Tina Carroll v Gold Training Pty Ltd T/A Gold Training

[2017] FWC 318

[2017] FWC 318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Tina Carroll
v
Gold Training Pty Ltd T/A Gold Training
(U2016/12500)

COMMISSIONER SIMPSON BRISBANE, 7 FEBRUARY 2017

Application for unfair dismissal remedy – Jurisdictional Objection applicant not terminated at initiative of the respondent – Applicant resigned voluntarily – Application dismissed.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Ms Tina Carroll who alleges that the termination of her employment with Gold Training Pty Ltd T/A Gold Training (Gold Training) was unfair.

[2] Ms Carroll commenced employment at Gold Training on 7 December 2015 as a Business Development Manager until her employment ended on 17 September 2016, a period approximating nine and a half months. Ms Carroll was employed on a full time basis, and worked out of an office in Townsville.

[3] Ms Carroll claims she was constructively dismissed by Gold Training, as she says she was forced to make a statement of resignation verbally to end a conversation with Ms Samantha Johnson, the National Manager of Gold Training, which she perceived to be aggressive and occurred on a Saturday outside her regular work hours. Ms Carroll claims the dismissal was unfair as the performance issues raised by her manager were outside her area of responsibility, and because the alleged dismissal occurred whilst she was on approved leave. Gold Training refuted these claims and raised a jurisdictional objection on the basis that the Applicant resigned voluntarily and was therefore not dismissed.

[4] Ms Carroll made reference in her evidence to a telephone conversation with Ms Johnson she said occurred a number of weeks prior to 17 September where she claimed Ms Johnson had raised the possibility of her being dismissed based on her performance. Ms Johnson gave evidence to the effect that the call was in fact congratulatory. Ms Carroll did not take the matter any further at that time and whilst it would appear Ms Johnson had in the course of the phone call raised with Ms Carroll that she had held concerns about the performance of Ms Carroll prior to the call, the purpose of the call itself was for Ms Johnson to congratulate Ms Carroll about securing a client for a training course.

[5] Prior to the discussion on Saturday 17 September Ms Carroll said that on Thursday 15 September she was involved in a workplace incident that resulted in an injury. I understand that matter is now the subject of a Workcover claim. Ms Johnson confirmed in her evidence she was aware of the matter when she called Ms Carroll on 17 September but it was not her role to deal with such a matter.

[6] Ms Carroll said that on Saturday 17 September she was preparing to drive approximately 1,500km as she was on the start of what was a last minute requested and approved period of compassionate leave taken as annual leave approved by Ms Johnson to visit with her sick elderly father. The period of leave approved was from Monday 19 September to Friday 23 September 2016. 1

[7] Ms Carroll said at approximately 12 noon Saturday 17 September she received a phone call from Ms Johnson. Ms Carroll claimed that upon commencement of the call she perceived Ms Johnson to be aggressive, and that the conversation quickly escalated to accusations and personal attacks on Ms Carroll’s professionalism and character. Ms Carroll claimed that Ms Johnson demanded Ms Carroll meet her in the Gold Training Townsville Office the following Monday morning 19 September. Ms Carroll claims she had felt targeted and was being forced to resign by Ms Johnson, and therefore made the statement she was resigning.

[8] Specifically Ms Carroll said the conversation commenced with Ms Johnson questioning Ms Carroll why she had not informed Ms Johnson of an issue in regard to the payment of a Townsville based trainer, who the evidence disclosed was intending to cancel a training course which was to commence the following Monday morning for one of Gold Training clients involving approximately 20 students. The reason for the trainer refusing to provide the training was due to apparently not being paid by Gold Training for previous training services. Ms Carroll claimed that Ms Johnson had previously advised her that financial matters did not form part of Ms Carroll’s role.

[9] Further Ms Carroll claimed that Ms Johnson made an accusation that Ms Carroll had ruined Gold Training’s reputation in Townsville and a particular relationship Gold Training had with a Townsville based client, the same client who had recommended Ms Carroll to Ms Johnson as a potential employee.

[10] Ms Carroll said the verbal statement of resignation was made during the phone conversation after Ms Johnson demanded that Ms Carroll meet her in the office Monday morning in Townsville as she was flying up to “sort all this out” to which Ms Carroll said that she reminded Ms Johnson that she was on leave approved by Ms Johnson to go and visit with her sick father. Ms Carroll said that it was at that point she felt she had no other way of ending the phone call and ending what she said she perceived as an aggressive verbal attack from Ms Johnson.

[11] Ms Carroll said her actions in verbally resigning and ending the phone call received from Ms Johnson were a result of the referred to events which had caused her to reach a point where she could no longer cope with the verbal attacks and accusations being directed at her by Ms Johnson who had proven in the days leading up that Ms Carroll’s welfare was of no concern to Gold Training.

[12] Ms Carroll said within moments of ending the phone call the phone rang again and the called display showed it as being Ms Johnson at which time Ms Carroll said she turned the company phone off being in a very emotional state.

[13] Gold Training did not dispute a telephone conversation took place between Ms Carroll and Ms Johnson at noon on 17 September 2016. However, Gold Training disputed that Ms Carroll was verbally abused by Ms Johnson or that she was “forced” to resign. Gold Training further submitted that a text message was received by Ms Kelemete, a Business Centre Manager employed by Workpac, the owner of Gold Training, later that day at 5.33pm from Ms Carroll stating “as this morning I resigned”. Ms Kelemete is also based in Townsville.

[14] Ms Johnson gave evidence about the context of the conversation with Ms Carroll being circumstances where she had received an email on the morning of Saturday 17 September 2016 from a client of the business advising her of the issue regarding the trainer cancelling their course.

[15] Ms Johnson said she emailed the client that morning but they could not be reached. Ms Johnson said she telephoned both Celeste Grice, employed by Gold Training as the Schools Pathways Officer at the time, and Ms Carroll to discuss the matter that day. Ms Johnson said both were “finger pointing” at each other about how the circumstances came to occur. Ms Johnson said the invoice had been sent two weeks earlier and she was trying to establish why it hadn’t been paid. Ms Johnson claimed Ms Grice told her Ms Carroll had not sent her the invoice and Ms Carroll said she had. Ms Johnson said she called the trainer and assured him he would be paid. Ms Johnson said she had not met the trainer and said she told the trainer she would fly to Townsville on Monday. Ms Johnson said that Gold Training had no history of not paying its bills.

[16] Ms Grice gave evidence that there were a number of conversations back and forth that day involving Ms Johnson, Ms Carroll and herself. Ms Grice said in a conversation with Ms Carroll after the conversation Ms Carroll had with Ms Johnson, Ms Carroll told her Ms Johnson had yelled and sworn and that she didn’t want to resign. Ms Grice said in a conversation with Ms Johnson, Ms Johnson said to her words to the effect of “I don’t know what I’ve done but I think I’ve fucked it up.” Ms Grice further claimed Ms Johnson said to her that she “lost her shit”. Ms Grice accepted that the matter of the students not being trained was a serious matter. Ms Grice accepted she did not hear Ms Johnson swear at Ms Carroll.

[17] Ms Johnson said in her witness statement 2 that Ms Carroll resigned to her verbally during the telephone call. Ms Johnson totally refuted any assertion that she threatened or coerced Ms Carroll into resigning that day. Ms Carroll accepted during her oral evidence that Ms Johnson did not ask her to resign, and did not threaten to terminate her and offer her the option to resign.

[18] There was a dispute in the evidence to the extent Ms Carroll said in her statement that she resigned after Ms Johnson demanded Ms Carroll meet her in the office. Her oral evidence indicated she ended the phone call immediately after she advised Ms Johnson of her resignation. Ms Johnson’s version was that immediately after Ms Carroll advised she was resigning Ms Johnson confirmed with her she was resigning, and upon Ms Carroll confirming that she advised orally the resignation was accepted. In her oral evidence Ms Johnson said Ms Carroll told her she had had enough of this and to take this as her resignation.

[19] In a four page email of 26 September 2016 that Ms Carroll sent to her former employer, she stated on the third page of that email that the course of the conversation with Ms Johnson began with Ms Johnson asking why she had not been advised earlier (of the issue concerning the trainer not being paid). Ms Carroll said she responded that it was Celeste Grice’s area of responsibility, and that Ms Johnson proceeded to speak to her aggressively and demanded that Ms Carroll meet her on Monday morning. Ms Carroll said she reminded Ms Johnson she was on leave and should be hopping in her car but instead was finalising course details and preparing a handover. Ms Carroll wrote in her email that she then told Ms Johnson that “she could get fucked” and she ended the phone and switched the phone off.

[20] I was concerned to be clear from the evidence that Ms Johnson was not insisting on Ms Carroll cancelling her leave and persisting in requiring Ms Carroll to attend the office on Monday morning, as she initially proposed. This may have been a basis to find a resignation was forced where Ms Carroll was otherwise compelled to travel to care for her ill father. However Ms Carroll’s oral evidence indicated that Ms Johnson did not press this issue once reminded that Ms Carroll would be on leave and on that basis could not be an action that it could be argued of itself was intended to bring the relationship to an end or that had that probable result.

[21] I found Ms Johnson to be forthright and direct in her evidence concerning the circumstances she was confronted with on the Saturday morning of 17 September in relation to the Townsville based trainer cancelling the training course. Given Ms Carroll was located in the city where this potentially very embarrassing situation for Gold Training was going to unfold, and further that Ms Carroll had dealings with the trainer in question, it was reasonable for Ms Johnson to make contact with both Ms Carroll and Ms Grice on a Saturday to attempt to find out what had caused this potentially looming embarrassment, and to try and avoid it. It is also notable that Ms Carroll’s employment contract 3 contemplates some flexibility as a salaried position. I am not satisfied contacting Ms Carroll on what would ordinarily not be a non-work day in the circumstances and engaging in a robust conversation about the trainers actions was an action that intended to bring the relationship to an end or would have a probable result of causing Ms Carroll to resign.

[22] I have no doubt Ms Johnson was probably somewhat aggressive and directed anger toward Ms Carroll in the course of their telephone conversation. Ms Grice indicated Ms Johnson inferred during a conversation with her on 17 September some regret about the tone of her conversation with Ms Carroll.

[23] However the evidence concerning the nature of what Ms Johnson is alleged to have said, does not in all of the circumstances, even on Ms Carroll’s version, when viewed objectively rise to a level that would led to a conclusion that Ms Carroll had no choice but to resign from her employment because of the conversation. I do not accept Ms Johnson’s actions either intended to bring the relationship to an end or would have that probable result.

[24] I am also not persuaded by the fact that Ms Carroll was to commence a period of approved leave on the following Monday 19 September 2016 leads to a conclusion that Ms Johnson’s phone conversation forced her to resign because of it.

[25] Ms Carroll also raised the matter of her access to the computer network being cut off within the hour of her having told Ms Johnson she was resigning. Ms Johnson said from the conversation she had with Ms Carroll, she understood Ms Carroll was not returning and it was standard procedure to contact the Information Technology staff and request access to the network to be stopped. This is a reasonable explanation given the nature of the conversation of 17 September for Ms Carroll’s access to the network having been stopped.

[26] It is apparent Ms Carroll felt unappreciated. She referred to the fact that in the week that led up to the phone call on 17 September 2016 she had been working long hours and into the night to ensure that the course enrolments and other requirements were in place to cover her being away from work the following week. Ms Carroll said she had been performing work for Gold Training on the Saturday when she received the phone call.

[27] It is also apparent from her evidence that Ms Carroll also believed that Ms Johnson had no concern for her welfare, and made specific reference to the fact that Ms Johnson did not make any enquiry with her about a fall she had suffered on the previous Thursday. Ms Carroll also felt aggrieved because she believed Ms Johnson was blaming her for the trainer’s invoice not having been paid, when she said it was not her responsibility to be involved in that matter on previous direction from Ms Johnson herself.

[28] It is apparent that the culmination of these things, in combination with the fact that Ms Carroll was also dealing with the health issues concerning her father, created in Ms Carroll’s perception, circumstances where she felt she was left with no choice but to resign from her employment. However Ms Carroll perceiving that she had no choice does not make it so. The evidence when viewed objectively does not support the conclusion that Ms Carroll had no other choice but to resign. Ms Carroll had other choices available. She could have availed herself of the period of leave and returned to work afterward to address the issues between her and Ms Johnson. If she was distressed by the nature of the issues raised by Ms Johnson against her during the telephone call and felt she was not in a position to continue the conversation at that time, she could have told Ms Johnson as much and discontinued the conversation on that basis. Instead Ms Carroll elected to resign, and not to answer the follow up call made by Ms Johnson, and then decided to turn her work phone off, effectively blocking any attempt by her employer to engage with her. At that point in time the evidence does not disclose that Gold Training had proposed any form of disciplinary measure against Ms Carroll.

[29] If Ms Carroll held genuine concerns about the manner of Ms Johnson’s conduct toward her during the phone call then there are other avenues available to employees where they feel aggrieved by such conduct including in this jurisdiction.

[30] Ordinarily an employer is entitled to treat a clear and unambiguous resignation as a resignation. If a resignation is given in the heat of the moment an employer may have a duty to confirm the intention to resign. 4

[31] In this case the actions of Ms Carroll do not indicate she wished to withdraw her verbal resignation. To the contrary, further to communicating her oral resignation to Ms Johnson around the middle of the day on 17 September 2016, she followed that up with written confirmation in the form of a text message sent to Ms Elisabeth Kelemete at 5.33pm that afternoon advising that she had resigned that morning. 5 Ms Carroll’s text message to Ms Kelemete was an attempt to make an arrangement to facilitate the dropping off, of her car and keys to the office and collecting her personal possessions in the office. Some confusion arose because a response sent the next day by Ms Kelemete to Ms Carroll was not received due to the fact that it was sent as an iMessage which Ms Carroll said her phone was not configured to receive.

[32] In addition to the text message sent, Ms Carroll wrote an email to Samara Thorne, Senior Talent Co-coordinator, on 26 September 2016 at 1.48pm stating “on Saturday 17/09/2016 at approximately 12pm, where I gave my verbal resignation”.

[33] It appears from the available material it was Ms Carroll’s own decision to return all property of Gold Training to the office, which included a Surface Pro, mobile phone and company vehicle.

[34] The email of 26 September 2016 from Ms Carroll also requested finalisation of her pay entitlements and questioning if her period of leave counted as her ‘notice period’. A response was sent to Ms Carroll acknowledging her resignation and paying her two weeks in lieu of notice and acknowledging her pre-approved leave.

[35] The confusion I referred to earlier is demonstrated by what Ms Carroll said in the email of 26 September that included the following;

“I write this email to follow up on a phone conversation with my line manager, Samantha Johnson, on Saturday 17/09/2016 at approximately 12pm, where I gave my verbal resignation.

As my access to the work network was denied within the hour following and given that I was actually on approved leave, I have been unable to formalise my resignation with the required 2 weeks-notice. Having received no correspondence from Gold Training, am I to assume that my access being revoked that Gold Training has opted to terminate my employment without the required 2-week notice period?

Please note that today I delivered to the Workpac Townsville Office the company assets provided to me – Surface Pro, Mobile phone and Company Vehicle...”

[36] It is clear from the email that Ms Carroll was raising a question about whether she had in fact been terminated by the employer because she had not had formal communication from her employer since 17 September 2016. There is no evidence to support that view. As referred to earlier, I am satisfied from the evidence that Ms Kelemete’s iMessage despite being sent was not received by Ms Carroll. I have accepted the explanation given by Ms Johnson for the reason access to the computer network was stopped shortly after the ending of the phone call on 17 September as being reasonable, and not an indication Ms Carroll was being dismissed.

[37] It is difficult to determine whether to prefer the evidence of Ms Carroll or Ms Johnson concerning the factual dispute as to whether Ms Johnson verbally accepted the resignation near the end of the telephone conversation on 17 2016 September or whether Ms Carroll ended the telephone call before that occurred. Ms Carroll’s version appears to have the conversation ending with Ms Carroll telling Ms Johnson to ‘get fucked’ and advising that she was resigning. Given Ms Johnson generally presented as giving her evidence in a direct and forthright manner I am inclined to the view that it is more likely than not that Ms Johnson did ask Ms Carroll to confirm her intention to resign and that Ms Johnson verbally accepted this resignation, however if I am wrong on that nothing turns on it anyway because any other steps taken by Gold Training following 17 September only confirmed that Gold Training accepted the resignation and Ms Carroll never sought to retract her resignation.

Conclusion

[38] The onus rests with Ms Carroll in this matter to prove that she did not resign voluntarily. 6 The evidence supports the conclusion that Ms Carroll resigned voluntarily and on that basis her application is outside the jurisdiction of the Fair Work Commission and on that basis I am required to dismiss the application without consideration of the matter any further.

COMMISSIONER

Appearances:

T. Carroll appearing on her own behalf

H. Powell appearing for the Respondent

Hearing details:

2017
Brisbane

February 2

 1   Exhibit 3, “Document 2 – Leave Taken”.

 2   Exhibit 7, Statement of Samantha Johnson sworn 20 January 2017.

 3   Exhibit 2, “Document 1 – Gold Training Enterprise Agreement”,

 4   Ngo v Link Printing Pty Ltd (1999) 94 IR 375 at [12].

 5   Exhibit 4, “Text message sent at 5:33pm”.

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

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