Tanaya Kar v Action Drill & Blast Pty Ltd
[2023] FWC 1961
•8 AUGUST 2023
| [2023] FWC 1961 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tanaya Kar
v
Action Drill & Blast Pty Ltd
(C2023/3071)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 8 AUGUST 2023 |
Jurisdictional Objection employee not dismissed within the meaning of the Fair Work Act – employee not forced to resign – application dismissed.
Tanaya Kar (the Applicant) made an application to the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (Cth) (FW Act), alleging that she had been dismissed from her employment with Action Drill and Blast Pty Ltd (the Respondent) in breach of sections 340 and 351 of the FW Act.
The Respondent has objected to the application on the grounds that the Applicant resigned her employment and was thus not dismissed within the meaning of the FW Act.
As stated recently by the Full Bench in Lipa Pharmaceuticals v Mariam Jarouche:
“Where the respondent to a s365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.[1]”
As such, and given that the case involved contested facts, the matter was set down for hearing on 26 July 2023 to determine the jurisdictional issue.
Permission to appear
The Respondent sought leave to be represented at the hearing.
The Applicant made no submissions on the issue of the Respondent being represented. In its submissions, the Respondent drew my attention to case precedent supporting the proposition that in matters involving jurisdictional objections and particularly objections over whether or not there has been a dismissal, there will be issues of such complexity that it would be appropriate to allow representation. I accepted that this was true of the present case and exercised my discretion to allow the Respondent to be represented.
Witnesses
The Applicant gave evidence on her own behalf.
Ms Samantha Caldwell gave evidence on behalf of the Respondent.
Submissions
The Respondent filed submissions in the FWC on 3 July 2023. The Applicant’s submissions were due to be filed in the FWC on 10 July 2023. However, on 4 July 2023 the Applicant sought an extension of time for filing as she was overseas. An extension of one week was granted. However, on 18 July 2023 the Applicant sought a further extension of one week. An extension until 19 July 2023 was granted and the Applicant’s submissions were received on 19 July 2023.
The Respondent filed submissions in reply on 24 July 2023.
Background
The Applicant was engaged by the Respondent as a Serviceperson at the Karara mine site.
On 20 April 2023 Mr Graeme Fairbairn (Maintenance Supervisor, Respondent) reported a safety incident to Mr Darryn Mora (Project Manager, Respondent). Mr Fairbairn reported that the Applicant had isolated (de-energised) a drill rig in preparation for its daily service but failed to apply her personal serviceperson danger lock and tag to the isolation point before starting to fuel the drill rig. The Respondent then commenced an investigation into the Safety Incident and found that its safety procedures had been breached.
On 24 April 2023, the Respondent sent a letter to the Applicant stating that she was Stood Down with pay pending further investigation into the Safety Incident and the outcome of the investigation. On 26 April 2023 the Respondent sent a letter to the Applicant which notified her of the allegations against her, invited her to either attend a meeting or make a written response, and advised her of the possible ramifications if the breach of safety protocols was substantiated.
A meeting with the Applicant to allow her to make a response was held on 5 May 2023. A further meeting, described as an “outcomes meeting” was then held on 8 May 2023 to discuss the Respondent’s findings. Following this meeting, the Applicant tendered her resignation on 8 May 2023.
Submissions and Evidence
In its written submissions, the Respondent drew my attention to relevant case precedent dealing with whether a resignation is a termination at the initiative of the employer, highlighting Mohazab v Dick Smith Electronics Pty Ltd (No 2)[2], Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[3] and Doumit v ABB Engineering Construction Pty Ltd[4] as support for the proposition that while employer actions can be responsible for an employee’s resignation, it is only so in certain circumstances and the FWC must carefully weigh up the employer’s behaviour to determine if it was such as to be the real cause of the resignation.
The Respondent also drew my attention to the finding from Australian Hearing v Peary[5] that in cases where an employee claims forced resignation, the onus is on the employee to prove that they did not resign voluntarily.
The Respondent also noted that in Moore v Woolworths Group Limited T/A Big W[6], Love v Alcoa of Australia Limited[7], Davidson v Commonwealth[8], Davidson v Commonwealth[9] and Pacific National (NSW) Limited v Bell[10] it was found that an employer conducting a disciplinary investigation process is not of itself sufficient to force an employee’s resignation.
The Respondent submitted that, in the present case, the Applicant had voluntarily resigned and that it was not the case that she had no other choice. It was submitted that the investigation process was proper and not of itself cause for resignation and that, in any case, the Respondent had not completed its process, as the Applicant had been advised at the “outcomes meeting” that she could provide the Respondent with reasons as to why she should not be terminated and these would be considered prior to a final decision being made. Instead of doing so, the Respondent submitted that the Applicant chose to resign, as this would assist her when seeking alternative employment.
In her written submissions, the Applicant sought to clarify the thinking around her resignation. While the Respondent had suggested that she had offered to resign if it was the case that termination was a possibility, the Applicant submitted that she only explored the possibility of resignation in circumstances where the decision to terminate her had already been made.
She further submitted that during the meeting held on 8 May 2023, the Respondent had said words to the effect that they had decided to terminate her employment and had referred to the letter that was discussed at the meeting as a “termination letter” as opposed to a “show cause termination letter”. The Applicant submitted that at the meeting, she had formed the view that her employment was going to be terminated and that any opportunity to respond was at best simply a device to give an illusion of procedural fairness, as she submitted that there was nothing she could have said that would have prevented termination.
In her submissions, the Applicant conceded that being subjected to disciplinary procedures in not sufficient of itself to demonstrate forced resignation, nor does advice that employment may be terminated as a result of those processes. However, the Applicant submitted that her own experience had been that as she was expressly informed she was terminated, encouraged to resign and presented with no other options, the termination had been the Respondent’s initiative. I note that in its reply submissions, the Respondent emphatically rejects the notion that the Applicant was encouraged to resign.
In support of her position, the Applicant drew my attention to a number of cases. In the first instance, she noted the decision of Commissioner Mirabella in Costigan v KOR Equipment Solutions Pty Ltd[11], where a decision had been made to terminate an employee but he had been offered the chance to resign instead. In that case, the Commissioner found that the only choice the employee had was the way he would leave the Company and the Applicant submitted that this was the same choice she had faced.
The Applicant also cited Jenny Yang v FCS Business Service Pty Ltd[12] as support for the proposition that a forced resignation can occur prior to the completion of an investigation. She further submitted that, should the FWC not find that her dismissal falls with the ambit of s 386(1)(b) of the FW Act because the actions of the Respondent did not force her resignation, I should nonetheless find that it was a termination for the purposes of s386(1)(a), as the resignation could be considered as being given in the “heat of the moment” and the Respondent had not sought to clarify, within a reasonable time, if the Applicant genuinely wanted to resign.
I note that in its reply submissions, the Respondent rejected the relevance of the cases cited by the Applicant as it submitted that the facts of the present case differed from the circumstances in those cases. It also rejected the notion that the Applicant had resigned “in the heat of the moment”.
In addressing the Respondent’s submissions based on case precedent, the Applicant sought to draw distinctions between the circumstances of those cases and her own situation. She submitted that Moore v Woolworths Group Limited T/A Big W[13], Pacific National (NSW) Limited v Bell[14] and Davidson v Commonwealth[15] were not relevant, as the applicants in those cases had resigned prior to the outcome of a disciplinary process, whereas in the present case the Applicant claimed she did not resign until after she had been advised of her termination. She further distinguished Love v Alcoa of Australia Limited[16] as the Applicant in that case had refused to attend a meeting to discuss allegations against him, whereas in her case she had attended such a meeting.
Finally, the Applicant submitted that her case should be considered in light of the finding by Deputy President Anderson in Jarouche v Lipa Pharmaceuticals Ltd[17], which was upheld on appeal. In that case, the Applicant submitted that a decision had been made to terminate, and the only discussion was about how Dr Jarouche would exit the business. The Applicant noted that in his decision, the Deputy President found that there was “no realistic counterfactual whereby Dr Jarouche’s employment would have continued” and thus the resignation had been forced by the employer. The Respondent submitted that the circumstances of Jarouche could be distinguished from the present case as the employer in Jarouche had intended to procure a resignation while no such intent was evidenced by the Respondent.
The evidence of Ms Caldwell for the Respondent is that she attended the meeting held with the Applicant on 5 May 2023. Appended to her statement are the contemporaneous notes taken by a colleague of Ms Caldwell who was also present at the meeting. Ms Caldwell confirmed in evidence that the notes are a true and accurate reflection of the meeting. At that meeting, Ms Caldwell says that she advised the Applicant of the nature of the allegations against her and sought a response.
Ms Caldwell’s further evidence was that she advised the Applicant that the outcomes of the process could include termination. Her evidence, which is contested by the Applicant, is that the Applicant said that if the findings suggested a possible case for termination, she would like to resign. The Applicant’s contention is that she asked that if the decision was made to terminate would she be allowed to resign. The evidence of Ms Caldwell is that she indicated that the process would still need to go to the “show cause” phase but that the Applicant would have the option of resigning. Again, the Applicant challenges this on the basis that she says she was told that her resignation was something that would be “taken into consideration”. Further, her evidence was that she understood that the show cause process was simply to advise her of the outcome.
It was the Applicant’s evidence that she called Ms Caldwell prior to the meeting on 8 May 2023 and as part of that conversation asked that if a decision was taken to terminate her, would she be allowed to resign. The Applicant claims that Ms Caldwell said that the Respondent would allow her to resign.
In the meeting itself on 8 May 2023, the Applicant claims that Ms Caldwell told her that the Respondent had decided not to continue her employment and suggested that it was understood that the Applicant did not want to go through a termination process. Her evidence is that she told the Respondent that she would rather resign if the Respondent was going to terminate her employment, and that Ms Caldwell then offered to assist her to write a resignation letter. The Applicant says that she did not accept this assistance.
Ms Caldwell’s evidence is that in the meeting of 8 May 2023 she did not advise the Applicant that the Respondent had decided not to continue with her employment. Ms Caldwell’s contemporaneous notes of the meeting, which were in evidence, show that she did not tell the Applicant that she was terminated. Ms Caldwell, under cross examination, explained that she had used the “show cause” letter drafted for the Applicant, which was in evidence, as a prompt to assist her in the meeting and that she had followed this letter when speaking to the Applicant. As part of this, she would have used the word “termination” but not in the context suggested by the Applicant. Rather, it would have been used on the basis that the Respondent was considering terminating the Applicant’s employment, subject to any reasons that the Applicant gave as to why termination should not take place. In her cross examination, the Applicant sought to draw Ms Caldwell on the issue of what it was that she could have told the Respondent that might have prevented termination. Ms Caldwell did not provide an answer as she said that any such answer would be mere speculation.
Under cross examination, the Applicant maintained that she understood in the meeting of 8 May 2023 that her employment was terminated. However, she wavered in her answers when pressed. When asked if the words “your employment will not be continuing” were definitely used she answered that she had been upset and so could not recall definitively if that was the case. Mr Le Mare for the Respondent then asked if she was saying that she could not definitively recall if the words were used and the Applicant responded that she could not but that there were what she called “contextual clues” that she would be terminated.
Mr Le Mare then took the Applicant to her witness statement at paragraph 22, wherein the Applicant claims that she was told her employment would not be continuing and asked if that was correct. The Applicant answered that yes, that was what she was told. At this point Mr Le Mare pointed out to the Applicant that this answer was inconsistent with the one she had previously given.
Consideration
In his opening submissions, Mr Le Mare for the Respondent advanced the argument that the crux of the matter revolves around what was or was not said at the meeting on 8 May 2023. I agree that this is the principal issue to which I should turn my mind. Before doing so, I should address two issues that arose in submissions.
In the first instance, I must reject the proposition advanced by the Applicant that her resignation was given in the heat of the moment. Based on her own evidence, the Applicant had raised the issue of resignation on two occasions prior to the meeting on 8 May 2023. Further, the resignation itself was not submitted until some five hours after the meeting. I find that the Applicant took the view that having a resignation on her record as opposed to a termination was an advantage to her and that she had given the issue some serious consideration. I cannot therefore accept that her resignation was given in the heat of the moment.
I am also not persuaded that the present case should be likened to Jarouche. I do not find any credible evidence that the Respondent was attempting to procure a resignation from the Applicant. While the Respondent may have indicated that it was open to resignation, I do not accept that it entered the disciplinary process with a view to forcing the Applicant to resign. Further, while the Respondent may have offered to assist the Applicant in drafting her resignation, I find that this was more likely to have been intended to secure a resignation in clear terms than any attempt to force the Applicant’s hand.
The submissions and evidence of the Respondent are that at the meeting on 8 May 2023, the Applicant was advised that the allegations against her had been substantiated and that the Respondent would be seeking submissions from her as to why her employment should not be terminated. It is the Respondent’s position that it did not advise the Applicant that her employment was to be terminated and that the Applicant, consistent with her earlier inquiries, chose not to participate in the “show cause” process but rather elected to resign her employment.
The submissions and evidence of the Applicant are that at the meeting on 8 May 2023, she was advised that the Respondent would not be continuing her employment. She claimed that even if it was accepted that the meeting was not simply a termination meeting but rather an invitation to “show cause”, there was no answer she could have given that would have prevented termination. Her response was instead, consistent with what she claims was her previous position, that having been terminated, she then sought permission to resign.
In terms of what went on during the meeting on 8 May 2023, I prefer the version of Ms Caldwell. I accept her evidence regarding the notes she took of the meeting and the process she followed. Her notes indicate that she did not tell the Applicant she was terminated, nor does the letter she used as a prompt during that meeting. On this matter the Applicant’s evidence given under cross-examination was, as noted above, somewhat inconsistent and consequently unreliable. As such, I do not accept that she was told that the Respondent was not continuing her employment and further, that such references to termination as were made were made in the context of a potential outcome, subject to her making further submissions to the Respondent.
As I read the evidence submitted, the Respondent’s process has two distinct stages. The first is to give the employee an opportunity to respond to an allegation against them. From this response, the Respondent determines if the employee is indeed guilty of the alleged misconduct. If not, the process presumably ends there. However, if as in the case of the Applicant the employee is indeed guilty, then the Respondent moves to the second stage and considers what is an appropriate outcome. If that outcome could mean termination, then the Respondent advises the employee that they are considering termination but giving the employee a chance to make any submissions they wish as to why this should not occur.
The Applicant by implication says that this second stage, at least in her case, was merely a contrivance to make the process seem eminently procedurally fair. It was the Applicant’s contention that there was nothing she could have said that would have changed the outcome. While I accept that she firmly believes that to be the case, I do not agree. While there were no particular circumstances offered up by Ms Caldwell when asked a direct question about possible scenarios that may have forestalled termination, that does not mean that none exist.
In circumstances where an employer has found an employee guilty of misconduct that warrants termination, it is in the employee’s best interest to have an opportunity to address the employer on the issue of termination prior to a final decision being made. There may be significant mitigating factors at play of which the employer is unaware that may mean termination is not appropriate. Or there may not. It may be that in almost all cases termination proceeds. But that does not invalidate the process. Although in this instance the Applicant may have taken the view that nothing she could have said would have changed the outcome, the reality is that she simply could not know for certain that this was the case.
In considering this matter, I have been mindful of the findings of Deputy President Lake in Becker v Greater Bank Limited, where he said, in finding that an employee voluntarily resigned:
“That said, it seems that at some point during the meeting, the Applicant came to the view that her employment was at risk. She had been confronted by numerous new allegations regarding her poor performance and reminded of the two previous occasions when similar concerns had been raised. Faced with these mounting matters, it seems that the Applicant made the decision to resign from her employment, perhaps – rightly or wrongly – in anticipation of the potential termination of her employment. I do not, however, accept that was the only opportunity available to her. Had she not resigned, but instead responded to the show cause notice and allowed an investigation to be conducted into the branch manager’s conduct (as the Respondent had done in 2019), her employment may not have been terminated. Or it may have. Either way, resigning was not the only option available to the Applicant at the meeting on 1 June 2021. Nor, on any reasonable view, did the Respondent’s conduct force the Applicant to resign.[18]”
It seems to me that, given the response she says was given by Ms Caldwell to her question about resignation, which is set out in paragraph 28, the Applicant could have made any number of submissions in response to the “show cause” letter and, if the Respondent was still minded to terminate her employment, have tendered her resignation at that point. However, she chose not to avail herself of the opportunity to engage with the Respondent’s process and instead resigned her employment. As such, I find that the cases cited by the Respondent in paragraph 17 and the findings therein are relevant to the current matter.
Conclusion
In my assessment, it is likely that the Applicant’s employment would have been terminated unless she provided some substantial reason or reasons why termination should not proceed. However, I do not accept that she had no choice other than to resign at the point of time at which she did, as the Respondent was undertaking a process that was offering her an opportunity to address termination and make any pleas in mitigation that she so chose. The Respondent did not terminate her employment at the meeting on 8 May 2023 and for the reasons set out above, I do not accept that her resignation falls within the scope of either s386(1)(a) or s386(1)(b) of the FW Act. Her application under s365 will be dismissed, an order will follow.
DEPUTY PRESIDENT
Appearances:
T Kar, Applicant
N La Mare of Counsel for the Respondent.
Hearing details:
2023.
Perth (via Microsoft Teams):
26 July 2023.
[1] Lipa Pharmaceuticals v Mariam Jarouche 2023 FWCFB 101 [23].
[2] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, [205-206].
[3] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [32].
[4] Doumit v ABB Engineering Construction Pty Ltd (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999, 12.
[5] Australian Hearing v Peary (2009) 185 IR 359, 367 at [30].
[6] Moore v Woolworths Group Limited T/A Big W[2020] FWC 963.
[7] Love v Alcoa of Australia Limited[2012] FWAFB 6754.
[8] Davidson v Commonwealth[2011] FWA 3610.
[9] Davidson v Commonwealth[2011] FWAFB 6265.
[10] Pacific National (NSW) Limited v Bell [2008] AIRCFB 555.
[11] Costigan v KOR Equipment Solutions Pty Ltd[2022] FWC 176 [109].
[12] Jenny Yang v FCS Business Service Pty Ltd [202] FWC 4560 [80] and [96].
[13] Moore v Woolworths Group Limited T/A Big W[2020] FWC 963.
[14] Pacific National (NSW) Limited v Bell [2008] AIRCFB 555.
[15] Davidson v Commonwealth[2011] FWA 3610; Davidson v Commonwealth[2011] FWAFB 6265.
[16] Love v Alcoa of Australia Limited [2012] FWAFB 6754.
[17] Jarouche v Lipa Pharmaceuticals Ltd[2023] FWA 493 [28-33] and [115].
[18] Becker v Greater Bank Limited[2021] FWC 5063 at [36].
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