Tanya Carter v The Trustee for the CFC Employment Trust trading as CFC Employment Trust T/A Centurion Transport

[2016] FWC 9176

[2016] FWC 9176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tanya Carter
v
The Trustee for the CFC Employment Trust trading as CFC Employment Trust T/A Centurion Transport
(U2016/11381)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 DECEMBER 2016

Application for relief from unfair dismissal – resignation – revocation request – termination not at the initiative of the employer.

[1] On 14 September 2016, Ms Carter lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), in which she asserted that she had been unfairly dismissed by Centurion Transport. The Employer Response (Form F3) advised that the correct name of the employer was The Trustee for the CFC Employment Trust trading as the CFC Employment Trust T/A Centurion Transport (Centurion Transport). Centurion Transport objected to the application on the basis that it contended that Ms Carter resigned her employment.

[2] In a telephone directions conference convened on 3 November 2016, the parties consented to an amendment of the application pursuant to s.586 of the FW Act so as to correctly identify the employer name. I have made that amendment.

[3] The issue of whether Ms Carter was dismissed was the subject of a hearing involving a video link between Adelaide and Perth and telephone links with Karratha on 9 December 2016. In this hearing, Ms Carter was represented by Mr Mullally as agent, and Centurion Transport by Mr Uphill, as agent, pursuant to unopposed grants of permission made under s.596(2)(a) of the FW Act.

[4] In summary terms, Ms Carter commenced working for Centurion Transport in January 2014. She was a heavy rigid vehicle truck driver. Ms Carter undertook driving duties in and around Karratha and the Pilbara. Ms Carter was also an employee Occupational Health and Safety representative for some two years. The parties disagree about the extent to which she continued in that role after she was given a final warning in January 2016 for using a mobile phone whilst driving.

[5] The essential difference between the parties goes to the events of 5 September 2016. The parties agree that Ms Carter was selected to undertake an Alcohol and Other Drug test (an AOD). She requested that this test be conducted by her branch manager, Mr Dobrich. The parties disagree over the manner in which this test was undertaken. Whilst this test was in the process of being undertaken, Ms Carter made certain observations directed at Mr Dobrich. She then left the drivers lunchroom where the test was being undertaken and made other statements as she went to her truck. There is some disagreement over the nature of those statements. Ms Carter then took some personal items from her truck and gave her gate access pass and payroll fob to Mr Dobrich before leaving the site.

[6] On 6 September 2016, Centurion Transport confirmed that it accepted her resignation of the previous day.

[7] There is no dispute that Ms Carter attended her doctor at some time after leaving work on 5 September 2016. A medical certificate confirming that she was unfit for work from 5 to 16 September 2016 was later provided to Centurion Transport. The parties disagree over the date upon which this medical certificate was provided.

[8] Ms Carter’s position is that her conduct on 5 September 2016 could not reasonably be taken as constituting a resignation. Further, that before Centurion Transport forwarded its correspondence of 6 September 2016, it was aware that she had not intended to resign. In this regard, Ms Carter accepts that her conduct could lead to disciplinary action.

[9] The Centurion Transport position is that Ms Carter’s conduct and advice provided on 5 September 2016 was of such a definite and categoric nature that it confirmed her resignation. Further, that the medical certificate received two days later and subsequent discussions with Ms Carter did not establish a basis for the revocation of that resignation. Accordingly, Centurion Transport asserts that Ms Carter was not dismissed.

The evidence

[10] Ms Carter asserts that she had been engaged in an on-going disagreement with her Team Leader over the allocation of overtime work. Ms Carter’s position is that, following a number of incidents where concerns about the Team Leader were raised, she sought to raise these issues with Mr Dobrich from October 2015 but did not find him prepared to address these concerns. Ms Carter advised that she had been treated for cancer in 2016 and that, on 5 September 2016, she was concerned about her health. She asserts that her health concerns were known to Centurion Transport management.

[11] In terms of the AOD on 5 September 2016, Ms Carter advised that she requested that Mr Dobrich undertake the test as she wished to talk with him about the complaints she was getting from other workers about the unfair way overtime was being allocated. 1 Ms Carter asserts that Mr Dobrich’s behaviour toward her was demeaning such that she became upset and distressed. She advised that she said to him: “you are meant to be the Branch Manager that I can come to, to report an issue I and others have in the workplace, you can stick your job I am over you and your bullying”.2 Ms Carter advised that she also told Mr Dobrich that she was “sick of his shit as she should be able to raise issues with him”.3 Ms Carter advised that she then left the room and concluded that another employee, Mr Browne, was smirking at her so she said “ fuck you” and that, as she went through the warehouse, she said “you can get fucked and stick your job”.4 She said as she was leaving that she was going to her lawyer and to WorkSafe.5

[12] Ms Carter agrees that she then took her daily bag and her telephone from the truck and handed her access pass and payroll fob to Mr Dobrich before leaving. Ms Carter advised that she was aware that her words and actions represented “a knee-jerk reaction” 6 and when she got home she tried unsuccessfully to ring Mr Dobrich three times. She subsequently tried three times to call the Centurion Transport Regional Manager and ultimately spoke to him on 6 September 2016. Ms Carter advised that she arranged for her partner, Mr Cowan, to take her medical certificate into Centurion Transport, and that she understood this had occurred on 6 September 2016. She telephoned the Centurion Transport Human Resources Manager, Mr Doherty, on 7 September 2016 but was advised that her resignation had been accepted.

[13] Mr Cowan’s evidence was that he took Ms Carter’s medical certificate in to Centurion Transport on either 6 or 7 September 2016. He was unable to confirm the exact date but thought that it was most likely to have been 6 September 2016.

[14] Ms Turner worked for Centurion Transport for two years prior to December 2015. Her evidence went to the extent to which she considered that Mr Dobrich had treated her unfairly.

[15] Mr Browne is another Centurion Transport heavy rigid truck driver. His evidence went to his involvement in the decision not to offer Ms Carter overtime on the weekend before 5 September 2016. More particularly, Mr Browne’s evidence was that on 5 September 2016 he observed Ms Carter and Mr Dobrich having a discussion and then heard Ms Carter say to Mr Dobrich: “get fucked and stick your job up your arse”. He advised that Mr Dobrich asked her to stop and talk about her problem but she replied that she was through with talking and that he could talk to her lawyer. 7

[16] Mr Doherty’s evidence went to the extent to which he was advised about the events of 5 September 2016 by both Mr Dobrich and the Centurion Transport Regional Manager. Mr Doherty then drafted the letter of 6 September 2016 where he confirmed Centurion Transport’s acceptance of Ms Carter’s resignation. That letter summarises Mr Doherty’s understanding of the events of 5 September 2016 and concludes on the following basis:

“Tanya, this letter is confirmation of our acceptance of your resignation, this was initiated by yourself and your intent was made very clear during the meeting with Peter Dobrich and also witnessed by another employee as you exited through the warehouse.

Tanya, I will instruct payroll to pay your notice period in lieu of working that period and all other employee entitlements accrued.”

[17] Mr Doherty advised that, at the time he drafted and sent that letter he was not aware of the medical certificate provided by Ms Carter. When he was made aware of that medical certificate later on 7 September 2016 he filed it with Ms Carter’s employment records. Mr Doherty detailed the telephone discussion he had with Ms Carter on 7 September 2016 where he advised her that Centurion Transport considered that her employment had ceased. His evidence was that Ms Carter did not raise that medical certificate with him in that conversation.

[18] Mr Dobrich’s evidence went to the circumstances under which Ms Carter was given a final warning for talking on her mobile phone whilst driving in January 2015. In terms of the events of 5 September 2016, Mr Dobrich’s evidence was that he asked Ms Carter to focus on the AOD test numerous times and that he neither bullied her nor pointed his finger at her. Mr Dobrich advised that Ms Carter produced her licence but then commenced talking about why she had not been asked to work overtime that morning and other issues of concern to her. He informed her that he would complete the test and would then discuss those matters. When Ms Carter continued to express complaints about other Centurion Transport personnel, Mr Dobrich’s evidence was that:

“21. I advised Tanya that I did not think that was the case and reminded her there have been a number of times over the past 12 months where issues and disharmony had been present in the workplace where upon getting feedback from team members involved, it was Tanya who always seemed to be the common denominator. I reminded Tanya that on each of these occasions we (Myself / Bill / Luke / Jason) have spoken to her about keeping her mind on her own work and not trying to organise activities or outcomes for everyone else in the crew including the sub-contractors.

22. At this point Tanya stood up from the table and told me to “Get Fucked” and stated that “I could jam this job up my fucking arse as she was sick of this shit”.

23. I asked Tanya to sit back down so we could finish the AoD testing and then we could discuss the issues further in the meeting room.

24. Tanya replied by again telling me “No, you can get fucked” and that “I could jam this job up my fucking arse as she was sick of this shit” and commenced to storm out of the room.

25. I again I [sic] asked Tanya to sit back down so we could finish the AoD testing and then we could discuss any issues further in the meeting room.

26. Tanya ignored me and walked out of the room.” 8

[19] Mr Dobrich’s evidence was that he subsequently saw Ms Carter walking away from her truck and she advised him that she had “cleared all my shit out of the truck” 9 and handed him her gate access and payroll fob. Mr Dobrich advised that he again tried to reason with Ms Carter to get her to complete the AOD so that her issues could be discussed but Ms Carter:

“30. Tanya ignored me choosing to just shout over the top of me with an outburst of more profanity again stating that “I could get fucked and that I could jam this job up my arse”. Tanya then proceeded to walk off through the warehouse shouting “You can get fucked and you will be hearing from my Lawyer and the Union”.” 10

[20] Mr Dobrich subsequently advised his Divisional Manager and Mr Doherty of the incident. His evidence was that:

“I believe Tanya’s actions on 5 September were not out of character as this was not the first occasion where Tanya has had this type of outburst. However in the past she has not used the level of public profanity she chose to use in this instance.” 11

[21] It is also appropriate that I summarise an email chain between Ms Carter and Mr Doherty, which commenced on the morning of 8 September 2016. 12 Mr Doherty initiated this chain by advising Ms Carter that he considered she was still in possession of a company mobile phone and asking that it be returned. Ms Carter advised that the phone was with Centurion Transport. She advised “In light of what has happened I still think Centurion is a very reputable company and I wouldn’t do anything against Centurion. My issue is with Peter Dobrich which is unfortunate as I was hoping to stay within the company for many years.” Later that day Ms Carter also advised Mr Doherty in the following terms: “And I know it won’t make any difference now but I do apologise for my very unprofessional exit.”

Findings

[22] An essential requirement for the pursuit of an unfair dismissal application is that the termination of Ms Carter’s employment must meet the definition of “dismissed” in s.386 of the FW Act. This section states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2)  However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b)  the person was an employee:

(i) to whom a training arrangement applied; and

(ii)  whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c)  the person was demoted in employment but:

(i)  the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii)  he or she remains employed with the employer that effected the demotion.

(3)  Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”

[23] Ms Carter does not contend that the actions of Centurion Transport left her with no option other than to resign. Her position is simply that her behaviour on 5 September 2016 had to be assessed in the context of a difficult relationship with Mr Dobrich, her various grievances relating to overtime and management, the extent to which other staff had raised those concerns with her and her stress over her medical condition. Further, she argues that the medical certificate provided to Centurion Transport on the following day and the steps that she took to talk with the Centurion Transport Regional Manager after the incident so as to complain about Mr Dobrich, meant that Centurion Transport accepted her alleged resignation with undue haste and should have conducted a more comprehensive investigation of the incident on 5 September 2016 before doing so. Consequently, Ms Carter asserts that it was the Centurion Transport correspondence of 7 September 2016 which terminated the employment relationship. Ms Carter relied on High Court decisions 13 in support of her position that her conduct did not constitute a repudiation of her employment contract. Her alternative position is that, even if she demonstrated an intention to repudiate her contract of employment in a state of distress and anger on 5 September 2016, she had, within hours changed her mind and that her subsequent contact demonstrated that she still considered herself to be an employee.

[24] Before setting out my conclusions in these respects, I have summarised the position I have adopted about various relevant facts.

[25] Firstly, I am not satisfied that Ms Carter has established that, at the time of the termination of her employment, she was an employee Occupational Health and Safety Representative, or that any of those duties were relevant to or explained her behaviour on 5 September 2016.

[26] I have accepted that Ms Carter was concerned about overtime which she thought should be allocated more equitably. I also accept that she had some difficulty with various of the supervisors with whom she was required to deal with in the conduct of her duties. I do not see anything at all extraordinary about that such that it explains her behaviour on 5 September 2016. I am not persuaded that, in the discussion she had with Mr Dobrich on 5 September 2016, she was representing anyone other than herself.

[27] I prefer Mr Dobrich’s evidence about the events of 5 September 2016 and have accepted that he did not behave inappropriately toward Ms Carter.

[28] Ms Carter’s words on 5 September 2016 are synonymous with a resignation. She told Mr Dobrich to “Get fucked” and that he could “stick the job up his arse”. I am satisfied that words to this effect were repeated on multiple occasions. These words are consistent with a resignation, albeit crudely phrased. Furthermore, Ms Carter’s conduct in handing to Mr Dobrich her access pass and payroll fob before she left the site are absolutely consistent with a resignation. Notwithstanding that Mr Dobrich acknowledges previous outbursts on the part of Ms Carter, I have concluded that her behaviour on 5 September 2016 could leave no doubt about her intentions.

[29] I have accepted that, later on 5 September 2016, Ms Carter endeavoured unsuccessfully to discuss the incident with the Regional Manager. I do not consider that any conclusion can be drawn from the extent to which she could not contact that manager or Mr Doherty that day.

[30] I have concluded that it is most likely that the medical certificate which Ms Carter obtained on 5 September 2016 was delivered to Centurion Transport on the following day. I have accepted that it was not brought to Mr Doherty’s attention until after he had confirmed acceptance of the resignation.

[31] Lastly, I note that the letter which Mr Doherty sent to Ms Carter on 6 September 2016, accepting her resignation provided that she would be paid for her notice period in lieu of working that period.

[32] I note that, even if I concluded that Ms Carter was dismissed, her behaviour on 5 September 2016 raises significant disciplinary issues relevant to any conclusion about whether the termination of her employment was unfair. Notwithstanding that, I have directed my attention solely to the question of whether she was dismissed.

[33] The general principle and starting premise is that, once given by an employee, a resignation cannot be unilaterally withdrawn. However, a resignation which reflects a “heat of the moment” statement can be regarded as a “special circumstance” such that it may be unreasonable for an employer to assume a resignation and consequently accept it.

[34] This principle was addressed at some length by Gray J in Birrell v Australian National Airlines Commission [1984] FCA 378 (Birrell). His Honour observed:

“The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice. It is clear that such a notice could be withdrawn by the consent of both parties to the contract; it seems unnecessary to determine whether, in the case of withdrawal of a notice by consent, the existing contract continues or a new contract comes into being. A question does arise, however, whether unilateral withdrawal of a notice is possible.”

[35] His Honour then continued to address a limited range of authorities dealing with this issue. He concluded:

“These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. This conclusion is consistent with authority to the effect that unilateral withdrawal by a landlord of notice to quit is not possible: see Tayleur v. Wildin (1868) L.R. 3 Exch. 303.

Dr. Jessup relied on Martin v. Yeoman Aggregates Ltd. (1983) I.C.R. 314, a decision of the Employment Appeal Tribunal, as establishing an exception to the general rule as to withdrawal of notice of termination, where the notice was given by a person in a highly emotional state, and retracted upon recovery from that state. In that case, a director of an employer company had engaged in an argument with an employee, which resulted in the director telling the employee he was dismissed. Within five minutes, the director cooled down and retracted the dismissal. The employee insisted that he was dismissed, and sought to pursue his statutory remedies for unfair dismissal. The Employment Appeal Tribunal held that it was possible to have second thoughts, and that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat died down. In the present case, I have no hesitation in accepting that the Applicant was in a state of emotional turmoil; over the weekend of 7th and 8th May 1983, he was involved in making a choice between accepting termination or resigning, a choice which might have profound effects on his livelihood, his family and his future standing as a pilot. All this having been said, I regard the decision in Martin v. Yeoman Aggregates Ltd. as confined to its facts, and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly.”

[36] To the extent that there is any question about the relevance of the approach in Mohazab v Dick Smith Electronics Pty Ltd (No 2)(1995) 62 IR 200, the recent Full Court of the Federal Court decision in Mahoney v White [2016] FCAFC 160 [19]-[23] clearly confirms that position.

[37] The approach in Birrell is consistent with that adopted by the Industrial Relations Court of Australia in Gunnedah Shire Council v Grout (1995) 134 ALR 156 where the Full Court considered the status of a resignation in a circumstance where the employee was receiving psychiatric care. The Court addressed this issue in the following terms:

“The qualification relates to Mr Grout's mental state at the time he submitted his letter of resignation. It seems to us that, if the council knew, or should have known, that Mr Grout was then suffering such a degree of confusion or pressure that his act of resignation was not a considered and voluntary act, it was not open to it to resolve to accept the resignation. Although the factual situation is very different, the position is similar in principle to that discussed recently in Mohazab v Dick Smith Electronics Pty Ltd (IRC of A, 28 November 1995, Lee, Moore and Marshall JJ, unreported) where an employee resigned while being questioned about suspected dishonesty. The court held that, notwithstanding the resignation, the termination was a termination at the initiative of the employer, so as to fall within Div 3 of Pt VIa of the Industrial Relations Act. The court said that ``an important feature'’ of termination at the initiative of the employer ``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'’. Because voluntariness is critical, it is important to consider carefully the evidence concerning Mr Grout's mental condition at the time he submitted his resignation letter.”

[38] The Court concluded that the employee made a considered decision to leave his employment despite being given the opportunity to reconsider his position.

[39] The approach in Birrell is also consistent with that adopted by Murphy JR in Minato v Palmer Corporation Ltd (1995) 63 IR 357, where the words used by the employee in that matter appear to bear some similarity to Ms Carter’s circumstances. In that matter, Murphy JR noted that the employee, engaged in a retail store was under significant personal pressure which she discussed with her manager. In the course of an argument over rostering arrangements, the employee said she was going to resign and then proceeded to advise her manager to “shove the …. job up her a…” before leaving the store. In discussions with senior management immediately after this event the applicant maintained that she was still employed. The senior manager advised that she would sort out the matter and advised the applicant accordingly.

[40] Murphy JR noted some additional authorities on this issue in the following terms:

“The legal position is set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

“In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise …

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.”

Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as ‘special circumstances’. Where ‘special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.”

United Kingdom authorities to similar effect were followed in a recent decision in Queensland: Achal v Electrolux Pty Ltd (1993) 50 IR 236. (Cf Connally v Malifind Pty Ltd (unreported, Industrial Relations Court of Australia, Murphy JR, 1 March 1995) for a discussion of the position in relation to an “ambiguous” resignation.) Applying the above cases the issue is whether the circumstances of the applicant are such as to come within the term “special circumstances” such as to require clarification of her intention to resign, or of her actions at the store on 23 December.”

[41] In concluding that these circumstances should be described as “special circumstances” so that the circumstances of the matter were fully considered before the purported resignation was accepted, Murphy JR concluded that the employer “accepted” the resignation at a time when it was clearly apparent that the employee had not intended to terminate her employment.

[42] Before leaving the relevant authorities, it is appropriate to comment on the issue of repudiation. The distinction between termination of employment and a contract of employment which continues until it is repudiated is succinctly summarised in Searle v Moly Mines Ltd [2008]AIRCFB 1088 [22], [23].

[43] In Gunnedah Shire Council v Grout (1995) 134 ALR 156 the Court considered the extent to which a notice of resignation was ineffective because it provided inadequate notice. The Court addressed this in the following terms:

“The starting point of Moore J's reasoning in relation to termination of the employment was that Mr Grout's letter of 18 May was ineffective to terminate his employment because he gave an inadequate period of notice. We accept that three days’ notice of termination of the employment of an abattoir manager would generally be inadequate. The more contentious aspect of his Honour's decision is its second limb: that an inadequate notice is ineffective even if that notice is accepted by the recipient. In relation to that matter, his Honour quoted some observations of Denning LJ in Hill v CA Parsons & Co Ltd [1972] Ch 305 at 313:

“Then comes the important question: what is the effect of an invalid notice to terminate? Suppose the master gives the servant only one month's notice when he is entitled to six? What is the consequence in law? It seems to me that if a master serves on his servant a notice to terminate his service, and that notice is too short because it is not in accordance with the contract, then it is not in law effective to terminate the contract — unless, of course, the servant accepts it. It is no more effective than an invalid notice to quit. Just as a notice to quit which is too short does not terminate a tenancy, so a notice which is too short does not terminate a contract of employment.”

Moore J did not accept the qualification imposed by the words ``unless, of course, the servant accepts it'’. He gave two reasons. First, he said that, in Hill, the (United Kingdom) ``Court of Appeal was considering the effect of notice given by an employer which was not reasonable and had not been accepted by the employee'’; so:

“Denning LJ's observations about the effect of acceptance by the employee of notice which is too short were not essential to the determination of the appeal and, in any event, it may have been a reference not to the legal effect of the notice simpliciter but rather termination of the contract of employment by agreement.”

Secondly, he thought that what Denning LJ said was opposed to two Australian decisions: Birrell v Australian National Airlines Commission (1984) 5 FCR 447 and Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435.

As to the first reason, it is true that, in Hill, the servant did not accept the notice. So the qualification about acceptance was not germane to the facts of the case. But it was included because Denning LJ obviously thought an unqualified statement would be inaccurate. In other words, although a too-short notice is ordinarily ineffective to terminate a contract of employment, it may be made effective by the recipient's acceptance. It is inappropriate to disregard one element in a comprehensive statement of principle simply because that element did not apply to the case in which the statement was made.”

[44] I have concluded that these authorities require the consideration of Ms Carter’s circumstances in the context of the following:

● whether Ms Carter’s behaviour and actions on 5 September 2016 should be taken to represent a resignation,
● information available to Centurion Transport before the events of 5 September 2016 which would suggest that Ms Carter had not intended to resign,
● the specific circumstances of her resignation, going to the extent to which her statements and actions should have been regarded as involuntary,
● Ms Carter’s actions after she left Centurion Transport on 5 September 2016, going to the extent to which she made it clear that she had not intended to resign, and
● the extent to which Centurion Transport accepted her resignation, notwithstanding the absence of notice to this effect.

[45] I do not consider that Ms Carter’s conduct prior to the altercation with Mr Dobrich on 5 September 2016 provides any significant insight into her behaviour. I am not satisfied that she advised Centurion Transport of any stress that she was under on that day, as a result of medical concerns prior to that incident. I have accepted Ms Carter’s evidence 14 that she had told Mr Dobrich, that morning, that she did not feel good about coming to work. To this extent, Ms Carter’s evidence supports a subsequent resignation finding.

[46] I do not consider that the evidence of Ms Turner, about quite different events that occurred a year ago assists at all in the consideration of the 5 September 2016 circumstances.

[47] Further, it is clear from Mr Dobrich’s and Ms Carter’s evidence that there had been issues associated with Ms Carter’s work and the manner in which it had been undertaken in the past. The material before me does not establish that this employment history should have given rise to a question about the extent to which Ms Carter’s behaviour on 5 September 2016 should be taken on anything other than face value.

[48] In terms of the events of 5 September 2016, Ms Carter became impatient with Mr Dobrich. Notwithstanding that impatience, I can only take her lunch room statement to Mr Dobrich that he could “Get Fucked” and that he could “jam her job up his fucking arse as she was sick of this shit” 15 as a very crude and insulting way of advising him that she was resigning. That sentiment was further confirmed by Ms Carter when she repeated those words as she walked through the warehouse and added that Centurion Transport and/or Mr Dobrich would be hearing from her Lawyer and the Union.16 Furthermore, Ms Carter’s removal of at least some of her personal items from the truck is consistent with a resignation. Finally, her actions in handing, to Mr Dobrich, her access pass and payroll fob is clearly indicative of her intention to no longer be an employee. The combination of all of those actions is something which occurred over, at least, some minutes rather than being an instantaneous action.

[49] Consequently, I do not consider that there can be any doubt that the combination of these actions meant that Ms Carter resigned her employment. The question remains about whether this should be regarded as an involuntary act. In this respect, I think it is most likely that Ms Carter acted in a fit of pique or temper. However, it was a fit of temper which clearly extended for some time. Mr Dobrich’s evidence is that, right up to the time that she walked away in the direction of the car park, he gave her the opportunity to review her position.

[50] Notwithstanding that nothing in the period leading up to the 5 September 2016 incident, or the incident itself, meets the character of a “special circumstance” addressed in Minato v Palmer Corporation Ltd (1995) 63 IR 357, I have considered the extent to which Ms Carter’s actions after that incident meant that Centurion Transport should not have accepted her resignation without further investigating the matter.

[51] Ms Carter’s evidence is that, after she left the workplace she attended a doctor and obtained a medical certificate. Further, she advised that she unsuccessfully sought to contact the Centurion Transport Regional Manager. Notwithstanding the subsequent provision of that medical certificate to Centurion Transport, which I have accepted most likely occurred on 6 September 2016, I am not satisfied that the evidence establishes that Ms Carter took action immediately after the 5 September 2016 incident so as to confirm that she did not intend to resign. Her evidence about her discussion with the Regional Manager on 6 September 2016 was that:

“On Tuesday the 6th September I rang Gary again and told him what had happened. He said that he had been informed that I refused it take the AOD test and I explained to him that this was not so and that I had an incident with Peter and I wanted to lodge a formal complaint about his conduct. Gary told me to ring the Human Resources Department of the company in Perth. I was so disappointed as he didn’t even want to talk to me.” 17

[52] I have accepted Mr Doherty’s evidence that, in his telephone discussion with Ms Carter on 7 September 2016, Ms Carter did not mention her medical certificate 18 and that she did not ask him to revoke her resignation19 but did say that she didn’t resign. At the time of that telephone discussion, Ms Carter had already received the letter confirming Centurion Transport’s acceptance of her resignation.

[53] Further, the email exchange between Ms Carter and Mr Doherty on 8 September 2016 20 seems to indicate that Ms Carter had accepted that she resigned her employment but simply expressed her regret about those circumstances.

[54] The events soon after the incident on 5 September 2016 are perhaps best characterised by what did not happen. Ms Carter did not provide any form of immediate written advice to Centurion Transport to confirm that she had not intended to resign. She did not provide any form of written advice to the effect that she would be lodging a medical certificate in relation to that day. I am not satisfied that she took action to immediately contact the Centurion Transport Human Resources function to confirm that she had not resigned and wanted to remain an employee. Any of those steps might conceivably have given rise to a legitimate question about whether she had intended to resign. However, absent steps of that nature, it is very difficult to see that Centurion Transport should have categorised Ms Carter’s circumstances as anything other than an employee who resigned, on the spot, in a fit of pique.

[55] In this context, I have concluded that the Centurion Transport letter to Ms Carter of 6 September 2016 was prepared and sent before Mr Doherty had been made aware of Ms Carter’s medical certificate. Had Ms Carter taken steps to make Mr Doherty aware of that certificate as soon as she obtained it, that letter would need to be seen in a quite different light. However, on its face, the letter does no more than confirm the basis upon which Centurion Transport concluded that Ms Carter had left its employment and accepted the shortcomings in the notice requirements that would generally be expected of her.

[56] As a result, I have concluded that Ms Carter was not dismissed at the initiative of Centurion Transport and that the termination of her employment does not meet the definition of dismissal in s.386 of the FW Act. Her application must consequently be dismissed. An Order (PR588880) to this effect will be issued.

Appearances:

P Mullally agent for the Applicant.

J Uphill agent for the Respondent.

Hearing details:

2016.

Adelaide:

9 December.

 1   Exhibit A4 pn27

 2   Exhibit A4 pn31

 3   Exhibit A4 pn31

 4   Exhibit A4 pn31

 5   Transcript 9 December 2016 13.21pm

 6   Transcript 9 December 2016 13.07pm

 7   Exhibit R2 pn3

 8   Exhibit R4

 9   Exhibit R4 pn28

 10   Exhibit R4

 11   Exhibit R4

 12   Exhibit A5

 13   Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25

 14   Exhibit A4 pn27

 15   Exhibit R4 pn22

 16   Exhibit R4 pn30

 17   Exhibit A4 pn27

 18   Transcript 9 December 2016 13.52pm

 19   Transcript 9 December 2016 14.17pm

 20   Exhibit A5

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