [190] that the Appellant led no evidence during the proceedings at first instance as to the investigation process and then referred at [191] to the failure of the Appellant to communicate the investigation outcome to the Respondent. To the extent that the Deputy President misstated the nature of the evidence before her at [212] that was in our view a minor error when regard is had to the findings made by her elsewhere in the Decision as to the conduct of two investigations.

Turning to the Deputy President’s observations at [191] that it appeared “there was no outcome to an investigation, that no outcome was relayed to Ms Yelda, that no one from Sydney Water met with Ms Yelda to discuss the outcome of the investigation, and no one appeared responsible for the decision made to publish and distribute an image of Ms Yelda which had been sexualised by a slogan”, the following may be said in dealing with the Appellant’s submission that there are factual errors in those findings.

The Deputy President’s conclusion that there appeared to have been no investigation outcome and that no one had been held responsible for the decision to publish the poster appears to us to overstate the evidence before her. There was no evidence before her as to the outcome of the investigation, who if anyone had been held accountable or what actions had been taken by the Appellant to prevent a reoccurrence of the events leading to and including the approval and distribution of the poster. We also note that the complaint of the Appellant as to these particular findings is made in circumstances where it had an opportunity to address that evidentiary gap before the Deputy President at first instance and for reasons that are not apparent did not do so.

It would have been correct for the Deputy President to have stated that there was no evidence before her as to either the outcome of the investigation or whether anyone had been held accountable for the approval and distribution of the poster. While the Deputy President did in fact make a statement at [190] of the Decision that the Appellant led no evidence as to an investigation having been conducted, we nonetheless accept that the Deputy President’s statement at [191] on the apparent absence of an investigation outcome or accountability appears to misstate the evidence before her. No finding as to the investigation outcome or accountability was in our view open to be made on the evidence before the Deputy President.

As to the Deputy President’s findings that no one from the Appellant met with the Respondent to discuss the investigation outcomes and that no outcome was relayed to her, the Appellant submits that details of the investigation were relayed to her in a case meeting in May 2016. Following that meeting a Ms Simson of Resilia recorded that the outcome of an internal investigation had been shared with the Respondent[71]. With respect, reliance on the May 2016 discussion as evidence of communication of the investigation outcome to the Respondent is misconceived. That is because the Appellant’s own investigation into the approval and distribution of the poster did not commence until August 2016 and, on the Appellant Counsel’s advice to the Deputy President at first instance, was not concluded until November 2016[72]. To the extent that information was provided to the Respondent in May 2016, the information was incomplete as it pre-dated commencement of the Appellant’s own investigation.

The Appellant further submits that the Respondent obtained a copy of the investigation report in 2018. That submission is also unpersuasive given that the report was obtained as part of document discovery in the NCAT proceedings initiated by the Respondent against the Appellant and Vitality in 2018. The provision of the report in that context can hardly be said, in our view, to constitute the Appellant relaying the investigation outcome or meeting with the Respondent to discuss it. It follows from the foregoing that the Deputy President’s finding that no one communicated with the Respondent regarding the outcome of the investigation was open to her and discloses no error.

While we have identified errors in the Deputy President’s findings, we are not persuaded the errors constitute appealable error. That is because the errors did not undermine the Deputy President’s core finding that the Appellant was bound to conduct an adequate investigation and communicate the outcome to the Respondent. The Appellant’s failure to communicate the outcome of the investigation to the Respondent, save through a discovery process initiated in the NCAT proceedings, was a key failure that formed part of the ‘course of conduct’ identified by the Deputy President that led to the Applicant’s resignation. Put another way, it matters little in the circumstances of this case if the Appellant had conducted a prompt and comprehensive investigation if the outcomes were never shared and discussed with the Respondent. The Deputy President was correct to focus on the Appellant’s failure to share the investigation outcome.

As to the Appellant’s submission that the Respondent did not raise at first instance the issue of the Appellant’s failure to conduct an investigation and/or communicate the investigation outcome, we do not accept that submission for the reasons that follow. The Respondent raised the need for an ‘adequate investigation’ and to report its findings to the Respondent in its outline of arguments at first instance[73]. The issue was also raised in the Respondent’s first witness statement dated 28 May 2021[74] and in her second witness statement dated 20 August 2021[75]. It was also dealt with in by the Respondent in her outline of argument dated 23 July 2021[76] and in her outline of argument in reply dated 20 August 2021[77] . The Deputy President also acknowledged and agreed with the Respondent’s submission that it “was incumbent on Sydney Water to conduct an adequate investigation and to report its findings to her”[78].

Turning to the submission that the Respondent declined to participate in the second investigation, we discern from this point that by the Respondent declining to participate in the Appellant’s investigation, that either relieved the Appellant of an obligation to communicate the investigation outcome to the Respondent or alternatively excused its failure to do so. The submission has no merit in our view for the following reasons. The Respondent participated in the first investigation and referred the Appellant to that statement when invited to participate in the second investigation[79]. Moreover, it is entirely unclear to us what information the Respondent could have provided to the second investigation, beyond that she had provided to the first investigation, that would have shed any light on the process of the approval and distribution of the poster, that being the particular information the Respondent was seeking.

As to the proximity of the conduct to the date of resignation, we accept that the investigation and communication failures of the Appellant can be traced back to late 2016 when the Appellant completed its own investigation. The investigation outcome communication failure was however ongoing at the date of the Respondent’s resignation and as such established a temporal and causal link.

It follows from the above that we discern no appealable error in the Deputy President’s reliance on the Appellant’s failure to “conduct a workplace investigation culminating in outcomes that were communicated to Ms Yelda”, as a basis for the establishment of the necessary jurisdictional fact in s.365 of the FW Act. We decline to grant permission to appeal in respect of ground 3.

Ground 4

By this ground of appeal, the Appellant contends that the Deputy President’s reliance on the Appellant’s failure to “communicate an apology to Ms Yelda post investigation and to specify in writing the number of posters distributed, returned and destroyed” was misplaced, erroneously applied the statutory test and relied on discreet factual findings that were in error. It is also said in the alternative by the Appellant that the conduct, while not conceded, was not proximate to or a principal contributing factor, objectively assessed, in the Respondent’s resignation decision.

The first factual error pointed to by the Appellant was that the Deputy President ignored the apology that was issued to the Respondent shortly after she raised a complaint in April 2016[80]. The second contended error was the purported failure of the Appellant to inform the Respondent of the number of posters that were distributed, returned and destroyed. This latter finding, the Appellant submits, ignored the steps taken by the Appellant to obtain the relevant information and provide that information to the Respondent.

Dealing firstly with the apology issued to the Respondent, the first thing to be said is that the Deputy President did not ignore that initial apology. The Deputy President specifically referred to that apology in the Decision at [192]-[193] and, correctly in our view, observed that the apology did not reflect the gravity of what the Appellant had allowed to occur. Moreover, the apology was issued prior to any formal investigation having been undertaken, be that by Allianz or the Appellant, the latter commencing its own investigation in August 2016 and apparently not concluding it until November 2016. It is also significant that in a meeting held on 6 July 2016, Ms Halpin is recorded in the meeting notes as having stated to the Respondent that when an outcome had been reached in the investigation that was then ongoing, a formal apology would be provided to the Respondent[81]. The Deputy President was correct to conclude that an apology had not been provided to the Respondent after the completion of an investigation. No error of fact is disclosed.

Turning to the second contended error, the Appellant refers to the information provided to the Respondent in a meeting held in May 2016 where Ms Simson of Resilia is recorded as having shared a summary of the internal investigation with the Respondent, including with respect to the number of posters displayed and the depot locations of these[82]. As stated above, the Appellant’s formal investigation had not commenced in May 2016. It actually commenced in August 2016 and was not completed until November 2016 so it is unclear what ‘internal investigation’ Ms Simson was referring to. The further point to be made is that Ms Simson’s notes of the meeting with the Respondent were dated 12 May 2016, that being only three days after a note was made by Ms Halpin which relevantly stated that;

“…

Sydney Water are going to need to investigate this matter. Have you received any information yet from Reem's work area as to where the investigation is up to?
At this stage the reports regarding where the posters were put up at, when, how many and who saw them is inconsistent and unclear.

…”[83] (our emphasis added)

Putting aside the fact that Ms Simson was not an employee of the Appellant, the above indicates that any information provided to the Respondent in early May 2016 was premature and at best incomplete as it clearly preceded the conduct of a formal investigation which Ms Halpin had identified a need for. In these circumstances it was open for the Deputy President to conclude that the Appellant had failed to provide the Respondent in writing with information going to the number of posters, their location and destruction of. No error of fact is disclosed.

As to the submission that the conduct was neither proximate to nor a principal contributing factor, objectively assessed, to the Respondent’s resignation decision, we disagree. As earlier set out in dealing with grounds 1 and 6, the Deputy President did not consider the various conduct in isolation. She considered and dealt with what she found to be a course of conduct of the Appellant that commenced with the approval and distribution of the poster and culminated in the Respondent’s resignation.

The failure of the Appellant to “communicate an apology to Ms Yelda post investigation and to specify in writing the number of posters distributed, returned and destroyed” was one element of that pattern of conduct. Furthermore, contrary to the Appellant’s submission, the Appellant’s conduct of omission was ongoing at the time of the Respondent’s resignation. The causal link and cumulative effect of the course of conduct, including the failures in respect of the provision of an apology to the Respondent, were manifest in the Respondent’s decision to resign. So much was found by the Deputy President and we discern no error in her conclusion as to the contribution that the absence of an apology that recognised the gravity of the matter (the poster’s distribution) made to the Respondent’s decision to resign.

Having found no appealable error we decline to grant permission to appeal in respect of ground 4.

Ground 5

Turning to ground 5 of the appeal, the Appellant contends that the Deputy President’s reliance on the Appellant’s failure to “communicate with Ms Yelda after 2017 up until the point of resignation” was misplaced as it failed to take into account at all, or adequately the evidence referred to in ground 5(a) of the Appellant’s notice of appeal. Further, any failure of the Appellant to communicate with the Respondent after 2017 was not a principal contributing factor to her resignation in circumstances where the Respondent had clearly stated she would not be returning to work and according to various medical reports could not do so.

The matters raised at 5(a) of the Appellant’s notice of appeal are as follows;

i.The Appellant appointed a third party (Resilia P/L) to manage the Respondent’s return to work and rehabilitation;
ii.the Respondent had directed various managers not to make contact with her and had issues relating to other managers who contacted her;
iii.the Respondent had refused further assistance, whether from Resilience P/L or directly from the Appellant, in relation to any return to work either with the Appellant or another employer throughout 2016 and 2017;
iv.the Respondent had commenced proceedings against the Appellant in NCAT and the parties were engaging in the litigation from July 2016;
v.at no stage did the Appellant seek, request or invite the Respondent’s resignation; and
vi.at no stage prior to 9 December 2020 did the Respondent indicate or suggest that she would resign or feel compelled to resign.

As to the issues raised at 5(a)(i)-(iv) set out above, we do not agree that the Deputy President failed to take those matters into account at all or adequately. As regards the role of Resilia, the Decision was replete with references to their role in supporting the Respondent’s injury management and return to work[84]. The challenges raised by the Respondent’s dealings with various managers of the Appellant were referred to in the Decision[85] as was the attitude of the Respondent and barriers to her returning to work with the Appellant[86] as well as the litigation that was initiated by the Respondent[87]. Fairly read, it is apparent that the Deputy President considered and weighed those matters when she said the following in the Decision;

“[209] Indubitably, from at least early 2018, there was essentially no contact between Sydney Water and Ms Yelda. Counsel for Sydney Water conceded as much and referred to there having been litigation on foot, perhaps by way of reason for the dearth of contact. However, until the point of her resignation, Ms Yelda of course remained an employee of Sydney Water. Perhaps it was not insouciance on Sydney Water’s part, but rather an inept approach to managing an ill and injured employee –who was litigating against it. Whatever the reason, the absence of contact was unacceptable and inappropriate, and leads to a conclusion that Sydney Water no longer approached Ms Yelda as its employee.
…
[216] There is no denying that Sydney Water was placed in a difficult circumstance of managing an employee who was not fit for work for a period, who was not fit to return to its workplace, and who had opted to litigate. However, ultimately it fell upon Sydney Water to manage the situation and there was no suggestion from Sydney Water that Ms Yelda had abandoned her employment or otherwise repudiated her employment contract. While the conduct it engaged in was at times appropriate and acceptable in managing Ms Yelda for a period in 2016 and 2017, it does not negate the conclusion that Ms Yelda’s resignation was the probable result of its conduct, her having no effective or real choice but to resign in the face of Sydney Water’s prolonged silence from 2018. On an objective analysis of the evidence, the conduct of Sydney Water displayed an intent to bring the employment relationship to an end or would have had that probable result (including as at the date of resignation on 10 December 2020).”

The further point to be made is that the matters referred to in 5(a)(i)-(iii) generally related to the period of 2016 and 2017, in respect of which period the Deputy President referred to the Appellant’s conduct as “at times appropriate and acceptable”. The period of 2016/2017 was not the focus of the Deputy President’s concern when she identified the absence of communication by the Appellant with the Respondent as conduct that contributed to the probable result of bringing the employment relationship to an end. Rather, it was the period between the end of 2017 and the date of resignation that was at issue. In that period, save for some correspondence in relation to group certificates and ongoing NCAT litigation, the Deputy President, correctly in our view, identified the “prolonged silence” of the Appellant in their dealings with the Respondent.

As regards the matters raised at 5(a)(v) and (vi), we accept that the Appellant did not seek, request or invite the Respondent’s resignation at any stage. The contention that the Appellant somehow procured the Respondent’s resignation was not advanced at first instance by the Respondent, the Deputy President made no such finding in any case and was not in error by not taking those facts into account. As to the Respondent not having provided any prior notice or communication of her feeling compelled to resign, that takes the Appellant’s case no further. Had she in fact foreshadowed her resignation, that in our view would have been supportive of a conclusion that her decision to resign was a considered choice rather than a decision borne of compulsion.

Turning to the Appellant’s submission that the absence of communication with the Respondent was neither proximate to nor a principal contributing factor to the Respondent’s resignation decision. The conduct was unarguably proximate in our view, in that it commenced at the end of 2017 and was ongoing at the date of the Respondent’s resignation. The Deputy President variously found, and we agree, that the lack of Appellant contact with the Respondent from at least early 2018 was “unacceptable and inappropriate” and that it no longer “approached” her as an employee. Those findings were open on the evidence before the Deputy President.

Having found no appealable error we decline to grant permission to appeal in respect of ground 5.

Having considered the Appellant’s submissions and the materials filed on appeal, we have also considered whether this appeal attracts the public interest. We are not persuaded, for the purposes of s.604(2), that:

(i)there is a diversity of decisions at first instance such that guidance from an appellate body is required of this kind;

(ii)the appeal raises issues of importance and/or general application;

(iii)the Decision at first instance manifests an injustice, or the result is counter intuitive; or
(iv)that the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

For the reasons set out above, the Full Bench is not satisfied that the Appellant has demonstrated an arguable case of appealable error or that it would be in the public interest to grant permission to appeal pursuant to s.604(2) of the FW Act.

Permission to appeal is refused.

DEPUTY PRESIDENT

Appearances:

S Omeri of Counsel for the Applicant.
S Rauf of Counsel for the Respondent.

Hearing details:

2022.
Melbourne and Brisbane (by Microsoft Teams):
February 11.

[1] [2021] FWC 6589.

[2] Ibid at [13].

[3] Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Limited [2019] NSWCATAD 203

[4] Vitality Works Australia Pty Limited v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210

[5] Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147.

[6] Decision at [13].

[7] Ibid at [17], [20]-[21].

[8] Ibid at [25].

[9] Ibid at [33].

[10] Ibid at [43], [45].

[11] Ibid at [49]-[53].

[12] Ibid at [59].

[13] Ibid at [60].

[14] Ibid at [62], [68].

[15] Ibid at [69].

[16] Ibid at [74].

[17]Ibid at [78].

[18] Ibid at [81]-[90].

[19] Ibid at [92]-[94].

[20] Ibid at [96]-[97].

[21] Ibid at [107]-[108].

[22] Ibid at [108]-[109].

[23] Ibid at [126].

[24] Ibid at [130].

[25] Ibid at [133].

[26] Ibid at [134]-[135].

[27] Ibid at [136].

[28] Ibid at [137]-[139].

[29] Ibid at [147].

[30] Ibid at [169]-[171], [174].

[31] [2017] FWCFB 394.

[32] [2018] FWCFB 5.

[33] Mohazab v Dick Smith Electronics Pty Ltd [ No 2] (1995) 62 IR 200, 205.

[34] Decision at [187].

[35] Ibid at [189].

[36] Ibid at [190].

[37] Ibid at [191].

[38] Ibid at [192].

[39] Ibid at [193].

[40] Ibid at [199].

[41] Ibid at [200].

[42] Ibid at [201].

[43] Ibid at [202].

[44] Ibid at [203]-[204].

[45] Ibid at [205].

[46] Ibid at [209].

[47] Ibid at [211].

[48] Ibid at [212], [216]

[49] [2009] AIRCFB 680

[50] Decision at [224]-[225]

[51] Ibid at [225]-[226]

[52] Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[53] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].

[54] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].

[55] [2010] FWAFB 5343, 197 IR 266, [24] – [27].

[56] See also CFMEU v AIRC (1998) 89 FCR 200; Wan v AIRC (2001) 116 FCR 481.

[57] Wan v AIRC (2001) 116 FCR 481, [30].

[58] [1995] IRCA 625; 62 IR 200

[59] [2017] FWCFB 3941

[60] See for example in the Decision at [175]-[177], [200], [208].

[61] Ibid at [212], [216].

[62] Ibid at [209], [216], [221].

[63] Ibid at [202]-[203].

[64] Ibid at [201].

[65] Ibid at [202].

[66] Ibid at [210]-[211].

[67] Appeal Book at pp. 1530, 1544, 1546.

[68] Dec 1609/96 S Print N6999.

[69] Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107

[70] Appeal Book p.1544.

[71] Appeal book at p.718.

[72] Appeal Book at p.1955 at PN1774-PN1781.

[73] Appeal Book, p.110 at PN84 -PN88.

[74] Ibid, p.160 at PN 177.

[75] Ibid, p.1540 at PN124-PN127.

[76] Ibid, p.1056 at [95]-[98].

[77] Ibid, p.1465 at PN30e. and p.1501 at PN163-PN169.

[78] Decision at [192].

[79] Decision at [108].

[80] Appeal Book, p.503 and p.146 at [104].

[81] Ibid at p.1276.

[82] Ibid at p.718.

[83] Ibid at 716.

[84] Decision at [59], [62], [68], [81], [84], [86] and [88].

[85] Ibid at [47]-[48], [93]-[94].

[86] Ibid at [70], [80]-[90] [101].

[87] Ibid at [111], [159]-[163].

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