Vanessa Walker v Workcon (Qld) Pty Ltd

Case •

[2024] FWC 1386

•

28 MAY 2024
[2024] FWC 1386

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.365—General protections

Vanessa Walker
v

Workcon (Qld) Pty Ltd

(C2023/2457)

COMMISSIONER HUNT

BRISBANE, 28 MAY 2024

Application to deal with contraventions involving dismissal – jurisdictional objection –application made out of time – exceptional circumstances – extension of time granted – whether applicant was dismissed – no dismissal – application dismissed.

  1. On 2 May 2023, Ms Vanessa Walker made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed by Workcon (Qld) Pty Ltd (the Respondent) in contravention of the general protection provisions of the Act.

  1. Ms Walker claimed that she was dismissed by the Respondent on or around 27 October 2022.

  1. The Respondent raised two jurisdictional objections; firstly, the Respondent denied that Ms Walker had been dismissed and secondly, argued that the application had been made out of time.

  1. Accordingly, there are two jurisdictional issues for consideration before the Fair Work Commission (the Commission); firstly, should an extension of time be granted to Ms Walker, and has Ms Walker been dismissed from her employment?

  1. Section 366 of the Act states:

“366      Time for application

(1) An application under section 365 must be made:

(a)       within 21 days after the dismissal took effect; or

(b)       within such further period as the FWC allows under subsection (2).

(2)       The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)       the reason for the delay; and

(b)       any action taken by the person to dispute the dismissal; and

(c)       prejudice to the employer (including prejudice caused by the delay); and

(d)       the merits of the application; and

(e)       fairness as between the person and other persons in a like position.”

  1. For Ms Walker to have made her application within the statutory time limit of 21 days after she claims the dismissal took effect, the application needed to have been filed by 17 November 2022. The application has been made 166 days out of time.

  1. Ms Walker seeks an extension of time within which to make her application.

  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.”

Earlier unfair dismissal application

  1. Ms Walker made an unfair dismissal application to the Commission in matter U2022/11082. Commissioner Simpson was allocated that matter and on 27 April 2023, convened a Directions Hearing by video on account of his preliminary view that Ms Walker had not completed a period of six months of employment with the Respondent and would not satisfy the minimum employment period to bring an unfair dismissal claim.

  1. Ms Walker appeared at the Directions Hearing representing herself. Following the Directions Hearing, on 28 April 2023, the Commissioner issued a decision, Ms Vanessa Walker v Workcon (Qld) Pty Ltd[2023] FWC 1004, dismissing her application on account of not meeting the minimum employment period of six months to bring a claim for unfair dismissal.

General protections application

  1. Following the proceedings in her unfair dismissal matter, Ms Walker decided to pursue a second application against the Respondent. Ms Walker lodged the current application on 2 May 2023.

Directions issued

  1. Upon the matter being allocated to me, on 7 June 2023, I issued directions to the parties to file material in respect of the two jurisdictional objections before the Commission. The parties were informed that I would convene a telephone conference on 13 June 2023.

Case management conference

  1. On 13 June 2023, my associate contacted Ms Walker to commence the telephone conference at 10:00am. Ms Walker advised that she did not want to proceed with the conference, stated that she is working despite her current medical certificate, and is seeking mental health services. Ms Walker expressed dissatisfaction with the Commission process and ended the call. I determined to vacate the conference, considering that Ms Walker sought not to participate in the conference. My associate notified the Respondent by telephone.

  1. The parties were informed by email 13 June 2023 that the matter remained on foot and that the directions remained in effect, with Ms Walker’s material due 21 June 2023.

Hearing

  1. The matter was initially listed for a Hearing in June 2023. The parties indicated that they were not available at the listed time, and accordingly, the Hearing was relisted to 2 August 2023.

  1. Ms Walker did not attend the Hearing despite attempts to contact her. Ms Ashley Carroll, Human Resources Advisor, and Mr Leon Coleman, Director, appeared and gave evidence at the Hearing. Mr Chris Constable, Allocator gave a witness statement in these proceedings and was telephoned during the Hearing to give evidence.

  1. On 12 August 2023, Ms Walker sent correspondence to my chambers, advising that she had sought legal advice, and having been six months on medication due to her mental health issues, was in a better position to pursue her application. She proposed a directions hearing on 15 August 2023. I declined the request and noted that Ms Walker had indicated she would attend the Commission at the Hearing of her son, Mr Declan Briggs’ s.365 application on 23 August 2023, and I would consider hearing her evidence in this matter at the conclusion of hearing evidence in Mr Briggs’ matter. I informed the parties that I had ordered transcript in Ms Walker’s matter, and it would be provided to the parties.

  1. Following the Hearing, I considered it necessary to determine if there were any telephone records that could assist in determining if there was a phone call between Ms Walker and Mr Constable in late October 2022, however those records did not assist. This caused considerable delay to this matter being concluded.

  1. In December 2023, Ms Walker stated that she was being represented by a named lawyer, and requested all material be provided to her named lawyer. The digital court book and transcript of the Hearing was provided to Ms Walker from my chambers, as Ms Walker’s nominated lawyer had not, at that stage, indicated she was representing Ms Walker. On 22 December 2023, Ms Walker was invited to request her lawyer notify her representation of Ms Walker by filing a Form F53. On 26 January 2024, a Form F53 was appropriately filed.

  1. On 30 January 2024, the parties were provided until 2 February 2024 to file any further submissions. The following correspondence was sent to the parties:

“Noting the Applicant is now represented, the Commissioner asks of the Applicant’s representative if she intends to make any submissions or requests in relation to this matter? If not, the Commissioner is likely to reserve her decision after the above deadline.”

  1. Ms Walker’s lawyer replied on 30 January 2024, advising that further submissions would be filed by Ms Walker by 2 February 2024, however on 2 February 2024, Ms Walker’s lawyer advised that no submissions would be made. On 5 February 2024, I informed the parties that my decision in this matter was reserved.

Ms Walker’s evidence and submissions

  1. Ms Walker’s Form F8 Application alleges that she was dismissed from her employment with the Respondent due to lodging complaints about alleged workplace sexual assaults as well as for requesting the worksites be provisioned with female toilets.

  1. Upon being informed that the application had been allocated to me, over the following months, Ms Walker sent a very large number of emails to my Chambers. Ms Walker noted she was suffering from significant mental health issues which had seen her hospitalised. Ms Walker further advised that she completed high school only up until year 9 and considers she has a below-average intellect. .  

  1. The Commission received evidence from Ms Walker by post on 20 June 2023, including, most relevantly:

·   A checklist produced by Ms Walker;

·   Ms Walker’s payslip for 22 August to 28 August 2022 dated 31 August 2022;

·   Ms Walker’s responses to the acceptance of resignation dated 28 and 29 October 2022;

·   Multiple emails extracting SMS messages from Ms Walker to the Respondent;

·   Annotated correspondence from Ms Walker alleging to attach a collection of inappropriate messages from employees of the Respondent;

·   Correspondence from Ms Carroll for the Respondent to Ms Walker accepting Ms Walker’s resignation and requesting she return the Respondent’s vehicle dated 28 October 2022;

·   Correspondence from Ms Walker to the Respondent’s payroll requesting a separation certificate due to being banned from worksites of a client of the Respondent; and

·   Ms Walker’s complaint to the Respondent regarding lack of female toilets on-site dated 14 October 2022.

  1. Ms Walker sought an order by the Commission for the production of documents by the Respondent. On 29 June 2023, the following correspondence was sent to the parties:

“Dear Parties,

Reference is made to the above matter.

The Commissioner acknowledges receipt of the Applicant’s Form F52 – Application for an order for production of documents, records or information to the Commission, as attached.

In consideration of the application made, the Commissioner advises that she will not be granting an order for the production of documents as sought at this time for the following reasons:

1.   The Respondent’s material is due to be filed on 5 July 2023. Some of the material sought may be included in the Respondent’s material; and

2.   There is no clarity as to the material sought. The application is difficult to read and not clear.

Following receipt of the Respondent’s material on 5 July 2023, the Applicant is welcome to make an alternative application using a fresh Form F52. The Applicant should endeavour to be clear and precise as to the documents sought. If additional pages are required, the Applicant should write on fresh pages, not up and down the sides of the page.”

  1. Ms Walker submitted evidence on 4 July 2023, consisting of appointment details and an appointment reminder with Dr Kwoh-Gain dated 1 April 2023, and a collection of pay advices for the period 20 December 2021 to 17 October 2022.

  1. Ms Walker corresponded on 10 July 2023, largely to request the Commission order the attendance of approximately 11 of the Respondent’s employees to give evidence at the Hearing to support her contention that she has been sexually assaulted in the workplace and had complained about the lack of female toilets.

Respondent’s evidence and submissions

  1. The Respondent submitted that there are no exceptional circumstances justifying an extension of time for Ms Walker’s application. The Respondent submitted that Ms Walker had all opportunities to lodge the appropriate application rather than prosecuting her ineligible unfair dismissal application.

  1. The Respondent submitted that it did not dismiss Ms Walker and she terminated her own employment through resignation. The Respondent argued that at no point was Ms Walker ever guaranteed any set hours, wages or advanced roster.

Evidence of Ms Ashley Carroll

  1. Ms Ashley Carroll is the Human Resources Advisor for the Respondent and has managed Ms Walker’s unfair dismissal application and general protections application for the Respondent. Ms Carroll stated that the majority of the Respondent’s site-based employees are employed casually as the Respondent does not have certainty of work given their industry, including traffic control.

  1. Ms Carroll attests that the Respondent never dismissed Ms Walker and any reduction in her working hours was a result of changes in workflow, rather than an attempt by the Respondent to force Ms Walker to resign. Ms Carroll produced a series text messages from Ms Walker to Mr Constable of the Respondent in which she provided her resignation to the Respondent.

  1. References to ‘Declan’ within the text messages between Ms Walker and Mr Constable are referring to Ms Walker’s then-19 year old son. Ms Walker’s son, Declan Briggs, also worked as a traffic controller for the Respondent. I dismissed Mr Briggs’ s.365 general protections claim for an extension of time in a decision dated 4 September 2023, Declan Briggs v Workcon (Qld) Pty Ltd[2023] FWC 2242.

  1. Below are relevant text messages:

(a)12 October 2022:

Mr Constable:            Thanks for today vanessa [if] you need tomorrow off that’s fine

Ms Walker:Thanks Chris I only thought too as wilco said they didn’t need me tomorrow/until Friday & I’d prefer if any day off through the week it’s a weekday

Oh and I would jump at a Saturday/Sunday if yous have anything of course

Mr Constable:            Thanks Vanessa will confirm any Saturday work now I know your interested

Ms Walker:                 Much appreciated

Or any work next week or so that may need me & Decca type thing if it pops up or even away work? Not sure what you guys have like that but we are available for away work up to a week etc at Gold Coast to Mackay ish so just a few options for me & definitely work I’m keen to smash out by Christmas
Thanks Chris sorry for long text just thought I actually hadn’t mentioned that to workcon before and I’m very grateful and happy with the work I’ve been getting past few months & just options if you hear of anything

Mr Constable:            No dramas Vanessa glad your enjoying the work

(b)14 October 2022:       

Ms Walker:Hey Chris will I get work over the weekend do you know? I’m just thinking should let Dave know…….Thanks Chris for this last few weeks too honestly mate, I genuinely notice how courteous & mindful & in my corner type thing you’ve been with me and I just forget to say thanks mate……

Mr Constable:            Hi vanessa thanks for the feedback. At this stage Saturday is clear but there is work next week. I’ll send details by Sunday arvo.

(c)19 October 2022:

Mr Constable:            [work location and start time given]
  Thanks Vanessa.

Sorry are you interested in night work? Or you would need to be home for the kids? Thanks.

Ms Walker:                 Nights is no worries
  As long as it’s not less hours/money for the shift v day shift lol
  …………….

& absolutely keen Chris for night shift work also Chris, honestly & every alternate week I have no little 1 so happy to do nights then days etc

This message below is long, but I’ll be transparent, it started short, as the last few days, and wasn’t going to send it but figured it’s genuine questions & on my mind/transparent these last 6 weeks or so……

Please also keep Declan in mind for tc shifts please Chris

Even 1 or 2 shifts per week will be ok

He mentioned to me again today that since getting his traffic ticket, that he has only had 3 shifts in weeks & when he was a labourer was getting 4 or so a week (he’s too shy to probably ask you guys lol)

I mention this Chris only because today Declan and I were offered to go to another company/roles for both of us and I’d have a ute and we’d both have 5 shifts a week (40hrs+) etc and not that we would leave you guys

But it’s been at least 3-5 offers a week for civil labourer roles, tc roles, formwork labouring roles etc so I just thought I feel guilty even asking/communication with other employers/ opportunities and haven’t accepted anything of course, but would appreciate if possible you, Dave, workcon whoever had a rough idea on the hours available/weekly between now and new years would be great

Sorry for long message. I have asked Dave, you, workcon in 5+ texts last few weeks as I have gone from doing 12hr shifts 9 days straight type work with Joslyn and leon and then seems since I said no a few weeks ago that each week has “gotten less” and less hours and also seems I’m being alone a lot & even the last 6 or so clients have asked for me, repetitively, and told “she’s unavailable’ or on other jobs etc

I just don’t want to end up looking silly that since Joslyn and leon don’t like me for whatever reason, the [redacted] thing, the saying no to 1 shift last month, or if it was just pure unluck that client after client is crying out for TCS, and many specifically asking for me, repetitively, yet, being sent, alternative TCS, which isn’t my business, but $$, is

Chat tomorrow after work

(d)25 October 2022:       

Ms Walker:                 Hey Dave sorry for the late text just got home

Wanted to see if you got to speak to “the office” or whoever about our discussion regarding me not being able to work for workcon as of end of this week or next week topppps if I can’t get 5 days a week, and Declan my son also

I respect the process, I respect the industry and I respect you guys positions and your work load.

What I can’t look past not another day, or week, or month and it’s now a year I’ve been back work workcon, I won’t respect ANY company that (not intentional I’m sure but it’s facts) that has 6 (that’s minimum I can name 11 off top of my head) men (males non female) that are ALWAYS ON PERMANENT SITES/JOBS, always do PLENTY of overtime and who ALL GROSS NO LESS THAN $2000 A WEEK?

Sorry to repeat the conversation, but figured, it’s now been MANY occasion this year that “issues” some very traumatic for me, that I’m PROMISED (Tim/Jamie/leon/jos) all said “you will be taken care of Vanessa, you’ll not be punished for being SEXUALLY ASSAULTED while at work”

I know that it’s not the case, but PLEASE try and respect my last notice or communication about this…..

I don’t care if it’s males or females, if bastardisation is occurring, causing me to lose over $10,000 between Declan and I just since having a ute?

I won’t ask again. It’s demeaning.

I have had EVERY SINGLE CLIENT give great feedback and 90% of them offer me to come to their company or express the “distaste” at workcons “organisation” process this year…. I can’t and won’t be a part of that.

Thanks Dave

Hope by all 9 message of me “calmly” or “politely” asking for??? WHAT MEN ARE HANDED DAILY? I MEAN INCOMPETENT, LAZY, RUDE, UNFIT AND UNSAFE MEN TCs ?? But they all get the “cream” jobs

No other way to go from here

I’m sick of “meetings” or “conversations” that just lie to me. Like after I let go the [redacted] stuff and alllllllll the Jamie illegal firing all the shit no tgs, no nothing, I’m just done.

Ms Walker:Forwarded you the message to Dave so we are all on the same page mate.

I’ve asked, and asked why it is that Declan has his ticket, he has yeeeeeears construction labourer experience and BOTH Declan and I are DUAL ROLES?

Meaning, we offer labourer/tc/Peggy?

HOW ARE WE PUT SECOND TO ANY OLD MAN OR USELESS, let’s be real, uselesssssssssssss TCS and yeah, I’M EMBARRASSED at sites when 75% of workers, clients and their contractors etc ALLLLLLLL OPENLY SAY TO THE MEN ON THE PERMANENT JOBS, to stop sitting down, stop winging about labouring, stop being unfit to the point that MOST THE MEN I’m referring to ……. Can’t walk by the end of the day?

That’s not me being disrespectful…..its transparent, it’s RIGHT IN FRONT OF TCS LIKE ME THAT ARE FINANCIALLY SUFFERING to dramatic differences of “prior Vanessa saying no to sleep with an old man” a workcon man BTW.

I’m switching off for a few hours to reassess my situation.

Please know I have messages beginning in march that express allllllll this.

Ms Walker

(6 minutes later)         Sorry just feels like I should have followed the advice/directions in July by CFMEU, fair work & NAWIC.

I was told giving me a ute or “delaying me pressing charges/action” due to weeks of Jamie (in writing) being aware of the sexual abuse I was enduring, as employers do that, so it’s outside the 90 days after the incident and then fire the woman or dry her work up SO SHE LEAVES DUE TO NOOOOO FAULT OF HERS

PLEASE make time to answer me by tomorrow or I walk

Ms Walker

(5 minutes later):        I’m confident that ANY workcon worker THAT HAS EARNT THOUSSSSSSANDS MORE A MONTH ALLLLL YEAR, won’t mind WORKCON allocations GIVING ME AND MY SON A FEW WEEKS OF THE LUXURY AND STABILITY THAT THEY HAVE “just miracle happens to be allocated to them WITHOUT being aware that ITS NOT FAIR FOR OTHER TCS?

Ms Walker

(2 minutes later):        All I need an answer on, yes or no, THAT ME AND DECLAN CAN SIMPLY SWITCH PLACES WITH ONE OR TWO OF THESE MENNNNN THAT HAVE 12MTHS WORK AT 60HR WEEKS AVAILABLE TO THEM?

AND DECLAN AND I CAN GET 38HRS BETWEEN US?

Ms Walker
           (1 minute later):         Sorry last text, I’ll be blunt.

I KNOW this is being done on purpose.
  I know that me and my son are being punished.
  Not interested in explaining myself anymore.
  More hours. Or 2 less TCS.
  Pretty simple.
  It would be different if the hours/shifts weren’t there.
  But they are.
  In drovvvves.

I love toddy, and derrik, but and Paul with Todd and [redacted] and ummmm do I keep naming MALE TCS that have literally done more hours EVERY SINGLE WEEK than I get in 3 weeks nearly?

(e)26 October 2022:

Mr Constable:            Hi Vanessa, I tried calling you regarding this. Can you please call me when your able to? Thanks

If your not going to be onsite today for any reason can you please let me know also. Thanks.

Ms Walker:                 I’m onsite. All good.
  Talk after work or end of week.

Mr Constable:            Hi Vanessa, thanks for today.

If you could please take Declan to John England tomorrow with you. Any issues please let me know. Thanks.

Ms Walker:I honestly could not have done it without bree these last few days, she has shown me heaps I didn’t know & I just want to thank her please from me & can’t wait to work with her again

(f)27 October 2022:

Mr Constable:            Hi Vanessa, thanks for today and for taking Declan along as a TC. Brianna is back with you tomorrow at John England. I will contact Declan when he’s finished work to check his availability for work

Ms Walker:Chris I’ll return the ute over the weekend and I will phone to office Monday with my support person to arrange a meeting to discuss why again this week 4 separate times I’ve begged and reached out and I’m sick of asking you can tell my union rep and clarify for him all the questions I’ve begged you guys since being sexually assaulted for weeks while on site, then fired and my son fired because I won’t sleep with a old man. But you know all this Chris you said you read those message. So I take your call now I am no longer safe or earning the same money that I was when I was sexually assaulted. Declan and I are both very very hurt by this you have no idea to feel worthless…but worst of all your employer not only enables these action they then punish the victims by losing thousands of dollars a week there is no other way to look at this Chris any more.

You just lost 2 really good employs. And now I must take action with my union I can no longer ignore advise from nawic cfmeu.

I returned to workcon because Tim/Dave and yourself all promised me I will be ok staying with work con. Since being giving a ute just a week after the sexual assaults I have never earned less in my life Chris

Ms Walker

(3 minutes later):        I will phone Nick from John england and thank them for having me & that I won’t and Declan won’t be returning tomorrow?

Or will you let them know.

I’m sorry Chris but please imagine if this was your wife? Or sister?

I asked and asked and asked workcon why me and Declan stillllllllll not getting work like the 10 minimum TCS that get $3000 a week and I’m on barely 700?

I asked for a meeting?

I asked for tgs to be sent FOR SITES YOU SEND ME TO?

I asked and asked when I genuinely believed workcons head safety guy Tim WHEN HE PROMISED to my face as you all did, that I”LL GET 40HR WEEKS OR MORE JUST LIKE I WAS DOING AND DECLAN WAS DOING BEFORE WE WERE UNFAIRLY DISMISSED, then begged back by workcon, then given a ute, then liked to daily saying ‘no hours/shifts “ available. I’m confident that if you get payroll figures for EVERY WEEK SINCE I WAS ASSAULTED THEN FIRED AND MY SON, THAT ALLLLLL MALE TMI/TCS seem to get just not 40 hours but DAILY OVERTIME it is a disgrace Chris, and I’m out.

Due to solely the events leading to this, and the fact that 4 manager staff level have allllll lied to me false promises, and numbers are facts Chris.

$10,000 minimum loss in wages since the incident 11 weeks ago. and I’ll be real, that’s just my wages

Ms Walker

(one hour later):         The final straw was definitely offering a new employee of 1 week, WHO ALREADY WORKED 3 DAYS STRAIGHT WITH ME?????????

Work over Declan?

It’s worse today Chris, as you or Dave didn’t even call me to discuss this matter?

Or my messages?

It’s YOUR legal obligation as an employer and I’m sick of protecting employers for what?

Gronks and unable and unfit and just “shit workers” get offered the amount of hours me and my son have ALLLLLLL OF A SUDDEN JUST PURE COINCIDENCE SINCE THE SEXUAL ASSAULT? AND UNFAIR DISMISSAL?

I won’t “bother” you guys with any message, I’d hate for your FAMILY LIFE TO BE AFFECTED DIRECTLY FROM YOU JUST TRYING TO DO YOUR BLOODY JOB …… I know how that feels

  1. On 28 October 2022, Ms Carroll sent the following email to Ms Walker:

    “Good afternoon Vanessa,

    This email serves to confirm that we have received your text messages you have sent through to Chris Constable (Brisbane Allocator) during this week, 25th – 28th October 2022.
    In relation to your recent communications, we have outlined the company’s response below.

Whilst you and your son Declan were employed by Workcon this has been on a casual basis and we had not guaranteed any set hours or a minimum wage earnings per week to either of you. Our Brisbane Allocators and Area Managers every week manage the workload based on employee’s availability, location, weather conditions, client requests and requirements.

We are disappointed in the slandering of the company and its employees in which you have continued to do in the past few months. The defamatory comments made have been damaging and the company has taken this very seriously, we had advised you to speak to management if you had any issues and concerns, but none had been received.

Regarding both [redacted] and [redacted’s] previous investigations, a thorough investigation did take place and the company took the necessary corrective actions based on the evidence given and closed these out. You were made aware of the outcomes, and we had hoped that you would move forward with your position within the business. We had also asked you that if you had any new evidence or allegations that you are to raise them with the Human Resources Department or Management, as such no claims were presented.

Finally, in line with your resignation from Workcon noted in your text message on Tuesday 25th October 2022, Yesterday Thursday 27th October 2022 you had been notified that it was your last shift and we had accepted your resignation. The company requires you to return the Workcon vehicle back to the Salisbury office today Friday 28th October or tomorrow Saturday 29th October 2022 and any other allocated property you may have; radio, stop/slow bat, wand etc (you may leave these inside the vehicle). We do not require you to leave any shirts or clothing items that were supplied to you.

Workcon would like to thank you for your time working for us and wish you the best on your future endeavours any outstanding entitlements and unused RDO’s will be paid to you in the next pay run.”

  1. Following the above letter being sent, Ms Walker sent further emails to Ms Carroll, despite Ms Carroll having an out-of-office reply on, notifying that she would be away from the office until 10 November 2022. Ms Walker stated in an email dated 29 October 2022 that she will cease contacting the Respondent. She had, however, sent the following communication just prior to making a pledge not to further contact the Respondent:

“Chris & Dave.

I want to clear this up before Monday & things go pear shaped again.

All I asked, all Declan asked, is we are doing the same shifts prior to being assaulted by [redacted] a Workcon employee on a broad construction site.

Declan and I have gone above and beyond to say yes to EVERY single possible shift offered, including labouring or peggy work for you which 99% of Traffic Controllers you give the big $$$ to every single week, won’t do

We have tried to show by not suing Workcon for the weeks and weeks of sexual assaults, no sexual harassment, let’s be real on CCTV Broad cameras, it’s sexual assault for weeks on end, then terminated unfairly, then asked back, then reassured and promised by workcon even head safety guy Tim, that Declan and I if we agreed to stay with workcon, we’d not suffer or lose ANY HOURS OR SHIFTS?

I want to clarify that you Chris, and you Dave, have been utmost polite, respectful and professional within your team and also to clarify none of this is your fault or issue.

This is 100000% Josly, leon and several others CONTINUING TO FAVOUR AND BASTARDISE OTHER STAFF.

I need that clarified as Monday this issue, is out of my hands, and must follow legal advice from here out to RESOLVE THIS ISSUE as I was promised it had been resolved and assured that Declan and I (AS PER HR AND AS PER PAYSLIPS AND AS PER ATO WE ARE THOUSANDS OF DOLLARS DIFFERENT TO PRIOR TO THE ASSAULTS AND UNFAIR DISMISSAL IN AUGUST)

The fact that you and Dave have ASSURED ME EVEN DAVE JUST 4 DAYS AGO ASSURES ME PLEASE CALL ME ANY MINUTE OF ANY DAY VANESSA IF YOU DON’T HAVE A TGS OR SIGNAGE?

I HAVE PHONED YOU BOTH NOW 14 TIMES IN 48 HRS AND NO RESPONSE???

Please hope Monday when human rights commission and fair work investigation continues, that Chris and you Dave, have not enabled any of this 10s of thousands of dollars in lost wages to myself and to my kin, since I was sexually assaulted for weeks on end by [redacted] and that I believed and trusted workcon/leon/Dave”

  1. Ms Carroll stated that the Respondent had investigated Ms Walker’s allegations of workplace sexual assault and had informed her of the investigation’s findings on 30 September 2022, which concluded that Ms Walker’s allegations were unfounded.

  1. During examination-in-chief, Ms Carroll stated that the decrease in work hours for Ms Walker occurred mostly as a result of one of the clients of the Respondent requesting she not be allocated to their worksites anymore. Mr Constable instead allocated Ms Walker work with other clients. Ms Carroll also stated that it is standard practice for their employees to return work vehicles to the office when an employee is not working over the weekend. Ms Carroll further provided that had Ms Walker not resigned she would have been provided with more shifts and her employment would have continued.

  1. Ms Carroll gave the following evidence in answering a question from me:[1]

“So that’s when she went on her, I guess, text messaging spree. There was also text messages to another person called Dave that was a traffic manager, as well, demanding that her and her son get a certain amount of shifts and that if they don’t they’re going to walk. That’s where we were like, okay, well, we’re going to accept her resignation because we’re not giving in her to demands any more. That’s where we made that decision, as well, to accept her resignation after, I guess, months of getting that sort of text message and calls from her.”

  1. In oral evidence, Ms Carroll agreed that it was the Respondent informing Ms Walker that she would be working with Brianna and not her son Declan that set her off.[2]

  1. Ms Carroll stated that it was not unusual for Ms Walker to display erratic behaviour.

  1. Once Ms Carroll received the text messages that had been sent by Ms Walker on 27 October 2022, Ms Carroll spoke with the directors of the Respondent and obtained approval to accept Ms Walker’s resignation. Ms Walker had previously stated that she would resign, and the Respondent had worked with her not to, however, on this occasion, the Respondent did not want to put up with Ms Walker’s escalating behaviours relating to her demands that she and her son should receive additional hours of work.

  1. The Respondent’s ute that was in Ms Walker’s possession was expected to be returned by Ms Walker on Friday, 28 October 2022. An officer of the Respondent retrieved the ute on Tuesday, 1 November 2022 from Ms Walker’s home. It was not necessary to have any further contact with Ms Walker as the ute has a lockbox with the keys secured.

Evidence of Mr Chris Constable

  1. Mr Chris Constable was the Brisbane work allocator for the Respondent from September 2022 until April 2023 and was responsible for allocating work to Ms Walker when she was employed by the Respondent. Mr Constable stated that there had been no issues with her until he allocated Ms Walker a shift in which her son, Declan, was not rostered to work with her. She sent him a collection of text messages which he referred to management, including what he understood to be a resignation.

  1. During examination-in-chief, Mr Constable stated that he did not have a phone call with Ms Walker on 27 October 2022, however in questioning from me, he thinks it more likely than not that he did have a phone conversation with her. He gave the following evidence:

Commissioner:              Some records would – if I required the production of records there it would show whether or not you called her. She does go on to talk about – she says at 6.53 on page 264: ‘The final straw was definitely offering a new employee one week who already worked three days straight with me’. That’s Brianna, isn’t it?

Mr Constable:               Yes, Brianna was the ongoing TC on that role so she was working with Vanessa on that job, on that project, and yes, I got Declan on the Thursday to cover Brianna and then yes, we were on the assumption that Brianna was going to come back on the Friday if she wasn’t taken down the site. So I got Declan to work with Vanessa to try and help him out. It was obviously a shift – and try and keep him on that project until it finished. But, yes, these messages all came through after that so I just directed them on to HR. I didn’t really know how to address it or handle it, if I’m honest. I’m not qualified to handle that. I just get people work every day. There’s obviously underlying things there that I wasn’t aware of and yes, it all came out. Vanessa was fine up to then. There was never any mention of any men being involved or any sort of – her being not given enough opportunities because of men. That’s all news to me at the time. But, yes - - -

Commissioner: She’s given Brianna a rap and said how great it is to work with her. You’ve said to her on the Thursday afternoon: ‘You’re working with Brianna again tomorrow’?

Mr Constable:            Yes, yes.

Commissioner:           ‘And I’ll ring Declan’, and then your witness statement says that she was upset?

Mr Constable:            From all those messages, it looks like, yes, I’ve done something wrong by putting Declan on another site or try and find him another site so I just got nothing back from Declan after that but I think I should – I think I remember speaking to her in the afternoon and Declan was in the background, possibly, and yes, she just wasn’t happy about getting Declan removed from that site, from memory, because yes, they were put there because I had to put Brianna back on because that was her job for the week as well. So what do you do? I mean, I offered Declan work and I got all these messages back after that. So yes, it was quite – yes, it was – I don’t know. It was a bit of a change for Vanessa. She was – like I said, there was no issues leading up to that point in time.

Commissioner:              There were: there was all those text messages the days earlier. But do you recall having a conversation with her and you saying - because you’ve texted her to say that you’re going to contact Declan?

Mr Constable:               Yes, I put Declan on a job with her as soon as I could to try (indistinct) as well.

Commissioner:              But she writes that you’ve put Brianna in front of Declan?

Mr Constable:               That’s her perception of what I was doing, but I was trying to find Declan work - - -

Commissioner:              Well, at page 266 - - -?

Mr Constable:               Yes.

Commissioner:              - - - where she writes:

The final straw was definitely offering a new employee one week, who already worked three days straight with me, work over Declan.

Mr Constable:               Yes, well, there wasn’t work given over Declan - I had other work for him - but, as soon as I tried to change (indistinct) - we had rain there that day - to a different site, which I think that’s reasonable, you know I got - the messages all came through and - - -

Commissioner:              She says:

It’s worse today, Chris, as you or Dave didn’t even call me to discuss this matter or my messages.

Mr Constable:               Okay.

Commissioner:              So - - -?

Mr Constable:               Yes, this was all passed on to HR at the time, which we’re not qualified to handle this; it’s more of a - it’s above our - you know, all I can do is try and help Declan get a job with Vanessa, which I tried to do to help her out, and then - then I received - when that wasn’t the case on the Friday, these messages came through and I think, ‘Oh, my God, this is out of my - you know, how do I - how do I respond to this?’ So I had to pass it on, I had to - like I explained it.

Commissioner:              Right. And when she says, ‘I’m done, I’m out, you’ve lost two employees’, Ms Carroll - Ashley - she writes a letter saying, ‘Well, we count that as a resignation’, you no longer have anything to do with it, I take it?

Mr Constable:               Yes, (indistinct) said I don’t regard that they were out. It was a shame to lose two traffic controllers at the time, but the way I - I couldn’t have handled it any other way. I didn’t want to call Vanessa. I thought it was going to make it worse by calling her, and the way she was sort of messaging me, I felt like I can’t - I can’t assist in the situation, I can’t help her - help her out. So, I did what I could, I tried to get Declan on with her and, obviously, Brianna was on that project with Vanessa, which was fine, and then Brianna is coming back on the Friday and I had to split Vanessa and Declan up, and then, like I said, this is where it sort of ended up. So it became, sort of, out of my - out of my qualified area to handle.

  1. Following the Hearing, Mr Constable provided a copy of a text message sent by him to another employee, advising the employee he might be requested to work at the John England site. In oral evidence, he stated that he did not cancel Ms Walker’s shift at the John England site, but she did not attend for work on 28 October 2022.

  1. Mr Constable stated that he was not trained to deal with the multitude of text messages sent by Ms Walker. He considered that he had been fairly allocating work on a consistent basis. He did not contact Ms Walker any further as he was uncertain of her mental state. He considered it was a shame to have lost traffic controllers at the time.

Evidence of Mr Leon Coleman

  1. Mr Leon Coleman is a director of the Respondent and gave oral evidence at the Hearing. He approved the letter Ms Carroll sent to Ms Walker on 28 October 2022, accepting her resignation.

  1. Arrangements were made to secure the Respondent’s vehicle Ms Walker had at her home.

  1. Mr Coleman considered that Ms Walker sent all of the text messages that she did on 27 October 2022 as she ‘hit the roof’ when her son, Declan, was not requested to work on the same site as her on 28 October 2022.

Other evidence

  1. In my decision in Declan Briggs v Workcon (Qld) Pty Ltd at [36], I noted that the following text message had been sent to Mr Declan Briggs around the relevant time in question:

“Hey Declan, it’s Jamie from Workcon Labour Hire.

You’ve been offered a job on Monday at Broad Ferny Grove

I’ve just sent the link to begin the sign up process.

If you have any questions regarding the application forms feel to contact me any time. Once completed please let me know and I will call you back to discuss the job on Monday

Thanks”

Extension of time - applicable case law

  1. The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd,[3] where the Full Bench said:

“[10]     It is convenient to deal first with the meaning of the expression ‘exceptional circumstances’ in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression ‘exceptional circumstances’ in s.394(3) and held:

‘[5] The word ‘exceptional’ is relevantly defined in The Macquarie Dictionary as “formatting an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.’

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12]     The ordinary meaning of the expression ‘exceptional circumstances’ was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

‘23. I am of opinion that the expression “exceptional circumstances” requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

“Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.”

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CL at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25 And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.’

[13]     In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [footnotes omitted].

  1. For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant for the extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances exist.

  1. An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[4]

  1. The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[5] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[6]

Consideration in respect of extension of time

  1. I now consider these matters in the context of the application, noting how difficult the matter has been on account of Ms Walker’s failure to attend the hearing on 2 August 2023 and her multitude of emails to chambers.

The reason for delay –s.366(2)(a)

  1. The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[7] The absence of an explanation for any part of the delay will usually weight against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weight in an applicant’s favour, though it is ultimately a question of degree and insight.[8]

  1. A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[9] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[10]

  1. I have had regard to the fact that Ms Walker filed an unfair dismissal claim in 2022, arguably within the 21-day time limit in which to bring such an application. That application was appropriately dismissed by Commissioner Simpson. The Commissioner was tasked with a detailed consideration of the months of work performed by Ms Walker and whether any entities she worked for were associated entities of the Respondent. It was not an easy task, and it is understandable that Ms Walker was confused in respect of meeting the minimum employment period of six months with the Respondent given her span was greater than six months, but at times she did not work and at other times worked for other entities. I have also had regard for Ms Walker’s evidence that she has had limited high schooling and considers she has a below-average intellect.  She has also demonstrated that she suffers from a significant mental illness.

  1. Upon learning of the Commissioner’s decision, Ms Walker promptly filed this application.

  1. The reasons for the delay provided are, in my view, reasons that are supportive of an extension of time being granted.

Any action taken by the person to dispute the dismissal – s.366(2)(b)

  1. Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[11]

  1. Ms Walker has taken active steps to dispute the purported dismissal. The action taken by Ms Walker to contest the purported dismissal supports the granting of an extension of time.

Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)

  1. I consider given the significant length of time since the purported dismissal in October 2022 and the making of the application on 2 May 2023 there would be prejudice to the Respondent caused by the delay in bringing the application. This does not support the granting of an extension of time.

The merits of the application – s.366(2)(d)

  1. It is well established that “it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[12]

  1. On the limited evidence before the Commission, I do not consider that Ms Walker has a strong case or even a reasonable case. This does not support the granting of an extension of time.

Fairness as between the person and other persons in a like position – s.366(2)(e)

  1. The criterion of “fairness as between the person and other persons in a similar position” was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[13] where it was said:

“...cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”

  1. Ms Walker’s son, Mr Declan Briggs was a person in a like position, seeking an extension of time. I dismissed Mr Briggs’ extension of time application, in part because he waited over two months from the time his unfair dismissal application was dismissed before bringing a s.365 application. Ms Walker did not, and she promptly brought this application before the Commission after learning of the dismissal of her unfair dismissal application.

  1. I consider the fairness as between Ms Walker and other persons in a like position supports the granting of an extension of time.

Conclusion in respect of extension of time

  1. Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by Ms Walker, I am satisfied that there are exceptional circumstances in this case. I am satisfied that Ms Walker’s circumstances are unusual as she fiercely sought to prosecute her case but was properly overturned by the Commission on a jurisdictional objection that I do not consider she had the appropriate capacity to appreciate at the time would have rendered her unfair dismissal claim without jurisdiction.

  1. I have decided to exercise my discretion to grant an extension of time under s.366(2).

Consideration in respect of whether there has been a dismissal

  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.[14]

  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.[15]

  1. Although applied under the previous Act,[16] the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[17] in my view remains generally apposite to the consideration of s.386(1) of the Act:

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

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

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

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

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

  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[18] in the following terms:

“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

•  where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

•  where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)

  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.

Did Ms Walker resign her employment?

  1. By late October 2022, Ms Walker was forcefully arguing that she and her son should be afforded more hours of work than they were receiving. Ms Walker’s communication went from pleasant to ballistic in a very short period of time. Ms Walker was incensed, firing off text messages in rapid succession; all the while still rostered to work on 28 October 2022.

  1. On 26 October 2022, Ms Walker informed Mr Constable that she was incredibly impressed with Brianna, her co-worker, yet when Brianna was rostered to work with Ms Walker on 28 October 2022, instead of her son, Declan, being rostered to work with her, on 27 October 2022, Ms Walker declared it was the final straw for her. She declared that the Respondent had just lost two really good employees.

  1. I am satisfied that on 27 October 2022, Ms Walker communicated by text message to the Respondent that she no longer wished to work for the Respondent and this communication was a resignation of her casual employment.

Was Ms Walker forced to resign?

  1. In light of the terms of the Act and the authorities, it is necessary to consider whether Ms Walker was forced to resign. In making that assessment, it is appropriate to make an objective analysis of the Respondent’s conduct to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. The line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning at their own initiative is a narrow one. The line, however, must be “closely drawn and rigorously observed”.

  1. The onus is on Ms Walker to establish that she did not resign voluntarily, proving that the Respondent forced her resignation.[19] I must find that the Respondent took action with the intent or probable result to bring the employment relationship between Ms Walker and the Respondent to an end.[20]

  1. On the evidence before me, it appears that Ms Walker was dissatisfied with the fact that on 28 October 2022, Brianna was rostered to work with her at John England, and not Declan. Ms Walker had been working at the John England site that week and was pleased on 26 October 2022 to be requested to take Declan with her to site the next day, 27 October 2022. She informed Mr Constable she was ‘all good’. She even went further to say that she couldn’t wait to work with Brianna again.

  1. When, however, she was informed that she was going to be working with Brianna on 28 October 2022, and Declan would not be at the same site, Ms Walker sent text messages ‘shouting’ at Mr Constable, expressing her extreme dissatisfaction with Brianna, a new employee of only week’s service, who had worked with her for three days, being provided with work over Declan.

  1. The Respondent’s act of rostering Brianna to work at the John England site on 28 October 2022, instead of Ms Walker’s insistence that it be her son who was offered work, did not force Ms Walker’s resignation. There was nothing unfair, inappropriate, unreasonable or unlawful about the Respondent requiring Brianna to work at the John England site on 28 October 2022 in preference to Declan. Ms Walker’s insistence that Declan be offered the work was unreasonable and petulant, and her response to the Respondent appears to me to have been manic.

  1. The fact that the Respondent kept open the opportunity for Ms Walker to work at the site on 28 October 2022, even after her discourteous and aggressive text messages of 27 October 2022 demonstrates that Ms Walker was going to be given every opportunity to overcome her demonstrated disappointment.

  1. Ms Walker’s dissatisfaction with her hours of work were conjoined to her demands to the Respondent to increase her teenage son’s hours of work. Ms Walker was enjoying a large number of hours in that particular week in October 2022, had been offered work the next day, and yet still resigned her employment.

  1. The Respondent could not have anticipated that this would occur.

  1. As highlighted in ABB Engineering, a consideration of the employer’s conduct is necessary to determine if it was the principal contributing factor in the resultant termination. In this matter, the Respondent had provided a substantive number of hours of work in the relevant week of October 2022 to Ms Walker and had offered her more work the next day. This is despite the fact that from 25 October 2022 she was sending disturbing texts, escalating in aggression.

  1. I am satisfied that Ms Walker’s resignation was voluntary, and not due to conduct or a course of conduct engaged in by the Respondent.

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.[21]

  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.[22] 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.[23]

  1. Due to Ms Walker’s erratic behaviour over the course of her employment, and her various communications to the Respondent regarding whether she would stay or leave, I consider it was appropriate for the Respondent to have waited until 28 October 2022 to establish if Ms Walker presented for her rostered shift to satisfy itself that she did, in fact, intend to resign her employment.

  1. When Ms Walker did not attend for her rostered shift on 28 October 2022, I am satisfied that the Respondent was entitled to treat her resignation as an unambiguous resignation from her employment with the Respondent. By 28 October 2022, the Respondent was entitled to treat the resignation as freely given, not given in the heat of the moment. I am satisfied it waited an appropriate amount of time before confirming Ms Walker’s resignation and that it was reasonable, in all of the circumstances, as per Ms Carroll’s evidence to not be required to give into Ms Walker’s ‘demands’.

  1. While Ms Walker sent a further text on Saturday, 29 October 2022, reproduced at [34], I am satisfied that the Respondent had reasonably accepted her resignation on 28 October 2022.  The text message sent by Ms Walker on 29 October 2022 reagitated her continuing grievance and did not convey that she wished to withdraw her resignation of employment.

Conclusion

  1. For the reasons set out above I have determined that the resignation of Ms Walker was not caused by conduct, or a course of conduct, on the part of the Respondent. I find that Ms Walker 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 [PR775399] will be issued together with this decision.


COMMISSIONER

Appearances:

A Carroll and L Coleman for the Respondent.

Hearing details:

2023.
Brisbane.
2 August.

Final written submissions:

2 February 2024.


[1] Transcript, PN49.

[2] Transcript, PN87.

[3] [2011] FWAFB 975.

[4] Smith v Canning Division of General Practice [2009] AIRC 959.

[5] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[6] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

[7] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters [2018] FWCFB 901 at [35]-[45].

[9] Ibid; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288.

[10] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]-[33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [36].

[13] [2015] FWC 8885 at [29].

[14] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75]; see also Mohzaba v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.

[15] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75].

[16] Workplace Relations Act 1996 (Cth).

[17] [2006] AIRC 496 (PR973462).

[18] [2017] FWCFB 3491.

[19] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30,

[(2009) 185 IR 359].

[20] 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].

[21] 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).

[22] 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.

[23] Ibid.

Printed by authority of the Commonwealth Government Printer

<PR775398>

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Vanessa Walker v Workcon (Qld) Pty Ltd [2023] FWC 1004
Declan Briggs v Workcon (Qld) Pty Ltd [2023] FWC 2242