Tessa Prinsloo v The Trustee for Landsdale Early Learning Unit Trust T/A Landsdale Early Learning and Enrichment

[2020] FWC 3837

[2020] FWC 3837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tessa Prinsloo
v
The Trustee for Landsdale Early Learning Unit Trust T/A Landsdale Early Learning and Enrichment
(U2020/4491)

DEPUTY PRESIDENT BEAUMONT PERTH, 30 JULY 2020

Application for an unfair dismissal remedy – applicant alleges forced dismissal – ss 386(1)(a) and 386(1)(b) considered - applicant not forced to resign through action or conduct of the respondent – resignation of applicant’s own volition – remedy not granted – application dismissed.

[1] Ms Tessa Prinsloo gave notice of her resignation to The Trustee for Landsdale Early Learning Unit Trust (the Respondent) on 6 March 2020. Having served a notice period, her employment ended with the Respondent on 19 March 2020, and on 9 April 2020 she lodged an application for unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent objected to Ms Prinsloo’s application on the basis it was beyond the jurisdiction of the Commission because Ms Prinsloo was not forced to resign or given no reasonable choice but to resign.

[3] Counsel for the Respondent deduced, based on the evidence presented, the matter was one where the second limb of s 386(1) of the Act was relevant, rather than the first limb. Section s 386(1)(b) of the Act (the second limb) applies in circumstances where a person has resigned from her or his employment but was forced to do so because of conduct, or a course of conduct, engaged in by her or his employer. This is in contrast to s 386(1)(a) (the first limb), which concerns circumstances where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the ‘heat of the moment’ or when the employee was in a state of emotional stress or mental confusion, such that the employee could not reasonably be understood to be conveying a real intention to resign. 1

[4] Ms Prinsloo, a self-represented litigant, did not expressly indicate her reliance on s 386(1)(a) or (b), although it was implicit in her submissions that s 386(1)(b) was relied upon.

[5] The parties were informed that I would initially determine whether the application was beyond the jurisdiction of the Commission and would then turn my attention to whether the dismissal was unfair. Were it necessary to consider remedy, a separate hearing would be held.

[6] Having considered whether Ms Prinsloo was dismissed, as that term is understood under s 386(1), I have found that she was not. It follows the application is beyond the jurisdiction of the Commission and is therefore dismissed. My reasons follow.

Background

[7] The Respondent is a childcare centre in Landsdale, Western Australia. It generally accommodates approximately 90 children each day, with a capacity to take up to 140 children. The Respondent employs approximately 25 staff.

[8] On 3 September 2018, Ms Prinsloo commenced employment with the Respondent on a full-time basis as a Room Leader. Ms Prinsloo stated that her rate of pay was $27.55 per hour.

[9] Ms Prinsloo embarked on a period of parental leave in 2019. Noting, while she had arranged to return to work in January 2020 with her two children attending full time at the Respondent, with a childcare fees arrangement in place, she was asked to return to work earlier, which she did in December 2019. 2

[10] Ms Prinsloo gave evidence that she arranged to return to work for four days full time, with one day off a week to enable her to see her psychologist for post natal sessions. 3 Concerning breastfeeding in the workplace, Ms Prinsloo said, with the understanding of management and educators in the service, she would take regular ‘pumping’ breaks or feed her child directly.4

[11] Ms Monise Valzacchi, was appointed as the Centre Manager on 10 February 2020. 5 Up until the time of her promotion to Centre Manager, she had previously worked at the Respondent in the capacity of Diploma Qualified Educational Leader.6 On securing the new appointment, Ms Valzacchi assumed the supervision of Ms Prinsloo.7

[12] Ms Valzacchi gave evidence that on the first day of Ms Prinsloo’s return to work from parental leave, Ms Prinsloo complained to her that she had not sufficiently supported her. 8 Ms Valzacchi stated that she thought it unfair for Ms Prinsloo to have reached that conclusion and to have made the complaint, based on one day in her new role.9 Notwithstanding, after that, for a time Ms Valzacchi met with Ms Prinsloo almost on a daily basis and, in her words, did the best to provide as much support as she could.10

[13] Ms Prinsloo reported that upon her return from parental leave, several educators had discussed her return and forewarned others about her. 11 Further, there was an incident where an educator had disagreed with Ms Prinsloo about following policies, which in turn made her feel bullied by Ms Valzacchi and another person, who Ms Prinsloo understood had held conversations with other educators about the incident.12 It followed that, when Ms Valzacchi was appointed as the Centre Manager for the Respondent, Ms Prinsloo said this made her very anxious due to Ms Valzacchi’s bullying and premeditated attempts to tarnish her positive reputation.13

[14] Ms Valzacchi gave evidence, which was not disputed, that Ms Prinsloo requested a meeting with the owners of the Respondent to discuss childcare fees. The request arose after Ms Prinsloo was informed on 10 February 2020 that the owners of the Respondent were ending the arrangement regarding childcare fees, 14 and provided her with a statement for almost $3000.00.15

[15] On 17 February 2020, Ms Prinsloo wrote to Ms Valzacchi to request a flexible work arrangement, which would see a reduction in work hours to 35 hours a week with a 60 minute meal break. 16 This was approved on a trial basis, with a start date of 24 February 2020.17

[16] The meeting with the owners to discuss childcare fees took place on 25 February 2020. Ms Prinsloo stated Ms Valzacchi asked her to come into the office, but did not say why. Ms Prinsloo continued that when the meeting commenced Ms Valzacchi started by saying that the owners had been discussing Ms Prinsloo’s account and what Ms Prinsloo’s understanding was of the childcare fees arrangement. Ms Prinsloo stated she said to the two owners and Ms Valzacchi that she understood that there was an arrangement in place concerning childcare fees and, while she had no issue paying for her fees, she was informed that the arrangement was in place and not to worry about her statements as management were sorting it. 18

[17] It was Ms Prinsloo’s evidence that one of the owners started to talk over her and berated her about her fees, stating that she was not entitled to free childcare and never was. 19 A disagreement ensued, whereby Ms Prinsloo purported that the Centre Manager prior to Ms Valzacchi had put in place an arrangement (which appeared to have permitted free childcare), to which one of the owners stated that there was never such an agreement and what was occurring was not ethical.20

[18] Ms Prinsloo continued that the other owner interjected informing the first owner to permit Ms Prinsloo to speak. 21 Matters escalated, and Ms Prinsloo stated she told the owners she did not feel comfortable and needed to leave.22 Ms Valzacchi gave evidence that it was Ms Prinsloo who persisted talking and would not permit the owner to speak. However, Ms Valzacchi acknowledged that one owner had informed the other to allow Ms Prinsloo to speak.

[19] Ms Prinsloo explained that she departed the meeting and went to the staff room as she was very distressed. 23 On the way, she called a colleague, referred to as Kim, stating ‘they just harassed me and bullied me and I am not okay’.24 Ms Prinsloo gave evidence that she began hyperventilating and, while one colleague tried to assist, her attempts were unsuccessful and therefore Kim was called.25 According to Ms Prinsloo, Kim helped calm her down but then Ms Valzacchi asked Kim to return back to the floor, at which point Ms Prinsloo started to have another panic attack.26 Kim was called back to support Ms Prinsloo further. In giving her evidence, Ms Prinsloo squarely levelled that her dismissal was unfair noting her not being permitted a support person for the meeting on 25 February 2020, and then having her support person removed.

[20] Ms Prinsloo explained that after she was completely calm and reassured, she continued to work for the remainder of the day on 25 February 2020. 27 However, on 26 February 2020, Ms Prinsloo commenced a period of personal leave.28 Her reasons, she was severely stressed and anxious about what she might face if she were to present for work.29 Ms Prinsloo stated she visited her General Practitioner (GP), who increased her anxiety medication, and thereafter she had to collect her children from the Respondent’s premises, at which point she was ‘in hysterics driving to the service with severe anxiety’.30 Ms Prinsloo explained that she informed Ms Valzacchi what she had discussed with her GP, and that she would not be in for the rest of the week as she was on stress leave.

[21] Insofar as Ms Prinsloo’s behaviour was concerned, Ms Valzacchi stated she had received reports from co-workers in which concerns were expressed. 31 Those concerns extended to not presenting on the floor on time, absenting herself from the floor in circumstances where there was no replacement room leader, taking long lunch breaks, neglecting outdoor activities and absenteeism from the floor without explanation.32 Based on this feedback and Ms Valzacchi’s own observations of Ms Prinsloo’s behaviour, Ms Valzacchi said she was concerned as to whether Ms Prinsloo was fit for work and whether the state of her emotional/psychological health created a safety risk for her, her co-workers or the children under her care.33 There was evidence that Ms Prinsloo would remove herself from the floor at times, due to her crying.

[22] Given her concerns about Ms Prinsloo’s fitness for work, Ms Valzacchi decided that Ms Prinsloo’s fitness should be assessed by a suitably qualified health professional, to make sure that the Respondent was not placing her or her colleagues in ‘harm’s way’ by permitting her to resume work, and to assess whether Ms Prinsloo was well enough to come to work. 34

[23] On 2 March 2020, Ms Valzacchi informed Ms Prinsloo that her request for changed working hours was accepted, and that she was required to undergo a fitness for work assessment. 35

[24] Ms Prinsloo responded to Ms Valzacchi’s email, dated 2 March 2020, seeking clarification whether she would be paid during the period pending the fitness for work assessment, advising of the cessation of childcare for the period, and requesting whether her own psychologist and psychiatrist could do the assessment. 36

[25] In response, Ms Valzacchi informed Ms Prinsloo by email dated 3 March 2020, the Respondent preferred to ‘get a report from someone who is not involved in your care’, noting that ‘[W]e’ll be seeking a medicolegal report and it’s better from [sic] that not to come from a physician who is treating you’. 37

[26] Subsequent emails followed between the two on 3 March 2020. Ms Prinsloo informed Ms Valzacchi that, according to the Fair Work Ombudsman, she was well within her rights to refuse to have an appointment made by the Respondent on her behalf, but she was willing to negotiate regarding a request for the examination to be conducted by her own physician or psychologist. 38 Ms Valzacchi advised Ms Prinsloo that the Respondent disagreed with her position concerning the examination, explaining that the Respondent was entitled to direct her as it had, to enable it to comply with safety standards and legislation. She further added that it may be in Ms Prinsloo’s interest to get legal advice on the point, rather than placing her employment at risk by refusing to attend the medicolegal examination, given it was a lawful and reasonable instruction.39

[27] By email dated 5 March 2020, Ms Valzacchi informed Ms Prinsloo of the appointment times for the medicolegal reviews she was required to undergo on 10 March 2020, with an occupational physician and a psychiatrist. 40 Ms Prinsloo responded on 6 March 2020:

Hi

Apologies for the late reply, I have been seeking relevant legal advice from appropriate services.

I will attend the appointment, however I wish to advise you of my decision to resign. As per procedures this is my 2 week notice, my last day will be 19th March 2020. This decision comes after a lack of respect towards your educators and providing an unsafe workplace. I do not feel comfortable due to bullying, harassment and intimidation.

Please advise me if you require me to proceed with the assessment. If you wish for me to proceed, please provide me with information and questions you have provided.

As a parent I wish for you to cease my children’s care as of the 27th Feb 2020. 41

Tessa

[28] In relation to her resignation, Ms Prinsloo explained that after the meeting on 25 February 2020, she spoke to her husband about what had occurred. Not long after, she verbally informed Ms Valzacchi that she would resign. Ms Valzacchi was said to have asked Ms Prinsloo to think about it first. When asked in cross examination whether Ms Prinsloo had considered her resignation carefully, Ms Prinsloo responded ‘yes’.

The legislation

[29] Subsection 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which relevantly concerns Unfair Dismissal. That subsection provides:

(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.

[30] Under s 386(2) of the Act there are exceptions regarding when a person has been dismissed. However, those exceptions are not relevant to this case.

[31] The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.

[32] In the decision of Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli (Bupa), 42 the Full Bench dealt with s 386(1) of the Act and sought to clarify the operation of the two elements. Regarding the first element, a termination of employment ‘at the initiative of the employer’ may be treated as a termination in which the action of the employer is the principal contributing factor.43 The resignation is said to be ‘forced’,44 an approach adopted in Mohazab v Dick Smith Electronics Pty Ltd,45and later followed in decisions made in respect of various iterations of the termination of employment scheme in the Workplace Relations Act1996 (Cth).46

[33] One such decision was that of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd. 47 In this case, the Full Bench stated:

[23]… 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 of that the appellant had no effective or real choice but to resign.

[34] It follows that the question is not merely whether the act of the employer, which must be a principal contributing factor, 48 resulted directly or consequentially in the termination of employment, but whether on an objective analysis of the employer’s conduct the employee’s effective or real choice was so negated that resignation was inevitably the only recourse.

[35] Often, it will be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign from employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. 49 The Full Bench of the Australian Industrial Relations Commission cautioned ‘but narrow though it be, it is important that the line be closely drawn and rigorously observed’, the Bench continued:

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 50…

[36] Preceding the Fair Work Bill 2008, a ‘forced’ resignation could constitute a dismissal ‘at the initiative of the employer’ as is clearly evinced from the case law traversed. However, in 2009 the legislature brought into operation s 386(1)(b). 51 It observed that s 386(1)(a) was intended to capture the case law relating to the meaning of ‘termination at the initiative of the employer’ as that phrase was understood in Mohazab, while the second limb of s 386(1) would cover the circumstances where a person resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer (constructive dismissal).52

[37] In Bupa, the Full Bench observed that while a ‘forced’ resignation could constitute a termination of employment at the initiative of the employer, the legislature, in s 386(1), chose to define a ‘dismissal’ in a way that retained the ‘termination at the initiative of the employer’ formulation but separately provided for ‘forced’ resignation. 53 The Full Bench therefore concluded s 386(1)(b) reflected the statutory form of the test developed in Mohazab, and thereafter summarized in O’Meara.54

[38] The work, then, of s 386(1)(a) was left to be considered. According to the Full Bench in Bupa, it operates in the context of those circumstances in which an ostensible indication of an intention to resign on part of an employee may not be effective to terminate the employment on the employee’s initiative because it cannot reasonably be regarded as voluntary. 55 Reference to ‘context’ and ‘circumstances’ extends to the concept of ‘special circumstances’, which are such that they render an apparent indication of resignation on the part of the employee ineffective, unless, perhaps, confirmation is obtained by the employer of the intent to resign after a reasonable period.56

[39] The Full Bench summarised the operation of s 386(1)(a) in the following terms:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. 57

[40] However, while it was the case that Ms Prinsloo was purported to be suffering from anxiety and had experienced a panic attack it was clear from her submissions that she considered she was forced to resign due to the conduct of the Respondent. Subsection 386(1)(b) is germane in this respect and is conveniently summarised by the Full Bench:

(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 probably [sic] 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. 58

Agreed matters

[41] Before turning to an objective analysis of the conduct of the Respondent, it is necessary first to traverse those matters that are agreed upon. It is not in contest, and I am satisfied on the evidence:

(a) Ms Prinsloo is a person protected from unfair dismissal because, at the time of the termination of her employment, she was an employee, she had completed a period of employment with the Respondent of at least the minimum employment period and she earned less than the high income threshold; 59

(b) the Respondent was not a ‘small business employer’ as defined in s 23 of the Act, so the Small Business Fair Dismissal Code was inapplicable; 60

(c) Ms Prinsloo’s alleged dismissal was not a case of genuine redundancy; 61 and

(d) her application was made within the period required. 62

Matter in dispute – was there a dismissal

[42] Ms Prinsloo submitted that due to the severe misconduct from management she did not feel at all safe in the workplace. Her contention encompassed management trying to tarnish her positive reputation and forcing her to resign due to the treatment she and other educators received. Ms Prinsloo stated her resignation was due to the severely tarnished work-related relationship. However, in her Form F2, Ms Prinsloo also stated ‘1. [V]oluntary resignation due to been [sic] given an ultimatum. 2. Complete a mental health assessment or lose your job.’

[43] The assertions of bullying, harassment and intimidation were explored with Ms Prinsloo. She had, after all, advanced that such conduct occurred and clarified that the management of the Respondent exhibited no professionalism, and that there was a danger to her mental state. The bullying included being provided with no notice about the meeting on 25 February 2020, and the harassment in the meeting about the fees. Ms Prinsloo stated there had been repeated and consistent ongoing conservations that were bullying, and she was constantly called into the office, apparently about things happening that were not true.

[44] Ms Prinsloo gave evidence that there were constant rumours including that she was hard to work with because she was strict and had high standards. She stated that people were being told – ‘be careful when Tessa comes back’.

[45] In cross examination it became evident that Ms Prinsloo appeared to use the terms ‘consistently’ and ‘constantly’ rather loosely, such that she was unable to say how many times incidents of harassment or bullying had occurred. Further, Ms Prinsloo did not call any witnesses to corroborate her assertions, although she named some colleagues and said they had witnessed the incidents or were at the very least aware of what was occurring. Notwithstanding, the references to repeated and consistent conversations consisted of the retelling of hearsay evidence and the evidence was deficient regarding particulars.

[46] In between the submissions of opprobrium directed at the Respondent, Ms Prinsloo gave evidence about the context of her resignation. There are some observations to be made in this respect.

[47] While evidently upset about the meeting on 25 February 2020, Ms Prinsloo did not tender her resignation at that time of great upset, or in the afternoon of that same day, when she had returned to the floor (once completely calm). Her evidence was that she spoke to her husband about what had happened, later that day.

[48] When Ms Prinsloo sought to verbally tender her resignation, Ms Valzacchi’s evidence was that she had asked Ms Prinsloo to think about it first. It was not until some nine days later Ms Prinsloo gave her written resignation.

[49] When asked in cross examination whether Ms Prinsloo had considered her resignation carefully, Ms Prinsloo responded ‘yes’.

[50] The account provided by Ms Prinsloo does not disclose a person who gave her or his resignation in the heat of the moment, or when in a state of emotional stress or mental confusion. Ms Prinsloo had a history of anxiety and gave evidence that she presented to her GP on 26 February 2020, who in turn increased the relevant medication dosage. By the time she provided her resignation, several days had passed since the visit to the GP and, in that time, she had taken several days off.

[51] To reiterate, Ms Prinsloo’s resignation was not given in or around the time of 25 February 2020 or the GP visit on 26 February 2020, when there was a purported emotional response. It was provided in circumstances where Ms Prinsloo had been corresponding with Ms Valzacchi over three to four days concerning a fitness for work assessment, noting that she was taking advice and had spoken to the Fair Work Ombudsman about the matter. There was no manifestation of mental confusion in this respect. Further, there is no reason to disbelieve Ms Prinsloo that she had considered her resignation carefully and had spoken to her husband about it. On any objective level, the dismissal, in my view, does not fall within the first limb of the definition in s 386(1)(a).

[52] As to whether the Respondent had engaged in a course of conduct with the intention of bringing Ms Prinsloo’s employment to an end, or the termination of the employment was the probable result, I do not find that to be the case. Before the meeting on 25 February 2020, Ms Prinsloo had requested a flexible working arrangement, which was initially accommodated on an interim basis and thereafter approved. It was not apparent at this time that the Respondent had any issue granting Ms Prinsloo the flexibility she required to maintain her position in the business – a cooperative approach having been adopted.

[53] The meeting that arose, on 25 February 2020, was at Ms Prinsloo’s request. While Ms Valzacchi may or may not have informed Ms Prinsloo the purpose of the meeting when requesting she attend the office; the reason for the meeting was soon disclosed at its commencement. The purpose, to afford Ms Prinsloo the opportunity, that she had requested, to discuss her childcare fees. With that topic in mind, namely a discussion about childcare fees, it does not strike one that the Respondent was in any way obliged to offer Ms Prinsloo a support person. The matter was, after all, about a private arrangement concerning childcare fees. It did not appear to be a meeting that touched on work performance or misconduct concerning such work. Ms Prinsloo’s argument that the termination of her employment was unfair, in part because of the purported denial of a support person, reveals no merit. When overcome by her anxious state, Ms Prinsloo left the meeting room and was soon assisted by a work colleague, and then a person referred to as Kim. While it is true Ms Valzacchi asked Kim to return to the room in which she was providing care, when it became apparent that Ms Prinsloo had yet again become distressed and had difficulty calming down unless Kim was present, Kim was sent for.

[54] Ms Prinsloo asserted in her Form F2 that she had voluntarily resigned due to an ultimatum - ‘complete a mental health assessment or lose your job’. In her email dated 6 March 2020 however, she referred to having sought relevant legal advice and confirmed she would attend the medicolegal appointment. During the hearing, Ms Prinsloo confirmed to the effect that she understood the direction could be given.

[55] Ms Prinsloo thereafter took another track, submitting that it was the severe misconduct of management that had caused her to not feel safe in the workplace, in addition to management trying to tarnish her positive reputation and engaging in harassment, bullying and intimidation. Ms Prinsloo placed reliance on a document purportedly written by Kim that detailed what Kim had apparently observed on 24 February 2020. One presumes that it refers to Ms Prinsloo’s presentation post the meeting on 25 February 2020, where Kim assisted. ‘Kim’ has not made a statement, was not called to give evidence, and while the document is signed, the author is not identified. It is of no forensic value, and as Counsel for the Respondent suggested, it should not be relied upon.

[56] With respect to Ms Prinsloo’s assertions of bullying, harassment and intimidation, no basis for such assertions can be found. Ms Prinsloo was unable to provide cogent answers in cross examination to elucidate the premise for her claims. While Ms Prinsloo noted that the conduct complained of commenced in December 2019, she was unable to provide clarity concerning the conduct and adopted the use of generalised comments.

[57] The impetus for Ms Prinsloo’s decision, in part, appears to have been the interaction in the meeting held on 25 February 2020. While Ms Prinsloo gave evidence that she had no problem paying fees, she nevertheless requested a meeting with the owners to specifically discuss the fees, in light of an arrangement she said was previously in place. It was clear from the evidence provided that Ms Prinsloo was the person who spoke first. The two owners were essentially responding to what Ms Prinsloo had said, albeit it is apparent that one of the owners interjected and requested that the other permit Ms Prinsloo to speak. However, it was not the case that the meeting of 25 February 2020 resulted in Ms Prinsloo procuring her resignation then. Her resignation did not come for a week after that. In my view, the Respondent, quite properly, given the concerns of Ms Valzacchi, decided that there was some doubt about whether Ms Prinsloo’s behaviour ought to be of concern, and whether Ms Prinsloo was fit for work. In the course of cross examination, the evidence given was that Ms Prinsloo had experienced regular emotional incidents resulting in tears and an inability to do the work she was required to do.

[58] Ms Prinsloo gave evidence that she had agreed to attend the medicolegal review. However, while agreeing to do so, she also informed the Respondent of her resignation and that she would be serving out her notice period.

[59] The critical question is not merely whether the act of the employer, which must be a principal contributing factor, resulted directly or consequentially in the termination of employment, but whether on an objective analysis of the employer’s conduct the employee’s effective or real choice was so negated that resignation was inevitably the only recourse.

[60] I have considered the steps Ms Prinsloo took after the meeting on 25 February 2020. Those steps, which included, a discussion with her husband, attendance at the GP, the taking of leave over several days, corresponding with Ms Valzacchi about a medicolegal review, informing Ms Valzacchi that guidance was being sought and advice had been gleaned from the Fair Work Ombudsman, and accepting the direction to attend the medicolegal review, were taken in circumstances where the Respondent had accommodated Ms Prinsloo’s request for a flexible working arrangement, and was simply wanting to ascertain Ms Prinsloo’s fitness for work - for a plausible reason.

[61] In my view, this is a case where quite clearly the discretion of the resigning employee gave rise to the termination of employment. Ms Prinsloo’s resignation was tendered in circumstances where she was being accommodated in the workplace in a flexible working arrangement, at her request, and the Respondent had, correctly in my view, sought to have it confirmed whether Ms Prinsloo was fit for work.

[62] Rather than participate in the medicolegal assessment, in my view, Ms Prinsloo opted to resign. I am not satisfied that the conduct of the Respondent was such that there was an intention of bringing the employment to an end, or that termination of the employment was the probable result of its conduct, such that Ms Prinsloo had no effective or real choice but to resign. Ms Prinsloo did have a choice, to resign or participate in the medicolegal review. While there appeared to be an issue concerning the payment of childcare fees, there was no evidence to suggest that the Respondent had indicated to Ms Prinsloo her employment was in jeopardy because of such purportedly unpaid fees.

[63] I am of the view that where the employee in such circumstances elects to resign to avoid a medicolegal assessment or, for that matter, the payment of childcare fees, the resignation is not a ‘dismissal’.

[64] Ms Prinsloo may have felt that she had no choice but to resign due to a course of conduct engaged in by the Respondent, I have found that this simply was not the case.

Conclusion

[65] Based on my factual findings and in all of the circumstances, I have concluded that Ms Prinsloo was not dismissed for the purpose of s 386(1). Her application is therefore dismissed and an accompanying Order 63 is issued to this effect.

DEPUTY PRESIDENT

Appearances:

Ms T Prinsloo, Applicant
Mr S Heathcote, of APX Law, for the Respondent

Hearing details:

2020:
Perth (in person);
July 21.

Printed by authority of the Commonwealth Government Printer

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 1   Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

 2   Witness Statement of Tessa Prinsloo (Prinsloo Statement).

 3   Ibid.

 4   Ibid.

 5   Witness Statement of Monise Valzacchi (Valzacchi Statement) [12].

 6 Ibid [11].

 7 Ibid [13].

 8 Ibid [21].

 9 Ibid [22].

 10 Ibid [23].

 11   Prinsloo Statement.

 12   Ibid.

 13   Ibid.

 14   Ibid.

 15   Ibid.

 16 Valzacchi Statement [30].

 17 Ibid [31].

 18   Prinsloo Statement.

 19   Ibid.

 20   Ibid.

 21   Ibid.

 22   Ibid.

 23   Ibid.

 24   Ibid.

 25   Ibid.

 26   Ibid.

 27   Ibid.

 28 Valzacchi Statement [32].

 29   Prinsloo Statement.

 30   Ibid.

 31 Valzacchi Statement [26].

 32 Ibid [26].

 33 Ibid [28].

 34 Ibid [33].

 35 Ibid [35].

 36   Ibid Annexure MV2.

 37   Ibid Annexure MV3.

 38   Ibid Annexure MV3.

 39   Ibid Annexure MV3.

 40   Ibid Annexure MV4.

 41   Ibid Annexure MV4.

 42   [2017] FWCFB 3941.

 43   Mohazab v Dick Smith Electronics Pty Ltd [No 2] (1995) 62 IR 200.

 44   Ibid.

 45 (1995) 62 IR 200.

 46   Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

 47   [2006] AIC 496.

 48   A.S Doumit v ABB Engineering Construction Pty Ltd Print N6999.

 49   Ibid.

 50   Ibid; cited with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008.

 51   Fair Work Bill 2008 Explanatory Memorandum [1528].

 52   Ibid [1528] - [1530].

 53   [2017] FWCFB 3941 [33].

 54 Ibid [34].

 55 Ibid [35].

 56   Ibid.

 57 Ibid [47].

 58 Ibid [47].

 59   The Act s 382.

 60   The Act ss 385(c).

 61   The Act ss 385(d).

 62   The Act ss 394(2).

 63   PR721401.