FWA 9356
Fair Work Act 2009
Consumer Action Law Centre
MELBOURNE, 20 DECEMBER 2010
Application for unfair dismissal remedy - termination at the initiative of the employer.
 This is an application for a remedy from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) by Mr Neil Ashton (the Applicant).
 Mr Ashton was employed at the Consumer Action Law Centre (CALC) (the Respondent) from 5 September 2007 until the termination of his employment on 3 August 2010.
 Mr Ashton claims he was forced to resign because of the conduct of his employer 1 (that is, he was constructively dismissed). The Respondent says he resigned and therefore has not been unfairly dismissed.
 Mr Ashton represented himself in the proceedings. CALC was represented by Mr Miller.
 Mr Ashton was a witness on his own behalf. He also called, under summons, the following witnesses:
 Ms Catriona Lowe, CEO, was the only witness for the Respondent.
 The meaning of ‘dismissed’ is set out in s.386(1) of the Act:
(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.
 Prior to considering if Mr Ashton has been unfairly dismissed I must first determine if he has in fact been dismissed. As such I must determine if he was forced to resign because of conduct or a course of conduct engaged in by CALC.
Evidence and submissions
 Mr Ashton’s evidence is that actions of his employer - particularly from 22 June 2 until 3 August 2010 - caused him to resign. In particular he says the supervisory requirements placed on him from 22 July 2010 were so onerous that it made it impossible for him to do his job. When he received a letter on 3 August raising performance issues he felt that he had been dismissed.3 That day he submitted a letter advising of such and left.
 CALC says that Mr Ashton was subject to increased supervisory requirements because of legitimate concerns about his performance. It attempted to keep these performance issues separate from a grievance that he raised against one of his supervisors. The letter of 3 August was given to him following the delivery to him of the final outcome of his grievance. It was not the intention of CALC to force Mr Ashton to resign.
 Mr Ashton commenced employment at CALC as a policy officer in September 2007. He was subsequently appointed as a solicitor working on the advice line. 4 He also did some litigation work.5
 Work on the advice line was primarily conducted in an area called the hub, although it could also be done from other areas in the office. When working on the advice line Mr Ashton worked in the hub.
 From mid 2008 Mr Ashton started copying some of his work emails to his home address. He did this as he believed that there were people he worked with ‘who had it in for [him] and [he] wanted to protect himself against them.’ He considered one of these people to be Ms Lowe, 6 one of the joint CEOs of CALC.7
 In or around December 2009 Mr Ashton advised the CEOs of CALC that he intended to finish at CALC around December 2010 and to move into teaching from 2011.
 Mr Ashton took time off work on paid and unpaid leave from 9 December 2009 until 8 April 2010.
 On his return Mr Ashton took on some more litigation files. 8 From this time he spent 75 per cent of his time as a telephone advice solicitor9 and 25 per cent of his time as a litigation solicitor.
 Sometime in May 2010 Mr Ashton, in his role as litigation solicitor, sent a settlement proposal to a respondent in a matter that contained a settlement amount that was incorrect and less than the settlement the applicant in the matter had sought. Mr Ashton subsequently spoke to the respondent in that matter and rectified the error. 10
 On 18 May 2010 Mr Ashton had an argument with Mr Paul Gillett (one of the Directors of Legal Practice (DLP) and his supervisor). The argument appears to be that Mr Gillett wanted to talk to Mr Ashton about the incorrect settlement amount matter then and there and Mr Ashton did not want to talk while he was on his lunch break. 11
 The next day, 19 May 2010, Mr Ashton was advised in writing of supervisory arrangements to apply to him. These were that he was to have any outgoing correspondence (of substance) signed off by a DLP and was to obtain approval of a DLP prior to taking action on a file. 12 These arrangements were put in writing at Mr Ashton’s request. 13 It is not fully clear when he was orally advised of these arrangements but it was around this date. Mr Ashton did not consider these supervisory requirements as unreasonable.14
 Subsequent to the advice on supervision Mr Ashton sent an email to Mr Gillett and the CEOs. In that email he outlined the supervisory arrangements as advised to him the previous day. He then raised an incident that had occurred in December 2009 when Mr Gillett called him a ‘motherfucker’ and other (non-specified) incidents where he believed Mr Gillett got angry with him if he refused to agree with Mr Gillett’s point of view. He stated he had concerns with Mr Gillett’s behaviour toward him and its effect on his capacity to do his work. 15
 Mr Ashton says he received no reply from the CEOs to his grievance. Ms Lowe however gave evidence that she saw the grivance issue tied up in the performance matters associated with Mr Ashton at that time (the increased supervisory arrangements) but also that the event (the swearing) complained of had occurred 5 months previously. She did however raise the issue with the DLPs and expected that they would address it. 16
 Mr Gillett had at this time already advised he was resigning his position at CALC and did leave on 11 June 2010.
 On 21 June 2010 Mr Ashton had an argument with Ms Tikotin - a DLP and his supervisor - over her requirement that he make changes to a defence due to be filed in court that day. Mr Ashton had a medical appointment that he wished to keep and did not have time to do the work Ms Tikotin sought. Mr Ashton claimed he was spoken to by Ms Tikotin in a loud voice and shouted at. He subsequently emailed the CEOs and Ms Tikotin outlining the events that had occurred and advising that he found being shouted at untenable and that he expected to be treated with dignity at work. He advised that he was leaving the office. This email was sent at 11.01am. 17
 Mr Ashton returned to the office later that day to provide a medical certificate. Whilst in the office Mr Ashton lodged a formal grievance against Ms Tikotin with the CEOs. 18
 Whilst he was in the office Mr Ashton also saw Ms Lowe. Mr Ashton says Ms Lowe insisted she wanted to talk to him regarding his performance. He responded that he was prepared to talk about the grievance he had submitted but not about performance matters. His evidence is that she said she wanted to talk about his performance and that she repeated this about 10 times. 19 Ms Lowe says she indicated that the grievance and performance matters were interlinked and it was difficult to talk about one without the other and that she would have said this twice in the conversation.20
 Mr Ashton was subsequently absent from work on personal leave and returned on 23 July 2010.
 At the time he lodged the grievance against Ms Titokin, Mr Ashton put his name down with temporary teaching agencies. He says he did this because he thought his employment would be terminated after raising the grievance against Ms Tikotin. 21
 The CEOs determined, on advice, to keep the grievance raised by Mr Ashton and matters to do with his performance separate. 22
 On 22 July 2010, the day before he was due to return to work, Mr Ashton met with the CEOs to discuss their interim findings on the grievance he had raised against Ms Tikotin. At that meeting Mr Ashton was advised that the preliminary findings of the report were that his complaint was not made out. 23 He was asked if there was anything further he wanted to contribute. He advised that he wanted another incident added to the complaint.24 Mr Ashton’s view of the meeting was that Ms Lowe was ‘really out to get’ him while Ms Bond was ‘very fair minded’.25
 Mr Ashton gave oral evidence that at the meeting on 22 July he said to Ms Lowe and Ms Bond ‘Look, I realise... my job could be on the line.’ 26 He was assured by Ms Lowe that he would not have his employment terminated because he had raised the grievance.27
 On 23 July, the day he returned to work, Mr Ashton was provided with a detailed memo dated 22 July 2010 establishing supervision and mentoring arrangements for him. 28 This memo established that Mr Ashton was required to (amongst other things):
 Mr Ashton considered that these supervisory requirements ‘imposed a whole lot of new, very onerous restrictions’ on him. 29
 Mr Ashton subsequently lodged an objection to a number of the requirements and asked that they be reviewed. 30 A meeting to discuss the requirements was held some days after Mr Ashton returned to work.
 Mr Ashton’s evidence is that prior to 22 July he had received substantially positive feedback about his performance. 31 He admitted however that aspects of inadequate file management and case file reviews has been previously raised with him.32
 On 3 August 2010 at around midday Mr Ashton met with the CEOs where he was provided with their final report into his complaint against Ms Tikotin. That report found that the matters he raised were not made out. 33 Mr Ashton was told at this meeting that this particular meeting was not a performance review meeting.34
 Mr Ashton’s evidence is that Ms Lowe was very angry in this meeting although Ms Lowe denies this. 35
 Later that day Ms Lowe sought to meet with Mr Ashton. Mr Ashton stated he was not available to meet so Ms Lowe provided him with a memo detailing concerns with respect to his performance and asking him to attend a meeting some six days later to reply to the matters raised. 36 Mr Ashton took that memo as indicating that he had been dismissed. His evidence is that he did not wish to participate in a ‘kangaroo court’.37
 Mr Ashton’s evidence is that he considered the performance letter of 3 August as a continuation of what had started on 22 July when the additional supervisory requirements were placed on him. 38 He did agree however that a number of the matters raised in the performance letter were matters that had not previously been the subject of discussion with him - that they were new issues associated with his performance. 39
 At 6.33pm that evening Mr Ashton sent an email to the CEOs and Ms Tikotin with the subject line ‘Neil Ashton - Constructive Unfair and Unlawful Termination.’ The text of the email is:
Dear Catriona and Carolyn,
I refer to the memo Catriona gave to me this afternoon, together with previous correspondence behaviours (sic).
I consider that the behaviour of management at CALC, including the response of management to my making a complaint against Celia Titkotin and taking sick leave, has been such that I am forced to finish employment in CALC. I believe that the termination of my employment in this way is unlawful and unfair.
I have collected my personal belongings and will cease employment at CALC starting tomorrow.
Neil Ashton. 40
 On 4 August 2010 the CEOs sent a letter to Mr Ashton advising that they did not consider he had been dismissed but accepted his resignation from CALC.
 Mr Ashton gave evidence that while he only quickly read the letter of 3 August he considered he had been dismissed. 41 He also gave evidence however that it was the restrictions of 22 July that made it impossible to do his job.42
 It needs to be interposed here that, in his outline of submissions, Mr Ashton claimed that the actions of the employer in imposing conditions on him were ‘inconsistent with the previous analyses of the Applicant’s work performance in performance reviews conducted by the Respondent.’ Mr Ashton had sought to subpoena his past written performance reviews. The Respondent advised that no such written performance reviews existed.
 Mr Ashton therefore called a number of witnesses who all gave sworn evidence that the performance feedback system in use at CALC consisted of an individual written self assessment based on a template document. This was provided to the relevant supervisor who then had a meeting with the individual to discuss the self assessment, future training and development needs etc. There was no formal performance assessment carried out by the supervisor and nothing was put in writing beyond the self assessment. 43
 There was, therefore, no evidence to support Mr Ashton’s assertion on the existence of written performance reviews conducted by managers at CALC.
 Whether a termination of employment was at the initiative of the employer was considered by a Full Bench in O’Meara: 44
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.
 The important consideration is whether there was some action of the employer intended to or with the probable result of bringing the employment relationship to an end.
 It is obvious that it is not unusual for an employer to place an employee under additional supervisory arrangements if there are concerns about the performance of the employee. Such actions are generally seen to be for the benefit of the employee, as they are provided with additional guidance and mentoring as they work to overcome the perceived performance problems. It is appropriate that management identify and seek to resolve performance issues with employees at the earliest time. It is not unusual (and one would hope common) for employers to have a grievance process that allows an employee to lodge a grievance and have it investigated and determined in a timely manner.
 The existence of these processes, by themselves or together, is not enough to warrant a conclusion that the employer took action with the intent of bringing the employment relationship to an end.
 Mr Ashton believed from 2008, when he started copying emails to his personal email address, that someone at CALC may be out to get him. He also believed that once he lodged his complaint against Ms Titokin his employment would be terminated.
 There is no evidence to support these views of Mr Ashton. No evidence was adduced of employees at CALC who lodged grievances having their employment terminated nor was there evidence of performance management leading to termination. Although Mr Ashton suggested in his written outline of submissions that the processes of the Respondent were not consistent with its own policies and procedures no evidence or submissions on this were provided.
 Mr Ashton believed that Ms Lowe was ‘out to get him’ although his evidence of this appears to be that firstly she was ‘angry’ at the meetings of 22 July and 3 August 2010 and second his contention that the performance letter of 3 August 2010 was her work alone (and not the work of the joint CEOs), written in haste after the grievance meeting on 3 August 2010.
 Ms Lowe disputes that she was angry with Mr Ashton and that the letter of 3 August was hers alone. Her evidence is that the letter was written in consultation with Ms Bond and following discussion with the DLPs over a period of some weeks. 45
 Having decided in 2008 that someone was out to get him and that as a result of the grievance his employment would be terminated it appears that Mr Ashton saw everything through this prism - no matter what he did or the Respondent did, he believed it would result in the termination of his employment. That he believes his employment was terminated through the conduct of the employer appears to be no more than vindication of his view.
 The supervisory requirements may have been perceived to be harsh by Mr Ashton but that does not make them so.
 That Mr Ashton and the Respondent saw his performance in different terms does not make the action of the Respondent in seeking to raise these issues with Mr Ashton action that was intended to bring the employment relationship to an end. The letter of 3 August with respect to performance issues was designed to give Mr Ashton an opportunity to respond to those performance concerns. He chose not to and instead resigned his employment.
 It was unfortunate that at the time Mr Ashton raised a grievance or grievances against his supervisors (the DLPs) his performance was an issue that was sought to be addressed by the Respondent. In fact Mr Ashton’s grievances went to the interactions he was having with his supervisors about his work. This made it very difficult to deal with the grievances and the performance issues as totally discrete matters. As soon as one was raised the other would come into play.
 This case is marked by strong, undisputed documentary evidence - the grievances were in writing, there is no dispute about their receipt, the outcome of the investigations are in writing as are the supervisory requirements. The evidence that is in dispute goes to different interpretations of how things were said or how often they were repeated. In this regard I prefer the evidence of Ms Lowe to that of Mr Ashton where there is a dispute on the evidence. I found Ms Lowe to be honest and forthright. She presented her evidence calmly and clearly and readily admitted what she could not recollect. Mr Ashton I find was prone to language that suggested extremes - people ‘blew up’ or ‘yelled’ or ‘shouted’ at him or repeated things to him ‘10 times’ and people were ‘out to get him’. This propensity to over statement infected Mr Ashton’s evidence.
 I do find that the CEOs did attempt to keep the matters of Mr Ashton’s grievance and performance separate in the discussions with Mr Ashton and that this approach was appropriate although at times difficult. I find that Mr Ashton himself wanted to keep these matters separate. On 21 June 2010 when Ms Lowe asked to speak to Mr Ashton he said he was prepared to speak about his grievance but not about performance matters. Ms Lowe suggested they were interrelated but Mr Ashton insisted he would not discuss performance matters. I also accept that Ms Lowe did say to Mr Ashton in the meeting on 22 July and again on 3 August with respect to his grievance that his employment would not be terminated because he had lodged a grievance and that he was also told that the particular meetings on 22 July and 3 August 2010 were not performance review meetings. I do not find that Mr Ashton was told his performance would not be reviewed.
 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.
 That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Mr Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.
 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 Mr Ashton to resign.
 I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.
 The application is dismissed. An order to this effect will issue today.
N. Ashton, on his own behalf.
R. Miller, for the Respondent.
10 & 11 November.
1 Section 386(1)(b).
2 Transcript PN1435.
3 Transcript PN586.
4 Exhibit R2 paragraph 3.
5 Exhibit R2 paragraph 7.
6 Transcript PN634-640.
7 There are two CEOs who job share, Ms Lowe & Ms Carolyn Bond.
8 Exhibit R2 paragraph 7.
9 Transcript PN1263.
10 Transcript PN282.
11 Transcript PN282.
12 Exhibit A15.
14 Transcript PN641.
15 Exhibit A16.
16 Transcript PN935.
17 Exhibit A17.
18 Exhibit A18.
19 Transcript PN291.
20 Transcript PN961-70.
21 Transcript PN569.
22 Transcript PN911.
23 Transcript PN302.
24 Transcript PN966.
25 Transcript PN302.
26 Transcript PN345.
27 Transcript PN569, 910.
28 Exhibit A12; Exhibit R2 attachment 6.
29 Transcript PN660.
30 Exhibit A19.
31 Transcript PN315.
32 Transcript PN287-8.
33 Exhibit A1; Exhibit R2 attachment 7.
34 Transcript PN681, 361.
35 Transcript PN1234.
36 Exhibit A2.
37 Transcript PN690, 801.
38 Transcript PN729.
39 Transcript PN699 & 704, 706 & 713, 714, 731, 733, 791, 804.
40 Exhibit A21.
41 Transcript PN688-9.
42 Transcript PN679.
43 See for example Transcript PN57-60; PN99; PN134-136.
44 O’Meara v Stanley Works P/L, PR973462, (11 August 2006) (footnotes omitted).
45 Transcript PN1246.
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