DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Hattingh
v
Compass Group
(U2021/893)

Application for an unfair dismissal remedy - jurisdictional objection - whether termination at the initiative of the employer – resignation – application dismissed.

INTRODUCTION

[1] Ms Julie Hattingh (the Applicant) made an Application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Compass Group (the Respondent), in the role of ‘Admin ES5’ from 9 December 2019 until 19 January 2021.

[2] The Respondent in this matter made a jurisdictional objection that the Applicant was not dismissed at the initiative of the employer, but resigned from her employment. Annexed to the Form F2, lodged by the Applicant, marked ‘Exhibit M _Julie Hattingh - resignation 19.01.21’ was a handwritten note which stated:

“Julie Hattingh

19/1/21

I hereby resign for my position as Admin ES5.

Effective Immediately

[signature]”

[3] The Applicant claimed that the resignation on 19 January 2021 was made “in the heat of the moment”, after the employer engaged in unreasonable behaviour, by subjecting her to a disciplinary meeting, which she claimed was “devoid of procedural fairness.” Further, the Applicant stated that the resignation:

“constitutes a constructive dismissal because the Supervisor unreasonably took advantage of my fragile upset state of mind by aiding and abetting by providing me with a scrap piece of paper and to have me write out my resignation and accept it forthwith immediately in a cunning Machiavellian harsh, unjust and unfair manner”. 1 The Respondent emphatically denied this; and argued that the evidence demonstrated otherwise.

[4] The following matters, are not in contention between the parties:

•  The Respondent is a National System Employer. 2

•  The Applicant was an employee of the Respondent. 3

•  The Respondent is not a Small Business Employer. 4

•  The Applicant has served the minimum employment period. 5

•  The ESS Remote – Queensland and Northern Territory) Enterprise Agreement 2017 applied to the Applicant’s employment, and the sum of her annual earnings was less than the high-income threshold. 6

•  The matter does not concern a redundancy. 7

•  The Application was filed within 21 days of the Applicant’s resignation of employment with the Respondent. 8

[5] Whilst not all the submissions and evidence are referred to in this decision, all of such have been considered.

RELEVANT STATUTORY PROVISIONS

[6] The statutory provisions relevant to the consideration as to whether a dismissal had occurred:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy…”

“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.”

(emphasis added)

THE HEARING

[7] A Jurisdictional Hearing was conducted via Microsoft Teams video link, due to parties and witnesses being located in both Western Australia, the Northern Territory and Groote Eylandt.

Permission to be represented

[8] At the hearing, the Respondent was represented by Mr A Chamberlain, National Workplace Relations Manager of the Respondent. Permission was sought for Mr L Matarazzo, a paid agent of Lucio Matarazzo Pty Ltd, to appear on behalf of the Applicant.

[9] The circumstances in which the discretion to allow a paid agent to appear may be granted are set out in s.596(2) of the Act, which states as follows:

“(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC 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.” 9

[10] Permission was granted, taking into account that there was some complexity regarding the jurisdictional question of whether the Applicant was ‘dismissed’ at the initiative of the employer. In addition, it was submitted that the Applicant would be unable to represent herself effectively, and she was a witness in the matter. It was also taken into account that the Respondent was represented by a Senior Workplace Relations Manager.

[11] In addition, permission to grant the Applicant legal representation was not opposed by the Respondent. Accordingly, in terms of fairness and to allow the matter to be handled more efficiently in accordance with s.596(2)(a) of the Act, permission was granted.

Threshold matters – new evidence/line of questioning

[12] At the commencement of the hearing, following the swearing in of the Applicant, the Applicant’s representative sought to ask the Applicant a series of questions. When queried about this additional examination in chief, the Applicant’s representative stated that he sought to ask the Applicant a series of 30-40 questions. This approach was not compliant with the Directions, that required evidence in chief to be contained in a witness statement. The issue of new evidence potentially being introduced, through this questioning was raised with the representatives.

[13] The Applicant was excused from the witness box whilst a discussion occurred with the representatives, regarding eliciting further witness evidence in chief at the hearing. It was set out that the regular course to be adopted in terms of witness evidence, was that evidence in chief was contained in the witness statement, to ensure procedural fairness.

[14] It was agreed that the Applicant’s representative would be afforded the opportunity for some further limited questioning, and that if the Respondent’s representative had any objections to the scope or content of the line of questioning, he would raise such and an adjournment may be sought.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[15] The Respondent submitted that s.386 of the Act had not been satisfied and that the Application was, therefore, beyond the jurisdiction of the Commission and must be dismissed. 10 The Respondent submitted that subsection 386(1)(a) of the Act, was not relevant to the Respondent’s conduct.11

[16] The Respondent submitted that given the fact that a clear and unambiguous resignation had occurred, the question for determination in these proceedings is narrowed to whether or not the Applicant’s resignation was voluntary, and intended. 12 The Respondent rejected the Applicant’s assertion that the resignation was provided at a time when the Applicant was in the ‘heat of the moment’, affected by emotional stress or confusion such that she could not be reasonably understood to have been conveying an intention to resign. The Respondent submitted that the evidence confirmed that the Applicant was lucid, composed and able to clearly articulate her intention to resign in writing.13 Therefore, the Respondent was entitled to accept the resignation of the Applicant.14

[17] The Respondent submitted that in relation to s.386(1)(b) of the Act, this requires that the termination of an employee’s employment must result, due to some action on behalf of the employer to terminate the Applicant’s employment. The employer argued that they took no action to terminate the employment.

Special circumstances

[18] The Respondent submitted that the case authorities relating to subsection 386(1)(b) also provide for exceptional circumstances in which an employer is not entitled to immediately accept an employee’s resignation as follows:

“However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.” 15

And

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant.” 16

[19] The Respondent noted that the case authorities provide that the employer may be obliged to provide an employee with further time to clarify or confirm their intention to resign where ‘special circumstances’ exist. The Respondent submitted that here no special circumstances existed, as the Applicant was sure of her actions, she was clear, and her actions unambiguous. The Respondent highlighted that the resignation involved a signed, twice dated letter of resignation that nominated an effective date of the resignation.

[20] The Respondent submitted that, in the alternative, if the Commission was satisfied that the resignation was effected by being given in the heat of the moment, that is, if the resignation was affected by emotional stress or confusion such that it could not reasonably be understood to have been conveying an intention to resign, this was cured, because the Respondent had made further enquiries with the Applicant. That is, the Respondent stated that the Applicant was given the opportunity to clarify whether the resignation was really intended. 17 The Respondent submitted that the Applicant had not moved to revoke the resignation.

[21] Accordingly, the Respondent submitted that the Applicant had resigned her employment, and the Application ought to be dismissed, as it was jurisdictionally barred.

Summary of the evidence of Damian Long

[22] Mr Damian Long is employed by the Respondent at its Groote Eylandt site (where the Applicant worked) in the role of ‘Manager’. 18 Mr Long filed a witness statement and supplementary witness statement in relation to the jurisdictional matter, and was cross examined by Mr Matarazzo, on behalf of the Applicant. In his witness statement, Mr Long gave evidence regarding a conversation he had with the Applicant, after she had provided the handwritten resignation note and left the office.

[23] Mr Long stated that he telephoned the Applicant in regard to her reasons for resigning and for a general welfare check after having been informed that the Applicant tendered her resignatione that morning. 19 Mr Long stated that he first attempted to call the Applicant at 2:54pm on the day of the resignation, and received no answer. The Applicant then returned his call at 3:01pm that day.

[24] Mr Long’s evidence, was that he initiated the conversation firstly regarding her welfare and wellbeing and followed with what he understood had taken place that day. He said the Applicant sounded angry, as she thought she was getting a first and final warning for something minor and didn’t believe she deserved that, due to her great work ethic. 20 Mr Long stated that he then explained that if the Applicant had given her supervisor a chance, she would have realised she was receiving a counselling/training session, regarding the matter, rather than a first and final warning.21

[25] Mr Long’s evidence was that the Applicant wasn’t listening to him, did not appear to comprehend that it was just to be a discussion, that she had not received a final written warning and angrily ‘ranted’ about her supervisor’s performance. 22 Mr Long characterised the conversation as ‘very much a one-way conversation’ and stated that the Applicant was obviously not listening when he attempted to raise any points.23 Mr Long stated that the Applicant eventually hung up on him.24 The Applicant refutes this.

[26] Mr Long further stated that at no time did the Applicant discuss with him, that she wanted to retract her resignation. His view of the conversation was that, she was not at all interested in retracting it.

[27] Mr Long stated that he received a text message from the Applicant moments after the telephone conversation. The text message read as follows:

“Sorry Damo, been brewing for a long while. Our personalities are worlds apart between Ash and myself. It’s not been a very good working environment for a long time we have had many informal discussions with Jay, Dave & Shane today’s written up warning I’m just not happy to accept. When it seems Ash is allowed to swan around every week, work from home, swan in. At 9.30 and clock off again at 4 – 8 swings of absence last year she had. I pride myself on good work ethic and work hard I just don’t accept a final warning for my work performance. Thanks for checking in. All the best Julz”

[28] He said he understood the Applicant had already packed up her room and was ready to take her flight home.

Summary of the supplementary statement of Mr Long

[29] In a supplementary statement filed by Mr Long on 7 April 2021, Mr Long further stated that during their telephone conversation on 19 January 2021, he did not stop the Applicant when addressing the reason for her resignation. Mr Long stated that the Applicant had resigned abruptly when receiving a counselling session/training session with her supervisor. He stated this discussion was warranted, due to the Applicant’s poor attitude towards basic safety and job requirements in completing ‘SAMs’. Mr Long set out that they discussed this during the telephone conversation, and the Applicant repeatedly referred to this as a ‘first and final warning’ despite him saying, that was not the case.

[30] Mr Long reinforced his earlier evidence, that the Applicant did not give any indication that she wanted to retract her resignation, nor did he consider from the phone conversation that she wanted to.

[31] While Mr Long confirmed that he did state the call was primarily a welfare check, he stated that this then led to a conversation about her resignation. While Mr Long stated that they had a discussion about what happened, it was, as stated in his first statement, a ‘one-way conversation’ whereby the Applicant was getting things ‘off her chest’ and not listening to him.

[32] Mr Long also confirmed his earlier evidence, that the Applicant then ‘definitely’ hung up on the phone call.

[33] Mr Long’s evidence was that he had considered a face-to-face meeting with the Applicant, but that after she hung up on him and he received the text following the call, he firmly considered that the Applicant, was not seeking to retract her resignation

Summary of the evidence of Ms Ashley Nielsen

[34] Ms Ashley Nielsen is employed by the Respondent as a Travel Supervisor at its Groote Eylandt site. Ms Nielsen has responsibilities for organising the Respondent’s travel requirements for the Groote Eylandt site. Ms Nielsen provided a witness statement and was cross examined during the hearing.

[35] Ms Nielsen gave evidence regarding the meeting with the Applicant on 19 January 2021. Ms Nielsen stated that she called the Applicant into the back office, meeting room to conduct a counselling session with her, in relation to her behaviour and attitude in the office. 25 After sitting down in the meeting room, Ms Nielsen advised the Applicant that she needed to discuss that the actions and tone she used in the workplace were not acceptable.26 Ms Nielsen’s evidence was that the Applicant responded to this by scoffing and challenging the assertion, that her actions and tone were unacceptable.27

[36] Ms Nielsen’s evidence was that the Applicant then asked for a piece of paper, saying that she wanted to write out her resignation. Ms Nielsen stated that, in her observation, the Applicant was calm, lucid and completely aware of what she was doing. 28 Ms Nielsen stated that when the Applicant handed her the note, she said that she would be resigning effective immediately because she had enough leave saved up. She said the Applicant seemed “quite sure and almost proud” of tendering the resignation.

[37] Ms Nielsen’s evidence was that the Applicant at the time of tendering her resignation remarked ‘this place is a joke’, before packing up her belongings, turning off her computer and exiting the workplace. 29 The Applicant returned later that afternoon to collect more belongings from her desk and said goodbye to Ms Nielsen.30

[38] Ms Nielsen observed the Applicant about an hour later around 5:30-6:30pm waiting for the bus to the airport with her belongings. She stated that she and the Applicant again said goodbye to one another. 31

[39] Ms Nielsen stated that she didn’t see the Applicant cry during her resignation, confirming her evidence that the Applicant presented as calm and in control the entire time as she collected her things that day. Ms Nielsen stated that she was not told by anyone else that the Applicant had been crying; nor did she observe the Applicant to be flustered, upset or acting irrationally, at any time on 19 January 2021.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[40] The Applicant’s representative submitted that the central arguments of the Applicant can be summarised as follows: That the actions of the Applicant in resigning her employment should be understood as a protest against Ms Nielsen’s conduct on that day and that it was not a ‘genuine or legitimate resignation’. 32 Further, that, in the circumstances, the Respondent had a duty to clarify the Applicant’s intention to resign prior to accepting it.33 In addition, that it was ‘invalid’ for the Respondent to accept the resignation in the manner that it did.34

[41] In the present matter, the Applicant’s representative relied on the decision of Vallence v Darlea Pty Ltd T/A Sawtell Coaches. 35 In particular, the following extract was referred to:

“It was objectively clear on the face of the Applicant’s letter that his resignation was a protest at the Respondent’s inaction in relation to the material matters about which he was complaining. Mr F was at the centre of his first primary complaint. It should have been obvious to Mr Darren Williams that the Applicant’s resignation was the product of his frustration at the issues he complained about in his letter” 36

Summary of the evidence of the Applicant

[42] The Applicant provided three witness statements in relation to the jurisdictional matter. Of the three statements provided by the Applicant, one was concerned with her central evidence, while the others responded to the statements of Mr Long and Ms Nielsen. The evidence is summarised as follows.

Summary of the Applicant’s statement

[43] The Applicant stated that at the ‘impromptu’ disciplinary meeting of 19 January 2021, she gave a ‘heat of the moment’ resignation to her supervisor, Ms Nielsen. Her evidence was that the merits of her unfair dismissal application rely on the following key factors:

“1. Extreme anger and emotion after being ambushed into an impromptu disciplinary meeting and denied any procedural fairness. The disciplinary document that was formulated contained unsubstantiated content that is not accurate, this resulted in my heat of the moment resignation.

2. I was denied any natural justice and no cooling off period to withdraw my resignation with Management and HR on the day and days following. I along with other administrative personnel fully expected one of our Manager’s to allow a discussion over the events and attempt to understand all the relevant circumstances.”

[44] The Applicant’s evidence was that she was ‘ambushed’ as prior to the disciplinary meeting there were no warnings or cautions given, nor any right granted for her to have a witness at the meeting. The Applicant gave evidence that the document presented to her in the meeting was substantially flawed and contained erroneous statements, and that she was “so flabbergasted” her response was to ask for a piece of paper and write out her resignation “without hesitation”.

[45] The Applicant stated that she disputed the content of the disciplinary document, which she believed was intended to bully and hurt her.

[46] In her witness statement filed in these proceedings, the Applicant directly responded to a number of matters raised in the disciplinary document, as follows;

1.A Failure to conduct oneself in a professional manner by speaking to a supervisor in an impolite and argumentative tone. Failure to listen to a directive given. Document refers to me ‘yelling and screaming’

[47] The Applicant stated that there was not yelling or screaming, in her conduct that precipitated the counselling session. She stated that this related to an incident on 18 January 2021, when she was asked to work outside her rostered working hours. The Applicant gave evidence that she explained to Ms Nielsen that it was her eighth working day, and she was not willing to work the hours 0830 to 2030 as requested. The Applicant further stated that she was required to check out of her accommodation by 0600 the next day, as per the accommodation policy, and her next room for her following week on site would not be ready for check in until 0900. Therefore, she did not know where she would be expected to wait without a room for 3 hours, until an expected start time in the office of 0830.

[48] The Applicant’s evidence was that Ms Nielsen was clearly upset by this situation, and did not speak to the Applicant again until the disciplinary meeting the following day.

[49] The Applicant stated that she had tried to “clear the air” regarding this incident during the morning team meeting, and her belief had been that this was sufficient to “let the matter lie” and not require any further disciplinary action. The Applicant disputed that there was anything unprofessional about her conversation with Ms Nielsen.

1.B Failure to complete safety SAMS in the correct way

[50] The Applicant stated that this matter related to her ‘serving at the counter’ and was addressed by the Health and Safety Manager on the previous day. She also stated that this had also been discussed in the team meeting held that morning.

[51] The Applicant responded to this matter, stating that:

“…major hazards have been pointed out on several occasions of fatigue hazard of driving light vehicles on a 34km after being awake and on the job for over 16 hours this fatigue has never been addressed yet when I have failed to identify a hazard this results in a written disciplinary document.”

[52] The Applicant stated that as the matter had already been addressed the previous day by a Manager, addressing it again in the disciplinary document was not constructive, and was merely another tool to bully and harass her.

1.C Work Performance has fallen below standard

[53] The Applicant’s evidence is that she “saw red” when reading that her work performance had fallen below standard. She stated that she had not been given any caution about her work performance throughout her period in that role. Further, she believed she was a key senior member of the administrative team, noting that her employer had acknowledged this by way of awarding her an extra supplement to ordinary hours worked, with a higher duties payment for all hours worked without a supervisor on site as regularly occurred Friday to Sunday each week, and while covering when a supervisor was on leave. The Applicant stated that no other administrative employee received this supplementary payment.

[54] Further, the Applicant stated that she had been responsible for training all new administrative staff since her employment commenced in October 2018.

[55] The Applicant stated that she had requested her most recent annual performance review from the Respondent, however had had no response to any grievances sent despite a commitment from HR to perform full investigations of the matters raised.

[56] The Applicant gave evidence that she believed that her supervisor contributed very little to the day to day operations of the team. Her evidence is that the supervisor has become “increasingly unpopular over time”, raising issues with absenteeism and fraudulent timesheets. The Applicant stated that she had raised the supervisor’s unsatisfactory behaviour to management, and that there had been an indication from Mr Jay Royle, that Ms Nielsen would be performance managed. There was no supporting evidence of these referred to responses,

Applicant’s resignation

[57] Further to her evidence as summarised above, the Applicant stated that the “straw that broke the camel’s back” was that on 19 January 2021, Ms Nielsen had ambushed her into an impromptu disciplinary meeting. The meeting involved a document, that she said was used as a vehicle to bully and hurt her. The Applicant stated that it was these actions which resulted in her giving a ‘heat of the moment’ resignation.

[58] The Applicant stated that all matters raised in the disciplinary document had already, to her knowledge, been dealt with; and she had never been warned of any other unprofessional behaviour. Further, she stated that her supervisor could not substantiate any other specific incidents where she had displayed unprofessional behaviour.

[59] As to her resignation, the Applicant’s evidence is that she stated she immediately regretted the irrational decision to tender the heat of the moment resignation on a ‘scrap’ piece of paper, and sought to rectify the matter by withdrawing her resignation via a discussion with the Managers on site. However, the Applicant stated that she was refused any discussions around trying to withdraw her resignation, and HR confirmed the termination process had been finalised. There was no evidence of the Applicant endeavouring to meet with the manager on site, as she had previously claimed.

[60] The Applicant stated that neither Management nor HR were willing to take into account the relevant circumstances leading to her heat of the moment resignation, and therefore she believes that she was denied natural justice and procedural fairness. The Applicant did not take any steps to complete the response on the form.

[61] The Applicant stated that her resignation became ‘ambiguous’ at the point of her trying to speak to a Manager or HR about withdrawing the heat of the moment resignation after a small cooling off period. Further, she stated that she had never fully packed up her belongings on the day the resignation was offered.

[62] The Applicant stated that after finding out that her resignation had been processed on 28 January 2021, she asked her husband to collect her personal belongings from a locked cupboard in her room.

Applicant’s medical condition

[63] The Applicant also gave evidence that shortly before her resignation, she had been diagnosed with a serious medical condition which she had informed the Respondent of. She said that it had been appropriate to notify the Respondent, as time away from work was ‘imminent’. The Respondent stated that no clear information of such was provided.

[64] The Applicant stated that she has concerns that her medical condition may have been a contributing factor in her not being granted procedural fairness around trying to withdraw her resignation, however she did not provide a satisfactory argument in regard to this in the circumstances. At the Hearing the Applicant conceded that the commensurate medical information had not been provided. She noted at the hearing that she could provide medical information about the condition. The Applicant was represented, and any relevant information was required to be filed in response to the directions. There was an acknowledgement that no specific information on the condition, as argued, had been provided to the employer prior to her resignation, (it was raised that she might need to undertake a procedure) and none was further provided in this matter.

Summary of the Applicant’s statement in reply to Ms Nielsen’s evidence

[65] The Applicant’s evidence was that she was extremely angry and upset after being allegedly ambushed without prior communication of the disciplinary meeting on 19 January 2021. She stated that Ms Nielsen opened the meeting with a statement that the Applicant’s actions and tone towards Ms Nielsen in the workplace were ‘not OK’.

[66] The Applicant stated that while being addressed by Ms Nielsen, she was able to read the first two paragraphs of the disciplinary document, and stated that she may have scoffed at that time.

[67] While Ms Nielsen observed the Applicant as being ‘calm and lucid’ in writing her resignation note. The Applicant’s evidence was that her resignation was ‘scribbled’ on a piece of paper with incorrect grammar, stating: “I hereby resign for my position” (Applicant’s emphasis). The Applicant’s evidence is that she was shaking and furious when writing this resignation. Noting that she is a professional administrator with 29 years experience in the workplace, the Applicant stated that if she had intended to write a resignation, it would have been written and submitted electronically; and she had no intention of submitting a resignation on the day, rather this action was a ‘heat of the moment resignation’. However, consistent with this knowledge, as a long term administrator, the Applicant would have been aware of the results of tendering a written resignation.

[68] Ms Nielsen stated that the Applicant’s demeanour, presented as ‘proud’ of her resignation, the Applicant’s evidence was that she was not proud, she was furious and ‘boiling inside’, and she stated she was surprised that she was able to ‘hold her tongue and temper at that point’.

[69] The Applicant confirmed that she returned to the office, to let her colleagues know that the meeting did not go well, that it was about her poor work performance, and that she had resigned during the meeting. However, the Applicant stated:

“I don’t doubt that I was quoted saying ‘the place is a joke’”.

[70] The Applicant’s statement was consistent with Ms Nielsen’s evidence.

[71] While Ms Nielsen stated that the Applicant packed her belongings and turned off the computer, the Applicant disputed this. She stated that she did not pack her belongings, only retrieved her phone and handbag and left her computer as it was. The Applicant stated that Ms Holland later requested her password to access a working document from her computer, and Ms Holland let her know at that point that she had put an out of office message on the Applicant’s personal emails so that any important emails would be redirected. The Applicant’s evidence is that she had left her desk in ‘complete working state’, and left the office in an upset state, with a high level of anxiety.

[72] The Applicant stated that she returned to the office after her phone call with Mr Long, to clear her desk. She said that she asked Ms Nielsen if there was anything she needed from her, and Ms Nielsen responded ‘no’.

[73] The Applicant suggested that she had been denied any discussions, in a situation where she was clearly upset. Her evidence does not set out that she asked Ms Nielsen or anyone else at the workplace at that time to discuss the resignation. She had said good bye to her colleagues and Ms Nielsen.

Summary of the Applicant’s statement in reply to Mr Long’s evidence

Telephone conversation with Mr Long

[74] The Applicant gave evidence that her account of the conversation with Mr Long differs considerably from his statement.

[75] The Applicant stated there was no doubt that she was angry and upset when she finally received a phone call from Mr Long, four hours after the resignation incident. She stated that she made three attempts to discuss the relevant incident with Mr Long, but was stopped and interrupted each time by Mr Long. The Applicant stated that Mr Long on each occasion said “sorry Julie I cannot discuss the incident, my call to you is merely a welfare check, your discussions around the incident I cannot discuss with you”.

[76] The Applicant gave evidence that there was no attempt by Mr Long to discuss her reasons for resigning, and no attempt to discuss what had taken place earlier that day. Her evidence is that Mr Long had opened the call by saying that it was a welfare check only, but he did not check on her wellness or offer any discussion around her current medical diagnosis. The Applicant states that it was a ‘cold conversation’. The Applicant admitted in her evidence at hearing, that Mr Long did not have any information on her ‘current medical diagnosis’, and this was not put before the Commission.

[77] The Applicant stated that she became physically upset and began crying during this conversation, after it became apparent that Mr Long was not going to hear her and there was to be no discussion of the incident. She stated that she was overwhelmed, and could not speak to Mr Long therefore he offered to call her back, or she could return the call, once she had re-gathered herself. The Applicant’s evidence in this regard is that she did not hang up or end the call as claimed by Mr Long, she merely went silent as she could not speak due to crying. She said that when the phone call ended, she followed up with a text message to conclude what she had been trying to say. She received no response to that text message. The text message as set out previously, did not seek to withdraw the resignation.

[78] The Applicant stated that it had been very clear from the text message that she was angry and upset by the telephone conversation, that had just ended, and desperately wanted Management to understand why a heat of the moment resignation had taken place. Her interpretation was that she had received a ‘clear and precise’ message at that point that there was to be no discussion from her employer, and that she considered management wanted her off site. She confirmed, she understood however that her room was required, by another employee.

Mr Long’s evidence about the ‘disciplinary meeting’

[79] Mr Long set out that the meeting with Ms Nielsen was not a disciplinary meeting, but was a coaching or training session. The Applicant noted that Mr Long then referred to the relevant document as a ‘warning’, which she stated is a ‘contradiction’ of his evidence that it was not a disciplinary meeting. The evidence did not support such a characterisation of the meeting as a disciplinary process. The evidence was that it was a discussion, and it would only be background information if a disciplinary procedure was ever commenced.

[80] The Applicant stated that at the time of being presented with the document in the meeting, she “immediately took the meeting as a disciplinary meeting” as the document was ‘formally presented’. She noted that the document was to be signed by all parties, with a copy to the employee, copy to the employee’s site file, and original to HR Manager. Whilst she did not wait for the document to be explained, the Applicant considered that once the document was signed by all parties, it could be used by the employer in a future disciplinary process if the same unacceptable behaviour continued; therefore, she stated the document was used as a tool to ‘discipline’ as needed by HR. The Applicant stated that she could not see how the document was being used as a training session, and in her career she had never seen a training session presented in that manner.

[81] The Applicant stated that Mr Long has not given evidence of him reading a copy of the disciplinary document. She said she was uncertain whether Mr Long had a full understanding of the relevant document presented to her, and what incidents Ms Nielsen had been referring to in it. However, Mr Long’s understanding of the document, including allowing for a response by the Applicant, was not challenged.

The Resignation

[82] The Applicant said that Mr Long suggested there was no attempt to retract the resignation. In reply, the Applicant confirmed her evidence that she was ‘shut down’ by Mr Long when trying to raise or discuss the matter during their telephone conversation. She also confirmed her evidence that she had not packed up her room as suggested. It was a common fact that the Applicant would have checked out of the room on that day regardless. The Applicant stated that she had not been concerned about her belongings, as she was determined to rescind her resignation, (the evidence on this matter was not fully explored, the Applicant’s husband, when at the site collected them). She stated that as she had failed to do so with Mr Long, she was going to “immediately involve HR to rescind the resignation”. She confirmed that the termination was confirmed by HR on 28 January 2021. The Applicant conceded that the text message to Mr Long did not confirm this.

[83] The Applicant gave evidence that if she had been happy with her resignation decision, she never would have tried to discuss the events and would have left her employment without any verbal or written exchanges. The Respondent refuted that the Applicant engaged in verbal or written requests to rescind the resignation.

Summary of the Evidence of Ms Tyler Dawson

[84] Ms Dawson is employed by the Respondent as an Administrator at its Groote Eylandt site. Ms Dawson provided one statement in the matter, and was not required for cross-examination.

[85] In her statement, Ms Dawson gave evidence regarding the events of 18 January 2021. She stated that, late that afternoon, there had been a misunderstanding on the part of Ms Ashley Neilsen regarding the Applicant’s shift roster for the following day. 37 Ms Dawson stated that, while the conversation was had across the office, with both Ms Nielsen and the Applicant remaining at their desks for the duration, there was no ‘yelling or screaming’. Ms Dawson stated that there was a ‘clear case of disappointment’ expressed during the conversation. After the conclusion of the conversation, Ms Dawson observed Ms Nielsen attending the manager’s office. 38

[86] Ms Dawson also gave evidence regarding the events on the day, the employment relationship ended. Ms Dawson stated that, on the morning of the 19 January 2021, she was aware that the Applicant had asked Mr Dave Roshier, the Assistant Site Manager, whether Ms Nielsen had any issue with the work arrangements, as she deemed she had been disappointed, by the outcome of the previous day. 39 Ms Dawson’s evidence was that Mr Roshier stated (Ms Nielsen seemed flustered when she arrived at the office that morning) but that he had not discussed the matter with Ms Nielsen.40 Ms Dawson, in her evidence, stated that Mr Roshier had agreed with the Applicant regarding the shift arrangements.41 The Applicant was aware of this.

[87] Ms Dawson further stated that she was called into a meeting (following the one in which the Applicant resigned) and felt that it was extremely unprofessional and conducted without warning. She stated she also felt ‘ambushed’, and that the meeting and how it was done in ‘spite’.  42 However, she acknowledged the process was simply conducted with her. Further, she conceded that there was no evidence of a disciplinary step, being recorded.

Summary of evidence of Ms Elizbeth Holland

[88] Ms Holland is employed by the Respondent as an ESS Travel and Accommodation Administrator at its Groote Eylandt site. Ms Holland provided one witness statement in the matter and was not required for cross-examination.

[89] In her statement, Ms Holland gave evidence regarding the events of 19 January 2021, the day on which the employment relationship between the Applicant and the Respondent ended. Ms Holland stated that she observed and spoke to the Applicant following the meeting in which she tendered her resignation. Ms Holland’s evidence was that the Applicant explained that the meeting was regarding her work performance and that she had resigned. 43 She stated that the Applicant was clearly emotional, and had grabbed her bag and left the office.

[90] Around 30 minutes after speaking to the Applicant, Ms Holland then spoke to Mr Roshier to ask if he knew what had occurred regarding the Applicant. 44 Ms Holland stated that Mr Roshier replied that Mr Damian Long was dealing with the matter.45 Under an hour later, Ms Holland spoke to Mr Long to see if he had spoken with the Applicant, and Mr Long advised that he would follow it up.46

[91] The evidence provided that some time after this, Ms Holland telephoned the Applicant to discuss what had transpired and confirm whether she was planning on leaving that night. Ms Holland’s evidence was that, when she enquired whether management had called the Applicant, the Applicant’s response was ‘no’. 47 At around 3:00pm that day, Ms Holland again followed up to see whether the Applicant had been contacted by management, this time with Mr Jay Royle, who, she said, did not engage with the topic.48 Ms Holland’s evidence was that she was frustrated by the situation and spoke to Mr Roshier to advise that the Applicant had still not been contacted.49 Ms Dawson stated that Mr Roshier was surprised and went to check in with Mr Long, at which time Mr Long advised he was handling it.50 The Applicant had not at this time contacted anyone in management regarding the resignation.

[92] Ms Holland stated that she was working at the airport that night and spoke to the Applicant before she departed. Ms Holland stated the Applicant said she had spoken to Mr Long that afternoon but that it was only a welfare check and Mr Long had refused to enter into a conversation about what lead up to the resignation. 51

[93] Ms Holland, in hearsay evidence, also stated that there were four managers on site, and they were all working in the office on the relevant day, however, her evidence was that none discussed what had happened with the Applicant, directly in the 7 hours after the incident, before she flew off the island.

[94] Ms Holland provided no evidence that the Applicant had directly sought to revoke her resignation or that she had taken steps to do so.

CONSIDERATION

[95] The Respondent, in raising the jurisdictional objection that a dismissal had not occurred in this matter, referred to section 386 of the Act as follows:

“5. Subsection 386(1)(a) of the FW Act is relevant to these proceedings as it concerns circumstances where the employee has given an ostensible communication of a resignation and subsequently asserts that such resignation is not legally effective because it was expressed in the ‘heat of the moment’ or when the employee was allegedly in a state of emotional stress or mental confusion, such that the employee could not reasonably be understood to be conveying a real intention to resign.

6. The second limb, subsection 386(1)(b) of the FW Act requires that the termination of an employee’s employment must result from some action on the part of the employer intended to bring the employment to an end or if it is the probable result of the employer's conduct. The Respondent submits that subsection 386(1)(b) is not relevant to the present proceedings as there is no evidence that would or could support an assertion on this basis.” 52

[96] It has been necessary to address both provisions in section 386(1), as on the material, both limbs have been addressed, by both parties. That is, that it was a dismissal allegedly made in the heat of the moment. In addition, the arguments were also presented on the basis that the employer had raised matters for discussion at the meeting, which, the Applicant stated, were inaccurate and significantly frustrating for her, and it was these matters that it was alleged, brought about the resignation. The employer argued that nothing in the documentation r the discussion t be conducted by Ms Nielsen, forced the Applicant to resign.

[97] In considering whether a dismissal has taken place, the Commission must have regard to the matters in s.386(1) of the Act.

[98] With respect to s.386(1)(a) of the Act and an assessment of matters relevant to a “termination at the initiative of the employer,” it was held in Concannon v Portland District Health that: 53

“[15] There are well established principles of common law that have been developed by courts to determine whether an individual resigned or was terminated at the initiative of the employer. In P O’Meara v Stanley Works Pty Ltd a Full Bench of Australian Industrial Relations Commission conveniently summarised the common law approach. At [19], the Full Bench said:

“[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence... After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process…

…

[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…

…

[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… 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.”… 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…” 54 [Footnotes omitted and emphasis added]

[99] In terms of s.386(1)(a) there was no ‘jostling’ by the employer. The clarification process in this matter involved a manager discussion with the Applicant. The Applicant did not seek to withdraw the resignation in the conversation or the following email.

[100] The critical issue that must be determined in the current matter is whether ‘a dismissal’ occurred in circumstances where the Applicant has submitted a notice of resignation. In Bupa v Tavassoli 55 (‘Bupa’) a Full Bench of the Commission set out the circumstances in which an Applicant who has provided notice of resignation, may be regarded as ‘dismissed’ as follows:

“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

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

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

[101] In the decision of Paranihi v Roy Hill Holdings Pty Ltd, 56 Commissioner Williams considered whether a series of performance improvement plan reviews, that involved delays, changes in the days and times of performance management meetings, mixed feedback about the employee’s performance, and which caused the employee high levels of stress, meant that the employee had been forced to resign. The parties in the current matter were provided with this case for consideration. The employee in that case submitted that he had no choice but to resign, as his performance improvement plan (PIP) targets were unrealistic, had set him up to fail, and the changeable process had caused him undue stress which he claimed was part of a ‘tactic’ to force him to resign. The employer’s position was that it was a legitimate process, and a legitimate attempt to help the employee improve, stating that the KPIs were achievable and any amendments to the plan were agreed upon and made in favour of the employee. While Commissioner Williams acknowledged that the PIP might have been a challenging and upsetting process from the employee’s subjective perspective, he set out however, that the evidence did not support a conclusion, that it was a contrived or deliberately designed process to make him resign. The employer in the current matter similarly argued the discussion was a coaching tool.

[102] The element of “no effective or real choice but to resign” was also examined in Thomas Kann v St Vincent De Paul Society Queensland, 57 where it was stated that:

“[69] In determining whether the Applicant was left with “no effective or real choice but to resign”, there are numerous case law examples from which to draw. In Boulic v Robot Building Supplies, it is held:

“[16] From the many authorities on this subject it appears that there must be a “critical action” or “critical actions” of the employer which was intended to bring the “employment relationship” to an end and perhaps action which would on any reasonable view probably have that effect. In identifying both the critical action of the employer and its intent “it is a matter of objectively looking at the employer’s conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.” The examination of the employer’s conduct must also take into account that the employer is under an implied obligation that it “will not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.” 30

[70] In Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera, Senior Deputy President O’Callaghan stated that there must be consideration of all alternative options available to the employee:

“[28] Whilst in absolutely no way condoning Fingal Glen’s behaviour, I have concluded that the resignation decision was based on Ms Bruce’s perception and a perfectly understandable and subjective response. That resignation decision was not, as of 10 January 2013, the only option open to Ms Bruce.” 31

[71] In Ashton v Consumer Action Law Centre, Commissioner Bisset considered whether an employee was forced to resign due to supervisory requirements placed on the employee, which he claimed were so onerous that it made his job impossible to do. However, it was stated in that decision that even where an employee believes supervisory requirements to be harsh, it does not mean they are so. Further, it was determined:

“[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.

[60] That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.

[61] In this matter, viewed objectively, the actions of the employer in investigating Mr Ashton’s grievance and/or in instigating higher level supervisory requirements and/or in providing him with a letter outlining specific areas of concern with his performance were not designed to force Ashton to resign.

[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.” 58 (emphasis added)

[103] In the present mater, the Applicant relied on the case of Bupa, 59 as set out above. There is nothing in the materials to suggest that the resignation was in any way ‘forced’ by the conduct of the Respondent. The Respondent’s position was that it was a coaching session, and the Applicant was able to fill out the feedback part of the form. No disciplinary response was presented, resulted or was imposed from the meeting or document. The employer’s conduct did not leave the Applicant in a position that she had no choice but to resign. The Applicant’s central contention in this matter was that, the Respondent was under a duty to clarify the resignation before it could be accepted. I turn now to that matter.

[104] During the Hearing, the Applicant indicated that she had sought to revoke her resignation and had sent an email to that effect to four managers. The Applicant was unable to provide a copy of such. After the Hearing, the employer undertook to search for the email. The below email of 20 January 2021 was provided, after a search by the Respondent following the Hearing. The email, which was addressed to ‘Sales’ and five managers within the Respondent, stated as follows:

“Good afternoon,

I don’t know of any other contact details as my direct Managers have not provided me any sort of communication since indicating my intention will be to resign from my position. I have asked for exit documents or a discussion on the matter. I received a phone call 19/01 from Damien Long he was not prepared to discuss the resignation, Damian’s phone call to me 19/01 was merely a welfare check and was not willing to discuss the actual conflict with me formally.

I have not had any verbal or written confirmation of my resignation acceptance and would like to advise that I’m currently on stress leave for health reasons. I have also asked for formal documents and nothing received.

I can provide specialist appointment details MRI scans and ultrasound details of a serious health diagnosis also an email that was sent to Jay Royle, Damian Long, David Roshier and Shane Burke regarding my current health which I advised by email that I maybe undergoing surgery as a heads up in early January before my initial first results which were poor and specialist has now requested an MRI of the mass before surgery takes place to remove this mass. MRI is booked for 28/01/21 with surgery to follow this appointment and possible on going treatment.

I’m wanting to take stress leave due to a persistent ongoing conflict with my direct supervisor after many informal discussions with Jay Royle, Shane Burker, Mae Henry & Dave Roshier things have never been addressed and the conflict has become a very toxic working environment between my supervisor and myself.

I look forward to an immediate response

Regards Julie Hattingh”

[105] The employer submitted that on review of this document as presented, it did not include a request to revoke the resignation, as was suggested by the Applicant at the Hearing. The Applicant was not on stress leave, and had not applied for such, but had tendered a resignation. The Applicant had not sent any medical information, of this nature.

[106] The letter that the Applicant referred to above does not seek the revocation of the resignation. The letter was sent to four managers and ‘Sales’ at the Respondent. The letter indicated that by this time, she has not received confirmation of her resignation. The resignation, as written out by her was to be effective immediately. Further, prior to this letter, the Applicant had received a phone call from Mr Long in response to her tendering her resignation. She had followed that up with a text to him explaining the situation but not seeking to reverse the resignation. Further an email had been sent from payroll confirming receipt of her resignation and that it had been acted upon in terms of providing her entitlements.

[107] Whilst the Applicant made reference to being on stress leave, this is inconsistent with her conduct in filing a resignation and that no such application for leave was made nor was such medical information referred to or provided. Further, in terms of the phone discussion that she had had with Mr Long and her subsequent text message, as referred to, that again does not seek to revoke the resignation, but provides a farewell, and an explanation for the resignation.

[108] The evidence of the Applicant, was that prior to her resignation, she had only sent an email to the employer, setting out that she was to have a medical procedure. Her evidence confirmed that she had not provided any detail to the employer regarding any specific information of the medical condition and at the time of the Hearing, no such evidence has been provided either. The Applicant confirmed that she had had a discussion with one of the managers, but had not provided specific details of any medical condition. This was confirmed by the evidence of Mr Long in the hearing, through the following exchange:

“Do you recall on 3 January 2021, receiving an email from Ms Hattingh about some medical conditions and potential surgery she may be having?---Sure did.  So I defiantly (sic) received that, it was a bit of a heads-up.  It didn't really go into any detail, just saying that she might have to have some time off to have some sort of procedure.  So that's all it pretty much said, and I'm pretty confident, I can't remember my exact words, but I just wrote to her, "No worries, Jules, just let us know when that's scheduled in", because I don't believe she had that scheduled in at that stage.  Just giving us a heads-up that that could be happening.

So when you made the telephone call that day, did you ask her how her medical condition was and whether she had any upcoming surgery?---No, I did not.  I was more, you know, caught up in what the situation had presented itself at the time.  I didn't have any background on what was going on with Jules.” 60

[109] The Applicant also acknowledged that she had not raised her medical condition in the text message that she had sent to Mr Long following their telephone call. The Applicant stated the following:

“So, Ms Hattingh, why don't you reflect any of the myriad of issues you have initially raised that you say gave rise to your resignation earlier, in this text message?  Why is it - it's purely relating to your relationship with Ms Nielsen?---You can see that that's another angry text.

And you don't want to allow her to swan around every week, et cetera.  There is no reference to your medical condition there, Ms Hattingh.  There is no reference to the workloads.  You're just not happy to accept the warning.  Is that correct?---There is no reference to my health, no, but if you read the written submission to HR and four managers the following day about all the relevant circumstances you'll see in there that I do reflect on what's gone on over the last year and what has led to the (indistinct) decision, and I clearly put to them that I would like to rescind.” 61

[110] The Applicant had repeatedly claimed that she had sought to rescind her resignation in the email that she sent to four of her managers the day after she had resigned. However, this email did not specifically set out that she sought to rescind her resignation, rather, it made reference to her being on medical leave.

“I have not had any verbal or written confirmation of my resignation acceptance and would like to advise that I’m currently on stress leave for health reasons. I have also asked for formal documents and nothing received.” 62

[111] It is clear from this email that the Applicant was aware that she had not sought stress leave, but had resigned her employment. Being an administrator, she was well aware that medical leave would need to be sought, however she conceded that no such leave had been requested. At no point in this email did she seek to clearly rescind her resignation.

[112] The Applicant’s representative relied on the case of Vallence v Darlea Pty Ltd T/A Sawtell Coaches, 63 in arguing that the circumstances currently are also a matter of a protest resignation. In the matter of Vallence, the Applicant in his letter of resignation, set out as follows:

“[4] The letter (Exhibit 1, attachment) opens:

“I wish to give notice for resignation from employment at your company with a notice period of 2 weeks as of today’s date, making my last working date ......... or

I can remain employed until you find a suitable replacement for myself as all the rego’s are due and I do not wish to leave you short staffed.”

…

[6] Under a bold heading “My reasons for resignation” the Applicant listed two main reasons:

•  “Unacceptable working environment” - essentially allegation of bullying, harassment and intimidation of the Applicant in the workplace; and

•  “Dangerous behaviours” - as to which, the complaint is not of a danger to the Applicant but, rather, of deliberate sabotage and damage to the buses of a kind that was harming the Respondent’s business.”

[113] The current matter is distinguishable from the above circumstance, in that the supervisor to whom she handed the resignation letter, indicated in her evidence, that the Applicant had conveyed that she had enough leave to allow her to resign. The Applicant’s letter is a straight letter of resignation that does not refer to any other reasons (distinguishable from the resignation in Vallence), nor did she give any indication to the employer that it was a protest resignation. She did not object at the time, to being flown off the island, instead of working the further week of her swing out or taking this time to have any discussions about the resignation. Flying the Applicant off the island was not opportunistic, as referred to by the Applicant’s representative, it was the required change of room time, in her swing, as set out in her evidence. It was therefore reasonable that plans be made for her to be flown off the island, coinciding with the next available flight that day in circumstances where she had tendered her resignation and it was also time to change rooms. There was no protest to this arrangement by the Applicant.

[114] The Applicant stated she had discussed the matter by phone three times with her husband that day. The Applicant was very experienced in the travel bookings for employees in terms of flights and accommodation and had been undertaking this work on a regular basis. Accordingly, she could have sought to change her arrangements, if she had wished to stay on the island, to definitively revoke the resignation or undertake relevant discussions or return to work. The Applicant had, at her own volition, previously sought a prior meeting with her manager to ensure no issues about her had been conveyed by her supervisor. The manager had responded that no issues had been conveyed. The Applicant, whilst on site, could have sought a similar meeting, regarding the resignation.

[115] The Applicant, shortly after the phone discussion with Mr Long, provided some reasoning for the resignation letter. She referred, in the text message to Mr Long, to a personality clash in the office. She again did not seek to revoke the resignation. The Applicant’s evidence at the hearing was that she had formulated that she would send a letter to HR. She was in receipt of the letter from HR accepting her resignation on 28 January 2021. The letter by email she subsequently sent was not to HR, but to ‘Sales at Compass’ and four managers, (this letter is set out earlier).

[116] The Respondent submitted that this letter did not communicate revocation of the resignation. The Applicant had also not previously made any alternative reference to seeking stress leave nor had she, as was later argued, provided any detail of a specific medical condition that she had argued provided clear background to her actions. Medical material on this basis, was not provided at the hearing either to demonstrate any ‘fragile state’.

Was the Respondent under a duty to clarify the resignation?

[117] The Full Bench Decision of Ngo v Link Printing Pty Ltd, 64 (‘Ngo’), stated the following, regarding a ‘duty to clarify’ a resignation:

“[12] We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows:

"The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

`In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise ...

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.'

Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:

`If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (`being jostled into a decision') and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as `special circumstances'. Where `special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively.' "

[13] We are prepared to assume, without so deciding, that it was incumbent on Link, following Mr Ngo's statement that he resigned, to allow a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link on notice that further enquiry was necessary to see whether Mr Ngo's resignation was really intended.”

…

“[16] The next point is whether Mr Ngo was entitled to withdraw his resignation. The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in paragraph [8]). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (p.110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138] and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88].

[17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (pp.110-111).

[18] In Mr Ngo's case, assuming in his favour that his resignation was given in the heat of the moment, it was not retracted swiftly. In our view, Mr Ngo was not entitled to withdraw his resignation on the day following the giving of it.”  65

[118] In Bupa, the Full Bench of the Commission described the above approach as ‘equivocal’ with regard to the obligation to obtain confirmation of the resignation. 66 The Full Bench, however, did note that a number of subsequent decisions of the Australian Industrial Relations Commission and the Fair Work Commission have applied it as authority which affirms the approach taken in Minato.67

[119] In the present matter, the Respondent submitted that the existence of ‘special circumstances’ is a necessary precondition, following from which it may be unreasonable to accept a resignation because the employer runs the risk of incorrectly interpreting the intention to resign. 68 Flowing from this, an employer may be obliged to provide an employee with further time to clarify or to confirm their intention to resign.69 The position of the Respondent is that no ‘special circumstances’ exist in the current matter.70 The Applicant was not forced to resign due to the conduct of the employer. The Applicant’s evidence was that she had worked as an administrator for nearly 30 years. She sought the piece of paper used for the resignation letter without allowing for discussion or completing the feedback part of the form provided to her by her supervisor. The resignation was dated twice and signed. It was not challenged that she had made comments supporting her position to resign, nor that she did not take steps to revoke it.

Heat of the moment resignation

[120] It is recognised before the Commission, that an employer is generally able to treat a clear and unambiguous resignation, as a resignation. Where the resignation is given in the heat of the moment, or under extreme pressure, special circumstances may arise. In the Decision of Ngo v Link Printing Pty Ltd,  71 the Full Bench cited the earlier Decision of Minato v Palmer Corporation Ltd,72 in considering whether certain circumstances give rise to a duty to clarify a resignation. The decision relevantly stated:

“[12] We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows:

"The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

“In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise ...

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.”

[121] In this matter, the Applicant confirmed her resignation, indicating that she had enough annual leave entitlements to resign and when she returned to the office shortly after tendering her resignation, she said to those present ‘this place is a joke’. Further, after the manager Mr Long rang to check on her, (whilst his evidence indicated she had been teary) she followed up this phone call with a text message indicating the resignation had been brought about by her assessment of the different personalities and the tensions arising from that. In this text message she did not set out that the circumstances were such that the employer had put her in a position where she was forced to resign. She also did not seek to revoke the resignation and signed off ‘all the best’ to her Manager.

[122] The Applicant later argued that there were special circumstances related to her medical condition, apart from correspondence indicating that a procedure was required at some point in the future, there was no particularised information about any medical condition provided to the employer, prior to the resignation, nor in response to the directions or at the hearing. Whilst the Applicant says she had a discussion with one of the managers, she conceded specific details of the nature of her condition was not provided. In addition, whilst the Applicant made reference to the medical condition in later correspondence to being on stress leave, this is inconsistent with her knowledge as an administrator, whereby she’d tendered her resignation, left the island and was aware that she had not made an application for any sort of personal leave.

[123] On the evidence, and given the circumstances of the resignation, it is clear that the Respondent had provided the Applicant with a reasonable period of time to revoke such. On the evidence at the hearing, at no time during this period following her resignation, did the Applicant take any steps, or make any approach to the Respondent to seek to revoke her resignation or to ask Mr Long to reconsider the Respondent’s acceptance of it. The Respondent was not put on notice during this period that the Applicant’s resignation was not intended, and acted accordingly in effecting the resignation. The Applicant had clarified the resignation in the text.

[124] It is not enough for an Applicant to provide evidence that a decision was made spontaneously or impulsively. In the circumstances, there needs to be compelling evidence provided that establishes that ‘special circumstances’ arose, such that the prima facie presumption that an employer is entitled to treat a notice of resignation as such, is rendered unreasonable. In the present matter, this is not the case. There was no probative evidence that the employer had brought about the circumstances of the resignation. The copy of the Applicant’s text message sent to the manager after the phone call stated as follows:

“Sorry Damo, been brewing for a long while. Our personalities are worlds apart between Ash and myself. It’s not been a very good working environment for a long time we have had many informal discussions with Jay, Dave & Shane today’s written up warning I’m just not happy to accept. When it seems Ash is allowed to swan around every week, work from home, swan in. at 9.30 and clock off again at 4-8 swings of absence last year she had. I pride myself on good work ethic and work hard I just don’t accept a final warning for my work performance, thanks for checking in. all the best Julz.”

[125] The text did not seek to revoke the resignation, but was a farewell message. No final warning was proposed or imposed. The further message to the managers sourced after the hearing, also did not provide a clear message seeking to revoke the resignation. However, further to this what has not been demonstrated is that the events provided a course of conduct by the employer to force her to resign.

[126] The Applicant also conceded that the email she sent to the four managers the following day did not specifically seek to rescind her resignation, rather, she had requested exit documents, stating that:

“MR CHAMBERLAIN:  So, Ms Hattingh, you can see there that the question is not, "Good afternoon, I've mistakenly, in the heat of the moment, resigned from my employment.  I wish to retract it."  You open with, "Since indicating my intention to resign from my position I have asked for exit documents."  Is that correct?---I did ask for exit documents.

Thank you?---I do remember this.” 73

[127] The Applicant in this matter has not made out that there was a triable issue, in terms of the Applicant’s alleged dispute between the parties that lead to the resignation. The evidence in this matter demonstrates that there was no driving force, on the part of the employer, to sever the employment relationship. Whatever the alleged procedural deficiencies the Applicant’s representative raises in relation to the meeting, the Applicant was aware of the events to be discussed. These had been raised in the general pre-start meeting. Further, the Applicant was offered a support person which she refused, and the discussion did not form a warning. The Applicant did not allow for the meeting discussion.

[128] The termination of the employment was at the insistence of the employee. There can be no view based on the discussion, that was to occur, nor that it would have the probable affect or result from the employer’s conduct in bringing about the termination of the employment relationship.

[129] Whilst the Applicant indicated some frustration with the nature of the events raised at the meeting, there was no reference by the Applicant to actions of the Respondent by which pressure was brought to bear on the Applicant to resign. Voluntary resignation will not be a dismissal or lose its voluntary character simply because it results from an employee’s dissatisfaction with the resolution of a workplace grievance or the employee’s assessment of her treatment.

[130] There is no evidence to support a case whereby the meeting discussion undertaken with the employee could be construed as action taken by the Respondent, which would lead to a constructive dismissal.

[131] The Applicant exercised her option to resign her employment from the Respondent voluntarily. The termination of employment did not occur at the initiative of the Respondent, nor was there any evidence that the Applicant was forced to do so because of conduct or a course of conduct engaged in by the employer.

CONCLUSION

[132] The legislation requires an assessment as to whether there was a termination at the initiative of the employer. An important feature of a dismissal is that ‘the act of the employer results directly or consequently in the termination of the employment and the employment is not voluntarily left by the employee.’ 74

[133] Whilst the evidence identified that a meeting was called with the Applicant, there was no conclusive evidence that this was intended to bring the employment to an end. There is no evidence that any pressure or influence had been brought to bear on the Applicant to cause her resignation. The evidence is that the Applicant elected to resign.

[134] These circumstances do not present as the implementation of a meeting designed to bring the contract of employment to an end. The Applicant, out of some dissatisfaction, brought the contract to an end by writing out the resignation. Following this, there was no determinable point at which she definitely sought to rescind the resignation.

[135] In this matter, the evidence demonstrates that there was no action on the part of the Respondent to end the employment relationship. Voluntary resignation will not be a dismissal or lose its voluntary character, simply because it results from an employee’s dissatisfaction with the treatment of a workplace grievance or the employee’s view of her treatment at the workplace.

[136] On the evidence before the Commission, I am satisfied that the Applicant’s employment was not terminated at the initiative of the Respondent, but that the Applicant resigned her position by virtue of the resignation letter. As set out, I am also satisfied that the resignation cannot be classified as a heat of the moment resignation. The Applicant considered resigning at the time she provided the resignation letter, she qualified this later with reasons and reinforced this later in a text to her manager. The later email to ‘Sales’ and the five managers attempts to invoke a period of personal leave, without an application for such, and in relation to medical information that was not provided.

[137] For the above reasons, The Applicant was not a person dismissed from employment within the meaning of s.386(1)(a) or (b), (both of the limbs of the legislation being addressed by both parties). The jurisdictional objection raised by the Respondent is upheld. That is, that no termination at the initiative of the employer occurred.

[138] The Application made pursuant to s.394 is therefore jurisdictionally barred, and must be dismissed.

[139] I Order accordingly.

COMMISSIONER

Appearances:

Mr L Matarazzo, of Lucio Matarazzo Pty Ltd, appeared with permission for the Applicant

Mr A Chamberlain, National Workplace Relations Manager, appeared for the Respondent

Printed by authority of the Commonwealth Government Printer

<PR728004>

 1   Form F2 filed on 4 February 2021, Response to question 3.1 and 3.2.

 2   Fair Work Act 2009 (Cth), s.380

 3   Fair Work Act 2009 (Cth), s.380

 4   Fair Work Act 2009 (Cth), s.23

 5   Fair Work Act 2009 (Cth), s.382(a).

 6   Fair Work Act 2009 (Cth), s.382(b).

 7   Fair Work Act 2009 (Cth), s.396(d)

 8   Fair Work Act 2009 (Cth), s.394(2)(a)

 9   Fair Work Act 2009 (Cth), s.596(2)

 10   Respondent’s Outline of Submissions dated 18 March 2021, at [7].

 11   Respondent’s Outline of Submissions dated 18 March 2021, at [6].

 12   Respondent’s Outline of Submissions dated 18 March 2021, at [9].

 13   Respondent’s Outline of Submissions dated 18 March 2021, at [10].

 14   Respondent’s Outline of Submissions dated 18 March 2021, at [10].

 15   Sovereign House Security Services Ltd v Savage [1989] IRLR 115, at 116.

 16   Kwik-Fit (G.B.) Ltd v Lineham [1992] ICR 183 at 188.

 17   Respondent’s Outline of Submissions dated 18 March 2021, at [21]

 18   Statement of Damian Long filed on, at [1]-[2]

 19   Statement of Damian Long filed on , at [5]

 20   Statement of Damian Long filed on , at [6]

 21   Statement of Damian Long filed on , at [7]

 22   Statement of Damian Long filed on , at [7]

 23   Statement of Damian Long filed on , at [7]

 24   Statement of Damian Long filed on , at [7]

 25   Statement of Ashley Nielsen filed on , at [3]

 26   Statement of Ashley Nielsen filed on , at [6]

 27   Statement of Ashley Nielsen filed on , at [6]

 28   Statement of Ashley Nielsen filed on , at [7]

 29   Statement of Ashley Nielsen filed on, at [9].

 30   Statement of Ashley Nielsen filed on, at [10].

 31   Statement of Ashley Nielsen filed on, at [11].

 32   Outline of Submissions for the Applicant, at [44].

 33   Outline of Submissions for the Applicant, at [27]-[28].

 34   Outline of Submissions for the Applicant, at [44].

 35   [2015] FWC 1267.

 36   Vallence v Darlea Pty Ltd T/A Sawtell Coaches [2015] FWC 1267, [39].

 37   Statement of Tyler Dawson, at [3]-[4].

 38   Statement of Tyler Dawson, at [4].

 39   Statement of Tyler Dawson, at [5].

 40   Statement of Tyler Dawson, at [5].

 41   Statement of Tyler Dawson, at [5].

 42   Statement of Tyler Dawson, at [6].

 43   Statement of Elizabeth Holland, at [1].

 44   Statement of Elizabeth Holland, at [3].

 45   Statement of Elizabeth Holland, at [3].

 46   Statement of Elizabeth Holland, at [4].

 47   Statement of Elizabeth Holland, at [5].

 48   Statement of Elizabeth Holland, at [7].

 49   Statement of Elizabeth Holland, at [10].

 50   Statement of Elizabeth Holland, at [10].

 51   Statement of Elizabeth Holland, at [11]

 52   Paragraph [5] and [6] Respondent’s outline of submissions, dated 18 March 2021.

 53   [2015] FWC 513.

 54   Ibid at [14] – [16].

 55   [2017] FWCFB 3941.

 56   [2021] FWC 1493

 57   [2021] FWC 2849.

 58   [2021] FWC 2849 at [69] to [71].

 59   [2017] FWCFB 3941.

 60   Paragraph 821 – 822 of the transcript.

 61   Paragraph 317 – 318 of the transcript.

 62   Applicant’s email of 20 January 2021.

 63   [2015] FWC 1267.

 64   (1999) 94 IR 375.

 65   (1999) 94 IR 375.

 66   Bupa, at [44].

 67   Ibid.

 68   Outline of Submissions for the Respondent, at [12].

 69   Outline of Submissions for the Respondent, at [13].

 70   Outline of Submissions for the Respondent, at [12].

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

 72   (1995) 63 IR 357.

 73   Paragraph 358 – 359 of the Transcript.

 74   Pawel v Advanced Precast Pty Ltd, Print S5904, AIRCFB, 12 May 2000 at [13].