Tracie Hall v Magman Publishing Pty Ltd T/A Australian Tourist Publications

[2015] FWC 3093

[2015] FWC 3093

FAIR WORK COMMISSION

DECISION

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

Tracie Hall
v
Magman Publishing Pty Ltd T/A Australian Tourist Publications
(U2014/14652)

COMMISSIONER WILSON MELBOURNE, 5 MAY 2015

Application for Unfair Dismissal Remedy. Jurisdictional question – whether a resignation or dismissal

[1] This matter concerns an application for an unfair dismissal remedy by Tracie Hall against her former employer Magman Publishing Pty Ltd trading as Australian Tourist Publications (Magman).

[2] Magman is a small business employing only 4 part-time employees and 2 full time directors, Patricia Blackman and Jacqueline Maguire, who are the company’s Joint Managing Directors. The company works out of Alice Springs, where Ms Hall was based, and Cairns, where the directors and other staff are based. Magman’s work is to prepare various tourist publications for publication and to market advertising and editorial space in those publications.

[3] Magman argue that Ms Hall resigned her employment and was not dismissed and that accordingly there is no jurisdiction for the Fair Work Commission to hear and determine Ms Hall’s application for unfair dismissal remedy.

[4] The matter was the subject of the submission of documents from both parties explaining their respective views, and a determinative conference held before me on 10 April 2015. For the reasons set out below, I find that Ms Hall resigned from employment and that her application must fail.

[5] Pursuant to s.385 of the Fair Work Act 2009 (the Act), a person will be found to have been unfairly dismissed if the Fair Work Commission is satisfied of various matters including that they have been “dismissed”, the meaning of which is in turn defined in s.386 of the Act, which provides the following, so far as is relevant;

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) - (3) - omitted

[6] Ms Hall’s application to the Fair Work Commission indicates that she commenced working with Magman in July 2013 and the Respondent’s Employer Response Form confirms this date as 29 July 2013. It is agreed by the parties that Ms Hall verbally resigned from Magman on 9 October 2014, which was a Thursday. The words of resignation came out of an argument over the phone between Ms Hall and Ms Blackman. At the time Ms Hall was away from Alice Springs, having been in Tennant Creek on business. Following the conversation she returned to Alice Springs and she finished up with the company on the Saturday after the conversation, that is 11 October 2014, by clearing out her office.

[7] Ms Hall was employed by Magman to undertake work associated with marketing and preparing for publication various NT tourist publications published by Magman. This included assisting with preparation of the content of the publications as well as selling advertising space. Ms Hall was the only Magman employee working in Alice Springs. Ms Hall's period of employment with Magman since July 2013 was not the first time that Ms Hall had worked in the business. The parties both submit that she worked for the business of the same name, but with different owners, about a decade previously.

[8] Magman’s Employer Response Form indicates that Ms Hall’s salary at the time she left employment was $57,000 per year and that she was also entitled to be paid a commission for sales achieved above budget. In addition, Ms Hall had access to a Magman motor vehicle, and was permitted private use of the vehicle, at least in and around Alice Springs.

[9] The material before me indicates that the relationship between Ms Hall and at least Ms Blackman was argumentative, with the evidence of both referring to arguments of some degree. In addition the evidence indicates that in about August 2014 Ms Hall emailed Ms Blackman and Ms Maguire about her need for attendance at a medical appointment in Adelaide. The need to attend the medical appointment; when the appointment would be; and how long would be required to attend to the appointment was the source of some friction between the two. When the subject was raised by Ms Hall with Ms Blackman close to the time she needed leave, at about two weeks prior to the time her employment ended, a dispute arose about how much time would be permitted for attendance, with the dispute extending to whether it would be more convenient for Ms Hall to drive or fly from Alice Springs to Adelaide. Magman’s concern with the leave was its proximity to the magazine being worked upon, with Ms Maguire’s evidence on the subject including the following;

“The first I heard about it was the day before I was going away in August, saying that she had a specialist appointment and she needed to go and I looked at the dates and thought, well that’s going to be in the way of the publishing, because I was going away.  Trish was cc’d in on it, and I thought Trish will deal with that.  It was putting the magazine together and all that sort of stuff because we have other magazine, it got overlooked.  It was not dealt with, Trish didn’t have that conversation with her.  I returned, and that was August.  I returned in late September and it raised its ugly head again and Tracie said that she had already cancelled two previous appointments, she couldn’t cancel this third one because this specialist was getting concerned about her.  Well we didn’t even know that she’d cancelled two previous ones, but she knew that she wasn’t to go away at that time, because she’s integral to putting the magazine together.  That was when we said okay, well she wanted to have, I think it was about four or five days and we couldn’t do it.

MS HALL:  Five days.

MS MAGUIRE:  That’s why we suggested that we looked up the airfares and that she could get down there for $260 return or whatever, which I now realise was beyond her financial capabilities or whatever and that we thought that paying for the petrol going by other trips that she had made for us, that it would be less for her to fly down, not only in time, but in money as well.  So we just suggested that she do that, and she didn’t want to do it and cancelled her appointment and then was able to get an appointment later on because her specialist needed to see her.  We are thinking that maybe that change of deadline may have been in line with her trying to get away to keep that appointment, I don’t know.  We haven’t had that discussion.” 1

[10] Ms Hall did not agree with what Magman were proposing and in any event could not afford to fly to Adelaide for the appointment, and she was no doubt anxious about having to reschedule the appointment. She told Ms Blackman that she could not get another appointment until February 2015 and that her specialist had “said that was far too long between appointments so I would have to see someone new”. 2

[11] It is not part of the material before me that the attendance of the medical appointment was so pressing as to require her to have time off immediately, although it is before me that Ms Hall had already made changes to the appointment time and that “her specialist was becoming concerned”. In any event, the question of when the appointment would be was not determined at the time Ms Hall finished her employment with Magman.

[12] On the day on which employment ended, 9 October 2014, Ms Hall had two telephone conversations with Ms Blackman. The first conversation was at about 9.15 am when Ms Blackman called Ms Hall. The conversation was quarrelsome, involving a discussion between the two about the means by which Ms Hall has made contact with Magman clients the previous day. The context to this is that Ms Hall had sent a group email to about 51 clients regarding a change to a deadline for the submission of material by them to a particular publication. The email had been copied to Ms Blackman, who was concerned about whether it was an appropriate form of communication since it was a group email advising them that a deadline had been brought forward. Ms Blackman regarded the email as “blunt”. What concerned her about it was that the particular deadline for clients to provide their material for the publication was usually about seven days before the date on which Magman would need to upload their material, presumably for finalisation of the layout and then printing. Ms Blackman’s concern, expressed in response to questions from me, was that;

“The deadline should have been around 21 October. In this particular email it was all in upper case and it was not addressed to any particular person. It’s got the deadline is on 10 October. Whereas it was not individually personalised to any particular person. It was just a blanket email.

What would it have been previously? Can I just check with you? The deadline had been moved to 10 October, so what had it been previously?---It was 21 October. Tracie had actually moved the deadline without my knowledge.

You were concerned about the way she communicated that change?---That’s exactly right.” 3

[13] In particular, the discussion involved Ms Blackman questioning whether it was appropriate for Ms Hall to contact the clients through email or whether it should be done by personal contact.

[14] Ms Hall’s evidence on this conversation includes the following, also in response to a question from me;

“Can I bring you, in that case, to 9 October? Can you tell me please your perspective of what occurred? You told me a second ago that you were taken to task for sending an email out. Now who made that call to you, or did you make your call to them, I’m not quite sure?---No, Trish called me, she said “I’ve just seen this email that you’ve sent out to everybody and we don’t do it like that, this is lazy”. I said “No Trish, let me explain”. “No, you’ve very lazy for doing it that way. We go and see people. That is part of what we do”. She just kept on and on and on and what I was trying to explain to her was that I normally send out - which I had done for all the time I’d worked for them. I’d send out one blanket email to everybody and then I would email individually and then I would follow up with phone calls with them. I was trying to explain that, but I didn’t get a chance, or when I was trying to say it, she just kept calling me lazy. She did say that was a lazy way of doing things, but then she also said that I was just plain lazy and I shouldn’t ever have done that way. Again, I have never been told not to. It was never written in any manual. There was no procedure manual as to how to do things. Again, it was just another thing that I’m lazy and inadequate at my job.” 4

[15] Ms Blackman rejects the characterisation of the conversation put forward by Ms Hall;

“Tell me a little bit about the conversation that you then had with Ms Hall and how it went from your perspective?---When I actually called Tracie?

Yes?---I called Tracie on my way to Port Douglas and I just said “It is an extremely lazy approach to our business. That is not how we do business”. Then Tracie reacted. We did actually have a very argumentative relationship. The reality is, I would give instructions and she didn’t necessarily follow the instructions. If she didn’t like my instructions she’d become quite argumentative over it. In all due respect, I actually have 30 years of publishing experience and have never had a sales person as volatile as Tracie to work with.

In the evidence that Ms Hall has given, she says that there were a couple of references to lazy. I just want to put those to you, so I understand your views about those things. She said first of all that you said she was plain lazy?---I never said that.

I beg your pardon?---I’m sorry Commissioner, I never, ever said she was lazy. I said it was a lazy approach to our business.” 5

[16] In relation to how the conversation ended and making a statement of resignation in that conversation, Ms Hall’s evidence is;

“I was very upset and felt very belittled in her having a go at me all the time. Yes, I said to her “I’m just not going to do anything that makes you happy, am I Trish” and she said “No”. I said “Well, we need to do something about that”. She said “Well, we will. As soon as this book’s finished, we will”.

I felt that was very threatening, the way she said it. I felt that I was going to be sacked. The way she said it, it was very threatening. I said to her “Well, no, let’s do something about it now. I can’t do this anymore” or something along those lines. “I quit”. Nothing I did was ever good enough for her.” 6

[17] Ms Blackman’s evidence on this point included;

“So tell me how that conversation then went on?---Tracie had sort of said something along the lines to the effect of “Nothing I ever do is good enough for you Trish”. Then yes, she did swear and said she’d had a gut full and that she was resigning. She hung up on me immediately. I then picked up the phone and spoke to my business partner Jackie and said that we’ve discussed it. Then I’d actually called Tracie back and said that I’ve had a conversation with Jackie and we accept your resignation and we accept your resignation immediately and I will actually fly to Alice Springs on Monday, so can you have the car, the iPad, the camera, the computer back in the office ready for when I arrive at lunch time on Monday. And that was it. Tracie hung up on me. So, there were no further words from that” 7

[18] Ms Hall’s evidence is that having said to Ms Blackman that they need to either “sort this out”, 8 or “we need to do something about that”,9 Ms Blackman responded by saying either “your (sic) right there, we have to do something about it and we will as soon as this book is at the printers”,10 or “Well, we will. As soon as this book’s finished, we will”.11 Ms Hall thought the response was threatening and indicated to her that she was likely to be dismissed once the book had been published, with the context being that the company’s priority would be to have the book published and then at some later time the company would turn to what it should do about Ms Hall’s employment, with the probability that it would be terminated.

[19] In contrast, Magman submit that at the time the conversation took place, no decision had been taken by the company to dismiss Ms Hall.

[20] In any event Ms Hall stood by her verbal resignation and that resignation was accepted by Ms Blackman in the second telephone call on 9 October 2014, which was at about 9.45 am, after Ms Blackman consulted with Ms Maguire.

[21] After the second telephone conversation between Ms Hall and Ms Blackman on 9 October 2014, Ms Hall rang the other Joint Managing Director, Ms Maguire, who gave the following evidence about the conversation, in response to questions from me;

“... Tracie did ring me that morning after she had resigned and Trish had rung her back and said that we had agreed to accept it. Tracie rang me back in the office at around 10 o’clock after it had all gone down and she thanked me for all my support and that she had enjoyed working with me and it was the best job that she’d ever had, but she had found the position intolerable and she had to resign.”

...

“Can I just be certain about what you are saying. In that conversation, did Ms Hall say anything which indicated that she might be wanting to go back on quitting? She never asked me as such, but she was very upset and understandably so. I mean, nobody wants to go through this sort of stuff, but she did ring to say thank you for my support, that she enjoyed working with me. It was a shame that she hadn’t got on with Trish, but that it was the best job she’d ever had. I said “Look, I’m sorry I just have to agree with Trish and accept your resignation”. She said “Fair enough” and the conversation finished.” 12

[22] Ms Hall’s submissions allege that she had been the victim of workplace bullying behaviour against her by both Ms Blackman and Ms Hall. 13 Magman’s submissions argue about Ms Hall there was not workplace bullying and that Ms Hall “gave as good as she got”,14 with the overall relationship between Ms Hall and Ms Maguire involving “fractious behaviour”.15

[23] There had been no complaints raised by Ms Hall to either Ms Blackman or Ms Maguire that she considered these matters to be workplace bullying, or that the company’s behaviour toward her was making her employment untenable.

[24] The statutory definition of “dismissed”, referred to above and which must be applied in this case, includes that “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”. The Full Bench, in the matter of O’Meara v Stanley Works Pty Ltd 16 considered this subject and held as follows, in connection with the possibility of the cessation of the employment relationship being the probable result of an employer's conduct;

“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (emphasis added; references omitted)

[25] Application of the foregoing, in order to examine all the circumstances of a matter and not only the act of the employer, will require consideration of several matters. These include the circumstances that gave rise to the termination; the respective conduct of the employer and employee, including an analysis of the employer’s conduct; and whether the employer’s conduct was of such a nature that resignation was the probable result.

[26] The circumstances that gave rise to Ms Hall’s leaving Magman’s employment include the two phones calls between her and Ms Blackman on 9 October 2014; as well as Ms Hall being refused the leave that she needed, at the time she wanted, in order to attend to her medical affairs. In relation to the medical appointment, Ms Hall does not argue that she had no medical alternative to her other than to attend. In addition, neither party submits that the entirety of the sick leave was refused. Rather, there was a dispute between the two about when it would be; its proximity to the deadline Magman was working to for one of the publications Ms Hall was responsible for; and whether it would be feasible for Ms Hall to fly to Adelaide for the appointment instead of driving, which was her preference. It is plain that there was an argument about how best for Ms Hall to contact Magman clients about important matters, which may have impacted on clients’ ongoing relationship with the company. It was during that phone call that Ms Hall communicated her intention to resign and similarly Ms Blackman indicated a preparedness to accept the resignation.

[27] The prior conduct of Ms Hall and Magman includes a significant degree of argument and mutual antipathy, which Ms Hall characterises as bullying and which Magman characterises as a mutual exchange of behaviour continuing throughout her employment, such that “she (at times) gave as good as she got”. 17 Part of the background also includes concern on the part of Ms Hall that a documented employment contract had not been provided to her, as promised.

[28] In relation to the first telephone conversation on 9 October 2014, Ms Hall’s view is that Ms Blackman’s response to her proposition that they should “sort this out” or “we need to do something about that”, left her feeling with no option other than to provide her resignation to Magman because she felt she would otherwise be dismissed once the publication being worked upon had been finished.

[29] Ms Hall’s application and submissions firstly make the point that “I took that she would sack me which upset me so I quit” and secondly that she “resigned”. However, within the submissions and evidence there is agreement that Ms Blackman indicated an intention to not deal with the immediate circumstance on 9 October 2014, but at some later time. On Ms Hall’s part, she reports Ms Blackman as having said, with reference to the need to “sort this out” that “your (sic) right there, we have to do something about it and we will soon as this book is at the printers”. Ms Blackman corroborates this as having said that “we will discuss after the magazine comes out”.

[30] As a result of the foregoing, I am not persuaded that Ms Hall was left with no alternative other than to provide her resignation to Magman. There was no imperative for her to resign then and there. While Ms Hall no doubt felt agitated as a result of the conversation with Ms Blackman on 9 October 2014, and that she believed she would be dismissed in due course, she does not put forward any verbiage on the part of Ms Blackman which could reasonably be viewed as an ultimatum or a request for her resignation.

[31] Neither can Ms Blackman’s conduct be viewed as a dismissal itself. In that regard, I note that Ms Hall herself does not make such a contention. The initial part of the telephone conversation in which Ms Blackman raised concerns about the group email does not appear on the evidence given to be something that was out of the ordinary, either in the fact of Ms Blackman expressing concern about something she did not like, or in the way the parties argued. While the evidence allows that the conversation was argumentative, it does not lead to the view that what Ms Blackman said was unreasonable, or that it was said in an unreasonable manner.

[32] Viewed objectively, while an argumentative relationship may not be sustainable for either party and that either might try at some point to move away from the relationship either by performance management or dismissal on the part of the employer, or resignation for another position on the part of the employee, the fact of an argumentative relationship is not likely to be, of itself, conduct which would have the probable result of forcing a resignation.

[33] As a result of this consideration of all the evidence, I am not persuaded that Ms Hall’s resignation was because she was “forced to do so because of conduct, or a course of conduct, engaged in by his or her employer”.

[34] Because of this finding, I am unable to find that Ms Hall was “dismissed” within the meaning of s.386 of the Fair Work Act 2009, and accordingly her application for unfair dismissal remedy must be dismissed for want of jurisdiction.

[35] An order to the above effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Ms T Hall and Ms N Williams for the Applicant

Ms J Maguire and Ms P Blackman for the Respondent

Hearing details:

2015.

Melbourne:

10 April

 1   Transcript, PN 178 - 180

 2   Applicant’s Submission filed on 22 December 2014, Exhibit A1, para 2

 3   Transcript, PN 137 – 139

 4   Transcript, PN 80

 5   Transcript, PN 140 – 143

 6   Transcript, PN 81 – 82

 7   Transcript, PN 146

 8   Exhibit A1, para 9

 9   Transcript, PN 81

 10   Exhibit A1, para 9

 11   Transcript, PN 81

 12   Transcript, PN 181 – 184, in part

 13   Exhibit A1, paras 1, 3 - 5, 9

 14   Respondent’s Submission filed on 26 February 2015, Exhibit R1, p.1

 15   Transcript, PN 167

 16   (2006) AIRCFB, PR973462

 17   Exhibit R1, p.1

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