Tania Tresize v Max Solutions Pty Ltd

[2015] FWC 6824

[2015] FWC 6824 [Note: An appeal pursuant to s.604 (C2015/7111) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 10 December 2015 [[2015] FWCFB 8201] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tania Tresize
v
MAX Solutions Pty Ltd
(U2015/7083)

COMMISSIONER BISSETT MELBOURNE, 9 OCTOBER 2015

Application for relief from unfair dismissal - s.399A application - failure to comply with directions - s587 application - no reasonable prospects of success - resignation.

[1] Ms Tania Tresize has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. Ms Tresize was employed by MAX Solutions Pty Ltd (MAX Solutions). Ms Tresize resigned from her employment on 20 April 2015. She says that she had no choice but to resign because of the conduct or course of conduct of her employer and that she was therefore dismissed in accordance with the Act.

[2] MAX Solutions raises a jurisdictional objection to the application in that it says Ms Tresize resigned and was not dismissed.

[3] Ms Tresize appeared as a witness on her own behalf. Mr Nigel Inglis, Corporate Counsel for MAX Solutions, appeared as a witness for Max Solutions.

Permission to be represented by a lawyer

[4] MAX Solutions sought permission to be represented by a lawyer or paid agent. In an ex tempore decision handed down at the commencement of proceedings I granted permission.

Application to dismiss pursuant to section 399A of the Act

[5] On 14 August 2015 MAX Solutions made an application to the Commission to dismiss Ms Tresize’s application for unfair dismissal pursuant to s.399A of the Act on the grounds that she failed to comply with the directions of the Commission.

[6] Section 399A of the Act states:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[7] The directions originally issued to the parties required:

1. Ms Tresize to file her witness statement sand outline of submissions in support of her application by 20 July 2015;
2. MAX Solutions to file and serve its material in respect of the jurisdictional objection to the application by 20 July 2015;
3. Ms Tresize to file and her material serve with respect the jurisdictional objection by 10 August 2015; and
4. MAX Solution to file and serve its materials with respect to the application for unfair dismissal by 10 August 2015.

[8] On 26 July 2015 Ms Tresize sought an extension of time for filing her submission which were due 20 July 2015 by three weeks on the grounds that she was unaware her representative had ceased acting for her, it took time to confirm they had ceased acting, and in order for her to gain new representation. The grant of the extension of time was opposed by MAX Solutions. Ultimately the extension of time was granted and Ms Tresize was required to file her material by 10 August 2015. Formal advice of this extension was sent to the parties on 14 August 2015.

[9] Ms Tresize again failed to comply with the amended directions.

[10] On 14 August 2015 MAX Solutions filed the application to dismiss Ms Tresize’s application for unfair dismissal pursuant to s.399A(1)(b) on the grounds that she had failed to comply with the directions of the Commission.

[11] On 19 August 2015 Ms Tresize served on MAX Solutions’ representative an outline of arguments and a (substantial) bundle of documents on which she intended to rely in support of her application for unfair dismissal. This material was received by the Commission on 20 August 2015.

[12] The s.399A application was not dealt with prior to the matter coming on for hearing before me.

[13] MAX Solutions indicated that it wished to pursue that application and that, further, it also made an application that the application for unfair dismissal be dismissed pursuant to s.587 of the Act on the grounds that it had no reasonable prospect of success (which I deal with later in this decision).

[14] For the reasons below I have decided not to grant the application pursuant to s.399A of the Act.

[15] I accept that Ms Tresize did not comply with the initial directions or amended direction of the Commission. She did file her material on 20 August 2015.

[16] MAX Solutions filed its materials with respect to its jurisdictional objection as required by the initial directions on 20 July 2015. It did not file any further material prior to hearing.

[17] The initial directions issued by the Commission with the filing date of 20 July 2015 set the matter down for hearing on 10 and 11 September 2015. Despite the non-compliance with the initial and amended directions by Ms Tresize, her delay in filing her material did not affect the ability to hear the application for unfair dismissal on the originally listed days. Further, MAX Solutions had access to Ms Tresize’s submission and materials for 21 days prior to the date of hearing. It does not argue that it was prejudiced in preparing its case because of the delay in filing and I find it has not been prejudiced.

[18] Because of the non-compliance and hence delay in lodging material by Ms Tresize I issued further directions giving both parties an opportunity to file any material in reply to that already filed by the other party by 7 September 2015. Ms Tresize took this opportunity, MAX Solutions chose not to.

[19] The power to dismiss an application for unfair dismissal because of failure to comply with directions of the Commission is discretionary. Non-compliance does not mean that an application must be dismissed. Rather, the Commission may dismiss the application if it is satisfied the applicant in a matter unreasonably failed to comply with directions.

[20] In this case nothing had been put to me to suggest that Ms Tresize’s failure to comply was unreasonable. Further, I have taken into account that there is no prejudice to MAX Solutions (and it does not argue any) caused by the non-compliance. The hearing date was not delayed and had MAX Solutions wished to provide further evidence they were given an opportunity to do so.

[21] Whilst I find Ms Tresize’s reasons for non-compliance wanting in some respects I have decided not to exercise my discretion in this case. The application from MAX Solutions to dismiss the application in accordance with s.399A of the Act is therefore dismissed.

Application to dismiss on grounds that the application has no reasonable prospect of success

[22] MAX Solutions made a further application at the hearing of this matter that the application for unfair dismissal be dismissed pursuant to s.587 of the Act on the grounds that it has no reasonable prospect of success.

[23] Section 587 of the Act states:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[24] MAX Solutions says that there are substantial facts in this matter that are not in dispute and that the matters which are in dispute relate to:

• Whether Ms Tresize was bullied and harassed prior to lodging a WorkCover claim in November 2012;



• Whether Ms Tresize was owed any bonuses under her employment contract;



• Whether Ms Tresize’s position – including her duties and hours of work – were unilaterally changed.

[25] MAX Solutions says that, even if the Commission accepted all of Ms Tresize’s evidence, she would not have any reasonable prospect of establishing on the balance of probabilities that she was forced to resign by the conduct or course of conduct of MAX Solutions.

[26] I do not agree with the analysis of MAX Solutions of what might be found if all of Ms Tresize’s evidence was accepted without contest. On Ms Tresize’s evidence there is an argument to be had that a course of conduct was engaged in by the MAX Solutions that led Ms Tresize to conclude that she had no choice but to resign. This course of conduct related, in part, to the failure of MAX Solutions to properly hear from and resolve, to Ms Tresize’s satisfaction, her complaints of bullying and harassment, particularly in circumstances where her return to work would mean she had direct contact with those she accused of the bullying. If her evidence was accepted uncontested it may well provide grounds for acceptance of her claim.

[27] MAX Solutions did not make this application until the hearing had commenced. I am satisfied that there is a case to be put and answered and on this basis refuse the application.

The conduct forcing resignation

[28] Ms Tresize resigned from her position with MAX Solutions by letter dated 20 April 2015. The resignation letter is some 14 pages long.

[29] Whilst it was not clearly articulated by Ms Tresize it can be inferred from the resignation letter that the issues raised in that letter are the matters that constitute the conduct or course of conduct of MAX Solutions that forced Ms Tresize to resign.

[30] In Ms Tresize’s letter of resignation it appears that the key issues are:

• Her claims of bullying and harassment were not dealt with satisfactorily;



• Her contract was breached in that there was an alteration to her position/contract without her agreement including a change of title, duties, and hours of work;



• She was not paid bonuses due to her pursuant to her contract of employment.

[31] In her written submissions Ms Tresize raises a number of further issues which she says caused her to resign. These include a failure by MAX Solutions to abide by its policies, inaccurate payslips, failure to disclose a new contract and the lack of a sustainable return to work plan. Some of these matters are raised in other correspondence between Ms Tresize and MAX Solutions either directly or indirectly but it is not clear in Ms Tresize’s submissions how she says that MAX Solutions actions on those matters constitute conduct or a course of conduct that forced her to resign. In any event they are either minor matters that, while adding to her list of complaints against her former employer, add little to the narrative set out below or are dealt with in the context of the matters identified above. To the extent additional matters were raised in evidence and or submissions as contributing factors I have considered them in making my decision.

[32] I now turn to consider the three issues identified above.

Bullying and harassment at work

[33] In November 2012 Ms Tresize made a WorkCover claim with respect to bullying she says she was subject to at the hands of her managers.

[34] After making the WorkCover claim Ms Tresize also made a formal complaint to her employer about the bullying and harassment. This complaint was investigated by Judith Fletcher, HR General Manager for MAX Solutions, and a report of the investigation was provided to Ms Tresize on 5 July 2013. 1

[35] In her report Ms Fletcher says that the complaint was forwarded to her on 25 April 2013 and that she had discussed it with Ms Tresize on 29 April 2013 but did not have any further contact with her after this date as Ms Tresize had indicated on 1 July 2013 that she did not wish to participate in any telephone calls with respect to the complaint 2. Ms Fletcher also notes in the report that Ms Tresize did advise her that her concerns related specifically to the two months prior to her lodging her WorkCover application (ie September/October 2012).

[36] With respect to the specifics of the complaint made by Ms Tresize, Ms Fletcher either found that there was no evidence to support the claims made, the actions taken did not amount to bullying, there was no basis for the statements made by Ms Tresize or the actions taken were reasonable management actions.

Complaint to Managing Director

[37] On 14 August 2013 Ms Tresize raised issues with respect to her WorkCover claim and her bullying and harassment complaint with Ms Deborah Homewood, the Managing Director of MAX Solutions. In that extensive letter Ms Tresize ‘responded’ to the report of Ms Fletcher and questioned, on a substantial number of matters in that report, the basis on which Ms Fletcher reached the conclusion she did. Ms Tresize concluded in her letter that:

The entire approach to me as an employee has been overwhelming and I am at a loss at the way in which my claim has been handled and allowed to misrepresent and breach so many policies that are not being enforced or followed, that have affected my life, my reputation and my employment status. The problems have been ongoing for a long time now…

…

I am requesting a response at your earliest, as this situation has caused several issues directly to me…I am asking your assistance, as these issues have been ongoing, and…I wish them to be resolved. 3

[38] On 23 August 2013 Ms Tresize again wrote to Ms Homewood, noted that she had not received a response to her letter of 14 August 2013, and detailed some more responses she had to matters raised in the report of Ms Fletcher and in relation to her WorkCover claim. Towards the end of the letter she seeks a response to her concerns and support in resolving her issues.

[39] Ms Tresize sent a further letter to Ms Homewood, again requesting Ms Homewood advise her of what actions MAX Solutions had taken with respect to a list of 16 items including: the bullying complaint, discrepancies in witness statements, a complaint about Ms Fletcher, her duties, hours of work and more.

[40] Ms Homewood responded to Ms Tresize on 27 August 2013 in which she indicated that once Ms Tresize had a clearance to return to work the matters raised by her could be discussed with her.

[41] Ms Tresize responded to Ms Homewood the same day and she said that she was ‘finding it overwhelming that you do not see the issues I have raised as important to take any immediate action…’ She accused Ms Homewood of not intending to support Ms Tresize. She concluded by indicating she may be forced to raise the matters that have not been addressed by Ms Homewood with Worksafe, the Fair Work Ombudsman or take matters to the courts.

[42] Ms Homewood replied to this letter on 10 September 2013 and said that she was confused about what Ms Tresize was trying to say but did not believe MAX Solutions had done anything wrong. Ms Homewood expressed her concern at Ms Tresize’s obvious unhappiness and suggested that the involvement of a third party may be a good idea.

Resolution of WorkCover claim

[43] Ms Tresize’s WorkCover claim was subject to various proceedings including conciliation in or around July 2013 and Magistrates Court proceedings until mid-2014 when it apparently was resolved.

[44] Following the conciliation proceedings of her WorkCover claim in mid-2103 Ms Tresize sought to discuss Ms Fletcher’s report with representatives from MAX Solutions. At this stage she was still not declared fit for work and was advised by Mr Inglis that:

As you are certified as medically unfit to attend work, it would be inappropriate for us to discuss the findings of the investigation with you now that is it is (sic) closed, until you are fit to return to work, or you have clearance from your doctor to do so. Once you are cleared by your doctor to do that or return to work, please let me know and we can arrange a meeting. 4

Her position, duties and hours on return to work

[45] Ms Tresize was employed as a Retention Specialist. She was employed pursuant to a contract of employment signed in March 2010. Her contract specified that she would work 30 hours per week, one day a week from home and 3 days a week from the Narre Warren office of MAX Solutions.

[46] At some time prior to Ms Tresize going on leave associated with her workers compensation claim, there was a discussion with her about MAX Solutions’ need to have her work her contracted hours from the office (that is, no longer work any hours from home). An email from the General Manger, Victoria to Ms Tresize dated 20 September 2012 is quoted in the bullying and harassment report dated 5 July 2013. That email states, in part:

Just to confirm our discussion earlier today regarding our changing business needs. As I noted your current arrangement of working from home for 14.5 hours of your 30 hour working week is not meeting our business needs…

As discussed we need you to work on site at our Narre Warren office during your work days of Monday – Thursday…As I noted we are flexible with the start date of this arrangements and work like to commence this from Monday 8^th October, 2012. If you have any issues with this start date or further questions please feel free to discuss with either Jo or I. 5

[47] No evidence was produced to indicate that Ms Tresize had put any objection back to MAX Solutions about the new arrangement although it is not clear if Ms Tresize commenced on this arrangement prior to her proceeding on leave.

[48] Many of Ms Tresize’s issues with respect to her claim that she was forced to resign appear to relate to her return to work, whether this was to a full time or part time position, her duties and whether she would continue to work from home.

[49] These issues arise, in part, from a letter sent to Ms Tresize by Ms Fletcher in August 2013 when Ms Tresize apparently indicated she was well enough to return to work. That letter was headed ‘return to fulltime work’. Whilst the heading is unfortunate – Ms Tresize was clearly employed as a part-time employee – the reminder of the letter detailed what was required by MAX Solutions to enable a return to work, including the need for a medical certificate stating that she was fit to return to work. Whilst Ms Tresize did not return to work at the time this letter was despatched to her, the letter and its instructions continued to be relied on by MAX Solutions in the subsequent efforts to have her return to work in 2014.

[50] Following the finalisation of her WorkCover matter in the Magistrates Court in mid-2014 Ms Tresize sought to return to work. On 15 October 2014 Ms Tresize emailed Mr Nigel Inglis and asked if she could be advised of:

the intentions of Max Network on the following:

• My employment, as per my contract



• Max Loyalty Bonus as per my contract



• The DES Bonus that was achieved at my site with attendance.

[51] Mr Inglis replied that day that the bonuses were discretionary and that she was ‘due back at work some time ago now. However, we are prepared to provide you with one last opportunity to present for work at 8.30am tomorrow morning.’

[52] On 21 October 2015 Mr Inglis again wrote to Ms Tresize, noted she had not returned to work and gave her notice that if she did not return or get in touch by 27 October 2014 she would be considered to have abandoned her employment.

[53] Ms Tresize got in touch and advised that her legal representative would contact Mr Inglis.

[54] In November 2014 Mr Mark Comito of Ryan Carlisle Thomas Lawyers wrote to Mr Inglis on Ms Tresize’s behalf in relation to the capacity of Ms Tresize to return to work. The issues raised in that letter included the hours of work and the duties Ms Tresize would return to. 6 On 12 December 2014 Mr Comito advised Mr Inglis that Ms Tresize was committed to returning to work in her ‘original and proper role’.

[55] Following some further exchanges of correspondence, on 9 January 2015 Mr Comito wrote to Mr Inglis and indicated that Ms Tresize was fit to return to work in her usual role as a retention specialist. 7

[56] On 28 January 2015 Mr Inglis wrote to Mr Comito and said:

We have no difficulty with your client returning to work to perform the duties as you have outlined them, and we will provide the training necessary for her to perform her duties including any new duties at the level and to the required standard outlined in the positions description for the role. 8

[57] On 6 February 2015 Mr Comito wrote to Mr Inglis and said:

We note you have no difficulty with our client returning to work to perform the duties as we have outlined them. Kindly confirm that you are referring to our client’s role as a Retention Specialist as detailed in the enclosed position statement. 9

[emphasis in original]

[58] The position description for the position of ‘Employment Retention Specialist’ dated 1 July2009 was attached to the letter.

[59] On 10 February 2015 Mr Inglis responded that:

The position is available for your client, and it always has been. All we are concerned with is making sure your client is fit to return…Of course the position is not called “retention specialist” anymore and hasn’t been for a long time, but the duties largely remain the same, and any duties your client has any problem with we will provide her with training. 10

[60] On 13 February Mr Comito emailed Mr Inglis and sought to confirm that Ms Tresize’s hours of work would be 30 per week working 3 days per week from the office and one day from home. 11 Mr Inglis responded the same day and said ‘For the third time, yes the duties she will be doing include those of what was once called retention specialist in her case, and she will be doing those duties, amongst others…’12 Mr Inglis also confirmed that Ms Tresize’s hours on resumption of work would be 30 hours per week and once she returned to work could request to work from home one day per week and that request would be considered.

[61] It was anticipated that Ms Tresize would return to work on 16 February 2015. Whilst Ms Tresize wrote to her lawyer and said she had not agreed to such a return to work date there is no evidence of any correspondence to MAX Solutions to this effect.

[62] On 17 February 2015 Ms Tresize provided a medical certificate indicating that she was unwell and unfit to work from 17-19 February 2015. Subsequent medical certificates indicated that she was suffering from anaemia and she was not fit to return to work until 20 April 2015.

[63] In the period from 13 February to 20 April 2015, in addition to the medical certificates, the only correspondence to MAX Solutions in relation to Ms Tresize’s employment were two further letters from Mr Comito, one of 27 February 2015 seeking payment to Ms Tresize of bonuses she said were owed to her and one of 8 April 2015 seeking details of Ms Tresize’s long service leave accrual.

[64] On 5 March 2015 Ms Rachel Chapman-McCowan, the National HR Manager for MAX Solutions (she replaced Ms Fletcher) sent an email to Ms Tresize in which she said

We have not heard from you this week, and to be fair we have been quite patient with you. At this stage we are letting you know that by continuing to ignore us and your obligations about getting in touch if you do not intend to show up for work, we will be taking disciplinary action, which may include terminating your employment.

[65] Ms Tresize responded that she had properly contacted the office and had provided medical certificates for the days she was due at work but unable to attend due to illness. Nothing more seems to have been come from this exchange.

[66] On 20 April 2015 Ms Tresize submitted her letter of resignation.

Access to bonuses

[67] Ms Tresize says that, pursuant to her contract of employment and the enterprise agreement that applied to her employment she was entitled to receive bonuses from MAX Solutions.

[68] In her letter of resignation she says that she did not receive a $1850 bonus which was not paid because the contract manager was on an RDO, the DES bonus or the MAX loyalty bonus (of $3,000).

[69] A consideration of Ms Tresize’s contract of employment shows that it provides for payment of a $10,000 annual bonus subject to performance. It also provides for a ‘MAX$ Loyalty Bonus’ of $1000 but does not state how often this is paid.

[70] The MAX enterprise agreement suggests that an incentive payment system may apply, subject to performance, but that this would be subject to consultation with staff.

[71] There is no reference in Ms Tresize’s contract or the enterprise agreement to a DES bonus or the program to which the $1850 is attached.

[72] Mr Inglis did advise Ms Tresize that she was not entitled to the bonuses as she was not at work at the time the bonuses were determined.

Submissions

Ms Tresize

[73] Ms Tresize submits that she made her bullying and harassment complaint in November 2012. It apparently consisted of 17 identified incidents (although the complaint itself is not before the Commission). She says that the complaint is still not resolved. She says that the final investigation report was untrue, unfair and sort to discredit her. She says that her evidence was not considered and witnesses she identified were not spoken to.

[74] She submits that she was never given an opportunity to discuss her concerns about the investigation report as she was told it would not be proper to discuss the report as the matter had been closed and could not be discussed until she returned to work. She says however it was not possible for her to return to work until she was given an opportunity to have her side of the bullying and harassment matters considered.

[75] Ms Tresize submits that, following the resolution of her workers compensation, she sought to make contact with MAX Solutions to return to work. She says however that her job was changed, that MAX Solutions insisted she return to work full time and she would be required to undergo training by one of the people she complained of bullying and harassing her. She says she never agreed to any change in her duties or that she would return to work on a full time basis.

[76] Further Ms Tresize submits that MAX Solutions refused to pay her amounts that were otherwise due to her under bonus schemes operating at MAX Solutions.

[77] Ms Tresize says that these issues, including how she was treated in attempting to resolve these, along with some other matters including payslips etc, left her with no option but to resign.

MAX Solutions

[78] MAX Solutions submits that there is no sufficient link between the claims of bullying and harassment by Ms Tresize and the act of resignation. It submits that the allegations relate to events in 2012, that Ms Tresize was found fit to return to work and the allegations were not put forward as any barrier of her return to work.

[79] With respect to the changes to duties, MAX Solutions says it encouraged Ms Tresize to return to work and confirmed that her duties would remain substantially unaltered. It submits that it offered her training that might be needed given her lengthy absence from the workplace and changes that had occurred since she was last at work.

[80] MAX Solutions submits that, on any objective analysis of its conduct, it had acted in a way to encourage and assist Ms Tresize return to work. It submits that:

• There was agreement for Ms Tresize to return to work on 16 February 2015;



• Ms Tresize (and her representative) had not raised any barriers to the return to work;



• Ms Tresize did not return to work on 16 February 2015 and submitted medical certificates stating she was not fit to return to work as she was being treated for anaemia until her resignation on 20 April 2015. There is no evidence or claim that this illness was work related;



• Ms Tresize did not place MAX Solutions on notice that she considered it had repudiated her employment contract.

[81] MAX Solutions says that the matters raised by Ms Tresize in her resignation letter are historical and pre-date her agreed return to work date. Further, it submits that if Ms Tresize had genuine concerns she could have raised these during discussions on her return to work and given MAX Solutions an opportunity to remedy the issues.

The law

[82] Section 385 of the Act states:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[83] Section 386 of the Act sets out the meaning of ‘dismissed’. It states:

(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.

[84] The meaning of the s.386(1)(b) has been considered in a number of decisions of the Commission and judicially by the courts.

[85] In Kylie Bruce v Fingal Glen Pty Ltd 13 the Full Bench of the Commission carefully analysed the relevant authorities in relation to ‘constructive dismissal’ as is relevant to s.386(1)(b) of the Act set out above. Whilst the relevant passages from that decision are lengthy I consider it worthwhile setting them out here.

[13] The test of constructive dismissal in the context of the unlawful termination provisions of the Industrial Relations Act 1998 was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v Huxley Marketing Pty Ltd (Rheinberger). The commonly quoted statement of principle in Mohazab is that:

“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”.

[14] It is important that this passage be read in the context of the judgment as a whole. It is clear that the requirements set out by the Full Court in the passage quoted are necessary, but not sufficient, to establish that employer action constitutes constructive dismissal.

[15] These principles of constructive dismissal have been applied to the unfair dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the Australian Industrial Relations Commission in Pawel v Advanced Precast Pty Ltd (Pawel)and ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering), and we accept the Applicant’s submission that those decisions are relevant to any consideration of s.386(1)(b) of the Act.

[16] In Pawel the Full Bench said that:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee...”

[17] In ABB Engineering, the Full Bench said that:

“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.”

[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

…

[21] Assuming for present purposes that the test applied by the Senior Deputy President is materially different to that set out in O’Meara, we are not satisfied that in the circumstances of the present case the Applicant was dismissed. In relation to whether the Applicant had “any effective or real choice but to resign”, two points should be noted. First, as referred to by the Senior Deputy President, there were options other than resignation by which the Applicant could have addressed the persistent late payment of her wages. Secondly, we accept that in some circumstances the late payment of wages and/or a failure to pay superannuation may be such as to amount to conduct which has forced an employee to resign. However in the circumstances of the present case we are not persuaded that persistent delays of 1-2 days in payment, with some longer delays, and a failure to pay superannuation, left the Applicant with no effective or real choice other than to resign.

[22] In relation to whether on “an objective analysis of the employer’s conduct” the late payment of wages and failure to pay superannuation “was of such a nature that resignation was the probable result”, we note that the Full Bench in O’Meara was drawing from Rheinberger. In that case Justice Moore said that:

“However it is plain from these passages [in Mohazab]that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct”.

[23] The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but “would, on any reasonable view, probably have that effect”. Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient 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”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.

[24] In the circumstances of the present case, resignation was a possible and foreseeable result of the Respondent’s conduct, and in many respects a reasonable response in the circumstances. However this is not itself sufficient to demonstrate that the Applicant’s resignation was in effect a dismissal. Given the other avenues available to the Applicant to pursue her complaints, and taking into account the nature of the Respondent’s conduct, we do not consider that the Applicant’s resignation was objectively the probable result of the Respondent’s conduct, and therefore that the Applicant was forced to resign because of that conduct. In this regard, we note that although there were delays in the payment of wages, the delays were short and the Applicant was paid her wages in full, and that the Applicant did not take any further steps to pursue her complaints other than raising them with the Respondent.

[footnotes omitted]

[86] I have adopted the approach outlined in Fingal Glen in deciding this matter.

Findings

[87] I have considered the conduct of the employer in this matter carefully.

[88] I am satisfied that Ms Tresize had a range of grievances against MAX Solutions. Some of these may have had some legitimacy and others perhaps less so. These date back to mid to late 2012 although some relate to events in 2011. These grievances do not, by their existence, demonstrate that MAX Solutions engaged in a course of conduct that forced Ms Tresize to resign. Mechanisms exist to deal with grievances in the workplace – resignation is not the only option.

[89] This is not an application where I need to resolve the grievances. Suffice it to say I think some of these could easily have been settled by clear, concise correspondence between MAX Solutions and Ms Tresize and/or her lawyer, particularly around the tasks she was to perform and her hours of work on her return to work. Others had been finalised but Ms Tresize was not satisfied with the outcome – in particular her bullying complaint and access to bonuses.

[90] Firstly, I do not consider that any of the actions of MAX Solutions of which Ms Tresize complains were intended to bring her employment to an end – that is I do not consider that these actions were deliberate actions by MAX Solutions with a clear intent to force Ms Tresize resign.

[91] It must be considered if, on an objective view, the actions of the employer would probably have the effect of bringing the employment to an end.

[92] I think that some distinction must be drawn between actions of an employer which have the probable result of bringing employment to an end and a decision of an employee, who is not satisfied with the answer they have received to grievances raised, in deciding to resign.

[93] In some respects Ms Tresize is not in a dissimilar position to that of the employee hypothesised in Pawel, quoted above, who resigns because he or she is not happy with the refusal to provide a pay rise. Ms Tresize sought an investigation into what she saw as bullying and harassment. A report was prepared (albeit with some delay). Ms Tresize remains unhappy with the investigation process and opposed to the findings.

[94] It is not my function to institute a further investigation of Ms Tresize’s bullying and harassment complaint. However, I have considered the matters she raises in her correspondence with Ms Homewood. These matters are not much more than a restatement of the claims of Ms Tresize and a statement as to why she thinks Ms Fletcher could not or should not have reached the conclusions she did. Ms Tresize clearly wanted her claims reconsidered.

[95] I see nothing unreasonable in MAX Solutions decision not to discuss the outcomes of the investigation into the bullying and harassment complaint with Ms Tresize until she had returned to work or was given a clearance from her doctor to have such a discussion. Ms Tresize was on leave for workers compensation purposes related to the same matters the investigation report of Ms Fletcher addressed. It would have been improper for MAX Solutions to take any action in discussing the report when Ms Tresize did not have medical clearance to do so. For this reason I do not think it unreasonable that there had been no further discussion with Ms Tresize about her complaint prior to her return to work. However, it would have been better if MAX Solutions set out for Ms Tresize why it was not appropriate for them to discuss the investigation report with Ms Tresize until she was fit to return to work or had a clearance from her doctor to do so.

[96] Further, I note that in the correspondence between Ms Tresize’s lawyer and Mr Inglis of MAX Solutions there is no suggestion that the non-finalisation of the complaint or the failure to discuss the report with Ms Tresize prior to her return to work had any effect on the ability of Ms Tresize to return to work. It seems to me that if the non-finalisation of the complaint was an issue of such import that it forced Ms Tresize to resign her position it would and should have been raised in the course of the correspondence in relation her return to work.

[97] Ms Tresize sought to resolve matters associated with her position, hours of work and her duties for her return to work. These issues clearly were important to her. In fact they were so important and she thought she was not being treated fairly in respect of them that she engaged her lawyer to correspond with MAX Solutions on this issue.

[98] While much might be said of the lack of clarity in the correspondence between Mr Comito and Mr Inglis, ultimately the issues raised by Mr Comito were resolved to the point where a return to work date was apparently agreed for Ms Tresize of 16 February 2015. That these matters were resolved does not suggest that they could, objectively, be considered as part of a course of conduct engaged in by MAX Solutions designed to force Ms Tresize to resign. Even if the matters were not resolved (as suggested in Ms Tresize’s correspondence to her lawyer) nothing more was put about it by Ms Tresize or her lawyer to MAX Solutions. Certainly MAX Solutions was entitled to consider this suite of matters settled. Further, it is not indicated as a matter that contributed to the personal leave she then proceeded to take.

[99] The correspondence from Mr Inglis was clear – Ms Tresize would return to her role of Retention Specialist (re-named), she would be doing substantially the same duties and she would be working 30 hours per week. She was not required to return to full time work. It would not be reasonable to think that Ms Tresize’s duties would be exactly the same – she had been absent from the workplace for over two years and changes as to how the job was performed were inevitable. Whether she could continue to perform some of her work from home appears to have been discussed and resolved prior to her going on extended leave. At worst she was clearly on notice in 2012 as to the requirements of MAX Solutions. Whilst it was raised in the correspondence from Mr Comito to MAX Solutions it was left as a matter Ms Tresize could raise on her return to work.

[100] I do not consider that there is anything in the actions of MAX Solutions with respect to the return to work of Ms Tresize that, viewed objectively, could be seen to constitute a course of conduct that forced Ms Tresize to resign. This is not to suggest that MAX Solutions are clean on the matter. As I observed above some clarity in correspondence would have helped. Instead a sense of exasperation by Mr Inglis comes through. Such a tome is not particularly welcoming to a returning employee and it may well have added to Mr Tresize’s sense of unease (although she makes no submission on this point).

[101] With respect to the matter of the payment of bonuses that Ms Tresize claimed were due to her there is very little in the material before me on this. In any event I am satisfied that Ms Tresize could have pursued these matters through other means (such as The Commission (through a dispute notification) or the Fair Work Ombudsman) had she wished to. She had, with respect to this issue at least, other reasonable means by which she could pursue the matter apart from resigning her employment. It is difficult to accept that the non-payment of the bonuses could be seen as conduct which forced her to resign. I am not convinced that the actions of MAX Solutions left Ms Tresize with no effective or real choice but to resign.

[102] Of the other matters raised by Ms Tresize I do not consider that, viewed objectively, they constitute a course of conduct by MAX Solutions that forced Ms Tresize to resign.

Conclusion

[103] It is always easy, with the benefit of hindsight, to see how matters might have been dealt with better and that is certainly the case here. That things may have been done better does not, of itself, provide evidence that Ms Tresize was forced to resign because of a course of the conduct by MAX Solutions. Viewed objectively the actions of MAX Solutions, either by themselves or collectively, cannot be said to have forced Ms Tresize to resign.

[104] My conclusion with respect to this application is reinforced by the lack of action taken by Ms Tresize on any of the matters that she says left her with no choice but to resign between 16 February 2015 and the date she did resign on 20 April 2015. There is nothing she has done in this period to suggest to MAX Solutions that she felt she believed she had no choice but to resign because of the course of action it had taken. Ms Tresize had not written to MAX Solutions or in any way communicated with then that there were issues inhibiting her ability to return to work. The only contact she appears to have had with MAX Solutions after 16 February 2015 was the provision of medical certificates and these did not indicate that her anaemia was in any way connected to those matters which she says forced her to resign.

[105] I therefore find that Ms Tresize was not forced to resign by conduct or a course of conduct engaged in by MAX Solutions.

[106] For these reasons I find that Ms Tresize was not dismissed as defined in the Act. The Commission therefore does not have jurisdiction. Ms Tresize’s application for unfair dismissal must therefore be dismissed.

[107] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

T. Tresize for herself.

S. Masters of Page Seager Lawyers with N. Inglis for the Respondent.

Hearing details:

2015.

Melbourne.

September 10.

 1   Exhibit T4, document 27. Note that exhibit T4 is a large bundle of documents. For ease of reference the Commission has numbered these is the order indicated on Ms Tresize’s document list.

 2   In her complaint to the Managing Director of 14 August 2013 Ms Tresize says that she told Ms Fletcher on 3 May 2013 that she would not speak to her on the phone and would only respond in writing.

 3   Exhibit T4, document 3.

 4   Exhibit T4, document 16.

 5   Exhibit T4, document 27 at page 5.

 6   Exhibit Max3, attachment E.

 7   Exhibit Max3, attachment J.

 8   Exhibit Max3 attachment K.

 9   Exhibit Max3, attachment L.

 10   Exhibit Max3, attachment M.

 11   Exhibit Max3, attachment N.

 12   Exhibit Max3, attachment O.

 13   [2013] FWCFB 5279.

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