Te-Arn Chalmers v CloudHolter Pty Ltd

Case •

[2024] FWC 1871

•

17 JULY 2024
[2024] FWC 1871

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.365—General protections

Te-Arn Chalmers
v

CloudHolter Pty Ltd

(C2024/508)

COMMISSIONER HUNT

BRISBANE, 17 JULY 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee was forced to resign

  1. On 29 January 2024, Ms Te-Arn Chalmers 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 Chalmers stated that she had been dismissed from her employment with CloudHolter Pty Ltd (the Respondent) on 16 January 2024. The Respondent was formerly known as Cardiac Rhythm Diagnostics Pty Ltd until 3 February 2024. 

  1. In its Form F8A – Response to general protections application, the Respondent raised a jurisdictional objection to the application on the grounds that Ms Chalmers was not terminated on the employer’s initiative pursuant to s.386(1) of the Act.

  1. Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Ms Chalmers was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Ms Chalmers was dismissed in contravention of the general protections provision.

Legislative Provisions

  1. 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.”

  1. The meaning of “dismissed” is provided at s.386 of the Act:

“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.”

  1. This decision deals only with the jurisdictional objection to be determined: that is, was Ms Chalmers dismissed from her employment?

Hearing

  1. The matter was listed for hearing on 3 April 2024 and 12 April 2024 by video using Microsoft Teams. Ms Chalmers represented herself. The Respondent was represented by Mr Ruwan Weerasooriya, General Manager of the Respondent. The following people gave evidence and were cross-examined:

·  Ms Chalmers;

·  Mr Weerasooriya;

·  Professor Rukshen Weerasooriya, Managing Director; and

·  Mr Nicholas Moon, Staffing Coordinator.  

  1. Mr Weerasooriya, Mr Moon and Professor Weerasooriya are employed by Rewardle Holdings Pty Ltd (Rewardle), an entity which provides non-clinical staff to the Respondent.

Background

  1. Ms Chalmers commenced employment with the Respondent on 8 November 2022, engaged as a Cardiac Technician on a casual basis. She worked remotely from her residence in Queensland, typically three days a week, Wednesday to Friday.

  1. Ms Chalmers experiences functional neurological dysarthria, which can result in severe migraines which limit her ability speak and otherwise perform complex work.

  1. On 22 November 2023, Ms Chalmers approached Mr Moon, enquiring about casual conversion to permanent employment. Ms Chalmers, in her evidence below, provided extensive detail of the discussions and interactions she had with her employer in respect to her casual conversion request. On 12 December 2023, Ms Chalmers filed a s.66M application in the Commission to deal with a dispute about the right to request casual conversion in the matter C2023/7729. The casual conversion application was allocated to me.

  1. In respect of the s.66M application, I listed the matter for conference on 10 January 2024.  Before the conference could be convened, Ms Chalmers filed a s.372 application, general protections not involving dismissal. That application was also allocated to me.

  1. I considered it appropriate to convene a conference in respect of both the s.66M and s.372 applications, and did so on 16 January 2024, and accordingly the conference on 10 January 2024 was adjourned until 16 January 2024.

  1. Ms Chalmers, Mr Weerasooriya and Professor Weerasooriya attended the 16 January 2024 conference by telephone.  Ms Chalmers was not well enough to work at the time, and advised at the conference that she hoped to be well enough to resume work the same week.  The conference was held on a Tuesday, and accordingly, Ms Chalmers indicated she might be well enough to work on Wednesday, Thursday or Friday that week.   

  1. Whilst participating in the conference, Ms Chalmers made an offer to the Respondent to separate from the employment on terms nominated by her.  The offer was rejected.  The Respondent advised that it did not consent to the Commission arbitrating the s.372 matter.  Accordingly, I informed the parties the s.66M would proceed to a further conference on 1 February 2024. The conference on 16 January 2024 was not recorded.

  1. The Respondent had been represented by a law firm, although a legal representative did not participate in the conference on 16 January 2024.

  1. At 5:46pm (Queensland time) on 16 January 2024, Ms Chalmers sent to the Respondent’s legal representative, copying in Mr Weerasooriya and my chambers, the following email, reproduced in part:

“I refer to the above matters in which a telephone conference was convened by the Fair Work Commission today, 16th Jan 2024, between the Applicant, Te-Arn Chalmers and your client, Cardiac Rhythm Diagnostics Pty Ltd. In attendance representing the Respondent, Cardiac Rhythm Diagnostics Pty Ltd was the Director, Professor Rukshen Weerasooriya, and the General Manager, Mr. Ruwan Weerasooriya. I note your absence from the conference today so please advise if you are no longer providing representation for Cardiac Rhythm Diagnostics Pty Ltd in the above matters.

I, the Applicant, Te-Arn Chalmers, offered to attend a one-on-one recorded training session with Professor Rukshen Weerasooriya, at his earliest convenience, with a request for a support person for the Applicant to be present during the meeting. Professor Rukshen Weerasooriya has not agreed to schedule such one on one meeting as he is too busy for the upcoming four months. Additionally, your client, the Respondent, maintains that there are no current hours for me, the Applicant, to work, and that there will be no future hours. I am now considering myself terminated and therefore unfairly dismissed as of today, 16th January, 2024. This means that I have 21 days to lodge an unfair dismissal case under section 394 of the Fair Work Act 2009 and make a further application to the Fair Work Commission for general protections involving dismissal.

…”

  1. The remainder of the email contains a without prejudice offer from Ms Chalmers to receive a payment, and she would withdraw legal action and not pursue an unfair dismissal claim.

  1. At 9:40pm (Queensland time) that evening, Mr Weerasooriya replied as follows:

“Hi Te-Arn

We refer to your email and enclosed letter to Bruno Di Giralami from Lavan dated today, 16 January 2024 (Your Letter).

We do not intend to respond to each of the assertions in Your Letter and to the extent we do not address any assertions, Cardiac Rhythm Diagnostics Pty Ltd (CRD) reserves its rights.

CRD does not accept your assertion about your employment and maintains there has been no action taken at the initiative of CRD to terminate your employment effective 16 January 2024. Any claim to the contrary will be opposed by CRD and may constitute grounds for CRD to pursue costs.

Regards

Ruwan”

  1. Mr Weerasooriya sent a further email one minute later:

“Without Prejudice

Hi Te-Arn

We refer to your without prejudice settlement offer contained in your letter to Bruno Di Girolami from Lavan today, 16 January 2024.

Cardiac Rhythm Diagnostics Pty Ltd (CRD) acknowledges receipt of your settlement offer.

CRD is considering its position and will attend the re-convened Fair Work Commission conference on 1 February 2024.

Regards

Ruwan”

  1. Ms Chalmers responded shortly thereafter at 9:55am advising as follows:

“Hi Ruwan

I refer to our discussions during the Fair Work Commission conference today with respect to no continued hours for me to work for Cardiac Rhythm Diagnostics Pty Ltd. I have been left with no other option other than to resign from Cardiac Rhythm Diagnostics Pty Ltd under the terms of constructive dismissal/forced resignation. Constructive dismissal/forced resignation is still considered as unfair dismissal and I will proceed accordingly as outlined in my letter dated 16th January 2024, as it is my right under the Fair Work Act 2009.

Kindly,
Te-Arn Chalmers”

  1. Mr Weerasooriya sent an email at 12:01am (AEST) on 17 January 2024, that he acknowledges Ms Chalmers’ resignation effective 16 January 2024.

  1. On 17 January 2024, correspondence was sent from my chambers inquiring if Ms Chalmers wished to withdraw her two applications before the Commission on account of her resignation and no longer being employed.  Ms Chalmers responded at 2:28pm that same day as follows:

“Good Afternoon,

I, the Applicant, wish to withdraw my C2023/7729 and C2923/8124 as I have had no other option but forced resignation due to the Respondent's unwillingness to assign me any current or future hours for me to work for them. My settlement offer and the conditions made to the Respondent remains the same, and I will proceed with a claim for general protections involving dismissal should the Respondent be unwilling to agree to the terms of the proposed settlement agreement by 4pm (Qld time) on January 23rd, 2024.

Kindly,
Te-Arn Chalmers (Applicant)”

  1. At 3:14pm that day, Ms Chalmers sent the following email to my chambers only:

“Good Afternoon Commissioner Hunt,

I am very unwell today from the stress of this whole process with migraine and vomiting and I did not mean to send that last email regarding withdrawal of my complaint. I am not able to make any sound decisions today and would like to postpone any decisions until I am feeling better. I am not sure when that will be and am visiting my GP tomorrow for a worker's compensation claim. 

May I please request an extension to make a decision regarding withdrawal until Monday 22nd January? I'm just too unwell that I don't feel like I will be able to make a sound decision until then.

Kindly,
Te-Arn Chalmers” 

  1. At 4:43pm, Ms Chalmers sent further correspondence to all parties and chambers:

“Good Afternoon,

I am very unwell with migraine today due to stress caused by the process. I am applying for worker's compensation and have an appointment with the GP tomorrow.

The previous email was sent in error and I am still considering my options. I did send an email straight after the incorrectly sent one however, it only was sent to Commissioner Hunt's chambers. I apologise for any inconvenience. 

I would like to request an extension to make a decision until Monday 22nd January as migraines like this one can last several days. 

Kindly,
Te-Arn Chalmers (Applicant)”

  1. I granted the extension as sought and on 22 January 2024, Ms Chalmers informed my chambers that she has decided to withdraw her s.372 application. Upon further discussion, including a conference convened before me on 1 February 2024 in respect to her s.66M application, Ms Chalmers ultimately withdrew her s.66M application on 7 February 2024.

  1. Having been made aware at the conference on 1 February 2024 that Ms Chalmers had made a s.365 application days earlier, I informed the parties that the s.365 application would likely be allocated directly to a member given there would be a jurisdictional objection made by the Respondent in respect of whether there was a dismissal. The parties were requested to advise if they held any objection to the s.365 application being allocated to me. Following the conference, none of the parties objected to the present application being allocated to me.

  1. In making her s.365 application, Ms Chalmers attached a work capacity certificate to bring a workers’ compensation claim. The certificate confirms that Ms Chalmers was examined on 18 January 2024, citing a workplace injury from 13 December 2023. The certificate certified her unfit for any type of work until 23 February 2024.

Ms Chalmers’ submissions and evidence

  1. Ms Chalmers submitted that shortly following the conference before the Commission on 16 January 2024, she came to the conclusion that:

·  nothing could be done to entice the Respondent to convert her casual employment to permanent part-time;

·  she could not get the Respondent to partake in a timely meeting to discuss performance issues with a support person;

·  she did not have any rostered hours; and

·  the Respondent confirmed no future hours for her to work;

providing her with no choice but to resign her employment.  She submitted that the Respondent engaged in a course of conduct which ultimately forced her resignation.

  1. In her evidence, Ms Chalmers provided a detailed history of the interactions between herself and the Respondent leading up to her resignation. This is detailed below:

·  On 22 November 2023, Ms Chalmers approached Mr Moon enquiring about the right for casual conversion. She contended that the Respondent did not have a good history adhering to industrial laws and Ms Chalmers wanted to pre-empt discussions before the mandatory 21-day deadline to write to a casual employee.

·  Mr Moon wrote back to Ms Chalmers the following day, advising the request had been escalated to Mr Weerasooriya and Professor Weerasooriya. Mr Moon requested a copy of Ms Chalmers’ CV, to which she complied.

·  The Respondent failed to write to Ms Chalmers as to whether a casual conversion offer will be made within the required 21 days. As a result, Ms Chalmers asked Professor Weerasooriya during a weekly video conference on 1 December 2023 about the request for casual conversion. Professor Weerasooriya stated that those matters were dealt with by Mr Weerasooriya.

·   During the weekly full staff video conference on the same day at 10:00am, Professor Weerasooriya explicitly and by name, commended Ms Chalmers on her performance as a Cardiac Technician.

·  After the general meeting, Ms Chalmers sent a Slack message to Mr Moon following up on her request for casual conversion without any definitive update.

·  As Ms Chalmers did not receive a response within the legislated 21-day limit, on 5 December 2023, Ms Chalmers decided to send Mr Weerasooriya a formal request for casual conversion.

·  On 8 December 2023, at the next general staff meeting, Mr Pierce Randall, Cardiac Technician Supervisor, explicitly and by name, acknowledged Ms Chalmer’s contribution to the clinical team as a Cardiac Technician.

·  Mr Weerasooriya organised a video conference with Ms Chalmers to discuss her request for casual conversion at 3:30pm (AEST) on Tuesday, 12 December 2023. Mr Moon was also in attendance at this meeting, however, he never spoke any words and had his head down, not looking at the camera. This suggested to Ms Chalmers that he was taking notes.

·  During the video conference on 12 December 2023, Mr Weerasooriya informed Ms Chalmers that casual conversion had been denied based on a future change where remote casual employees would not be needed as the business model was changing and new Cardiac Technicians were being employed.

·  Ms Chalmers then received, without notice, an unprovoked poor performance review based on an anecdotal comparison between her report regeneration requests and her full-time, longer serving Cardiac Technician colleagues, Mr Randall and Ms Aisshwaryaa Murugasan, who are said to be Ms Chalmers’ supervisors.

·  Ms Chalmers was also informed that as most of the workers are contractors or labour hire workers, the business is classified as a small business and eventually, all the remote staff at the Respondent will not be required.

·  Ms Chalmers requested a professional reference to look for alternative employment and made a further request to have time off at Christmas. No specific dates were discussed during this conference meeting.

  1. Ms Chalmers’ evidence in respect of the impromptu performance feedback was that the following was discussed:

Mr Weerasooriya:      During a routine performance review of all the staff, it came to my attention that your report regenerations were higher than that of other cardiac technician staff. We didn’t go looking for it and Rukshen wasn’t even aware until I said something to him.

Ms Chalmers:             I don’t believe that I have a high number of report regenerations and what percentage of my reports need regenerating? It is probably much less than 10%. There can be a number of reasons reports need regenerating that have nothing to do with performance.

Mr Weerasooriya:      I am not sure. It’s just what the data indicates that you have more report regenerations than other cardiac technicians.

  1. Following the video conference on 12 December 2023, Mr Weerasooriya sent the following email to Ms Chalmers:

“Hi Te-Arn,

Thanks for your email.

As discussed this afternoon, we wish to formally advise that we are not making an offer to convert your casual role into a permanent part time position as requested.

As discussed, our basis for this decision is two fold:

1.   While CRD has used a mix of local/remote/casual Cardiac Technicians in establishing the business during the COVID-19 pandemic, the Company’s strategy moving forward is to build its Cardiac Tech capability more centrally so the Cardiac Techs can more readily interact with Prof Weerasooriya and our AI engineering team.

2.   While the above is the primary driver of our decision, we also noted during a review of our Cardiac Tech team performance that there is a substantial difference between you and your peers which has also informed our decision.

While we are happy to continue offering you casual hours and will work with you to improve your performance in this capacity, you should note that based on our strategy, we do not envisage remote, casually employed Cardiac Techs to represent an ongoing role in the business in the long term.

Furthermore, as discussed, we’re very happy to support you in exploring other opportunities and would be happy to review a draft reference with a view to having signed off by Rushken and Nick will touch base to confirm the adjustment of your scheduled work over the Christmas break as you requested.

Kind regards,

Ruwan”

  1. Ms Chalmers responded that evening as follows:

“Hi Ruwan

As the reasons mentioned above don’t include any legal basis for the refusal for casual conversion, I have decided to make an application to the Fair Work Commission for this matter to be decided by arbitration.

Although you cannot inform me exactly how many direct employees Cardiac Rhythm Diagnostics Pty Ltd has and state that it’s below the medium business threshold of 15 employees, it can be argued that due to the nature of expected immediate continuation of these third party employees, their length of service and criticality to business operations, that in fact, Cardiac Rhythm Diagnostics does have more than 15 employees and should be considered a medium sized business. It will then be up to the Fair Work Commissioner to determine whether these individuals who appear to work for Cardiac Rhythm Diagnostics Pty Ltd in managerial and crucial operating roles, are in fact employees rather than third party contractors as you have suggested. Furthermore, the onus will be on CRD to prove these individuals are not employees, rather than me to prove how many direct individuals Cardiac Rhythm Diagnostics employs.

As for my performance, I am often treated inferior to other cardiac technicians and now I am expected to be equal to them in performance.  I am unsure why my performance is being compared to other cardiac technicians who are full time staff and are treated as my superiors or supervisors who have been employed at least 12 months longer than me. I believe I am performing well, as I correct a lot of errors from the overseas cardiac technicians and pick up major urgent cases that fall through the OSCT system and are not flagged for my superiors to check. However irrelevant performance is to my right for casual conversion, I don’t believe report generations should be used as a poor performance indicator. Report generation can be an effective communication tool between Rushken and cardiac technicians and may not be about performance errors in the report.

Kindly,
Te-Arn Chalmers”

  1. Ms Chalmers stated that she woke around 8:30am on 13 December 2023 feeling unwell with a debilitating migraine, unable to speak clearly.  She was due to commence work at 9:00am.  She logged into the Respondent’s Slack message to inform Mr Moon that she had a migraine, probably stress induced from yesterday’s meeting, and will jump on to report when/if she was feeling better.  Mr Moon did not respond.

  1. While waiting for a response from Mr Moon, Ms Chalmers received an email from the Commission at 8:49am, advising that the case management officer couldn’t open an attachment to her application.  Ms Chalmers sent the document in a suitable format to the Commission at 9:02am.  Ms Chalmers contended that even when experiencing a migraine, she is able to perform certain tasks such as preparing simple meals, ordering food delivery, caring for her   14-year old son with a disability, answering calls and emails, and making medical appointments.

  1. Ms Chalmers contended that she knew she ought to rest to allow the migraine and functional neurological dysarthria to subside.  When experiencing this in weeks and months prior, she had alerted Mr Moon of her inability to perform work. She had earlier used the phrase, “If/when I feel better later, I will jump on”.

  1. Ms Chalmers stated she woke at around noon and attempted to log in to perform her role.  She noted that her password had been changed less than one hour earlier and access was denied.  Ms Chalmers noted that Mr Weerasooriya had never earlier contacted her if she had been unwell, yet he sent the following email shortly thereafter:

“Hi Te-Arn,

Firstly, for your reference, CRD has a total of 7 employees (includes 4 casual roles). While I think your decision with respect to pursuing Fair Work arbitration is misguided and counter-productive for all concerned, I appreciate that it’s your prerogative and will await notice with respect to the process we are required to follow.

With respect to your performance, as I mentioned on our call, the clinical nature of your work is best discussed with Prof Weerasooriya (cc’d) and I will coordinate a Google Meet to facilitate this.

In the meantime, Nick has actioned redistributing your reporting duties over the Christmas/New Year period to other team members as you requested on our call yesterday.

Furthermore, while we respect the flexibility afforded casual team members, we found your quick about face with respect to availability over Christmas/New Year in reaction to our decision, your notification to Nick that you may not be reporting today and skipping this morning's "traces and cases" training with Prof Weerasooriya to be concerning.

Managing the quality, reliability and continuity of CRD's service is paramount and based on your reaction to our discussion yesterday we don't feel we can confidently rely on your contribution.

As such, we have allocated your reporting duties to other team members effective immediately. Given the time of year, we will pay you for your rostered hours this week (including those that will not be worked) so please submit your timesheet to Nick but note that no further hours have been set for you at this stage.

As you do not require access to our systems for the next few weeks we have restricted your access for security. We will reinstate this once we have addressed the performance concerns raised and have hours available for you again.

Please let me know when you are available to discuss your clinical performance with Prof Weerasooriya and I'll coordinate a suitable time with him.

Kind regards,

Ruwan”

  1. Ms Chalmers responded as follows:

“HI Ruwan,

I have experienced chronic migraines for over 10 years now and have functional neurological dysphasia from a car accident three years ago. I have been seeing a neurologist every three months for years now for treatment and management and in no way my experiencing a severe migraine today should be considered a retaliation. Functional dysphasia is the inability to speak clearly which is exacerbated by stress and migraine. Last week during cases and traces, I was getting a migraine which caused speech disturbances and this morning when I woke up, I could not speak at all. I still am struggling to form sentences. I could not attend the cases and traces meeting this morning due to symptoms of my disability. I have attached medical evidence of such disability.

It's discrimination to cut a person's hours due to disability or illness. The entire reason I am going to seek arbitration is because I have a disability and this job doesn't require a lot of spoken word and I can control the environment I work in to reduce the incidence of debilitating migraine. It's the entire reason I could not graduate from my paramedic degree as the bright lights and shift times were a huge migraine trigger when out on clinical placement causing me unable to attend.

I tried to log on to help out today when I woke up and noted the access denied and passwords have been changed. I don't understand the security risk and restricted access as my access was not revoked when I took leave in September. It appears punitive in retaliation to seeking arbitration by the Fair Work Commission.

I had discussed taking the two weeks off at Christmas with Aissh and Peirce months ago in September or early October as all universities close over this break and it is my 40th birthday on 28th December and wanted to organise something special for myself. I was going to go on a cruise but as other cardiac technicians were desperate for a break, I opted out of organising something special to provide clinical coverage for Cardiac Rhythm Diagnostics. It wasn't in retaliation, I was told that I could have my birthday off but unsure about the other days. So, I asked for it off again and now that request has been granted.

I have been helping out wherever I can and have not been (un)reliable. I have been pushing myself (as all the cardiac techs do) such so that I need time off. I don't see it sensible to punish the other cardiac technicians with increased workload if it's unnecessary. However, if paid leave is on offer for the week then I will take the time off. There is no pattern of unreliability so that may be something to be explored during arbitration. I may also have to include an unfair dismissal or discrimination on the basis of disability or illness to the arbitration process as clearly there were hours before I notified you of my application to the Fair Work Commission.

Kindly,
Te-Arn Chalmers”

  1. Ms Chalmers noted that the Respondent has asserted that she did not make herself available on 20, 21 and 22 December 2023.  She denied that she had flagged that she would not be available on 20, 21 and 22 December 2023, and stated she had made it clear she was not available later in December 2023 on account of celebrating her birthday. However, Ms Chalmers was then not medically fit from 13 December 2023 on account, she stated, of the stressful work environment, including reducing her hours to zero and removing her from the Respondent’s computer system.  She stated that she was further stressed at being informed she needed to attend performance management after having been earlier praised.

  1. On 21 December 2023, Mr Weerasooriya sent to Ms Chalmers the following email regarding the processing of her pay:

“Hi Te-Arn,

Please note that given the time of year our bookkeeper has been juggling a number of tasks today and we have not processed the pay run for any of the team yet.  I’m expecting it will be processed by EoD.

I understand your hours worked in the fortnight plus those not worked but submitted for Thursday Dec 14th and Friday Dec 15th as offered and accepted are included.  Please note that hours for Wed Dec 13th when you advised you were unwell and unavailable to work are not included.

Thanks,

Ruwan”

  1. On 21 December 2023, Ms Chalmers made her general protections application not involving dismissal.

  1. In respect of the telephone conference before the Commission on 16 January 2024, Ms Chalmers submitted that she was experiencing severe migraines and a full relapse of functional neurological disorder while awaiting the commencement of the conference.  Ms Chalmers did not alert me to this and in her written submissions, stated that during the telephone conference she continued to experience moderate symptoms of functional neurological disorder including dysarthria which impacted her ability to participate in the conference.  Again, Ms Chalmers did not alert me to this during the conference.

  1. Ms Chalmers stated that during the telephone conference she offered to partake in a performance review at the earliest possible convenience with Professor Weerasooriya.  She requested her chosen support person be present and the session be recorded.  Her evidence is that the Respondent stated that they were too busy fast tracking the employment of new cardiac technicians and could not find an appointment opening for Ms Chalmers until after four months and the new cardiac technicians would be trained by then. 

  1. Ms Chalmers further stated that during the conference she was informed that there’d be no hours for her and she should have contacted Professor Weerasooriya between 13 December 2023 and the conference on 16 January 2024 to address the performance issues raised by the Respondent.

  1. Ms Chalmers made a settlement offer at the conference as it became apparent to her that the Respondent was not going to offer any further hours of work or permit her to continue to be meaningfully employed.  The offer was rejected by the Respondent at the conference.

  1. The emails, later on 16 January 2024, were then exchanged between the parties.

  1. Ms Chalmers was medically examined on 18 January 2024 and issued with a work capacity certificate, certifying her unfit for work from 13 December 2023 through to until 23 February 2024.  She was examined again on 20 February 2024, certifying her unfit for work until 29 March 2024. She was examined again on 27 March 2024, certifying her unfit for work until 26 April 2024.  Her workers’ compensation claim has been accepted.

  1. Ms Chalmers submitted that the Respondent’s conduct, including during the casual conversion and general protections not involving dismissal dispute with the Commission, was intended to convey to her that if she did not resign, she would be dismissed. This includes the Respondent suggesting that she seek alternative employment rather than continue prosecuting her casual conversion dispute with the Commission.

  1. Ms Chalmers submitted that her conduct in seeking to become a permanent part-time employee is not consistent with the behaviour of an employee who would resign voluntarily. She submitted that the conduct of the Respondent then gave her no real opportunity but to resign.[2]

Evidence given during the Hearing

  1. In evidence given during the Hearing, Ms Chalmers agreed that she knew that the Respondent was recruiting new technicians as the existing technicians were ‘under the pump’, reporting on 400 cases per week.

  1. She agreed that during the 12 December 2023 video conference she was informed of the changing shift of the Respondent and performance issues relevant to her.  She considered the performance issues were baseless.

  1. Ms Chalmers conceded that she was invited to provide a suitable time and date to the Respondent in order for training with Professor Weerasooriya to be convened.

  1. Ms Chalmers stated that she had been unwell since 13 December 2023, including being unwell right up to the conference before me on 16 January 2024.  She had not been well enough to go to work or participate in training.  She stated that she had been too unwell to suggest any dates to the Respondent for training.   Ms Chalmers confirmed that she didn’t have any contact with the Respondent from 13 December 2023.

  1. In answering questions from me, Ms Chalmers considered that she was still employed when she participated in the conference on 16 January 2024.  She considered herself dismissed when she sent the first email at 5:46pm that day.

Respondent’s evidence and submissions

Evidence of Mr Weerasooriya

  1. Mr Weerasooriya is employed by Rewardle Pty Ltd and provides management services to CloudHolter Pty Ltd under a professional services agreement.

  1. In 2023, Mr Weerasooriya was advised by Professor Weerasooriya that he had issues with Ms Chalmers’ performance, mainly relating to disproportionate report generation.  Both men formed the initial view that the performance issues could be managed through the regular training sessions Professor Weerasooriya conducted for the Respondent’s Cardiac Technicians.

  1. Evidence of Professor Weerasooriya’s concerns regarding Ms Chalmers’ capability was not produced until during the Hearing on 3 April 2024.  On 30 June 2023, Professor Weerasooriya sent the following email to Mr Weerasooriya:

“Hi Roo, Te-Arn has limited knowledge and we should avoid using her whenever possible until I have a chance to properly train her up.  I suggest we send normals to her.  Pierce and Aissh are excellent but Te-Arn is dodgy in terms of knowledge and understanding.

Thanks”

  1. On 5 December 2023, Ms Chalmers sent Mr Weerasooriya a letter requesting casual conversion which he discussed with Professor Weerasooriya. Together they determined that as the Respondent entered the next phase of its business strategy, with greater focus on its AI software project, Cardiac Technicians who were employed remotely would not have an ongoing role. While this was the primary reason for the decision, they also discussed Ms Chalmers’ performance including analysis of data from the Respondent’s workflow system.

  1. Mr Weerasooriya tasked Mr Jason Potter, Chief Technology Officer with extracting data so he could better understand Ms Chalmers’ performance compared to her colleagues.  He determined that her performance was a factor of times worse. He and Professor Weerasooriya determined that this would impact the AI software that the Respondent was focusing its resources on.  The data is extracted below, demonstrating that Ms Chalmers required, as a percentage, a great deal of reviews for her work. This evidence was not provided to the Commission and to Ms Chalmers until the Hearing of 3 April 2024:

  1. The above data covers the period 18 July 2023 to 6 December 2023, produced on 6 December 2023 by Mr Potter.  

  1. Mr Weerasooriya organised a video conference with Ms Chalmers on 12 December 2023, also attended by Mr Moon.  He informed Ms Chalmers of the following:

·  The Respondent is a small business, not a medium sized business;

·  An explanation of the refusal of the casual conversion request, primarily related to the Respondent’s business strategy;

·  It was envisaged that Ms Chalmers’ role would not continue;

·  While hours would continue in the short-term, they would decrease over time as her role was phasing out;

·  Her performance in comparison to her peers, as observed by Professor Weerasooriya and supported by data analysis, showed a multiple factor difference;

·  Professor Weerasooriya was best placed to discuss her performance and training would be coordinated;

·  Support was offered to Ms Chalmers if she wished to explore other employment opportunities in anticipation of her hours being reduced; and

·  Ms Chalmers requested a reference to which he suggested she draft it and it could be reviewed by Professor Weerasooriya.

  1. Ms Chalmers then requested additional time off over the Christmas/New Year period in what Mr Weerasooriya considered to be a reactionary manner upon learning that her conversion request was being refused by the Respondent.  His evidence is that Ms Chalmers stated that she had agreed to work shifts if casual conversion was to be agreed, but would prefer time off if it was not being offered.  Mr Weerasooriya was concerned by what he was hearing, however he understood Ms Chalmers to mean that she did not wish to work 20, 21 and 22 December 2023.  His evidence is that was his logical conclusion as she had already requested later dates in December 2023, and these three shifts were the shifts she was referring to dropping.

  1. Following the 12 December 2023 conference, Mr Weerasooriya sent Ms Chalmers an email at [32], to which she replied.  Considering the experience of his brother, Professor Weerasooriya, a highly qualified cardiologist of over 30 years’ experience, Mr Weerasooriya considered Ms Chalmers’ response to be defensive and dismissive.  Having regard to the health and wellbeing of patients, which could be life threatening, he was concerned by Ms Chalmers’ response.

  1. When Ms Chalmers notified the next day that she was unwell on account of the previous day’s discussions, and noting the Respondent provides a time-critical medical testing service that regularly detects potentially life-threatening or changing medical conditions, Mr Weerasooriya decided, in conjunction with Professor Weerasooriya, that Ms Chalmers’ duties for the period 13-15 December 2023 would be allocated to another team member and Ms Chalmers’ access to the Respondent’s systems be temporarily restricted.

  1. Ms Chalmers was offered and accepted to be paid for shifts on 14 and 15 December 2023 but not required to work.

  1. Mr Weerasooriya requested Ms Chalmers’ availability to coordinate training with Professor Weerasooriya to address her performance issues, and so her shifts could be coordinated for the seasonally slow Christmas and New Year period.  

  1. Ms Chalmers replied to the email to accept payment for the unworked shifts and made other claims, but failed to advise her availability for training with Professor Weerasooriya. As she did not provide her availability, further shifts were not yet allocated to her.

  1. On 14 December 2023, Mr Weerasooriya sent the following email to Professor Weerasooriya:

“Hi Ruk,

as we just discussed, I think for the time being you should just run the "Cases and Traces" sessions without Te-Arn so as not to distract the rest of the team with the issues she is having on her reporting as the rest of the team is fine.

I have asked her to advise when she is available to discuss her performance and arrange specific training with you and I am yet to get any times from her. I'll coordinate a suitable time with you one hear back.

Thanks,

Roo”

  1. In respect of the 16 January 2024 telephone conference before me, Mr Weerasooriya’s recollection is that Ms Chalmers reluctantly offered to undertake training with Professor Weerasooriya, however she was making it conditional upon her having a support person present and the training session being recorded.

  1. Mr Weerasooriya recalled that the Professor simply stated that the coming months were becoming increasingly busy for him and he could not immediately provide a training date and time. Mr Weerasooriya’s recollection is that I then asked Ms Chalmers why she wished to continue working for the Respondent as it did not sound like a positive, harmonious working environment if she required a support person for training and for it to be recorded.

  1. Mr Weerasooriya considered that the issue of when training might be convened was not properly concluded on account of Ms Chalmers’ unusual requests in respect of the training and the without prejudice offer that she made at the conference which was rejected by the Respondent.

Evidence given during the Hearing

  1. Mr Weerasooriya stated that Ms Chalmers couldn’t be trained in person on account of Ms Chalmers’ location in Queensland, and the Professor located in Western Australia.  He stated that regeneration reports are inefficient.

  1. Noting that Ms Chalmers was unwell on 13 December 2023, Mr Weerasooriya made the decision he wasn’t going to expose client data to Ms Chalmers as he considered that her absence was retaliatory and he didn’t want the data to be provided to her if she was ‘toxic’.

  1. In respect of the dates 20, 21 and 22 December 2023, he considered that these were the dates Ms Chalmers was requesting off work in addition to the later dates in December 2023.

  1. In respect of the conference convened on 16 January 2024, he considered that Ms Chalmers had ‘sat on her hands’ and not informed him when she could participate in the training with the Professor.  The Respondent hadn’t heard from her since 13 December 2023.

Evidence of Mr Moon

  1. Mr Moon is employed by Rewardle, performing services for the Respondent. 

  1. At the time of attending the 12 December 2023 video conference with Mr Weerasooriya and Ms Chalmers, she had shifts confirmed for 13, 14 and 15 December 2023, together with 20, 21 and 22 December 2023.

  1. The issue of casual conversion was discussed, together with performance issues.  Mr Moon recalled the issue of providing a reference, as Ms Chalmers’ request could be organised.

  1. Mr Moon recalled Ms Chalmers requesting additional time off which he considered to be reactionary upon learning that her casual employment would not be converted to permanent employment.  Ms Chalmers stated that she had only requested to take certain shifts off (in later December 2023) and expected to be converted, but if that was not the case, she wished for additional time off. Mr Moon understood this to mean the confirmed shifts of 20, 21 and 22 December 2023. 

Evidence given during the Hearing

  1. In evidence given during the Hearing, Mr Moon stated that all Cardiac Technicians were affected by a delayed payment in December 2023, not just Ms Chalmers.

Evidence of Professor Weerasooriya

  1. Professor Weerasooriya is the founder and sole director of Cloudholter Pty Ltd.  He oversees the clinical aspects of the Holter testing service including a team of casual and permanent Cardiac Technicians. He is a Cardiologist with over 30 years of experience and is a Clinical Professor of Medicine at the University of Western Australia.

  1. As is common practice in the industry, the Respondent uses Cardiac Technicians to prepare draft reports. While Cardiac Technicians prepare draft reports, the cardiologist signing off the report is medicolegally responsible and liable for the quality and accuracy of the ultimate report. As such, it is critical to the Professor and other cardiologists that reports through the Respondent’s platform by Cardiac Technicians follow the processes and protocols the Respondent has established.

  1. The Respondent has developed best practice clinical protocols, which continue to develop and evolve, for Cardiac Technicians to follow in the preparation of draft reports to ensure high quality, consistent reporting. In addition to ensuring accurate, high-quality reports are consistently prepared, the processes and protocols established by the Respondent are also important to supporting the R&D undertaken by the Respondent with respect to the development of its AI software project.

  1. In the Professor’s professional opinion, a cardiologist requesting a draft report to be regenerated is a clear sign that the Cardiac Technician has not understood or followed the established protocols. While report regeneration is a natural part of the Respondent’s operations and a level of report regeneration is acceptable, in the Professor’s professional opinion, the disproportionate number of regenerations attributed to Ms Chalmers, along with his observations showed clear issues with her performance.

  1. During early 2023, he observed some performance issues with Ms Chalmers’ work as a Cardiac Technician, having to consistently request regeneration of reports. He raised these issues with Mr Weerasooriya in his role as General Manager. The Professor’s initial view was that the performance issues could be managed through regular training sessions he conducts with the Cardiac Technicians. He sent an email to Mr Weerasooriya on 30 June 2023, reproduced at [57].

  1. In December 2023, he became aware that Ms Chalmers was seeking casual conversion.  He discussed the request with Mr Weerasooriya.  An analysis of Ms Chalmers’ performance was generated and considered, establishing that Ms Chalmers’ performance was substantially worse than her peers and this would impact the AI software development the Respondent was increasingly focusing its resources on.  Professor Weerasooriya considered Ms Chalmers’ statistics at around 10% to mean that she was an outlier.

  1. Further, the Respondent’s business was entering a next phase, where remote-based Cardiac Technicians would not have an ongoing role.

  1. Professor Weerasooriya was aware that Mr Weerasooriya was to discuss the Respondent’s refusal of her request over a video conference on 12 December 2023. He was issued with a copy of the email sent to Ms Chalmers following the meeting. 

  1. Ms Chalmers’ response was sent to Professor Weerasooriya.  He found her comments to be concerning.  Based on his extensive experience working in the health sector, he considered dismissive responses to clinical feedback to be a “red flag” that cannot be ignored.

  1. On 13 December 2023, Ms Chalmers failed to attend a scheduled Cardiac Technician training session with the Professor on account of being unwell.  He discussed concerning behaviour of Ms Chalmers with Mr Weerasooriya, and they agreed that it would be prudent to reallocate her remaining shifts leading into the seasonally slow Christmas/New Year period to protect patient data.  They agreed she should be paid for the unworked shifts.  The email sent to Ms Chalmers included a request for her to provide her availability to undertake training with him so future hours could be allocated to her.

  1. Ms Chalmers did not provide her availability and therefore the training was not coordinated.

  1. Professor Weerasooriya’s recollection of the 16 January 2024 conference is that Ms Chalmers reluctantly offered to undertake training with him, but only if a support person was present and training sessions were recorded.  He considered the conditions to be unusual.  He stated that he was becoming busy, and he could not immediately provide a training date and time, especially given the unusual requests made by Ms Chalmers that needed to be considered.

  1. Professor Weerasooriya recalled that I said something to the effect of why did Ms Chalmers wish to continue working for the Respondent if it didn’t sound like a harmonious working environment.  He recalled the matter of training was never resolved in part due to the unusual requests made by Ms Chalmers.

  1. In the Professor’s opinion, Ms Chalmers’ initial and ongoing response to his professional opinion with respect to her performance is a cause for concern.

Evidence given during the Hearing

  1. In evidence given during the Hearing, Professor Weerasooriya stated that on account of Ms Chalmers’ poor performance, she was being tasked with easy reports.  He considered that she wasn’t “good at pathology”.

  1. He stated that the reason the “cases and traces” meeting was held on Wednesday mornings is because that is when Ms Chalmers was available and she needed to be available to learn because of her poor performance.  He considered that she didn’t seem to want to learn.  He considered that the other Clinical Technicians were growing, but Ms Chalmers was not. 

Consideration

  1. Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their employment has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[3]

  1. When analysing whether there has been a “termination at the initiative of the employer” for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[4]

  1. 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 Pawell 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 the 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 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 the 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).

  1. 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 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)

  1. 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. 

  1. Having regard to the legislation and the authorities, it is necessary to determine whether Ms Chalmers was forced to resign her employment on 16 January 2024. 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”.

  1. The onus is on Ms Chalmers 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 Chalmers and the Respondent to an end.[9]

  1. Ms Chalmers was unwell from 13 December 2023.  She was paid for 14 and 15 December 2023, without being required to work.  She was then not scheduled to work on 20, 21 and 22 December 2023.  I understand the contention between the parties; Ms Chalmers considers that she was available to work those days and both Mr Weerasooriya and Mr Moon were incorrect when they assumed that she required those days off work.  In any event, Ms Chalmers became too unwell to work those dates. 

  1. Ms Chalmers had requested the following week off work, being late December 2023, which had earlier been granted.  She was unwell during this period. 

  1. Despite being requested by Mr Weerasooriya to provide availability to participate in training with Professor Weerasooriya, Ms Chalmers did not respond with any availability.  She did, however, make a s.372 application on 21 December 2023 when she had not been paid.  The application is quite detailed, including pages of attachments. On receipt of the s.372 application, Mr Weerasooriya assured Ms Chalmers that there had been a payroll issue affecting all employees and he hoped to pay her, and the other employees by the end of the day.

  1. Ms Chalmers was still unwell and unfit for work or to participate in training, including during the conference before me on 16 January 2024. During the conference, Ms Chalmers stated that she hoped that she would be well enough to return to work “this week”.  The conference before me was held on a Tuesday, meaning that Ms Chalmers hoped to be well enough to return to work the following day, on Wednesday, 17 January 2024, or the Thursday or Friday.  It appears she did not obtain a medical examination on 16 January 2024.

  1. Instead, and as a result of what she considered was discussed during the conference before me on 16 January 2024, later that evening, Ms Chalmers declared firstly that she considered she had been terminated and therefore unfairly dismissed, and in another email that evening, advising the resignation of her employment.

  1. In the conference before me, Ms Chalmers attempted to reach a settlement with the Respondent to end the employment.  This was rejected by the Respondent.  In the subsequent emails that evening, Ms Chalmers then advised that she considered she had been terminated and offered not to commence proceedings if the settlement sum she pursued was agreed to be paid to her.  

  1. When the Respondent again rejected the offer put by Ms Chalmers, she commenced these proceedings.

  1. What is clear from the conference held before me on 16 January 2024 is this:

·  Ms Chalmers was not well enough to attend work, and had not been well enough to work since 13 December 2024;

·  Ms Chalmers was not rostered to work any casual hours;

·  Ms Chalmers was required to undertake further training with Professor Weerasooriya on account of the performance concerns held by the Respondent;

·  Ms Chalmers had not contacted the Respondent to advise her availability to participate in further training with Professor Weerasooriya;

·  Ms Chalmers insisted that if she were to participate in the further training with Professor Weerasooriya, she must have a support person present and it must be recorded; and

·  Professor Weerasooriya advised that he was beginning to get busy, and he could not provide to Ms Chalmers a date for training to occur.

  1. I do not have a recollection of Professor Weerasooriya stating that he did not have availability for a period of four months.  I would be surprised if he did say that, as I consider I would have likely challenged him if he was not available for a period of four months, noting that Ms Chalmers was employed as a casual employee, and if fit for work, would be without wages.  Having reviewed Ms Chalmer’s statistics, it is unsurprising that the Respondent wanted to address her performance with her.  Ms Chalmers did not have these statistics before her until April 2024, but even when faced with them, asserted that she shouldn’t be measured against more experienced employees. 

  1. It is common ground between the parties that I asked Ms Chalmers why she wished to work for the Respondent if she required a support person present at training and insisted on it being recorded.  

  1. During the conference, I scheduled with the parties a further conference in respect of the s.66M casual conversion dispute, advising that it would be convened on 1 February 2024.  I did so on the basis that it wasn’t a substantial period of time between 16 January 2024 and 1 February 2024, and in that time, Ms Chalmers might be well enough to be cleared fit for work, and the Respondent would have time to consider Ms Chalmers’ stated requirements to only participate in training if she could have a support person present and record the training.

  1. I was very surprised to see Ms Chalmers’ correspondence that evening, asserting that she considered she had been terminated and later, resigning her employment.  

  1. I continued to convene the s.66M conference on 1 February 2024.  At no time did Ms Chalmers seek to return to the Respondent’s employment, in case her resignation on 16 January 2024 was a “heat of the moment” resignation.  She had, in fact, been declared unfit for work when she was medically examined on 18 January 2024.  At the conference on 1 February 2024, the Respondent likened Ms Chalmers’ claims to settle all matters between her and the Respondent as a “shake down”.

  1. Having regard to all of the evidence and submissions before the Commission and having convened the telephone conference between the parties on 16 January 2024, being a central observer of the dispute between the parties, I am not satisfied that the Respondent engaged in conduct or a course of conduct to force Ms Chalmers’ resignation.  I consider that I was best placed to understand the parties’ contentions between them on 16 January 2024.

  1. Ms Chalmers was unwell on 16 January 2024 and not fit to work. The reasons why, she stated, are to do with how she considers she was treated on 13 December 2023, but whatever the reasons, she was unwell.  The Respondent declared she would need to participate in training with Professor Weerasooriya, and she “hoped” that she would be well enough to return to work that day or the following two days.  After being unwell for one month, it would be expected that Ms Chalmers ought to seek medical advice as to whether she was well enough to return to work, noting she had two applications before the Commission at that time and has a significant long-term medical condition.

  1. Having demanded how the training would need to be convened before she would participate in it, and Professor Weerasooriya stating that he was not immediately available, Ms Chalmers sought to negotiate a separation from the Respondent.  When this was rejected by the Respondent, the parties were left unsatisfied, and with a plan to participate in a further conference before me just over two weeks later. 

  1. It is clear to me that Ms Chalmers was slighted, and that evening decided to take control of the dispute between the parties. She would declare that she had been terminated and also resign her employment, citing constructive dismissal. In exchange for not bringing either an unfair dismissal application or a s.365 application, she would require a certain sum to be paid to her. This was rejected by the Respondent.

  1. Ms Chalmers did not need to do what she did on the evening of 16 January 2024.  If she had taken no action at all, she would have continued to have been employed, albeit with no scheduled hours of work at that stage.  If she remained unwell, she was able to obtain a workers’ compensation medical certificate, and ultimately, continue on in her employment, albeit unwell, and potentially make a successful workers’ compensation claim with the facts as they might have stood.  She was, in fact able to make a successful workers’ compensation claim with the facts as they are known.

  1. If Ms Chalmers was able to recover from her immediate medical condition, she would then be in a position to strongly pursue from the Respondent her typical rostered hours of work, Wednesday to Friday. She did not recover.   If she had, it would certainly have been a significant issue to discuss before me at the further conference on 1 February 2024.

  1. Following the conference on 16 January 2024, the Respondent’s next steps would have been to participate in the scheduled further conference before me on 1 February 2024 and respond to any availability Ms Chalmers might have declared in respect of the further training the Respondent required her to undertake.  Naturally, the Respondent would have had to consider Ms Chalmers’ demands to have a support person at the training and it be recorded.  The Respondent would have been able to obtain legal advice from the firm it had engaged, noting the Respondent was self-represented at the 16 January 2024 conference.  The Respondent was entitled to obtain legal advice in respect of Ms Chalmers’ conditions placed on the training.  It was not obliged to take a forced position at the 16 January 2024 conference on account of Ms Chalmers’ stated conditions; it was entitled to consider Ms Chalmers’ proposal.

  1. If Ms Chalmers had recovered from her immediate medical condition such that she was well enough to work, it would have been appropriate for the Respondent to then do its best to roster her with her typical rostered hours, Wednesday to Friday, noting it was beginning a shift to a new business model and Ms Chalmers’ casual hours of work would eventually be reduced.

  1. As highlighted in ABB Engineering,[10] a consideration of the employer’s conduct is necessary to determine if it was the principal contributing factor in the resultant termination. I am not satisfied that anything said by the Respondent at the conference before me on 16 January 2024 was of such a nature that resignation was the probable result, or that Ms Chalmers had no effective or real choice but to resign.  I am not satisfied that the Respondent took action with the intent or probable result to bring the employment relationship between Ms Chalmers and the Respondent to an end, including not rostering Ms Chalmers for further shifts given she was unwell and had been since 13 December 2024. 

  1. I am satisfied that Ms Chalmers’ resignation was voluntary, and not due to conduct or a course of conduct (including omission) engaged in by the Respondent, either prior to 16 January 2024 or during the conference on 16 January 2024.  Having reviewed the statistics relevant to Ms Chalmers’ performance, the Respondent was acting reasonably by requiring her to participate in training with Professor Weerasooriya, despite her objections that any performance management of her was baseless.  Ms Chalmers was not rostered for further shifts and under the circumstances, this was not surprising.

Heat of the moment resignation

  1. It is an established principle that an employer is generally able to treat a clear and unambiguous resignation as a resignation.[11]

  1. However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise such that an employer may be required to allow a reasonable period of time to pass before accepting the resignation.[12] Further, the employer may have a duty to confirm the intention to resign, if put on notice during that reasonable period that the resignation was not intended.[13]

  1. I have earlier stated that I do not consider that Ms Chalmers’ resignation was given in the heat of the moment. 

Conclusion

  1. For the reasons set out above, I have determined that the resignation of Ms Chalmers was not caused by conduct, or a course of conduct (including omission), on the part of the Respondent. I find that Ms Chalmers was not a person dismissed from employment and the jurisdictional objection raised by the Respondent is upheld.

  1. I must dismiss the application for lack of jurisdiction. An Order [PR777090] will be issued together with this decision.

COMMISSIONER

Appearances:

T Chalmers for the Applicant
R Weerasooriya for the Respondent

Hearing details:

Brisbane.
Video by Microsoft Teams.
2024.
3 April.

Brisbane.
Video by Microsoft Teams.
2024.
12 April.


[1] [2020] FCAFC 152.

[2] Tara Singh v West Coast Industrial Supplies Pty Ltd T/A WCIS (U2013/2032 Pty Ltd T/A WCIS [79]

[3] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5167 at [75]; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.

[4] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5167 at [75].

[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 PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at

para. 23, [(2006) 58 AILR 100].

[10] Doumit v ABB Engineering Construction Pty Ltd (Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

[11] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12]; citing Minato v Palmer Corporation Ltd (1995) 63 IR 357 at pp. 361‒362; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).

[12] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12]; citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 at p. 191.

[13] Ibid.

Printed by authority of the Commonwealth Government Printer

<PR777088>

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