Vicki Ferry v Secretary of the Department of Parliamentary Services
[2012] FWA 7509
•5 SEPTEMBER 2012
[2012] FWA 7509 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vicki Ferry
v
Secretary of the Department of Parliamentary Services
(U2012/8280)
COMMISSIONER GOOLEY | MELBOURNE, 5 SEPTEMBER 2012 |
Application for unfair dismissal remedy.
[1] Ms Vicki Ferry (the Applicant) was employed by the Secretary of the Department of Parliamentary Services (the Respondent) from 17 August 1998 until her employment ended on 8 May 2012.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (the FW Act) alleging that she was unfairly dismissed.
[3] The Respondent filed an objection to the application setting out three grounds:
1. The Applicant was not dismissed from her employment. The Applicant resigned from her employment with the Respondent.
2. The parties have previously settled all matters between them, including all matters relating to the Applicant’s employment and the cessation of that employment.
3. The application is vexatious and without reasonable cause or reasonable prospects of success.
[4] The Applicant appeared on her own behalf and Mr Mark Rinaldi of Counsel sought permission to appear for the Respondent.
[5] The Applicant objected to Mr Rinaldi being given permission to appear. She did so because she was unrepresented and she submitted the Respondent was capable of representing himself. She submitted that allowing the Respondent to be legally represented would put her at a disadvantage.
[6] Mr Rinaldi submitted that his appearance would enable the matter to be dealt with more efficiently as the matter involved complex legal issues.
[7] Section 596 of the FW Act provides for representation by lawyers as follows:
“(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.
(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3) FWA’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).”
[8] Given the legal issues involved I determined that it would be more efficient to allow the Respondent to be represented by Counsel.
Background
[9] The Applicant was employed by the Respondent as a Hansard Reporter. 1 In February 2012 the Respondent received allegations of misconduct relating to the Applicant.2 The Respondent appointed a manager to conduct an investigation in accordance with clause 19 of the Parliamentary Officers’ (Non-Executive Staff- Victoria) Single Enterprise Agreement 2009.3
[10] During the investigation further allegations were received and the Applicant was advised of those allegations.
[11] On 19 April 2012 the Respondent received the report of the investigator. The investigator had found six of the allegations substantiated and one unsubstantiated.
[12] On 19 April 2012 the Respondent advised the Applicant of the outcome of the investigation and provided her with a full copy of the investigator’s report. The Respondent advised the Applicant as follows:
“On the basis of Mr Jordan’s findings, which I accept subject to any further response provided by you, I propose the disciplinary outcome to be the termination of your employment with payment in lieu of notice. Given the nature of these allegations, I am of the view that the proposed discipline outcome is not disproportionate to the seriousness of the matter.
In accordance with clause 19.8.6 of the EA, I am now providing you with an opportunity to respond to Mr Jordan’s findings and my proposed discipline outcome.” 4
[13] On 26 April 2012 the Applicant provided a response in which she advised the Respondent that while she had made mistakes she had not wilfully engaged in misconduct. She further advised the Respondent that the termination of her employment would have dire consequences for her, including bankruptcy. She advised that she would be required to sell her house and remove her son from his school which, given his special needs, would have detrimental effects for him. The Applicant advised that she would accept a final warning. 5
[14] The Respondent, then through its lawyers, put to the Applicant a settlement offer. This occurred at a meeting held at the offices of the Applicant’s union, the CPSU, on 8 May 2012. The Applicant was represented at that meeting by her union representative. The Applicant was provided with a letter and a Deed of Release (the Deed). 6 That letter advised the Applicant to obtain independent legal advice in relation to the offer and the Deed.7 The Applicant gave evidence that at this meeting the Respondent’s lawyers insisted that she be given time to consider the offer.8
[15] The Applicant subsequently met with a lawyer 9 who she described as the union’s solicitor.
[16] On 9 May 2012 the Applicant sent the Respondent an email in which she advised him that “she was devastated at the prospect of the loss of [her] career.” She sought a demotion rather than the termination of her employment. 10
[17] On 10 May 2012 the Applicant instructed her union representative to advise the Respondent’s lawyers that she accepted the offer. 11 It was the Applicant’s evidence that she signed the Deed on or about 10 May 2012.12
[18] On 16 May 2012 the Applicant tendered her resignation by email as follows:
“I reluctantly tender my resignation to take effect from 8 May. I would like you to know that as I was experiencing neurological disturbances during the negotiations which my doctor has attributed to stress, and I was unable to recall some of the circumstances in relation to the allegations...............................I hope you will see that my behaviour has not been dishonest and consider accepting my application for a sessional position, which would mean that I could get sufficient rest periods between shifts to alleviate the problems I have with my back and fatigue.”
[19] The Applicant signed the Deed which provided at clause 2 that the Applicant resigned her employment with effect from 8 May 2012. 13
[20] The Applicant was paid the monies due under the Deed 14 and has not returned the monies paid.
[21] The Deed provided at clause 5 for a full release and at clause 7 provided that the Deed was a bar to any proceeding.
[22] Further, at clause 11 the Applicant warranted that the Deed was voluntarily entered into and that she had a full opportunity to consult with her legal advisers.
Evidence of the Respondent
[23] Mr Peter Lochert, the Respondent, gave evidence and was cross-examined. Much of his evidence was not contested.
[24] Mr Lochert gave evidence that he was aware that the manager he had appointed to conduct the investigation had been on the enterprise bargaining committee but he did not consider that this would mean that he could not conduct the investigation professionally. 15
Evidence of the Applicant
[25] The facts set out in paragraphs [9]-[22] are not disputed by the Applicant however the Applicant contends that the actions of the Respondent over a sustained period of time forced her to resign. She says she was constructively dismissed. 16
[26] The Applicant gave evidence to support her claim that she was the victim of harassment since 2006. 17
[27] Further, she was a member of the enterprise bargaining committee as was the manager who was appointed to conduct the investigation into the allegations made against her. 18 During enterprise bargaining the Applicant advocated for changes that would improve the health and safety of Hansard reporters.
[28] While it was her view that the appointment of the investigator showed that the investigation was a sham it was her evidence in cross examination that when she met with the investigator she told him that she didn’t think she would get a fair hearing if the investigation was conducted within Parliament. He then told her that he was conducting the investigation. She decided to have faith in him to come up with findings that reflected the fact that the allegations were groundless. 19 She did not raise her concerns that the investigator was biased or that the investigation was a sham with the Respondent or any other representative of the Respondent.
[29] The Applicant met with a union representative to discuss the allegations and her contention that the conduct of the Respondent amounted to adverse action. 20
[30] The Applicant gave evidence that she asked her union representative to include matters in her response to the allegations particularly her claim that she had been treated unfairly because of her involvement in the enterprise bargaining negotiations and because of her WorkCover claim but these matters were not included in her response. 21
[31] The Applicant submitted that she advised her union representative that she was experiencing a “strange vision of flashing triangles” which she later found out was an ocular migraine. 22
[32] The Applicant’s union representative met with the Applicant a half an hour before the meeting with the Respondent’s solicitors, to discuss settlement. The Applicant told her representative that she wanted to be reinstated. The Applicant gave evidence that her representative’s assessment of her case had changed significantly. While she had previously said the Applicant had a good case, she now said that the Applicant had no chance of success. 23
[33] The Applicant attended the meeting where the offer of settlement was put. She said she protested that the person who had made the findings had been on the enterprise bargaining committee but her union representative took no issue with that. 24
[34] The Applicant said that the advice she received from her union was not sound and because she was confused, she felt hopeless. 25
[35] The Applicant felt she was pressured to sign the Deed by her representatives but she did not sign it, insisting on seeing a lawyer. 26
[36] Having been advised by the Respondent’s lawyers to get independent legal advice the Applicant told her representative that she wished to get advice from a particular legal firm. The Applicant was told that she would only be provided with a referral to the union’s solicitors. 27
[37] The Applicant attended the union’s solicitors the next day along with her union representative. While the Applicant had “misgivings” about her representative attending the meeting with her she did not tell the representative that she did not want her to attend. 28
[38] At the meeting with the solicitor the Applicant said that her union representative interrupted her and gave her version of the situation. The Applicant thought this was an attempt to influence the solicitor’s advice. The Applicant was told by her representative that the union would represent her at the conciliation but not at the hearing and the solicitor told her that it would cost her approximately $40,000 to $50,000 to defend the matter. 29
[39] The Applicant told the solicitor her view that she hadn’t got a fair hearing because the investigator was on the enterprise bargaining committee but he didn’t consider that to be an issue. 30
[40] The Applicant considered that the union and the solicitor gave her misleading information. She was told that only about 3% of unfair dismissal cases resulted in reinstatement. She claimed this misrepresented the outcomes of unfair dismissal claims. It was her evidence that Fair Work Australia told her that the low level of reinstatement was because most applicants prefer compensation. It was her evidence that if she had been given the correct information she would not have signed the Deed. 31
[41] On the day she was required to sign the Deed she had “strong misgivings”. It was her evidence that she thought she would be sacked the next day and she would not be able to pay her next month’s mortgage. 32
[42] The Applicant gave evidence that she again experienced an ocular migraine and she rang the Respondent’s lawyers to ask if it was sufficient that she send them an email. She was told that was OK. Her union representative then rang her to find out where the signed document was. She told her representative that she could not bring herself to agree to the Deed and she was told that she had no alternative. The Applicant had another discussion with her union representative and the Applicant suggested that the union representative put to the Respondent that the Applicant be demoted but the union representative told her that would be pointless. 33
[43] After being cajoled further by her union representative the Applicant agreed to send the email, which she did. 34
[44] She submitted that the Deed should be disregarded because she did not have the capacity to enter the Deed or that she was subjected to undue influence and that she had not had independent legal advice. 35
[45] The Applicant submitted that she was under stress at the time she signed the Deed and she was experiencing neurological disturbances which affected her ability to reason. 36 To support this contention she provided a medical certificate dated 10 July 2012 which said as follows:
“[The Applicant] attended for a consultation on 7/05/2012 and [was] found to be suffering from migraine and stress. In my opinion, Vicki’s ability to make good and rational decisions on the day after her migraine would have been impaired.” 37
[46] A further medical certificate dated 14 May 2012 stated:
“[The Applicant] attended for a consultation on 14/05/2012 and she was reviewed here a week ago. At that time (last week) she reported neurological symptoms and extreme stress. She feels that her competence and capacity to rationalise at the time of dealing with her employers (last Thursday) was impaired. He (sic) file notes support this as a possibility and she would like to revisit the deliberations.” 38
[47] The Applicant also relied upon the stress she was suffering at the time which arose from the financial and emotional effects of her mother’s death the year before. It was her evidence that the Director of Information Services knew of these difficulties and that the Respondent knew of her “severe pain and health issues.” 39
Submissions of the Respondent
[48] The Respondent submitted that Fair Work Australia does not have the jurisdiction to hear the application because the Applicant was not dismissed as she resigned her employment.
[49] The Respondent denied any allegations of harassment and submitted that it conducted an investigation of allegations made against the Applicant in accordance with its obligations under the Enterprise Agreement. 40
[50] It was submitted that the Applicant’s decision to resign was a voluntary decision. The Applicant was made an offer and she decided to accept it after receiving independent legal advice. The Deed and email of 16 May 2012 evidenced her acceptance of the offer. 41
[51] It was submitted that the matters complained of by the Applicant, related to a period in late February 2012 yet she did not resign until 8 May 2012. 42
[52] It was submitted that the matters relied upon by the Applicant, namely the allegations of harassment, bullying and intimidation, which were denied, were not directly linked to her decision to resign. What caused her to resign was the offer set out in the Deed. 43
[53] It was submitted that the offering of the Deed did not apply duress to the Applicant nor could it be undue influence or be unconscionable.
[54] It was submitted that the factors relied upon by the Applicant, namely the stress from a number of personal matters did not arise from any conduct of the Respondent. 44 It was further submitted that, even if there had been duress applied by her legal advisors and the CPSU, for which it was submitted there was scant evidence, the Respondent was not involved in that. Further it was submitted that the advice given to the Applicant by her union and legal advisors was not unreasonable.45
[55] The Respondent submitted that it was entitled to rely on the Deed as a complete answer to the Applicant’s claim. 46
[56] In doing so the Respondent relied upon the decision of the Federal Court in Australian Postal Corporation v Gorman and Anor 47 in which it was held that a “valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”48 Unlike Gorman, here there was a signed Deed in which the Applicant had released the Respondent from all claims arising from employment except for statutory and common law workers compensation claims.
[57] The Respondent also relied upon the decision of the Full Bench in Zoiti-Licastro v Australian Taxation Office 49 in which it was said:
“Where the Commission finds that there is a complete answer to the applicant’s claim and dismisses the claim, there is no substance in any suggestion that the Commission has breached its duty to hear the application. And subject to the observance of the rules of natural justice, it is highly undesirable that the parties should be put to the expense of a full hearing when it is clear at the outset that the claim cannot succeed. Take a case in which there is a duly executed settlement agreement in evidence. Subject to the resolution of any argument about the binding nature of the agreement, the settlement would provide a complete answer to the claim and there would be no point in hearing the other evidence.” 50
[58] The Respondent submitted that it was not relevant that, at the time the Applicant signed the Deed, no unfair dismissal claim had been lodged as it was clear that the Deed was intended to cover the subject matter of the claim. 51
[59] It submitted that the unfair dismissal claim was clearly in the mind of the Applicant when she signed the Deed. Her own evidence showed that she intended making an unfair dismissal or adverse action claim at the time she entered the Deed and she knew she was giving up that right by signing the Deed. 52
[60] The Respondent submitted that the Applicant did not lack the mental capacity to enter the Deed. The Respondent submitted that the medical evidence said she was impaired on the day after her migraine yet she did not sign the Deed until three days after the migraine. 53
[61] Further it was submitted that the medical certificates do not support a finding that the Applicant lacked the mental capacity to make the agreement. 54
[62] The Respondent submitted that the Applicant suffered no special disadvantage 55 as considered by the High Court in Commercial Bank of Australia Ltd v Amadio56.
[63] The Respondent submitted that the Applicant was not put under duress to sign the Deed. It submitted that threshold for duress is a high one. In any event the Respondent submits that the Applicant complains about the conduct of her representatives not the Respondent. It further submitted that the Respondent had no knowledge of the conduct complained of by the Applicant. 57
Submissions of the Applicant
[64] The Applicant submitted that she “would not have resigned if it had not been for the sustained pressure, intimidation, discrimination and harassment directed towards [her] over a period of years, culminating in the allegations of misconduct because the respondent wanted [her] resignation.” 58
[65] When further allegations were raised during the investigation, the Applicant submitted that she felt she had no option but to resign “because the pressure would only continue.” 59
[66] The Applicant submitted that the investigation of the allegations was a sham designed to get rid of her. 60 The Applicant submitted that “if the employer had not made allegations of dishonesty against [her] and had not indicated its intention to pursue further investigations and continue its harassment, [she] would not have felt that [she] had no choice but to resign.”61
[67] She submitted that the email dated 9 May 2012 put the Respondent on notice that “any resignation would not be given freely or without undue influence.” 62
[68] The Applicant submitted that she was forced to resign.
[69] The Applicant submitted that the Deed is not binding as she did not have independent legal advice prior to signing the Deed and she lacked the mental capacity to enter into the agreement. 63
[70] To support this submission she relied upon the medical certificates. In addition to this medical evidence she also relied upon her evidence of the stress she was under at the time. 64
[71] She submitted that the solicitor she consulted was not independent and gave her misleading information. 65
[72] She submitted that the union had a conflict of interest as a hearing of her claim would disclose that the union had permitted unsafe work practices to occur and had not taken these issues up in enterprise bargaining. 66
[73] She submitted that because the solicitor she consulted was also the solicitor for the union there was a further conflict of interest. 67 She submitted that the solicitor should have advised her to obtain independent legal advice.68
[74] She submitted that the solicitor misled her about the outcomes of unfair dismissal claims and had no regard to the lack of procedural fairness in the process adopted by the Respondent. She submitted that this lack of procedural fairness on its own meant her claim would succeed. 69
[75] She submitted that she was at a disadvantage as she could not afford the legal costs she was quoted and she would have been at a disadvantage representing herself. 70
[76] The Applicant submitted that it would be unconscionable for the Respondent to be able to rely upon the Deed to defeat her claim. The Applicant submitted that the Deed is not enforceable because “it would be unconscionable to allow the respondent to take advantage of the denial of natural justice and overbearing behaviour thus forcing [her] into the signing of the deed and further that [she] was under undue influence to sign the deed - that influence being the misrepresentation as to [her] legal standing.” 71
[77] The Applicant relied upon the falsity of the original allegations and the addition of further allegations after the investigation had commenced. 72 She submitted that the direction to her not to discuss the allegations with co-workers prevented her from talking to witnesses and this lack of procedural fairness put her at a distinct informational disadvantage.73
[78] She further relied on the doctrine of unilateral mistake to avoid the contract. The mistake was the information about the outcomes of unfair dismissal proceedings. 74
[79] She submitted that this imbalance of information together with other factors may constitute special disadvantage for unconscionability purposes. 75
[80] The Applicant submitted she was financially vulnerable at the time. She submitted that she had special concerns particularly arising from her son’s special needs. The Applicant wanted to avoid removing him from his school. The Applicant submitted that the Respondent took advantage of this vulnerability because it knew she could not afford to defend the allegations. She relied upon the decision of the NSW Industrial Commission in David Jones Limited v Cukeric 76 to support her submission that the Deed should be set aside on the basis of unconscionability.77
[81] The Applicant submitted that she had been subjected to duress. This duress was financial as she had lost her job and was told she would not get a hearing until October. She submitted that she was under duress because the only way she could keep her house was to sign the Deed. 78 She submitted that she had an emotional attachment to her family home and if she had to sell, it would have a negative effect on her children.79
[82] She relied upon the Respondent’s knowledge of her financial vulnerability to support her submissions. The Applicant submitted that the relationship between employer and employees is a fiduciary relationship and the “ascendant” party must act with utmost good faith and must act, not in its own interest but in the other party’s interest. 80 The Applicant submitted that there was a duty on the employer to treat their employees reasonably and this derives from “the employer’s duty of trust and confidence.” The Applicant submitted that the Respondent must show that the “transaction was the product of a free and unpressured mind.”81
[83] The Applicant further submitted that the conduct of the Respondent, in advising her that if she did not withdraw her application that it would seek costs, was a further attempt to exploit her financial situation. 82
[84] In her submission the Applicant acknowledged that the Respondent did not tell her that her employment would be terminated if she did not sign the Deed, but she submitted that this was the clear implication. 83
[85] She further submitted that she was disadvantaged because the union did not tell her it would not defend her case until the day before the deadline. She submitted this put her under a time pressure to accept the Deed.
[86] Further she submitted that even if regard could be had to the Deed, the Deed was only one matter to be considered. 84 The Applicant relied upon the decision of Commissioner Lewin in McDougall v Circuit Finance Australia Limited.85 In that decision Commissioner Lewin held that a Deed of Release was not a complete bar to an unfair dismissal claim. She further relied upon the decision of Senior Deputy President Lacy who rejected an application to dismiss an unfair dismissal claim because there was a settlement agreement.86
[87] The Applicant submitted that her claim is not vexatious and made without reasonable cause or reasonable prospects of success. This is evidenced, she submitted, by the fact that the Respondent estimated that it would cost $50,000 to defend the claim. 87 The Applicant relied on the approach of the Tribunal in determining costs applications to support this submission. The Tribunal had held that just because an argument fails, does not mean a claim was vexatious. Further in determining whether a claim is vexatious one must look to the motives of the applicant.
[88] The Applicant further submitted that there could be no finding that the application had no reasonable prospects of success because the Tribunal could not find that the unfair dismissal claim was manifestly untenable. 88
[89] The Applicant further submitted that regard should be had to her personal circumstances and that she is seeking reinstatement.
Was the applicant forced to resign?
[90] Section 386 of the FW Act provides as follows:
“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.”
[91] While section 386 of FW Act differs from the relevant provisions in the predecessor legislation I consider that the principles developed by the Federal Court, the Industrial Relations Court and the Australian Industrial Relations Commission when considering whether there had been a termination at the initiative of the employer are relevant to the provisions of the FW Act under consideration in this matter.
[92] The Explanatory Memorandum makes it clear that the provision was intended to “reflect the common law concept of constructive dismissal.” 89 It covers situations where:
“The employee is effectively instructed to resign by the employer in the face of threatened or impending dismissal; or
The employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[93] The Applicant relies on both limbs of this explanation.
[94] In O’Meara v Stanley Works Pty Ltd, 90 a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and said as follows:
[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.” (References omitted)
[95] These principles are relevant to a determination of whether the Applicant was forced to resign because of conduct, or a course of conduct, engaged in by his or her employer.
[96] I agree with the submissions of the Respondent that a finding that the Applicant was not forced to resign her employment would end the matter. However I agree with the submission of the Applicant that if she was forced to reach an agreement which included an agreement to resign then the agreement is invalid and there would be jurisdiction to hear the unfair dismissal application.
[97] However critical to the assessment of whether she was forced to resign is an assessment of the conduct or the course of conduct of the Respondent.
[98] It is important to note that at the time the Applicant tendered her resignation there had been no decision to terminate her employment. At that time there had been adverse findings made and a view that the termination of her employment would not be a disproportionate outcome. The Applicant was advised that she would be paid in lieu of notice and receive all her entitlements. However the Respondent still had before him the Applicant’s response to that advice and no final decision had been made.
[99] Much of what the Applicant complained of in her submissions and evidence goes to the conduct of her union and her legal representative. That conduct was not conduct of the Respondent. There was no evidence to support any findings that there was collusion between the union, the solicitor and the Respondent which would lead to a finding that their conduct was the conduct of the Respondent.
[100] It is clear that a course of conduct can lead to a constructive dismissal. The Tribunal can have regard to the conduct of the employer over a period of time to determine if the employee was forced to resign.
[101] In Carrigan v Darwin City Council 91 von Doussa J, on appeal from a judicial register, considered the situation of a worker returning to work after an injury who had resigned her employment after her employer did not, over a period of time, fulfil its rehabilitation obligations. Von Doussa J accepted that a constructive dismissal can arise from a breach of the implied term as to trust and confidence.92 The question von Doussa J said was “whether the Council’s conduct as a whole is such that its effect judged reasonably and sensibly, is such that the employee could not be expected to put up with it.”93
[102] The situation here is different. While the Applicant did complain about the conduct of the Respondent over a period of time, including during the disciplinary proceedings, she did not resign her employment until she was offered a financial incentive to do so. It was the offer of additional monies that would not have been paid had she been dismissed that caused the Applicant to resign her employment.
[103] However even accepting the Applicant’s submissions about the conduct of the Respondent prior to the investigation there is nothing in the evidence that would support a conclusion that, viewed reasonably and sensibly, the Applicant could not be expected to put up with it. The Applicant complained about her rate of pay, the failure of her employer to provide her with flexibility when her mother was ill and her working hours. Apart from one incident in 2008 there was no evidence that the Applicant lodged a grievance about any of these issues.
[104] These complaints even if valid would not lead to a finding that the Respondent had breached its implied duty as to trust and confidence. Nor would that lead to a finding that the Applicant was forced to resign.
[105] The Applicant submits that it is the combination of these incidents with the investigation and findings which forced her to resign.
[106] The Applicant did not suggest that the allegations were trumped up, though she pointed to a temporal connection between her complaint about her hours of work 94 and her receiving the letter outlining the allegations.95
There is no evidence to support any finding that the Respondent did not receive allegations about the Applicant. Further there is no evidence to support a finding that the allegations were fabricated and the Respondent knew they were fabricated. There is no dispute that the Enterprise Agreement required the Respondent put those allegations to the Applicant and provide her with an opportunity to respond. Such conduct is not improper.
[107] I do not accept the submissions of the Applicant that the appointment of a person who had represented the Respondent on the enterprise bargaining committee of itself could lead to a finding that the investigator was biased or that there was an appearance of bias.
[108] The mere fact that the investigator was a member of the enterprise bargaining committee does not support a finding that the investigator was biased against the Applicant nor would a finding of apprehended bias be supported without more.
[109] The Applicant did not raise this complaint until after the investigation was completed.
[110] A finding of apprehended bias requires more than the subjective assessment of a participant, the relevant view is that of a fair minded observer. 96 The reasonable apprehension test is a question of a possibility (real and not remote) rather than a probability.97
[111] I am unable on the material before the Tribunal to conclude that the investigator was biased or there was an appearance of bias.
[112] Further the Applicant submitted that she was forced to resign because of the conduct of the investigator including the advice of further allegations and her isolation from potential witnesses. There is nothing improper about the Applicant being advised of further allegations which came to light in the course of the investigation. Further, while the Applicant may have been instructed to keep the investigation confidential, she at no time approached the Respondent to advise that she needed to speak to particular persons to gain evidence to support her version of events.
[113] Nor could it be said that putting an offer of settlement to the Applicant, which provided her with the option to resign her employment and receive monies that would not have been payable had her employment been terminated, was improper. The Applicant was not forced to make up her mind immediately in fact, the Respondent’s solicitors encouraged her to obtain independent legal advice. That is not the conduct of an employer that is trying to force an employee to resign.
[114] As I indicated earlier the conduct complained of by the Applicant about the advice she received from her union representative or the solicitor she consulted was not conduct of the Respondent and therefore is not relevant to the consideration of whether her resignation resulted from the conduct or the course of conduct of her employer.
[115] Further I do not accept the submissions of the Applicant that the legal advice she received was not independent. In the Deed she warranted the she had had an opportunity to consult with her legal advisers and she acknowledged that the Respondent would rely on that warranty. The mere fact that the solicitor also performed work for her union does not support a finding that the advice was not independent.
[116] The Applicant also submitted that the agreement she reached with the Respondent was void because she did not have the capacity to make the agreement.
[117] The evidence provided by the Applicant does not support a finding that she lacked the mental capacity to make the decision she made. While I accept that this was a stressful time for the Applicant, and that at times she suffered ocular migraines, she had the mental capacity to resist what she described as her union representatives pressure to sign the Deed immediately. She was able to seek legal advice. On 9 May 2012 she was able to send a coherent email to the Respondent seeking a demotion rather than a resignation.
[118] The medical evidence says she had a migraine on 7 May 2012. The certificate did not say that the Applicant was not competent to make decisions. At its highest it said her ability to make good and rational decisions was impaired. There is no evidence that the Applicant was incapable of understanding what she was agreeing to or that the Respondent knew that she was incapable of understanding. 98 Her understanding of the proposal is evident from her conduct at the initial meeting when she resisted signing the Deed until she had legal advice, her email to Mr Lochert sent on 9 May 2012 and her resignation email of 16 May 2012. None of this evidence supports a finding that the Applicant did not have the mental capacity to understand what she was agreeing to.
[119] The Applicant also submitted the agreement she reached with the Respondent was void because she was mislead by her advisors.
[120] The Applicant did not suggest she was misled about the costs of proceeding with an unfair dismissal claim. Her complaint about this is that the costs of defending such a claim make it difficult if not impossible for impecunious employees to defend their rights. That the Applicant was not able to afford legal representation is no reason for finding that her agreement to resign should be vitiated.
[121] The Applicant submitted she was misled about the likely outcome of a successful unfair dismissal claim. It was her evidence that she was told that only 3% of claims resulted in reinstatement. She submitted that she was told by Fair Work Australia the figure was low because claimants in the main sought compensation rather than reinstatement.
[122] In 2010-11, 99 12301 claims for unfair dismissal were finalised by Fair Work Australia. Of the 517100 claims which were heard by a member of Fair Work Australia, 25 or 4.8% resulted in reinstatement of employees. Fair Work Australia does not keep records of the remedy sought by Applicants. Further it is not possible to determine from most decisions if an order for reinstatement would have been made in those cases where compensation only was ordered.
[123] There is no basis for concluding that the information provided to the Applicant about the outcomes of unfair dismissal proceedings was misleading. Even if it were this was not information provided by the Respondent and the Respondent did not know what information had been given to the Applicant.
[124] The Applicant submitted that she was under a special disadvantage because of her dire financial position and because of her son’s special needs.
[125] In Commercial Bank of Australia Ltd v Amadio 101 Mason J said as follows:
“I qualify the word ‘disadvantage’ by the adjective ‘special’ in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgement as to his own best interests...”
[126] The circumstances of the Applicant do not constitute a special disadvantage. The Applicant has a Bachelor Degree in humanities/social science and in law. She completed her articled clerkship in 1995. She received independent advice from both her union and a solicitor. Other than advice about the possible outcome of a successful case and the likely costs, the Applicant did not give any evidence about any assessment made by the solicitor of her prospects of success.
[127] In this matter the Applicant made a rational decision to accept the offer of monies rather than rely upon any legal remedies she had if the Respondent had decided to terminate her employment. After receiving the offer she attempted to negotiate a different outcome and when that was not responded to, she decided to accept the offer.
[128] There was no improper conduct by the Respondent. I do not accept the Applicant’s submissions that the conduct of the Respondent was “overbearing.” 102 I previously rejected the Applicant’s submission that the Respondent had done anything wrong by investigating the complaints or by directing the Applicant not to discuss the investigation with other employees. I do not accept that this put the Applicant at a “distinct informational disadvantage.”103
[129] I further do not accept that the Respondent made any representation to the Applicant about outcomes of unfair dismissal cases or legal costs. Therefore it cannot be found that the Respondent misrepresented the options available to the Applicant. In fact the Respondent recommended that the Applicant get independent legal advice before she made a decision.
[130] I accept the Applicant’s evidence that the termination of her employment would have left her in precarious financial position. That is the situation faced by many employees.
[131] I do not accept that the Applicant was in a similar position to Mr Cukeric. 104Mr Cukeric was retrenched without notice. The Company was found to have misled Mr Cukeric about his entitlements and demanded he sign a release before he received his legal entitlements.105 That is not the situation here.
[132] There was no evidence to suggest that had the Applicant not signed the Deed and had her employment been terminated that the Applicant would not have received her entitlements. In this case the Applicant was offered and accepted more than her entitlements in exchange for signing the Deed.
[133] For the reasons set out above I find that the Deed was voluntarily entered into by the Applicant and it is not unconscionable for the Respondent to rely upon the Deed as a defence to this application.
Conclusion
[134] As I have found the Deed was voluntarily entered into, I conclude that the Applicant resigned her employment and was not forced to do so by her employer. Therefore Fair Work Australia does not have the jurisdiction to determine the application and it must be dismissed.
[135] Alternatively for the same reasons I would have found that the Deed voluntarily entered into by the Applicant was a complete answer to the claim. 106
[136] Section 587 of the FW Act provides Fair Work Australia with the power to dismiss an application as follows:
“(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[137] The Respondent relied upon the decision of the Federal Court 107 and Fair Work Australia108 in Gorman. Many of the matters considered by the Court and Fair Work Australia do not exist in this matter. Here a properly executed Deed had been entered into before the unfair dismissal application was made and both parties complied with their primary obligations under the Deed, in that the Applicant resigned her employment and the Respondent paid the monies due under the Deed.
[138] While there may be circumstances where a Deed may be read down 109 it is clear that in this matter unfair dismissal proceedings were clearly in the contemplation of the Applicant when she considered the Deed. Therefore I find that by signing the Deed the Applicant agreed not to pursue an unfair dismissal claim.
[139] I have previously determined in section 587(1) gives Fair Work Australia the power to dismiss a matter and that power is not limited by section 587(1)(a) and (b). 110 Even if this is not correct, in this matter the existence of the Deed and the fact that the Applicant has accepted the monies payable under the Deed and released the Respondent from this claim, means that the application has no reasonable prospects of success.111
[140] The power to dismiss an application is a discretionary power. The Applicant made submissions that I should have regard to her dire personal circumstances. 112 While I am sympathetic to the Applicant’s plight, section 578 of the FW Act provides that:
”In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWA must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
[141] The objects of Part 3-2 of the FW Act, which deals with unfair dismissals, provides as follows:
“(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”
[142] It would not provide a fair go all round if a party to a settlement agreement, having accepted the benefit of that settlement, was able to subsequently change her mind and commence proceedings.
[143] I have found that the Applicant was not forced to resign her employment by conduct or a course of conduct by the Respondent, therefore the jurisdictional objection of the Respondent is upheld.
[144] I have further found that the Deed of Release means that the application has no reasonable prospects of success. Therefore the application is dismissed.
COMMISSIONER
Appearances:
V Ferry on her own behalf.
M Rinaldi on behalf of the Respondent.
Hearing details:
2012.
Melbourne.
August 3.
1 Exhibit R1 at [4]
2 Ibid at [7]
3 Ibid at [8]
4 Ibid at Attachment A
5 Exhibit A2 at Attachment G
6 Exhibit R1 at [14]-[17]
7 Ibid at Attachment B
8 Exhibit A1 at [24]
9 Ibid at [31]
10 Exhibit A2 at Attachment A
11 Exhibit R1 at Attachment C
12 Transcript PN 238
13 Exhibit R1 Attachment E
14 Transcript PN 413
15 Ibid PN 130-140
16 Exhibit A2 at PN2
17 Exhibit A1 at [1]-[6]
18 Ibid at [11]
19 Transcript PN 213-215
20 Exhibit A1 at [14]
21 Ibid at [19]
22 Ibid at [22]
23 Ibid at [23]
24 Ibid at [24]
25 Ibid at [25]
26 Ibid at [27]
27 Ibid at [27]
28 Ibid at [29]
29 Ibid at [31]
30 Ibid at [32]
31 Ibid at [33]-[34]
32 Ibid at [36]
33 Ibid at [37]-[38]
34 Ibid at [38]
35 Exhibit A2 at PN 32 and PN 36
36 Ibid at PN 51
37 Ibid at Attachment D
38 Ibid at Attachment E
39 Ibid PN 52-53
40 Exhibit R3 at [11]
41 Ibid at [14]
42 Ibid at [15]
43 Transcript PN 442
44 Ibid PN 443
45 Ibid PN 444
46 Exhibit R3 at [16]
47 [2011] FCA 975 at [33]
48 Exhibit R3 at [18]
49 (2006) 154 IR 1
50 Exhibit R3 at [20]
51 Ibid at [25] and see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
52 Exhibit R3 at [28]
53 Ibid at [35]
54 Ibid at [39]
55 Ibid at [41]
56 (1983) 151 CLR 447
57 Exhibit R3 at [42]-[45]
58 Exhibit A2 at PN 9
59 Ibid at PN 13
60 Ibid at PN 15
61 Ibid at PN 17
62 Ibid at PN 14
63 Ibid at PN 36
64 Ibid at PN 51 and PN 52
65 Ibid at PN 62
66 Ibid at PN 63-64
67 Ibid at PN 65
68 Ibid at PN 67
69 Ibid at PN 68
70 Ibid
71 Ibid at PN 77
72 Ibid at PN 80
73 Ibid at PN 84
74 Ibid at PN 88
75 Ibid at PN 86
76 (1997) 78 NSWIR 430
77 Exhibit A2 at PN 91
78 Ibid at PN 92-93
79 Ibid
80 Ibid at PN 95
81 Ibid
82 Ibid at PN 96-103
83 Ibid at PN 104
84 Ibid at PN 40
85 PR 972927
86 PR 957868 Gruber v. Carlton Services Limited
87 Exhibit A2 at PN 120
88 Ibid at PN 125
89 Fair Work Bill Explanatory Memorandum at 1530
90 PR 973462
91 Industrial Relations Court of Australia 195/113
92 Ibid at page 10
93 Ibid at page 42
94 Exhibit A2 at Attachment C
95 Exhibit R1 at Attachment A
96 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]
97 Ibid at [7]
98 Blomey v Ryan (1956) 99 CLR 362 at 428
99 Fair Work Australia Annual Report
100 Ibid at page 14
101 (1983) 151 CLR 447 at 462
102 Exhibit A2 at PN 80
103 Ibid at PN 84
104 David Jones Limited v Cukeric (1997) 78 IR 430
105 Ibid at page 457
106 Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [20]
107 Australian Postal Corporation v Gorman and Anor [2011] FCA 975
108 Gorman v Australia Post [2010] FWAFB 9413
109 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
110 Rebecca Tomas v Symbion Health[2011] FWA 5458
111 Australia Post v Gorman op cit at [33]
112 Exhibit A2 at PN 129
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