Tanya McLaren v All About Living Ltd
[2022] FWC 418
| [2022] FWC 418 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tanya McLaren
v
All About Living Ltd
(C2021/5180)
| COMMISSIONER HUNT | BRISBANE, 28 FEBRUARY 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection – applicant not dismissed – applicant resigned – resignation not caused by conduct, or a course of conduct, on the part of the respondent – no jurisdiction – application dismissed.
On 31 August 2021, Ms Tanya McLaren made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms McLaren stated that she had been dismissed from her employment with All About Living Ltd (the Respondent) on 19 August 2021. The Respondent is an aged care and disability support service.
In its Form F8A – Response to general protections application, the Respondent raised a jurisdictional objection to the application on the grounds that Ms McLaren was not terminated on the employer’s initiative pursuant to s.386(1) of the Act, and that she had resigned her employment.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Ms McLaren was dismissed before it can exercise powers under s.386 of the Act to deal with a dispute about whether Ms McLaren was dismissed in contravention of the general protections provision.
The matter was therefore listed for jurisdiction hearing in Brisbane on 5 November 2021. Ms McLaren represented herself and the Respondent was granted permission pursuant to s.596(2)(a) of the Act to be represented by Mr Richard Diqer of IRIQ Law. Mr David Worsnop, former CEO of the Respondent appeared and gave evidence for Ms McLaren. Mr Philip Anderson, current CEO of the Respondent gave evidence for the Respondent.
On 3 November 2021, I caused the following correspondence to be sent to Mr Darryl McNamara, former President of the Board of the Respondent:
“Dear Mr McNamara,
Commissioner Hunt of the Fair Work Commission is hearing the application made by Ms Tanya McLaren that she was dismissed by All About Living on account of being forced to resign, largely due to your alleged conduct.
Ms McLaren has filed evidence before the Commission which is critical of you. The evidence before the Commission will be used to assist the Commissioner prepare a written decision, determining if she was dismissed, which will be published.
The hearing is to occur from 10am AEST Friday, 5 November 2021.
Commissioner Hunt considers it appropriate for you to be informed of the hearing and the nature of the evidence which will be given by Ms McLaren about your alleged conduct.
Please confirm receipt of this email and advise chambers if you wish to attend the hearing or participate in it in any manner, which the Commissioner will then consider.”
On 4 November 2021, Mr McNamara replied:
“Thank you for your email.
I do not wish to appear or participate in the proceedings, and wish all concerned well.”
This decision deals only with the jurisdictional objection to be determined.
Legislation
Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The meaning of “dismissed” is provided at s.386:
“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.”
Ms McLaren’s evidence and submissions
Ms McLaren commenced employment with the Respondent on 16 May 2018 as an Executive Assistant. She worked closely with the then-CEO, Mr Worsnop. Mr McNamara was the President of the Respondent’s Board, having volunteered there for approximately 17 years.
Ms McLaren stated that from her commencement, Mr McNamara would frequently visit her in the office and in conversation, he would share how he had previously dismissed employees within the organisation who dared to affront him. Ms McLaren advised she took this to be a cautionary tale with him asserting his authority and power. Ms McLaren provided a number of examples of the comments made by Mr McNamara, being as follows:
“Let me tell you, I won’t put up with any bullshit most of these guys already know, and the new ones find out quickly. They know that if they try, they will be out of here so fast.”
“If anyone ever says anything bad against me, I’m going to find out, I always find out. And it never ends well for them.”
“I’ve taken on the Fair Work before, and I’ll do it again. No one ever wins against me.”
Ms McLaren reported Mr McNamara’s remarks to Ms Kathy Lawson, Human Resource Manager, asking if these events occurred and if Mr McNamara had been served a Fair Work application before. Ms Lawson confirmed this was true, stating that there had been several previous complaints and a Fair Work hearing. Ms McLaren named five former employees who had previously made complaints against Mr McNamara, and who she says were later dismissed or forced to resign.
Ms McLaren stated that on occasion, Mr McNamara would visit her at her desk and talk about a disgruntled staff member or stakeholder, and declare he was going to “bury them up to their shoulders on the Brighton Foreshore. They’ll get what’s coming.” Ms McLaren said that she raised this with Mr Worsnop and Ms Lawson. Ms McLaren explained that she is a proud Kamilaroi woman, and this threat of burying people up to their shoulders triggered her, as she described it as a method that was once used to murder Aboriginal people, particularly babies.
Ms McLaren found it shocking that Mr McNamara, the President of a charity would make such awful threats. She was disturbed that his behaviour was accepted by the organisation simply because he was a long-standing member of the Board. She stated that it became increasingly stressful for her to talk to Mr McNamara, not knowing what threats he was going to make. Ms McLaren advised that she always left the conversations with Mr McNamara worried that the threats were directed to her. Therefore, any time Mr McNamara came into the office, Ms McLaren said she would make sure to inform Mr Worsnop and Ms Lawson of what he said. She said she regularly reported his conduct, but there was no change in Mr McNamara’s behaviour.
Ms McLaren stated that in approximately February 2020, Mr McNamara visited the Lagoon Street office and called Ms McLaren and Mr Worsnop out near the pergola. He sat them down, insisted Ms McLaren make eye contact with him and said:
“I told you I will get rid of anyone who has anything negative to say against me. I’ve taken on Fair Work before, and I’ll do it again.”
Ms McLaren was shocked and shaken hearing this. Her evidence is that Mr Worsnop later informed her, “Don’t worry, I’ve got you covered.” After this incident, Ms McLaren met with her Pastor, expressing her increased stress and anxiety about how Mr McNamara’s actions were affecting her. Her Pastor suggested she put every instance of inappropriate behaviour in writing.
In April 2020, Ms McLaren’s molar split vertically all the way to the root end due to excessive teeth grinding, which was said to be from stress. She had to undertake emergency oral surgery to remove the tooth. In a post-operation appointment with her General Practitioner, Ms McLaren advised that her blood pressure was high and claimed this was stress related. Ms McLaren was then asked by her General Practitioner if she was able to take leave from work or look for an alternate job. Ms McLaren said she discussed this with her husband, and they agreed that taking leave would be the best solution. Ms McLaren emailed Mr Worsnop requesting extended unpaid leave from work as she had already used her accrued two weeks of leave. Ms McLaren advised that Mr Worsnop was very supportive and granted her leave as long as she required, and allowed her to access the balance of her sick leave.
In mid-May 2020, Ms McLaren attended a follow up appointment with her General Practitioner and found that her blood pressure had returned to normal. The practitioner asked Ms McLaren if her salary was absolutely financially necessary for her household, or if it was possible to leave her stressful work environment as it was damaging her health. In the following days, Ms McLaren emailed Mr Worsnop explaining that due to the new school location for her son, and her increased stress levels related to Mr McNamara’s action, it was increasingly difficult for her to continue in her role as Executive Assistant. Mr Worsnop called Ms McLaren, stating he understood and was extremely supportive. However, he was determined to keep Ms McLaren’s skill set for the organisation and offered reduced working hours from 20 to 12 hours a week. Also, to reduce her exposure to Mr McNamara, Mr Worsnop permitted Ms McLaren to work all her hours from home, including attending the Board meetings remotely via Teams. A revised contract was emailed to Ms McLaren reflecting these changes.
Between her return date of June 2020 and her resignation on 19 August 2021, Ms McLaren advised that Mr McNamara did not communicate with her at all. He refused to respond to any of Ms McLaren’s emails and did not include her in any correspondence. Ms McLaren stated this resulted in her repeatedly requesting information, approvals, signatures and reports with no responses at all. She said this period spanned over 15 months. Ms McLaren was worried this was related to her complaints against Mr McNamara and he was obstructing her ability to do her job. She decided to flag this with Mr Worsnop and started copying him on these emails to show her persistence, that she was not receiving any responses and why she was not meeting deadlines.
It became necessary for Mr Worsnop to step in and request for the information from Mr McNamara on Ms McLaren’s behalf. Mr McNamara did not send the material directly to Ms McLaren; rather, he would respond to Mr Worsnop, and Mr Worsnop would then pass it on to Ms McLaren. She said this affected her ability to do her job and further injured her and her support of the Board.
Due to the COVID-19 pandemic, all Board meetings were conducted over Teams. Mr McNamara’s misconduct, however, continued during these meetings in the following instances:
· In October 2020, a male employee joined the Teams meeting and his screen aspect was locked sideways. Mr McNamara proceeded to make a joke, insinuating that the employee had been watching pornography on his device and asked if he needed to clean his screen.
· On 10 November 2020, Mr McNamara was increasingly angry because the Respondent may lose a tender. He referred to the rumoured front runner organisation as a “fucking paedophile ring”. Ms McLaren found this comment offensive and degrading.
On 10 November 2020, Ms McLaren sent the following email to Mr Worsnop and Ms Lawson:
“Hi David and Kathy – we Just finished the Board meeting and I’d like my feelings noted please – on the record.
I found comments by the President – Darryl McNamara – more inappropriate than the usual crassness we let slide. I’m still in disbelief honestly that this was stated from the President of our Board.
When discussing General Business agenda item – Darryl was recounting recent information concerning the AAL tender for the Sandgate Fire Station Premises. He mentioned AAL may not be the front runner for winning the tender, and referred to the rumoured favoured community organisation – [redacted] – as a paedophile ring.
I just find this conduct absolutely abhorrent from a president representing our organisation, beyond bad sportsmanship, and would like my protests to be officially noted please.
Many thanks,
Tanya McLaren”
Following the 10 November 2020 Board meeting, Ms McLaren noted that Mr McNamara was absent from all Board meetings until July 2021. There was no explanation given to Ms McLaren, despite her continued enquiries and requests for information.
Ms McLaren became aware that between November 2020 and April 2021, the Board hired an external consultant, Ms Sonia Beyer from Governance by Design, to audit the organisation on its governance and culture. This included interviews with senior staff. Ms McLaren was omitted from the list, and when she discovered this, she asked Mr Worsnop the reason why she was not included in the interviews? Mr Worsnop responded that the process was being driven by the Board, and he did not know why.
During her discussions with senior staff who participated in this process, including Ms Lawson and Ms Fran Huestis, CFO of the Respondent, Ms McLaren discovered that Mr McNamara’s behaviour and misconduct was discussed during their interviews with Ms Beyer, including Ms McLaren’s complaints. Ms McLaren said she continued to enquire about her complaints against Mr McNamara, but she received no updates. Ms McLaren was of the view she was being frozen out.
On 9 February 2021, Ms McLaren wrote to Mr Worsnop and Ms Lawson as follows:
“Hi David and Kathy,
Following on from my previous concern I submitted re Darryl McNamara’s inappropriate behaviour (below) I’d like to record additional concerns that are weighing on my conscience and causing stress from bullying in the workplace.
There have been countless occasions where Darryl’s behaviour, as President of the Board, does not align with our code of conduct or workplace laws. I understand he has 15 years of service to AAL and so his actions are expected and mostly dismissed as ‘oh that’s just Darryl’. But there are several times I have been uncomfortable, anxious and even threated by Darryl and I feel it’s my duty to officially have these instances recorded in writing.
On more than one occasions – when we have had board meetings via Teams – a remote board member would join and have his screen aspect locked which would have him appear sideways. The latest time was [name]. Darryl proceeded to make a joke that insinuated [name] had been watching porn on his device which was the reason the screen was set sideways. He continued to ask if [name] needed to clean anything off his screen. He proceeded with this porn humour, during a minuted Board meeting, while there were three women – me included – obviously uncomfortable. One of these female board members has since resigned. This inappropriate sexual humour in the workplace comes under the workplace harassment act and I’d like it noted.
Another famous Darryl-ism is his threat ‘if they [staff/stakeholders] don’t do what I want I’ll take them down to the Brighton foreshore and bury them up to their shoulders. They’ll get what’s coming.’ I have heard this a dozen times. Aside from the obvious intimidation tactics here – as an Indigenous woman – I find this particularly insulting and infuriating. It is well-documented that Europeans stole Aboriginal children, and buried them up to their necks and murdered them as a way to intimidate and control the Indigenous population. This is particularly vile and unacceptable and does not align with AAL’s mission statement or code of conduct.
Darryl regularly stated to me, and others, that he will ‘get rid of anyone who has anything negative to say against me.’ This is obvious intimidation and harassment. He has said to me directly, and in front of David Worsnop CEO, that he has ‘taken on Workplace Australia before and he’ll do it again.’ This is blatant workplace bullying. By our President who is leading an honourable charity organisation. I find his actions so appalling, I couldn’t stay silent any longer.
These are the more severe accounts I’d like to record, but there are many others. Including my earlier complaint below where during a Board meeting he referred to a not-for-profit day-care centre as a ring of paedophiles. His behaviour is beyond unprofessional, it’s offence and degrading and needs to stop.
I have high respect for All About Living and it’s staff. I have pride in the services and support we deliver to the most vulnerable members of our community. It’s because of this, and the duress I feel in all encounters with Darryl, that I felt compelled to step forward with these accounts.
Can you please advise of next steps?
Many thanks,
Tanya McLaren”
There appears to have been no further matters of significance between February 2021 and August 2021.
On 5 August 2021, Ms McLaren learnt from Mr Worsnop that he was being forcefully removed from the CEO position by the Board. Mr Worsnop did not go into detail on this issue when he informed Ms McLaren that he would no longer be the CEO. It is Ms McLaren’s evidence that Mr Worsnop informed her that Mr McNamara had repeatedly tried to get rid of her for the past 15 months and that she should be on alert.
It is Ms McLaren’s evidence that Mr Worsnop further shared that he repeatedly denied these requests from Mr McNamara as Mr McNamara could not give any legitimate reason for her dismissal due to her high performance. Ms McLaren further asserted that Mr McNamara had several conversations, verbally and in writing, trying to have her illegally removed from her role. Ms McLaren said it seemed obvious it was related to her complaints, and he was fulfilling his promise of getting rid of anyone who says anything bad against him.
On the same day, Mr David Lulham, Vice President of the Board, called Ms McLaren and confirmed that Mr Worsnop had been removed as CEO. Ms McLaren sought an update on Mr McNamara to which Mr Lulham replied that he was unable to discuss that with her, but he could share he was going to try and recruit some females to sit on the Board. Ms McLaren stated that she had a conversation with Mr Lulham to the following effect:
Ms McLaren: Please let me know how I can help. I stay on top of the CEO emails and requests to his inbox and schedule so can continue to manage those during the transition. What will be the message we communicate?
Mr Lulham:What? You still have access? You shouldn’t have access to that anymore. Can you still see David’s systems?
Ms McLaren: As far as I know, but I haven’t checked in the last couple of hours.
Mr Lulham: You should no longer have access to that.
Ms McLaren: Would you like me to check? I can do that right now.
Mr Lulham:No, that’s OK I’ll check on my end. But I’m pretty sure that’s all been cut by now.
Ms McLaren: So who is going to be managing the communications and contracts coming into the inbox?
Mr Lulham:We have forwarded it to Leiza Rooney [Board Member]. She will be managing all of the CEO business.
Ms McLaren: But what about outstanding requests that people are waiting on? I can help there.
Mr Lulham:That won’t be necessary. Leiza is handling everything from this point.
On 8 August 2021, Ms McLaren said she sought counsel from her Pastor in light of recent information she had learned that Mr McNamara was trying to have her removed from the role for over a year. It was suggested she contact the Commission’s “Bullying and Harassment department”. Ms McLaren did contact the Commission that evening.
On 9 August 2021, Mr Philip Anderson was selected by the Board as the interim CEO. Ms McLaren stated she received his general introductory email sent to all staff, and the only other communication she received from him was a request to format a document. Ms McLaren stated she received no further communication from the Respondent or the Board. She received no emails of instructions, no discussions about her future or anything. Ms McLaren advised she logged in every day for 14 days with nothing to do, and noticed she had restricted access to inboxes and systems, further altering her position and setting her up to fail.
Ms McLaren said this was putting psychological pressure on her as she was turning up to work with virtually nothing to do and was not getting any assistance from the Respondent. She believed this all stemmed from the fact she made complaints against Mr McNamara, who was refusing to communicate with her for 15 months, which coincided with the time he was actively trying to get rid of her, according to her.
Ms McLaren stated that she noticed that she no longer had access to the enquiries inbox. She tried to log onto the website but no longer had access to edit or add content. She made inquiries but was not told why she didn’t have access.
Ms McLaren said there was nothing she could do to stop him, and it appeared that all of this was a concerted effort by Mr McNamara. She considered the impact to her was exacerbated when Mr Worsnop was forced out of the organisation by the Board as Mr Worsnop had been the main barrier between herself and Mr McNamara. She advised this increased the pressure she had already been put under.
On 10 August 2021, Ms McLaren spoke to the Commission’s Bullying and Harassment team. After this conversation, Ms McLaren received two emails from the Commission, one confirming their recent discussion and another with the link to request free legal advice.
Ms McLaren felt that there was no one protecting her, and the Respondent had done nothing in response to her complaints. She noted there was no investigation, mediation or feedback provided at all. Without Mr Worsnop as the buffer, Ms McLaren felt she was left to fend for herself and turning up to work with nothing to do seemed like a deliberate strategy to get rid of her.
On 15 August 2021, Ms McLaren spoke with her Pastor and her husband to discuss this matter further. She said her stress was mounting and her blood pressure had risen. She also advised that she started to excessively grind her teeth again, medically requiring her to take Botox in the jaw to prevent further damage. They collectively considered that there had been adverse action taken against her by Mr McNamara and zero communication from the Respondent. She considered she was being forced out of the Respondent’s business and she considered it unreasonable for her to stay.
After sorting her financial circumstances with her family, Ms McLaren submitted her resignation on 19 August 2021 to Mr Lulham. She copied Ms Lawson, Mr Anderson and Ms Leiza Rooney, Board member, into the same email, where she advised that she felt she had no other option but to resign:
“Subject: Notice of resignation
Hi David, thanks so much for the call last Thursday. I appreciated you taking significant time to discuss the Board’s perspective on the recent removal of the CEO.
Some information has since been shared with me, that the Board has been trying to have me dismissed for the past 15 months. There were no legitimate grounds, and no performance-based reason so the attempts were unsuccessful, due to the intervention of the former CEO.
I’m sure you can appreciate how I feel after hearing this.
I’d like it noted, during my three years working with All About Living, I have witnessed many accounts of abhorrent behaviour by the President, Darryl McNamara, of which official complaints have been registered in writing. Things that would have resulted in immediate dismissal in any other workplace.
Including stating to me and other staff, in person, multiple times “If anyone ever says anything bad about me, I’ll have them fired.” I thought this relevant to share considering what I have just learned.
To date, I have received only positive performance reviews from AAL and all previous employers. The quality of my work, my professional reputation, and colleague relationships are something I take great pride in. So the communications led by Darryl to have me removed come as a shock. Unfortunately, these events make it impossible for me to continue in my role.
I regret this is the way it has rolled out, I feel there is no option other than to resign. Please consider this my written notice.
It has been a pleasure working with you David. Your experience and professionalism was a welcomed addition to the Board, and I wish you all the best with the transition. I’m sorry I won’t be able to assist you through it.
Many thanks,
Tanya McLaren”
On 20 August 2021, the Respondent responded to Ms McLaren’s correspondence:
“Dear Tanya
Re: Resignation
Please accept this letter acknowledging receipt of your resignation emailed to David Lulham, Vice-Chairman of the All About Living Ltd. Board on 19th August 2021.
Please ensure that you return any documentation in your possession together with the following All About Living Ltd property:
Surface Pro Photo ID
Any monies owing to you will be paid into your bank account in the fortnightly pay period immediately after your termination date and on return of your company property.
We would like to thank you for your services and wish you all the best for the future.
Yours sincerely
Philip Anderson
Chief Executive Officer”
On 31 August 2021, Ms McLaren decided to submit her General Protections application. Her motivation for this was to ensure that the Board acknowledged the misconduct of Mr McNamara and the deliberate actions he took to intimidate, bully and injure her before finally forcing her out of her employment with the Respondent.
Ms McLaren submitted that the Respondent’s events showed a ramping up of the pressure on her, resulting in a deliberate exercise to get rid of her because she was causing problems by making complaints. She submitted that Mr McNamara applied psychological pressure to her to the point it was impossible for her to continue in her role, thus forcing her resignation.
In Ms McLaren’s reply statement, she stated that she had demonstrated that Mr McNamara purposefully cut off all communication to her and refused to send her the input she required to perform her role. She stated these actions occurred after she made written complaints about him.
She submitted that Mr McNamara’s actions constituted a campaign to have her fired, or to force her out. She stated that after Mr Worsnop was dismissed, her access to the IT system was restricted.
Ms McLaren stated that Mr McNamara’s actions culminated in a crescendo, where the stress was greatly affecting her health and she had no option but to resign.
Ms McLaren denied that there was a long gap between learning of Mr Worsnop’s discussion with Mr McNamara on 5 August 2021 and resigning her employment on 19 August 2021. Ms McLaren agreed that she applied for the Commission’s Workplace Advice Service on 10 August 2021, and was informed that there was a 10 day wait for her appointment. During the hearing it became apparent that Ms McLaren spoke with the Workplace Advice Service on 20 August 2021, following her resignation of employment.
Ms McLaren stated that she was not confident to await Mr Anderson’s time in the role as CEO, as she considered him to be an interim manager specifically hired to be loyal to the Board and carry out their immediate tasks.
Ms McLaren noted that when she resigned she gave her required notice.
Ms McLaren suggested that Mr McNamara’s services as President of the Respondent had been terminated as a result of the Respondent receiving her first witness statement in these proceedings.
Evidence given during the hearing
In evidence given during the hearing, Ms McLaren stated that Mr McNamara did not attend a Board Meeting following the November 2020 Board Meeting. During the December 2020, January and February 2021 Board Meetings, Mr McNamara was not in attendance and no explanation was given as to why he was not there. There had been no fresh matters to report as they had not had any dealings with each other, yet Ms McLaren made her written complaint in February 2021 based on earlier matters in 2020.
She considered that he was still injuring her employment during this time by ignoring her and had done so since June 2020. She confirmed that there had been no physical, in-person interaction between them since February 2020.
She was asked why she did not bring an anti-bullying application. She stated that she received advice from a staff member of the Commission on 10 August 2021 who did not think that it constituted bullying. He returned her to the general protections team.
Ms McLaren stated that she didn’t know that Mr Anderson had been appointed as the new CEO until he sent a welcome email to staff. Ms McLaren stated that Mr Anderson was not “available to her”. She agreed that Mr Anderson had requested her to do some work. She still considered that she had no work to do.
Ms McLaren stated that nobody instructed her to resign from her employment; it was a decision made by herself and her husband. She said that she wanted to resign sooner, and the draft resignation email had been in her draft folder for about one week.
She had exhausted all of her paid sick leave by this time. She said she did not know that she could bring a workers compensation claim. She conceded there had been no interaction with Mr McNamara in the period 4 – 18 August 2021.
When asked why she didn’t hold discussions with Mr Anderson, she replied, “I have nothing against Philip Anderson. He was an interim manager. It didn’t seem relevant.” She agreed that she didn’t discuss with Mr Anderson what she could have done to overcome the issues she was concerned about.
The fact that Ms McLaren was working part-time hours was discussed during the hearing as a reason why she would not be looking after Mr Worsnop’s inbox after he had been dismissed. Ms McLaren agreed the access to Mr Worsnop’s email account was provided to a Board member instead of her. Ms McLaren conceded that she did not raise with Mr Anderson that upon his appointment, she did not have access to his email account.
Ms McLaren agreed in cross-examination that she never complained to the Board about Mr McNamara’s conduct; she only ever complained to Mr Worsnop and to HR. She agreed in cross-examination that she was prepared to work out her three-week notice period when she resigned.
Evidence of Mr David Worsnop
Mr Worsnop commenced as the CEO of the Respondent in early February 2016 until his termination on 5 August 2021. He advised that the organisation had purposely grown from 20 to 130 staff, and from $1.7 million annual revenue to $1.7 million monthly revenue, in line with the 2016 to 30 June 2020 Strategic Plan. He stated that during this period, no applications had been made to the Commission and there had been minimal staff resignations.
Mr Worsnop advised that he, Ms McLaren and other senior management staff such as Ms Fran Heustis (CFO), Ms Lawson and Ms Elvira Brown, worked closely with the Board providing timely reports, human resource advice and management accounts to ensure the organisation could be governed effectively and grow rapidly.
On 5 August 2021, Mr Worsnop’s employment was terminated by telephone, without any earlier notice, by Mr McNamara and Mr Jon Bishop (Treasurer/Company Director). Mr Worsnop considered that he had given “his life” to the organisation, and he considered the manner in which he was dismissed by Mr McNamara to be a shameful act of unprofessionalism, demonstrating a lack of candour and respect.
Mr Worsnop stated that as he was mid-call with Mr McNamara, Mr Lulham went about cutting his IT access from him. Mr Lulham also cut IT access of senior management staff including Ms McLaren, Ms Huestis, Ms Lawson and Ms Brown. Mr Worsnop considered that this purposely inhibited the staff from the ability to fulfil their responsibilities to the organisation. He considered the action to be underhanded and clandestine.
Mr Worsnop stated that the above management staff had to discover for themselves that their IT access had been cut, which he considers would add to their fear of being targeted for termination.
Mr Worsnop considered that his employment was terminated by the Board due to him making multiple written complaints about his forced, external consultant-led performance review process, that the Board did not undertake themselves, in the usual manner, and in breach of the Respondent’s Staff Performance Review Policy and Procedure.
Mr Worsnop complained that the Board’s salary offers of 1.4% was not in the vicinity of staff Social, Community, Home Care and Disability Services Industry Award (SCHADS Award) salary offers of 6% to 7% over the same 18 month period where his salary was frozen by the Board and not increased in line with prevailing market rates. Mr Worsnop advised he had exceeded his KPIs and produced a record annual surplus of $1.2 million for the 2020/21 financial year, plus the freehold donation of State Government building and land valued at over $1.5 million. For $2.7 million of value created, Mr Worsnop considered the amount of a $3,900 salary increase (18 months delayed) to be meagre. He stated that he had rejected the offer of a $3,900 increase and had repeatedly asked the Board to return to the negotiating table which it refused to do so. He considered it was a blatant act of bad faith.
According to Mr Worsnop, the Board and President not only demonstrated mala fides towards him, but also towards Ms McLaren and Ms Huestis when they attended Board meetings. He stated that staff members would often leave Board meetings upset about the way they had been treated.
Mr Worsnop’s email correspondence to the Board about his complaints were regularly not acknowledged and appeared to be wholly ignored. He said that Ms McLaren has been subjected to this same bullying behaviour through ostracisation by the Board in not acknowledging her correspondence. In Mr Worsnop’s view, it was a clear tactic practised by all Board members and was persistent and ongoing.
Mr Worsnop stated that since February 2019, the Respondent’s Board meetings and Strategic Planning meetings had become increasingly hostile and toxic in behaviour towards staff members, including himself. He said others affected included Ms Huestis and Ms McLaren.
He stated that despite most staff working from home for around 18 months due to the COVID-19 pandemic, and the toxicity of the Board, including bullying and abhorrent behaviour towards senior staff, the Respondent grew revenue by $4.5 million revenue over the 2020/21 year. Mr Worsnop said that he, Ms McLaren and the senior staff remained in regular communications by phone, email and Microsoft Teams. Ms McLaren regularly shared her personal offense and distress with Mr Worsnop as they had witnessed the deterioration of all Board members’ behaviours, and indeed those of Mr McNamara, to one of a toxic, bully-boy, gang-up mentality.
Mr Worsnop encouraged Ms McLaren to take leave to reduce her anxiety from the Board’s behaviour. He managed to persuade her to stay employed on reduced working hours as she had discussed resigning from her employment on various occasions due to feeling stressed and anxious about the unprofessional, toxic bullying and harassment by the Board members, including Mr McNamara.
Mr Worsnop found Ms McLaren, and other senior staff, had performed to an outstanding level of achievement over the past 18 months in circumstances where they had witnessed and been subjected to the Board’s toxic culture and unprofessional behaviours towards each other and senior staff. Mr Worsnop said that he, Ms McLaren and Ms Huestis had all borne the brunt of the Board who were wholly incompetent and a risk to the organisation and staff. For example, the Board regularly attended meetings without pre-reading the materials supplied, yet attacked staff over issues that they should have been aware of had they undertaken their obligation to prepare as a Director. He said that constant blaming was a regular occurrence and staff were continually upset at having to ‘bear the brunt’ of the Board’s ignorance and hubris on display at each meeting. The Board’s consistent lack of preparation resulted in meetings unnecessarily taking 2 to 3 hours when they should be completed within 60 minutes.
Mr Worsnop explained that a Board’s job is governance, strategy and performance review of the CEO. He considered that the Board failed to undertake the CEO performance review and to reward and remunerate him fairly. He noted that there had been five staff resignations and two Board resignations since his employment was terminated.
Mr Worsnop stated that Ms McLaren and Ms Huestis were the subject of Mr McNamara’s and the Board’s desire to terminate their employment. Mr Worsnop stated that this is reflected in the CEO Performance Review 2021, dated 31 May 2021, recorded as follows:
“Where has performance not met expectations?
Directors are keen to ensure that the following inputs were being provided in the spirit of constructive feedback and to enable your further grow as a leader:
…
· Company/Board secretarial services are sub-standard, and Directors struggle with quality and timeliness of materials and minute taking. The Board would like to see more accountability and respect from this role.”
Mr Worsnop responded to that particular part of the CEO Performance Review 2021, dated 11 June 2021 as follows:
“Disagree to this extraordinary allegation. Minutes are circulated for approval within 48 hours of each Board meeting. My observations are the timeliness of approval of minutes rests with Board members, not the staff who are constantly following up seeking approvals, without responses from the Board. Tanya, Fran and I operate as the professionals that we are and it rests with volunteer Board members to pull their weight. To have the President constantly sniping from the sidelines stating that I should sack Tanya and Fran for alleged disrespect, when they are doing their jobs professionally, is nothing short of extraordinary to say the least.”
According to Mr Worsnop, most staff in the office live in fear of the Board and in particular, fear of reprisal from Mr McNamara. He described Mr McNamara as a tall, solidly-built Corrections Officer who regularly used his size and stature to his advantage in his profession towards prisoners. Mr McNamara served on the Board for close to 17 years.
Mr Worsnop described Mr McNamara as a “dour, acerbic person with a belligerent and authoritarian outlook towards staff, prone to making unprofessional remarks or comments.” He provided the following examples:
Labelling people as “knuckle draggers” when they appeared to be intellectually challenged or homeless;
Suggesting staff were disrespectful when rolling their eyes (often at an inappropriate comment made by Mr McNamara or other Board members comments and behaviours);
The “usual” burying people on the Brighton/Sandgate mudflats at low tide;
the paedophile comment towards the competing organisation; and
the masturbation comment towards a male employee.
Mr Worsnop had heard from long-serving staff members that Mr McNamara and the Board have instituted “staff cleanouts” for no valid reason every five to six years. Apparently the last “cleanout” was in December 2015, just before he started in February 2016. He considered that there was currently another Board-sanctioned “cleanout” underway since he was terminated on 5 August 2021.
Mr Worsnop considered that having borne witness to the deterioration of the Board over his last 18 months in the role and being subject to the abhorrent behaviours of the Board members, once his employment was terminated, it was then only a matter of time for other staff members including Ms McLaren to conclude that they had no option but to resign from their employment or face termination by the Board.
Evidence given during the hearing
In oral evidence, Mr Worsnop stated that when Board members came to the office, he tried to keep them out as they were “dangerous”. He said that he was inclined to take them to breakfast or to lunch to keep them away from the staff. He said that in particular, Mr McNamara’s conduct was very problematic. Mr Worsnop raised it with him and noticed that Mr McNamara would change his behaviour for a while before reverting to inappropriate behaviour. Mr Worsnop considered that because Mr McNamara was a volunteer for such a long period of time, a not-for-profit doesn’t “take out” its volunteers. He did consider Mr McNamara to be “unhinged” at times.
Mr Worsnop stated that he didn’t raise with the Board their inappropriate conduct towards staff members; he raised it only with Mr McNamara. Mr Worsnop considered that he would have been dismissed earlier than he was if had raised the concerns the staff had with the Board collectively.
He stated that after the COVID-19 lockdown in 2020 ended, around 50% of the Respondent’s staff worked from home. He noted that Ms McLaren did not have any physical contact with Mr McNamara since February 2020. He considered that Mr McNamara took a dislike to Ms McLaren from February 2020. Mr Worsnop noted that Mr McNamara was keen to initiate a single channel of communications through him.
In cross-examination, Mr Worsnop stated that he never said to Ms McLaren that Mr McNamara had declared on 5 August 2021 that he had been trying to dismiss her for the past 15 months. Mr Worsnop denied Ms McLaren’s evidence on this point.
In re-examination, Mr Worsnop stated that during the 5 August 2021 conversation with Ms McLaren, he encouraged her to continue and prosper. He considered that her part-time role could be performed remotely.
Evidence and submissions of the Respondent
The Respondent objected to the application on the grounds that Ms McLaren was not dismissed from her role with the Respondent. On the contrary, Ms McLaren had resigned.
The Respondent noted that Ms McLaren claimed that she had been dismissed consistent with the meaning provided in s.386(1)(b). The Respondent cited the Explanatory Memorandum to the Fair Work Bill where it provides that:
“1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
· where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
· where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
The Respondent noted that the second limb of s.386(1)(b) of the Act was considered in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavasolli:[2]
“[47] Having regard to the above authorities and the bifurcation in the definition of ‘dismissal’ established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
…
(2) A resignation that is ‘forced’ by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the [probable] result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
The Respondent submitted that Ms McLaren has failed to demonstrate that the Respondent’s conduct was such that the employee had no effective or real choice but to resign. Ms McLaren has provided a number of issues she had with Mr McNamara, the majority of which related to comments he made in her presence. The Respondent asserted that Ms McLaren is required to demonstrate that these comments were made, and this conduct was engaged in, with the intention of bringing Ms McLaren’s employment to an end or that the termination of Ms McLaren’s employment was the probable result of the Respondent’s conduct such that Ms McLaren had no effective or real choice but to resign.
The Respondent noted that Ms McLaren’s complaint regarding the comments made by Mr McNamara were around November 2020. It submitted that it could not been a driving force for Ms McLaren’s resignation in August 2021.
Further, the Respondent noted Ms McLaren’s most recent complaint was received on 9 February 2021. She has not provided in her material any allegation of any behaviour of this kind which has continued beyond that point. The Respondent submitted that the onus is on Ms McLaren to demonstrate that the matters about which she complained were undertaken with the intention to bring her employment to an end or that the termination of her employment was the probable result of the Respondent’s conduct, such that Ms McLaren had no effective or real choice but to resign.
With respect to the comments she asserted that Mr McNamara had made, the Respondent submitted that there is a significant gap of time between the dates they are alleged to have occurred and the date of the resignation. Ms McLaren has indicated that the majority of these comments occurred while she was working in the office, however, Ms McLaren worked all her hours from home starting in June 2020. Further, Ms McLaren has provided that once she began working from home through to the date of her resignation, Mr McNamara did not communicate with her directly.
The Respondent submitted that it is apparent that there were no comments made to Ms McLaren in the months leading up to her resignation by Mr McNamara which demonstrated that conduct was engaged in with the intention of bringing Ms McLaren’s employment to an end or that the termination of Ms McLaren’s employment was the probable result of the Respondent’s conduct, such that Ms McLaren had no effective or real choice but to resign.
The Respondent contended that Ms McLaren’s other allegations relate to perceived attempts by Mr McNamara to terminate her employment. Ms McLaren stated that she became aware of these allegations on 5 August 2021, following Mr Worsnop’s termination. The Respondent made no submissions at this point as to the veracity of these statements. However, whether true or not, the Respondent submitted that there was a significant gap between Ms McLaren learning of these alleged events on 5 August 2021 and her resignation on 19 August 2021.
The Respondent submitted that Ms McLaren’s conduct indicated that she had other options but to resign. She had identified these herself, where on 10 August 2021, she claimed to have been contacted by a staff member of the Commission’s Bullying and Harassment team. The Respondent submitted that one of the options available to Ms McLaren was to make an application for an order to stop bullying. Further, Ms McLaren appeared to have been provided with the details of the Workplace Advice Service, wherein she could have received one hour of free advice to deal with the matter. She could have raised the issue with a solicitor who would have made recommendations far less drastic than resigning from her employment. This could have included filing a General Protections claim which did not involve dismissal, which was another option for Ms McLaren other than a resignation.
The Respondent suggested that Ms McLaren, in the 14 days following her conversation with Mr Worsnop, could have engaged with Mr Anderson, the new CEO, and discussed her concerns. However, Ms McLaren has not indicated that she made any efforts to raise her concerns with the new CEO. Ms McLaren provided that her only contact with him was a general introductory email he sent to all staff, and one request to format a document.
The Respondent submitted that if Ms McLaren had concerns about her workload, or the security of her position, she could have raised this with Mr Anderson at the time. The Respondent also suggested that during her conversation with Mr Lulham on 5 August 2021, she could have raised her concerns with him regarding the allegations and sought assurances regarding her employment.
The Respondent submitted that there were a multitude of options available to Ms McLaren, however, she did not opt to take any of them. Rather, she chose to provide her notice of resignation to Mr Lulham on 19 August 2021. Further, Ms McLaren did not resign effective immediately, rather, she chose to provide her notice of resignation.
In Singh v West Coast Industrial Supplies Pty Ltd T/A WCIS,[3] the Respondent referred to Senior Deputy President Richards where he had considered an employee’s willingness to continue work with an employer:
“[79] Ordinarily, an employee who is forced to resign their employment because of the course of conduct of the employer will resign immediately because the relationship has reached such a point that it is no longer sustainable and there can no longer be personal service of the contract of employment. The sudden and comprehensive repudiation of the employment relationship is often indicative of the difficulty in the employment relationship at the relevant time.
[80] Here, however, the Applicant maintained the relationship for a further month upon giving notice of her resignation. I do note further, as the Applicant for her part indicated in the course of the proceedings, that had she not fallen ill following the handover a few days into her notice period, she would have continued to provide services to the Respondent.
[81] The conduct of the Respondent, therefore, had not been so odious or repugnant so as to cause the Applicant to repudiate immediately the presumed employment relationship.”
The Respondent noted that Ms McLaren stated that she became aware of the alleged conduct on 5 August 2021, but then continued to work through 19 August 2021, wherein she provided her contractual three weeks’ written notice. The Respondent submitted that the conduct of the Respondent must not have been so odious or repugnant so as to cause Ms McLaren to repudiate immediately the employment relationship. Rather, it appeared evident to the Respondent that Ms McLaren was unhappy with the cessation of Mr Worsnop’s employment and had chosen not to continue her employment due to this unhappiness. Ms McLaren made no attempts to communicate with Mr Worsnop’s replacement, Mr Anderson, to resolve her concerns relating to the cessation of Mr Worsnop’s employment.
The Respondent seeks to rely on the decision of Commissioner Cambridge in Kutty v Coast2Bay Housing Group Ltd,[4] where he stated:
“[39] Unfortunately, the applicant has appeared to misconstrue the concept of constructive dismissal and she has attempted to artificially elevate some concerns about changed terms of employment without properly communicating and attempting to fully resolve those concerns with the employer. A constructive dismissal is not established by a resignation founded upon unhappiness with changed employment circumstances, particularly if such changed circumstances appear to be reasonable and comprehended by the general terms, stated and implied, of the contract of employment.
[40] As a matter of fundamental fairness, the applicant was obliged to inform the employer that her concerns about relocation were of such significance that her continued employment was in jeopardy. If, after having been alerted to the potential for resignation from employment, the employer made little or no attempt to resolve or otherwise mitigate the issues, only then could the concept of constructive dismissal be potentially enlivened.”
According to the Respondent, Mr Anderson was never provided with the opportunity to resolve Ms McLaren’s concerns following the cessation of Mr Worsnop’s employment. As Ms McLaren’s direct supervisor and CEO of the Respondent, he was never given the option to resolve or otherwise mitigate Ms McLaren’s issues. The Respondent submitted that this is an alternative option that Ms McLaren had before her that she failed to utilise. Had Ms McLaren raised her concerns with Mr Anderson and then he had failed to make an attempt to resolve or mitigate the issues, the Respondent argued that the concept of a constructive dismissal could then be potentially enlivened.
The Respondent submitted that Ms McLaren had a number of effective or real choices that she did not pursue other than a resignation. The Respondent acknowledged that these options are not exhaustive, and there were a number of other options available to Ms McLaren other than her resignation.
The Respondent noted that once Ms McLaren’s application in this matter was received by the Respondent, Mr McNamara stood down from his role.
Evidence of Mr Philip Anderson
Mr Anderson is the Respondent’s CEO. He stated that he briefly worked with Ms McLaren before she resigned her employment. He stated that it was a tumultuous time, coming in as the new CEO after the previous CEO had been dismissed.
Mr Anderson stated that he asked Ms McLaren to complete a number of tasks for him, including having her draft a standard letter to be sent out to Government funding bodies advising them that the Respondent was now a proprietary limited company. He said that Ms McLaren chose not to do this, stating that it was better for Ms Huestis to perform this task. Other than this, Mr Anderson advised he also asked Ms McLaren to review his draft document to the Board, edit and format it for consistency.
Following the hearing, the following evidence was supplied to demonstrate the communication between Mr Anderson and Ms McLaren, which I have accepted into evidence:
“On 16 Aug 2021, at 3:42 pm, Philip Anderson […] wrote:
Hello Tanya,
I wonder whether you could assist and apply the company logo to the
cover page of this document.
Also format for me as I am not aware of what fonts, font sizes the
board is used to.
I have three documents to attach.
Can you please
[links to documents]
One more to come from Kathy.
I will send in a separate email.
I would like this sent out tomorrow as I have a teams meeting with the
Board on Wednesday night.
Let me know if you have any issues.
Thank you
Philip
<Organisational Overview.docx>”
“From: Tanya McLaren […]
Sent: Tuesday, 17 August 2021 7:23 AM
To: Philip Anderson […]
Subject: Re: Board paper
Hi Philip, I will be able to format for you once home from my son’s school therapy
appointment. I usually log in around 10-2 daily. Between school commitments.
Many thanks.
Sent from my iPhone”
“On 17 Aug 2021, at 9:21 am, Philip Anderson […] wrote:
Also Tanya,
All About Living converted to a company limited by guarantee.
We need to advise all funding bodies of this.
Do you know if this was done/were you involved in this communication?
Regards
Philip”
“From: Tanya McLaren […]
Sent: 17 August 2021 10:52
To: Philip Anderson […]
Subject: Re: Board paper
Hi Philip, I wasn’t involved in that sorry. I think Fran or Kathy will be across that. I
believe they were updating as current contracts were expiring.
Sent from my iPhone”
A separate email chain was started by Mr Anderson forwarding earlier correspondence from Ms Lawson to Ms McLaren on 17 August 2021, shortly before her final email above:
“From: Philip Anderson […]
Sent: Tuesday, 17 August 2021 10:03 AM
To: Tanya McLaren […]
Subject: FW: PROPOSAL 2 : TO INCREASE NURSING PAY RATES
Tanya,
Please use this nurses rate sheet rather than the original one I sent you.
Thank you
Philip
[Ms Lawson’s correspondence omitted]”
“From: Tanya McLaren […]
Sent: Tuesday, 17 August 2021 12:23 PM
To: Philip Anderson […]
Subject: RE: PROPOSAL 2 : TO INCREASE NURSING PAY RATES
Hi Philip, please find attached the formatted report. I’ve included Word and PDF versions.
I find PDF is often better reviewed by the Board on their varying devices. Word formatting can
sometimes get lost.
Please let me know if you require anything further.
Many thanks.”
“From: Philip Anderson
Sent: 17 August 2021 12:45
To: Tanya McLaren […]
Subject: RE: PROPOSAL 2 : TO INCREASE NURSING PAY RATES
Thank you Tanya,
I appreciate it.
I agree PDF is best
Regards
Philip”
Mr Anderson stated that he was under the impression that Ms McLaren had work to perform during this time. He explained that there was a checklist of work to be done in preparation for the Annual General Meeting, which included updating the register of members, inviting a Minister of Parliament to speak, booking a location for the event and associated catering. Mr Anderson stated that he was, and still is, under the impression that this was the work that Ms McLaren was supposed to be completing during this time.
Ms McLaren was employed to work 12 hours per week. Mr Anderson noted that she had provided her notice of resignation during his second week of work with the Respondent. He stated that they would have worked less than 24 work hours with each other, and he was conducting a review of the state of the Respondent. He expected that, had Ms McLaren not voluntarily resigned from her employment, they would ultimately have had a meeting where they discussed her role in more detail. Further, he noted that if Ms McLaren had approached him with any concerns about her role, or her future with the Respondent, he would have arranged to have had that meeting sooner to reassure Ms McLaren that there were no attempts to remove her from the role.
With respect to Ms McLaren’s allegations, Mr Anderson confirmed that a third party conducted a workplace investigation where it was found that, on the balance of probabilities, Mr McNamara did make a one-off comment to a male employee in late 2020, insinuating at a Board Meeting through inappropriate humour that he had been watching pornography. However, similar behaviour had not been observed since. Mr Anderson noted the significant time between that occurrence and Ms McLaren’s resignation.
The investigator was also asked to substantiate the other worrying comments regarding the Brighton foreshore comment which Ms McLaren raised as a significant issue due to her Indigenous heritage. He said that this allegation was not substantiated. No witnesses interviewed were able to substantiate that they had ever heard Mr McNamara make such a comment. They believed that such comments were rumours that were talked about as a topic in the office by employees, but that such comments were not made by Mr McNamara during Ms McLaren’s term of employment, nor directly to Ms McLaren. Mr Anderson states his opinion that even if such comments were made, they would not seem relevant to the date of her providing her notice of resignation as they appeared to have been historical, with the most recent allegation being made in December 2020 and not directly to Ms McLaren, but merely in her presence.
Mr Anderson stated that he discussed with Ms Lawson the complaints earlier made by Ms McLaren. Ms Lawson told him that she had discussed them with Mr Worsnop, and he instructed her to place the complaints on Ms McLaren’s file. Ms Lawson did as she was instructed, believing Mr Worsnop would address the issues. Mr Anderson’s hearsay evidence is that Ms Lawson was never informed that Ms McLaren’s employment should be terminated.
Mr Anderson stated he only had one conversation regarding Ms McLaren with any member of the Board prior to receiving Ms McLaren’s resignation. This conversation was with Mr McNamara on Mr Anderson’s second day, when they were discussing the state of the company. Mr McNamara said to Mr Anderson, words to the effect, “I’m not sure if these people are doing their job properly, work out whether that’s right or wrong.” One of the names he provided in this group of employees was Ms McLaren, however Mr McNamara did not elaborate further.
Mr Anderson stated he felt there was no pressure from Mr McNamara to terminate Ms McLaren’s employment, or any of other people within the list nominated by Mr McNamara. Mr Anderson considered that Mr McNamara was providing his observations on the operations of the Respondent, and he did not state anything further at the time regarding his observations of Ms McLaren’s work, behaviour, attitude or otherwise.
Mr Anderson said, in fact, that he considered Mr McNamara took a different approach. It seems that there had been some employees who had sent emails back and forth between themselves, disparaging Mr McNamara, Ms Huestis and Mr Worsnop. Mr McNamara informed Mr Anderson that he considered that Mr Worsnop had been too harsh on those employees, undertaking a show cause process with them. Mr Anderson’s impression was that Mr McNamara was not agitating for disciplinary action or the termination of anyone’s employment. If Mr Anderson felt at any time that Mr McNamara was encouraging him to terminate an employee, he said he would have advised Mr McNamara that operational matters were not the role of the Board, and it was not appropriate for him to be involved in this.
Finally, Mr Anderson advised that Ms McLaren has raised that specific action was taken against her with respect to IT systems following termination of Mr Worsnop. Having concerns, Mr Anderson investigated whether this was true and contacted EFEX for further information.
On 26 October 2021, Mr Anderson said he engaged in a telephone conversation with EFEX who advised they had reviewed their systems all the way back to 8 May 2021 to see if there was anything relevant to Ms McLaren. EFEX said there was not, and confirmed however on 5 August 2021, following the cessation of Mr Worsnop’s employment with the Respondent, his email was cut off and redirected. This inbox was the only thing that had been cut off, just Mr Worsnop’s emails, no folders, files or systems were cut off. However, as Ms McLaren was adamant that she had services cut off, Mr Anderson asked EFEX to investigate further regarding the issue and any mention of Ms McLaren in their system.
Further, Mr Anderson found it to be appropriate practice to remove a previous CEO’s email address at the cessation of their employment with the company and also very appropriate for the Board to monitor it until a new CEO is appointed.
Mr Anderson is quite upset about this whole matter. He considers that if Ms McLaren had taken the opportunity to approach him regarding the issues, he felt he would have been able to quell her concerns and they could have continued the working relationship. He said he would have taken all steps necessary to help rectify any issues she felt she was having in the workplace. Mr Anderson said he had no concerns with continuing to work with Ms McLaren at any point in time.
Mr Anderson said that at the time of the hearing, Mr Lulham was Acting Chair of the Board. A Chair would be appointed at the next AGM.
Witness Statement of Luke Gilliland
Mr Gilliland is a solicitor of the Respondent’s representative, IRIQ Law. Mr Gilliland provided evidence relating to Mr Anderson’s investigation into whether any action was taken against Ms McLaren by the Respondent with respect to restricting her IT Access.
Attached to Mr Gilliland’s statement are two correspondences from Mr Anderson concerning his findings in the investigation. The first correspondence is a Service Ticket request made by Mr Anderson to EFEX requesting to ascertain whether any access was restricted to Ms McLaren prior to 19 September. The responses from EFEX are extracted below in reverse chronological order:
“From: Service […]
Sent: Thursday, 21 October 2021 3:47 PM
To: Philip Anderson […]
Subject: Ticket #[…]/Sensitive and Confidential has been updated
Hi Philip,
Your ticket #[…]/Sensitive and Confidential has been updated!
Please see below for notes added by the technician…
Resolution
Below is a summary of additional notes for this ticket…
Ticket Detail
Thu 21/10/2021/3:25 PM UTC+1/Daniel MacRae (time)
Hi Philip
Thanks for your time.
As discussed I have run back through our ticketing system and reviewed all requests and time entries for this year looking for mentions of Tanya.
In February/March there is a couple of tickets and entries dealing with Tanya and granting her permission/access to request user access changes.
At the start of August (02/08) there is a ticket that mentions Tanya in terms of being the person responsible for organising Adobe Acrobat licensing that was lodged by Rebecca and was resolved […] based on our notes.
Apart from that the next ticket item is the one which I have forwarded you already terminating her account.
Please let me know if you have any further queries.
[…]
Thu 21/10/2021/2:50 PM UTC+10/Daniel MacRae (time)
Hello Philip
Please see attached PDF containing a report of a service ticket request that was made by Rebecca Ferguson on 20/08/2021 requesting that Tanya’s account be disabled effective immediately.
This was actioned after 5pm on that same day.
[…]
Thu 21/10/2021/9:52 AM UTC+10/Sam Douglas
For Team Leader and Service Delivery Technical Lead eyes only.
SD
Sam Douglas |
Technology Account Manager
[…]”
Attached to this correspondence was a Service Ticket created by Ms Rebecca Ferguson. The Service Ticket was titled “Remove AD Account and Email”, with the detail description as follows:
“Friday 20/08/2021 1:02pm UTC+10/ Rebecca Ferguson
Good afternoon,
Please can you deactivate the AD account an email account for Tanya McLaren, [email protected]
Please can this be actioned with immediate effect.
Fran Huestis currently has access to Tanya’s emails, please can this access continue.”
The second correspondence is an email from Mr Douglas of EFEX to Mr Anderson relating to his findings concerning Ms McLaren’s IT Access. The email from Mr Douglas is extracted, in full, below:
“From: Sam Douglas […]
Sent: Tuesday, 26 October 2021 12:10 PM
To: Philip Anderson […]
Subject: RE: Hardware Update
Hi Philip
I just checked with Service and these are the following points that came out of the discussion;
1.12 months of Time Entries have been checked. There was one request for the employee in question, and it was actually to add to their access.
2.Between 4th of August and the 11th August, there was no major P1 outages of any services that directly affected AAL users.
3.The first and only mention of any access change to David Worsnop’s account was on the 8th of August where our Service Delivery Manager took a call directly from David Lulham @ 10.39am, requesting that DW access be terminated. At that time, his Office 365 email account, his server session on the Terminal Server and Active Directory account were all disabled or logged off, along with passwords reset as well. This ticket was completed shortly after @ 10.50am.
4.No other users were mentioned, requested any change, or had any change carried out or logged by our Service Team.
It is worth noting that the EFEX Service Delivery Engineers are trained from day one of their employment to record every single interaction they have with a client, in our IT logging system ConnectWise. The saying goes “If it is not in ConnectWise it did not happen”. This is drilled into our staff, and given the complete absence of any evidence to suggest otherwise I can confidently deduce that there cannot have been any further interference during this window of time.
I hope this helps. If need be we can supply ticket numbers as well as all time entries reviewed, if it comes to that.
Thanks
SD”
Consideration
Has Ms McLaren been dismissed?
Although applied under the previous Act,[5] the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[6] in my view remains generally apposite to the consideration of s.386(1) of the Act:
“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
“[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. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”
[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 to 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.” (footnotes omitted)
A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[7] in the following terms:
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)
Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:
• the question as to whether the resignation was forced within the meaning of the Act is a jurisdictional fact that must be established by the applicant;
• a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
• the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
• conduct includes an omission;
• considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
• in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.
Was Ms McLaren forced to resign?
In light of the terms of the Act and the authorities, it is necessary to consider whether Ms McLaren was forced to resign. In making that assessment, it is appropriate to make an objective analysis of the Respondent’s conduct to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. The line, however, must be “closely drawn and rigorously observed”.
The onus is on Ms McLaren to establish that she did not resign voluntarily, proving that the Respondent forced her resignation.[8] I must find that the Respondent took action with the intent or probable result to bring the employment relationship between Ms McLaren and the Respondent to an end.[9]
I have no doubt that Ms McLaren found it unpleasant to work with Mr McNamara. If the evidence is accepted that he said the things complained of by Ms McLaren, such conduct has no place in the workplace.
Mr McNamara was a volunteer President of the Board who had volunteered his time for a very long period. He was in charge and I accept that he made himself feared. Ms McLaren made legitimate and appropriate complaints to her CEO and to HR and nothing was done about her complaints. Ms McLaren was, in my view, failed by Mr Worsnop on these issues, as he did not champion Ms McLaren’s complaints to the Board as a whole.
Mr Worsnop’s evidence is that the Board treated Ms McLaren and other staff members in an appalling manner, and he was too afraid to go to the Board and put these matters to them as he held concerns that he would be dismissed. In my view, Mr Worsnop put his own interests before those of the employees under his charge. He had a duty to them to bring their concerns to the Board’s attention to formally address the conduct in the employees’ workplace. When the employees attended Board meetings or other meetings where members of the Board were present, they were doing so within their workplace. The Board members had a duty and obligation not to bully, harass or treat the employees poorly.
It appears to me that Mr McNamara’s conduct was extremely poor in 2019 and 2020. I have no reason to doubt Ms McLaren’s assertion that Mr McNamara made the unacceptable reference to people being buried up to their heads in sand, as asserted by Ms McLaren and confirmed by Mr Worsnop. I accept that Ms McLaren found this to be highly offensive.
It beggars belief that Ms McLaren was not interviewed during the external workplace investigation. While the report may be protected by legal professional privilege, the Respondent reported that relevant to this allegation, it could not be substantiated against Mr McNamara. I consider that Ms McLaren did all that she could possibly do to put this allegation before the CEO and the Board in February 2021. To dismiss the allegation as unsubstantiated without interviewing Ms McLaren is a shocking and negligent course of action taken by the Respondent. In her account to the Respondent in February 2021 she stated that Mr McNamara had made the infamous quote on at least one dozen occasions. Ms McLaren ought to have been interviewed – whether involved in these proceedings or not – if she had wished. These are matters that cannot and should not be swept away simply because Mr McNamara is no longer associated with the Respondent.
I also note the audit undertaken while Ms McLaren was employed, and particularly around the time of Ms McLaren’s complaints were known to Mr Worsnop. The interviews were about the organisation’s governance and culture. Mr Worsnop should have ensured that in light of Ms McLaren’s serious allegations about Mr McNamara, she was included in the interviews.
I have had regard to the fact that giving weight to Mr Worsnop’s evidence, Mr McNamara informed him that he wanted one channel of communication. I do not consider this to be an unusual or unacceptable requirement for a person in Mr McNamara’s position. It resulted in Mr Worsnop being the funnel of communication between his employees and Mr McNamara, and vice-versa. With Ms McLaren working part-time hours, it does not appear to me to be unreasonable for Mr Worsnop to be the person who communicated all needs and requests to Mr McNamara.
Ms McLaren took exception to this and considered that this course of conduct isolated and ostracised her. I cannot be satisfied that the action taken by Mr McNamara was to effectively punish Ms McLaren. I appreciate it might have been somewhat frustrating, however in many workplaces, communications become channelled or funnelled to ensure that busy operatives and not distracted by communication from many sources.
Ms McLaren had no physical contact with Mr McNamara since February 2020, and no contact in any Board meetings following the November 2020 Board meeting until July 2021. The period of time between these events and her resignation in August 2021 carries substantial weight in the decision before me.
Where Ms McLaren appropriately complained of Mr McNamara’s conduct in the November 2020 Board meeting, he no longer attended the online Board meetings. No reason was provided to Ms McLaren. If she considered his conduct to be inappropriate, she no longer was subject to it. Her further written complaint in February 2021 did not raise any newer issues since her earlier written complaint in November 2020.
Essentially for all of 2021, Ms McLaren had nothing of note to complain of regarding Mr McNamara. There had been no events, and she had not had any interaction with him. Any correspondence required between Ms McLaren and Mr McNamara was channelled through Mr Worsnop, as it had been for almost all of 2020. There was no material change to her employment, and she was permitted to continue to work from home which satisfied her personal commitments to her family. If Mr McNamara was intent on seeing Ms McLaren leave the Respondent, he could have insisted that following the COVID-19 shutdown, she work from the office which would have significantly affected her ability to meet her family responsibilities, in particular transporting her son to school. No such pressure was applied to Ms McLaren.
It appears to me that the status quo having been met in 2021, and in fact Ms McLaren having less interaction with Mr McNamara due to his non-attendance at Board meetings, the catalyst for Ms McLaren’s resignation was upon learning that Mr Worsnop had been dismissed from his employment. Ms McLaren worked well with Mr Worsnop, and despite Mr Worsnop’s abject failure to properly and formally intervene in her issues regarding Mr McNamara, Ms McLaren was devastated to lose Mr Worsnop.
I have no doubt that at the time Ms McLaren and Mr Worsnop held a conversation on 5 August 2021, where Ms McLaren learned of Mr Worsnop’s dismissal, there was high emotion. Mr Worsnop was in disbelief, and equally, Ms McLaren was shocked by the news. There is, however, a huge disparity in the evidence given by each of them. Mr Worsnop denies that he said to Ms McLaren that Mr McNamara had been trying to dismiss her for 15 months.
I am inclined to accept Mr Worsnop’s evidence over Ms McLaren’s on this issue. Mr Worsnop willingly supported Ms McLaren in these proceedings and freely gave evidence in support of her application. Where he clearly has ill-feeling towards Mr McNamara, there is no reason for him to deny the assertion made by Ms McLaren because I accept that he did not inform Ms McLaren so. I do not in any shape suggest that Ms McLaren has given false evidence on this point. I do, however, consider that in the high emotion of learning of Mr Worsnop’s dismissal, and the things that were discussed between them in this conversation, she got the impression that Mr McNamara had been out to dismiss her for 15 months. I cannot, however, find that Mr Worsnop said these words to her.
I do not accept that because Mr Worsnop received an unsatisfactory performance review in mid-2021, it necessarily meant that the Board was trying to remove Ms McLaren and Ms Huestis from their roles. The review was entitled to assert that the Company/Board secretarial services are sub-standard and seek more accountability and respect from the role. Mr Worsnop strongly disagreed when he responded to the Board. He asserted that Mr McNamara was “constantly sniping from the sidelines stating that I should sack [Ms McLaren] and [Ms Huestis] for alleged disrespect”, yet Mr Worsnop led no evidence that this had ever been said by Mr McNamara. It is noted that Mr Worsnop’s employment was terminated at the Board’s initiative less than two months after he provided his written response, including his remonstrating at what he considered to be an insulting pay increase offered to him.
Where Ms McLaren thought she was now abandoned and without Mr Worsnop’s protection, I understand that she considered herself to be vulnerable. She had never gone to a single Board member to raise concerns in the past, and she elected against doing so at this point. It was, however, available to her to correspond directly with the Board collectively to raise concerns she held about Mr McNamara’s conduct.
Ms McLaren sought the advice of the Commission on 10 August 2021 and decided against bringing an anti-bullying application against Mr McNamara. It was available for her to do so. If Ms McLaren truly considered that she was likely to be dismissed in the very near future, the bringing of an anti-bullying application may well have stopped that course of action from proceeding. For the sake of clarity, I am not satisfied that she was likely to be dismissed by the Respondent at all.
Ms McLaren also had the ability to bring a general protections application not involving dismissal if she truly considered that she was likely to be dismissed in the very near future. Such an application may well have stopped that course of action from proceeding. Again, I am not satisfied that she was likely to be dismissed by the Respondent at all.
Further, Ms McLaren could have taken personal leave if she considered she was too stressed to attend for work. An employee is protected from being dismissed for a substantial period of time while on unpaid sick leave from being dismissed because they are too unwell to attend for work. Further, if Ms McLaren considered her illness to be caused by work matters, she could have made a workers’ compensation application which would have been determined to be work-related or not.
Ms McLaren did not do any of these things. Despite having an appointment for a free legal consultation on 20 August 2021, organised through the Commission, Ms McLaren prepared a draft resignation letter. On her evidence, she prepared it approximately one week prior to resigning, so her resignation cannot be said to have been in the heat of the moment. She properly contemplated her resignation and sought the counsel of her husband and her Pastor. It was a well-considered act on her behalf.
Ms McLaren’s resignation letter stated that she had learned that the Board had been trying to get rid of her for 15 months. She later said the communication was led by Mr McNamara. Ms McLaren was, however, glowing in her praise for Mr Lulham. It makes no sense if she thought so highly of Mr Lulham, showering him with praise, that she couldn’t have gone to him with her concerns without having resigned her employment.
As to whether Ms McLaren’s IT access was removed following Mr Worsnop’s dismissal, it is not clear. I accept that the Respondent was entitled to have a Board member take carriage of Mr Worsnop’s email account if it wished to do so, particularly noting that Ms McLaren worked only 12 hours per week. If it was cut off, Ms McLaren was not the only person who had their IT access revoked; Mr Worsnop’s evidence is that two other senior staff members had their IT access revoked on the day that he was dismissed.
I find that Mr Anderson was beginning to learn more about the Respondent’s business and had been properly engaging with Ms McLaren. He had no knowledge of the issues raised by her many months prior, and I do not consider Mr McNamara’s request for him to find out what the staff do to be insidious. Mr McNamara was entitled to give that direction to Mr Anderson to allow him to form his view as to the appropriate roles within the organisation and the personnel in those roles.
In the very short time Mr Anderson worked with Ms McLaren, he gave her some work to do. He would not have known how little or great her workload was at that very early stage in their working relationship.
Regrettably, Ms McLaren did not afford Mr Anderson any opportunity to become aware of her concerns before she resigned her employment. His feet were not even warm under the desk before she chose to leave her employment. I consider that she unfairly determined that Mr Anderson would not be able to effect any change within the Respondent. She afforded him no chance to. I accept Mr Anderson’s evidence that he would have, in the not too distant future, met with Ms McLaren to discuss her employment and role and job satisfaction with the Respondent. Understandably, he was unable to do so in his second week of employment.
I have had regard to the fact that Ms McLaren did provide notice of her resignation and confirmed in the hearing that she was prepared to work out her three-week notice period. She did not, for example, inform the Respondent that she could not work one more day or hour for the Respondent as she felt so affected by the conduct complained of by her. Generally speaking, an employee who asserts that they have been forced to resign as a result of conduct or a course of conduct of their employer could be expected to feel repulsed to have to continue working for some time for their employer in light of what they comprehend to be their forced resignation. The period of three weeks in which she would have to work was not insubstantial. Ms McLaren did not, for example, obtain a medical certificate declaring her unfit to work during her notice period.
I note that Ms McLaren held a discussion with Mr Worsnop on 5 August 2021 where she believes she learned of a concerted campaign against her. She then spoke with the Commission on 10 August 2021, resigned her employment on 19 August 2021 and had a free legal appointment on 20 August 2021. I consider that if Ms McLaren learned of matters that caused her such great concern, and obtained some advice on 10 August 2021, it does not explain why it is she resigned her employment on 19 August 2021. She continued to work two weeks after learning what she thinks she was told by Mr Worsnop, and still, one week after speaking with a staff member of the Commission. Ms McLaren chose when it was she considered she felt it necessary to resign her employment on account of what she believed to be the Respondent’s conduct. She has provided no evidence as to what she thought would occur next; a likely termination of her employment by the Respondent.
Ms McLaren acted without good reason, in my view, to resign her employment prior to her free legal advice appointment on 20 August 2021. There was no pressing reason to resign her employment on 19 August 2021. I am not satisfied that the Respondent’s conduct was of such a nature that resignation was the probable result such that Ms McLaren had no effective or real choice but to resign.
I have concluded that Ms McLaren was understandably upset that Mr Worsnop would no longer be employed by the Respondent and this caused her significant distress. I am not, however, satisfied that the Board collectively, or individuals within it, conducted itself and themselves in a manner to bring about Ms McLaren’s resignation. This is particularly so when I consider Mr McNamara’s direction to Mr Anderson to look into what the relevant employees do to be an entirely appropriate thing to instruct him to do.
I am not satisfied that the Respondent’s conduct was of such a nature that resignation was the probable result such that Ms McLaren had no effective or real choice but to resign.
Conclusion
For the reasons set out above I have determined that the resignation of Ms McLaren was not caused by conduct, or a course of conduct, on the part of the Respondent. I find that Ms McLaren was not a person dismissed from employment and the jurisdictional objection raised by the Respondent is upheld.
I must dismiss the application for lack of jurisdiction. An Order [PR738861] will be issued together with this decision.
COMMISSIONER
[1] [2020] FCAFC 152.
[2] [2017] FWCFB 3491.
[3] [2013] FWC 9171.
[4] [2014] FWC 5481.
[5] Workplace Relations Act 1996 (Cth).
[6] [2006] AIRC 496 (PR973462).
[7] [2017] FWCFB 3491.
[8] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30,
[(2009) 185 IR 359].
[9] O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (PR973462) (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].
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