[2012] FWA 6712

[2012] FWA 6712

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacqueline McGregor
v
Melbourne Equine Veterinary Group
(U2012/6916)

COMMISSIONER LEE

MELBOURNE, 21 AUGUST 2012

Application for unfair dismissal remedy - jurisdictional objection - whether the applicant was dismissed within the meaning of s.386 of the Fair Work Act - if so, effective date of dismissal.

[1] On 5 April 2012, Ms Jacqueline McGregor (the Applicant) made application to Fair Work Australia for unfair dismissal remedy against Melbourne Equine Veterinary Group (the Respondent). The application was made pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The matter was heard before me on 27 July 2012. Mr S. Gladman of Counsel was granted permission to appear for the Applicant and Ms C. Currie of Counsel was granted permission to appear on behalf of the Respondent. Evidence for the Applicant was provided by Ms J. McGregor, Ms S. Airey and Ms N. Burke. Evidence for the Respondent was provided by Dr G. Robertson-Smith, Dr P. Angus, Dr R. McInnes, Ms N. Burke and Ms K. Kearns.

[3] After hearing submissions and evidence from both parties, I delivered an ex tempore decision in which I dismissed the application for want of jurisdiction. The following is an edited version of the decision given orally on 27 July 2012.

[4] The Applicant was employed with the Respondent as a full-time associate veterinarian and commenced employment with them on 1 August 2008. Prior to that the Applicant was engaged in her own business which was procured by the Respondent.

[5] The Applicant resigned from her employment – it is common ground – on 1 March 2012 providing three weeks’ notice to the Respondent. The Act provides that a person who has been dismissed may apply to Fair Work Australia for an order granting a remedy for unfair dismissal. In order that one can avail themselves of that remedy it is necessary to meet the test of the meaning of “dismissed”. For that meaning we look to section 386(1) of the Act which reads as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[6] In this matter the Applicant claims that she was dismissed by the Respondent within the meaning of section 386(1)(b) of the Act as she was forced to resign from her employment because of the conduct or course of conduct engaged in by the Respondent. In turn, the Respondent claims that the Applicant was not dismissed within the meaning of section 386 as the Respondent did not terminate the Applicant’s employment and the Respondent did not force her to resign through its conduct or a course of conduct. The Respondent claims that the Applicant was not dismissed, is unable to make an application for an unfair dismissal remedy and that her application should be dismissed.

[7] Further to that the Respondent also claims that the application is made out of time. The statute requires that the application be made no more than 14 days after the effective date of termination.

[8] 1 The Applicant claims that the application was made in time.

[9] I indicated to the parties in proceedings that I would consider submissions and evidence on both of those jurisdictional objections and I would make a determination.

[10] I will first deal with whether or not the application was made out of time. In my view the consideration of that matter is relatively straightforward. It is common ground that the Applicant resigned on 1 March 2012. There is some conflict on the evidence about whether the Applicant had worked for the Respondent after 18 March 2012 and there is also some conflict on the evidence about when she finally returned all of her employer provided work materials and equipment. However, it is clear that she was paid by the Respondent up until 22 March 2012. There was no evidence that she wasn’t ready, willing and able to work up until that time, notwithstanding that there was evidence that she was ill and provided sick leave certificates to that effect for a period up until 18 March 2012.

[11] I do not accept the argument of the Respondent that they brought the employment to an end earlier than that date (that is 22 March 2012). I have considered all the evidence that is relevant to this matter and there is no basis on which I could reasonably conclude that the effective date of termination was anything other than 22 March 2012. I therefore find that the application was made within time and that the Applicant has made out that ground. So that jurisdictional objection is dismissed.

[12] I now turn to deal with the issue of whether the Applicant was forced to resign as set out in section 386(1)(b) of the Act. I will set out the facts as they have been made known to me through these proceedings. I will start with the issue of the pony. There was a pony that was named Gilly. It is clear on the evidence that Gilly was owned at all relevant times by a client of the Respondent. It is also clear that the Applicant cared for and agisted the pony for some considerable time and that had the resultant effect that both her and certainly her young son had become attached to the pony and it was regarded, in the evidence of the Applicant, as a family pet.

[13] On 20 February 2012 it is not disputed that the owner took the pony from the property where Ms McGregor was residing. The Applicant has claimed that that pony was taken without her knowledge, consent or supervision and she claims she was furious at the pony’s owner. There was evidence of a text message exchange between the Applicant and the owner. That text exchange showed the owners request to pick up the pony. The Applicant replied that the date and time proposed by the owner was not appropriate but that provided the pick up of the pony was later than that time and date, she should “go for it” or words to that effect, to pick up the pony. Subsequent to the pony being retrieved by the owner the pony became ill and died.

[14] From the Applicant’s point of view the circumstances surrounding the death of the pony are set out in her statement. The Applicant had received some pathology tests that related to the pony and that led her to have an awareness that the pony was dying of hyperlipaemia. In her statement, the Applicant indicates that she had contacted the owner and the pony’s treating veterinarian, Dr Demery, who was also close friend of the owner, and pleaded for the pony to be returned to her. The Applicant claims that she was told by those two individuals that they would take care of the pony and that later in the evening on that day a text message was sent by the owner to the Applicant indicating that the pony had died. The evidence of the Applicant was that she was very distressed and upset at what she called the inhumane circumstances surrounding the pony’s death.

[15] It is understandable that the Applicant regarded the pony as a family pet and that she was upset at the news that the pony had died. The Applicant was also angry at Dr Demery and the owner of the pony and she makes that clear in her statement. In paragraph 15, in fact, she says that she was extremely angry. Certainly the Applicant’s evidence in hearing was consistent with that indication of how she felt about the circumstances surrounding the pony and its death.

[16] Now I will turn to the issue of the Facebook post subsequent to the death of the pony. The Applicant posted what was described as an obituary for the pony on her Facebook page. That post was marked as exhibit JTM4 to the witness statement of the Applicant. That Facebook post was a picture of the deceased pony and some words under the picture which read;

“Rest in peace, Gilly. We miss you, little buddy. Devastated and beyond angry at what happened.”

[17] Under these words was then a number of exchanges between the Applicant and what I have taken to be various Facebook friends or others who have corresponded with the Applicant. These exchanges contain some commentary around the circumstances of the pony’s death, including commentary from the Applicant. It is of note that the commentary reflects the anger and grief of the Applicant at the death of the pony, and there is a comment that is reproduced in that attachment attributed to the Applicant that makes an allegation of mistreatment of the animal.

[18] Subsequent to the Facebook post being placed online and the exchanges related to that post taking place, there was some reactions to that event. Dr Demery clearly became aware of the Facebook posting. She sent a text message to the Applicant asking for removal of the post. The Applicant did not remove the post and, on her evidence, referred Dr Demery to the partners of the Respondent. Dr Robertson-Smith, one of the partners of the Respondent, organised a meeting for 27 February 2012. That meeting did not take place. Dr G Robertson-Smith referred the Applicant to Ms Kearns who was the practice manager for the Respondent. On the evidence of Ms Kearns, one of her primary duties included human resources to help ensure the smooth running of the practice. Ms Kearns, according to the Applicant, was sympathetic and indicated that Dr Demery would not work with the Applicant in the future.

[19] Then followed the highly relevant meeting that occurred between the Applicant and the partners of the Respondent on 1 March 2012. Ms Kearns sent a text message to the Applicant asking her to attend the meeting on 1 March 2012 with the partners of the Respondent and also with Ms Kearns. It was common ground that Dr McInnes at the meeting of 1 March 2012, accused or at least put to the Applicant allegations of serious misconduct that was related to the posting on the Facebook page and the related comments. The Applicant stated that she rejected the allegation of serious misconduct at the meeting, and stated that she was distressed by the accusation. The Applicant stated in her witness statement that;

“I was extremely distressed by the accusation. I thought that I was about to be dismissed and given that serious misconduct was an offence warranting instant dismissal within the terms of the employment contract we were in the process of negotiating, I was forced to resign.

The resignation was not given freely or willingly, I was intimidated into giving it.

I gave three weeks’ notice and left the meeting.” 2

[20] The Applicant claims that the partners’ behavior in that meeting was aggressive and intimidating. There was contested evidence on that point. Dr Robertson-Smith claimed that it was not aggressive, and claimed that the meeting was not a heated meeting. The Applicant claims that it was. Dr Angus for his part agreed that it was a heated meeting and referred to Dr Robertson-Smith raising his voice once or twice.

[21] Having considered the evidence before me about the overall conduct of the meeting, I prefer the view that the meeting was a heated one. The heat seems to have been generated from a small number of people in the room. Dr Robertson-Smith would be one and perhaps Dr McInnes. I also think that considerable heat was generated by the Applicant herself. However, I do not consider there is evidence to support the view that the partners of the group, or Ms Kearns for that matter, were aggressive and intimidating in their approach to the meeting.

[22] It was common ground that at the meeting, the Applicant was told she had engaged in serious misconduct relating to the Facebook page. 3 In terms of further evidence of conduct of the meeting the Applicant stated in her evidence that she felt she was unable to express her views as to the circumstances surrounding the pony at the meeting, that she felt that the partners had made up their mind and that she was distressed about the pony and the serious illness of her uncle. She maintains that the meeting of 1 March 2012 was called to put pressure on her to resign.

[23] In my view the witnesses for the Respondent were consistent in their evidence that they had no intention of terminating the Applicant at that meeting and that they had intended to issue a warning if they did not get a satisfactory explanation from the Applicant about the Facebook posting. The notable exception in terms of that evidence was Ms Kearns, , who on her evidence did not believe that even a warning was under consideration and was not involved in the drafting of the purported warning letter that was tendered in the proceedings.

[24] The Applicant, stated in her evidence in hearing, but not in her written statement that she uttered the words “Do you want me to resign?” in the meeting of 1 March 2012. She did not recall when asked what was said in response to her comment. No other witnesses supported the view that the Applicant made that comment in the meeting. I am unable to accept that the Applicant did say at the meeting, “Do you want me to resign?”.

[25] It is common ground that the Applicant verbally resigned at the meeting and gave three weeks’ notice and that she left the meeting after verbally resigning. Counsel for the Respondent made much of the fact that no-one pursued the Applicant from the meeting. I do not accept that there is some obligation on the Respondent to pursue the Applicant from the meeting once she had departed after indicating her resignation.

[26] It is clear that the Applicant attended the meeting on 1 March 2012 alone, without a support person, and that all of the partners of the Respondent were present. I do believe that such an environment would undoubtedly be an intimidating environment in its own right, though, as I said earlier, I have not found that the conduct of the Respondent partners in the meeting was aggressive and intimidating.

[27] I will now turn to, in terms of the evidence, to the circumstances surrounding the events after the resignation of the Applicant. On 1 March 2012, which was the same day that the meeting took place, Ms Kearns wrote to the Applicant and accepted the resignation that she had verbally tendered at the meeting. In exhibit JTM6 the Applicant replies to that letter and she links her resignation to the allegations of serious misconduct but she does not seek to withdraw her resignation. There was further correspondence from Dr McInnes to the Applicant on 12 and 15 March 2012, marked exhibits JTM8 and JTM9, and there was a reply from the Applicant on 17 March, marked exhibit JTM11. Relevantly in that letter, the JTM11 letter, Ms McGregor states:

“At no time did I seek to withdraw my resignation and I have no intention of doing so. Nevertheless, the resignation is a true demonstration of constructive dismissal and will therefore be challenged.”

[28] The other relevant post-resignation event was the action of Dr Robertson-Smith approaching Ms Burke and asking her to talk to the Applicant with a view to having her potentially retract her resignation. 4 Ms Burke has given evidence that she did pass on the message from Dr Robertson-Smith to the Applicant. I accept that this event occurred.

[29] The Applicant did not seek to rely on any other conduct of the Respondent in making out its case other than the conduct of the 1 March 2012 meeting. In the exchange that I had with Counsel for the Applicant I took there to be agreement that essentially all roads led back to 1 March 2012 meeting in terms of the issue of constructive dismissal, notwithstanding that other events that occurred outside of 1 March 2012 meeting may well be relevant to making out the case about the 1 March 2012 meeting.

[30] The Applicant had on an earlier occasion resigned and then sought, successfully, to retract that resignation and continue employment with the Respondent. It also is common ground that there was a performance review on 23 February 2012 where a positive appraisal was given of the Applicant. The third issue that needs to be mentioned is that Dr Angus, in his evidence, warned the Applicant on a previous occasion about Facebook comments that were considered inappropriate. He had indicated to her that it would not be tolerated should that action occur again.

[31] I will now turn to consider the law that needs to be applied in this particular matter. The Applicant did not necessarily press the issue of the resignation being given in the heat of the moment but I think it is important in the context of the evidence that I have heard to consider it.

[32] The Respondent’s outline of submissions set out relevant legal principles which should be applied when determining the genuineness of a resignation given in the heat of the moment. The Respondent in particular directed my attention to the decision of Vice President Watson in Steve Fangridas v Australian Postal Corporation. 5 Counsel for the Applicant did not object to these principles being applied.

[33] Essentially, I agree with the submissions of the Respondent with respect to the genuineness of the resignation. In particular paragraph 24 of the Respondent’s submissions where it is stated, that applying the principles outlined by His Honour Vice President Watson;

“…a number of matters support the conclusion reached by the Respondent, and which ought to be reached in this proceeding, that the Applicant’s resignation was deliberate, conscious, genuine and intended to endure:

(a) The Applicant did not promptly retract her resignation or at all.

(b) The Applicant had, on a previous occasion in about June 2011, resigned ‘in the heat of the moment. She had later asked to withdraw her resignation and the Respondent had willingly consented to the withdrawal. The Applicant therefore knew, based on her previous experience, that if she had wanted to withdraw her resignation it was open to her to ask. She could not have concluded, based on her previous experience, that the Respondent would refuse to permit her to withdraw her resignation if that is what she wished to do.

(c) In the days following the meeting, the Respondent made inquiries to ascertain the genuineness of the resignation and to convey to the Applicant the opportunity to withdraw her resignation. This occurred by way of an approach by Dr Robertson-Smith to Ms Burke, a client of the Respondent and known to be close to the Applicant. The purpose of the approach was to ascertain what the Applicant’s concerns were and to convey to the Applicant, via Ms Burke if possible, that the Respondent would have back [the Applicant] as an employee if she so desired. The Respondent received no response from the Applicant following this approach to Ms Burke.

In an email to the partners of the Respondent dated 17 March 2012 at 4.17pm and titled “RE: Letter of Reply”, the Applicant wrote:

“At no time did I seek to withdraw my resignation and I have no intention of doing so, nevertheless the resignation is a true demonstration of constructive dismissal and will therefore be challenged.” [Footnotes removed]” 6

[34] I do consider those submissions to be consistent with the evidence and that the resignation was in fact a genuine one.

[35] The secondary issue is on the evidence, was it a constructive dismissal? In terms of the law to apply on that point the Respondent refers to a decision of Daffey v MSS Security Pty Ltd. 7 This decision was cited and relied upon by Deputy President Sams in Gunther & Ors v B & C Melouney T/A Easts Riverside Holiday Park.8

[36] I indicated to Counsel for both parties during proceedings that I would apply the principles in the decision of the Full Bench in Barkla v G4S Custodial Services Pty Ltd. 9 The law regarding constructive dismissal has been well established. In Barkla v G4S Custodial Services Pty Ltd10, the Full Bench outlined the approach to be taken in these matters. The Full Bench began with a discussion of the Full Bench decision in O’Meara v Stanley Works Pty Ltd11 (O’Meara). The decision of O’Meara discusses the decision of the Full Court of the Federal Court in Mohazab v Dick Smith Electronics Pty Ltd12 (Mohazab), the decision of Moore J in Rheinburger v Huxley Marketing Pty Limited13 (Rheinburger), the Full Bench of the then AIRC in Pawel v Advances Precast Pty Ltd14 (Pawel) and the Full Bench decision in ABB Engineering Construction Pty Ltd v Doumit15(ABB Engineering).

[37] In particular, a useful summary of the position of the law is provided in O’Meara at paragraph 23;

“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment”. Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 16 [Footnotes removed]

[38] The Applicant alleges that the conduct of the Respondent that forced her to resign occurred at the meeting on 1 March 2012. It is made out in the Applicant’s statement at paragraph 23 and in the Applicant’s submissions in paragraph 8. There was nothing presented at hearing that changed this position.

[39] Having considered the evidence, I am of the view that the arrangement of the meeting on 1 March 2012 by the Respondent was not handled at all well. There should have been some anticipation that the Applicant would be upset and agitated. A support person should have been offered and there should have been a realisation that being, in effect, sat down in front of what may well have been seen as a “wall of partners” would be intimidating in nature. However, I do not accept that the partners were willful in this regard and, rather, misguided in their approach. The HR Manager’s evidence, which I accept, was that she did not know that the meeting was going to issue even a warning in the circumstances of that meeting.

[40] While I am not convinced that the partners were clear on their intent to issue a warning, there is no evidence to support the notion that the 1 March 2012 meeting was an action on the part of the employer designed to bring the employment relationship to an end. Raising the issue of serious misconduct and indicating to the Applicant that options were being considered would most certainly have enlivened in the Applicant the idea that termination was one of those options. It would be trite to suggest otherwise. However, on the evidence, termination of employment was not threatened and the Applicant’s resignation was not sought. There was no threat to impose, as put by the Respondent, oppressive or repugnant conditions upon the Applicant.

[41] An employer simply raising with an employee an allegation of misconduct is not of itself a basis for an employee to assume, in my view, that resignation is the only option that is available. While I accept the submissions of Counsel for the Applicant that other factors do come into play and that the meeting is not the only event that should be considered, (there was the previous warning about the unacceptability of Facebook posts and the warning that further postings would not be tolerated) I note that it was not relied on by the Applicant in her statement as a factor in her decision to offer her resignation.

[42] I have previously stated that I do not consider that the evidence supports the view that the actual behaviour of Dr Robertson-Smith and Dr McInnes was aggressive and intimidating, nor the behaviours of others present at the meeting. The Respondent was not aware of the ill health of the Applicant’s uncle which would certainly have been a consideration for the Applicant and may have increased her agitation and distress. I have to view the evidence objectively and as a whole and, in my view, it cannot be said in the circumstances of this matter that the Applicant had no effective or real choice but to resign her employment. I agree with the submissions at Respondent and I restate them as follows;

‘The conduct of the parties and the nature of the relationships to that point were such that a range of reasonable and realistic options remained available to the Applicant and the decision to tender a resignation, at least at that point, was hers.” 17

[43] I do not consider that the action of the Respondent in conducting the 1 March 2012 meeting or in any other conduct was intended to bring the employment relationship to and end. It follows that the Applicant was not dismissed and lacks jurisdiction to lodge an application under section 394 of the Act.

[44] An Order [PR527682] dismissing the application will issue with this decision.

COMMISSIONER

Appearances:

S Gladman of Counsel for the Applicant

C Currie of Counsel for the Respondent

Hearing details:

2012
Melbourne
July 27

1 See s.394 of the Fair Work Act 2009

2 Witness Statement of Ms Jacqueline McGregor, [27] - [29]

3 See witness statement of Dr G. Robertson-Smith, [20]

4 Witness Statement of Dr G. Robertson-Smith, [28]

5 [2008] AIRC 194