[2013] FWC 4163 [Note: An appeal pursuant to s.604 (C2013/6008) was lodged against this decision - refer to Full Bench decision dated 13 September 2013 [[2014] FWCFB 613] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Debbie De Laps
v
Victorian Association for the Teaching of English Inc
(U2013/433)

COMMISSIONER RYAN

MELBOURNE, 26 AUGUST 2013

Termination of employment - jurisdiction (voluntary resignation) - forced to resign - reasonableness of employee response - options other than resignation.

[1] The Applicant, Ms Debbie de Laps was employed by VATE as its Executive Officer since 2004.

[2] On 14 December 2012 Ms de Laps wrote a letter to the President of the Council of VATE in which Ms de Laps gave 6 weeks’ notice of her intention to retire from her position as Executive Officer. The termination of the employment relationship ended on 25 January 2013 due to the effluxion of the 6 week notice period.

[3] On 15 February 2013 Ms de Laps filed an application for an Unfair Dismissal Remedy. Ms de Laps asserted that she “resigned, in circumstances giving rise to a constructive dismissal of her employment by” VATE.

[4] VATE filed a Form F3 on 28 February 2013 in which it raised a jurisdictional objection to the application as follows:

“The Respondent objects to the Application for Unfair Dismissal Remedy and seeks the dismissal of the application on the jurisdictional ground that the Applicant was not dismissed and the termination of the Applicant's employment arose out of the Applicant's own initiative and not on the initiative of the Respondent.

The Applicant initiated the termination of her employment by advising the Respondent of her resignation on 14 December 2012.”

[5] A Notice of Listing and Directions were issued on 2 April 2013 in which the matter was listed for hearing in relation to both the jurisdictional challenge and the merits application over 3 days in early June 2013. The Directions required Ms de Laps to file and serve the material she wished to rely on by 22 April 2013. This material was filed on 23 and 26 April 2013 and was quite voluminous. On 24 April 2013 VATE sought that the matter not proceed as planned but rather that the jurisdictional objection be dealt with separately.

[6] The matter of the jurisdictional objection by VATE was then listed for hearing on 21 May 2013 with VATE limiting its filed material to the jurisdictional issue.

[7] At the hearing on 21 May 2013 Ms de Laps gave evidence on her own behalf. Ms de Laps also adopted as her evidence the contents of her witness statement filed in the matter, Exhibit A5. This evidence included all of the evidence that Ms de Laps relied on in relation to the merits of her substantive application as well as in relation to the jurisdictional issue. Ms de Laps was cross-examined in relation to her decision to retire. Ms de Laps also tendered 4 statutory declarations made by persons who were supporting Ms de Laps application. None of the 4 persons were called to give evidence.

[8] No evidence was led by VATE.

Evidence of Ms de Laps

[9] Ms de Laps evidence comprised both her witness statement, which she adopted as her evidence and additional oral evidence.

[10] The witness statement, Exhibit A5, comprised 222 paragraphs and 63 attachments. Whilst there is much in the evidence of Ms de Laps which goes to the merits of her application the witness statement does include the evidence of Ms de Laps upon which she relies to establish the course of conduct of the employer which forced her to end the employment relationship.

[11] Ms de Laps’ evidence at paras 13 to 22 of Exhibit A5 includes an account of events which led her to suffer a workplace illness or injury which was caused by a combination of events. Firstly, the conduct of Mr Terry Hayes, the Chairperson of the Conference Committee for the 2011 VATE national conference, in or about April 2011 where he displayed “an arrogant manner towards my staff, including intimidating, harassing and bullying them”. Secondly, the conduct of Mr Hayes in January 2012 in relation to a requisition by members for a special meeting of all members of VATE to consider the performance of Ms de Laps in the context of organising the 2011 national conference. Thirdly, the conduct of signatories to the requisition in June 2012 who, in response to the Councils’ refusal of the requisition, wrote to VATE in terms which “were generally vitriolic, aggressive and nasty towards VATE and the Council”. Ms de Laps was “quite upset by the nature and quantity of these emails”. Ms de Laps “formed a view that Mr Hayes was attempting to have me removed as the Executive Officer of VATE and had developed some groundswell of support amongst VATE's members to achieve this objective.” Ms de Laps “was very upset by this” and “began to have trouble sleeping, frequently waking at 2:00am or 3:00am with heart palpitations.”

[12] Ms de Laps’ evidence at paras 22 to 29 of Exhibit A5 identifies that she was on WorkCover approved leave for the period from 2 July 2012 until 29 July 2012 and was ready to return to work on 9 August 2012. Ms de Laps described the grounds for the WorkCover claim as “that I had been bullied and harassed by Mr Hayes and the signatories to the requisition”.

[13] The course of conduct upon which Ms de Laps relies to assert that she was forced to resign (retire) only commences at the time that VATE initiated actions in relation to the return to work.

[14] On 9 August 2012 Ms White, the Acting Treasurer of the Council of VATE, telephoned Ms de Laps and informed her that at the Council meeting on 8 August 2012, she (Ms White), Ms Wagner (the Acting President of the Council of VATE) and Mr Huggard (the Vice-President of the Council of VATE) had told the Council that they had employed a Consultant, Mr Martin Nally (Mr Nally), to settle a grievance between Mr Hayes and the Council. The Council had also decided to appoint Mr Nally to advise on the development of a Return to Work (RTW) plan for Ms de Laps. 1

[15] Ms de Laps was very unhappy about Mr Nally being engaged to deal with both the grievance between Mr Hayes and the Council and her RTW plan as she regarded this as a conflict of interest because her WorkCover claim, which had led to the need for a RTW plan, arose out of bullying and intimidating behaviour that Ms de Laps had experienced from Mr Hayes. Ms de Laps had a preferred RTW coordinator of her own choosing which she wanted VATE to use. On 13 August 2012, Ms de Laps attended her doctor as she was upset about the appointment of Mr Nally by the Council. The doctor recommended that Ms de Laps take sick leave until 20 August 2012

[16] Notwithstanding being on sick leave Ms de Laps did attend a meeting on 14 August with Mr Nally. Ms de Laps described the meeting as follows:

“37. The meeting lasted for one hour. My RTW plan was not mentioned at all during the meeting until I raised it during the last few minutes. Rather, during the meeting, Mr Nally's sole focus was on discussing his investigation with Mr Hayes into what he referred to as "my allegations of bullying". A number of times during the meeting, I asked Mr Nally words to the effect that "How will any of this help me return to work next week?". Mr Nally would reply that dealing with Mr Hayes would help me in my plans to return to work. I told Mr Nally words to the effect that I did not agree with this.

38. In my telephone discussion with Mr Nally where we arranged the meeting, I had specifically said to him that I had not wanted to talk about Mr Hayes at all, as my claim of bullying had been accepted and I had returned to work and I wanted to move on from that experience, which had upset me greatly. I had also told this to Ms Wagner and Ms White prior to meeting with Mr Nally in our telephone conversations on 9 and 10 August 2012.”

[17] On Sunday 26 August 2012 Ms White, the Acting Treasurer of the Council of VATE telephoned Ms de Laps asking her about the management of the current elections for Council. Ms de Laps later on Sunday 26 August emailed Ms White to advise her that Ms de Laps “would take care of the issue” when she attended the office on Tuesday.

[18] On Monday 27 August Ms White telephoned Ms de Laps and Ms de Laps evidence is as follows:

“53. The next day, on 27 August 2012, Ms White called me and told me that she was offended by my email the previous day. Ms White told me that I was "pushing back" against her when she was trying to help me and get a good outcome. Ms White told me that she was trying to make "all these people accountable". I took this to mean Mr Hayes and the other signatories to the requisition. Ms White told me that I had to go along with her to achieve that outcome and that I "owed her" as she had been a witness for me in my WorkCover claim and it was my turn to do her a favour. I told Ms White that I did not want to play these games and that I objected to her implying that my WorkCover claim had been in some way dishonest and manufactured. I told Ms White that I resented the way in which my RTW plan had been handled, particularly being forced to deal with Mr Nally who, in my view, was primarily focused on dealing with the issue between Mr Hayes and the Council and was not supporting me in my return to work.”

[19] On 29 August Ms de Laps met with Ms Wagner and Mr Nally in a 2 hour meeting which did not address Ms de Laps return to work but which was focussed on the issues raised by Mr Hayes. Ms de Laps evidence was that questions from Mr Nally “were frequently asked of me in an aggressive and berating tone.” Mr Nally also informed Ms de Laps “that part of his investigation was to establish whether my allegations of bullying against Mr Hayes were "vexatious".” Ms de Laps was distressed by the questioning. Ms de Laps evidence was that Ms Wagner response to Ms de Laps distress was to roll her eyes and sigh in frustration and that at no stage did Ms Wagner “attempt to intervene in Mr Nally's questioning or call a halt to the meeting”. Notes taken of the meeting by Ms de Laps support person (Ms Caruso) support the evidence of Ms de Laps. 2 Mr Nally reported to the Council of VATE on 12 September 2012 and the extract of Minutes of the Council meeting present a view of the meeting of 29 August which is very different from that painted by both Ms de Laps and Ms Caruso. I also note the contents of para 16 of Exhibit A4 where Mr Thompson recalls Mr Nally’s report to the Council meeting.

[20] Ms Caruso’s notes of the meeting of 29 August 2012 record the following exchange between DD (Ms de Laps) and MN (Mr Nally):

“DD: the issue that concerns me now is that I have lost confidence in the people who call themselves the exec.

There needs to be an acknowledgement in council that

Processes have been trampled on

There needs to be a pledge that this will not happen again

People were hurt by this

MN: What if that does not happen

Is that non negotiable

DD: It is not negotiable for me”

[21] In early September 2012 Ms de Laps, being distressed about the way in which her RTW plan was being handled by the Council of VATE, instructed her solicitor to write to VATE expressing Ms de Laps concerns. The solicitor did this on 7 September 2012.

[22] On 11 September while Ms White was in the VATE offices Ms de Laps asked to speak to Ms White.

“I told Ms White that I did not intend to involve lawyers beyond that one letter, but I simply wanted to make the Council listen to me and talk to me about my concerns. I asked Ms White whether she believed that my WorkCover claim had been vexatious as had been suggested by Mr Nally. Ms White refused to answer. I asked her three times, and each time she ignored the question. I interpreted this as Ms White having the view that she thought my WorkCover claim was vexatious. Ms White then told me that she had done what I had asked and listened to me and that she had nothing to say. She left without further discussion.”  3

[23] On 25 September 2012 Ms Wagner requested that Ms de Laps meet with her and
Ms White on 27 September 2012 “to touch base with your return to the office” (Attachment D24 to Exhibit A5) Ms de Laps was accompanied by Mr Tony Thompson as her support person. The evidence of Ms de Laps and Mr Thompson (Exhibit A4), describe a meeting, a significant of which, was not merely touching base but was an exercise in which Ms White, the Acting Treasurer of VATE, made allegations and accusations against Ms de laps in relation to use of a mobile phone, hours of work, WorkCover and travel expenses and sought responses from Ms de Laps in relation to these issues.

[24] At paras 87 to 96 of Exhibit A5 Ms de Laps raises a number of issues under the heading “Continual undermining of Ms de Laps as Executive Officer: September to November 2012”.

[25] At a meeting of the newly elected Council of VATE which was held on17 October 2012, Ms Wagner as President reported on the meeting between Ms Wagner, Ms White and Ms de Laps on 27 September 2012. Ms de Laps objected to the report on the basis that it “was inaccurate and did not properly reflect what had occurred at the meeting”.

“96. In response to my request, Brenton Doecke (Mr Doecke), the newly elected Treasurer, told the Council that the President had the right to submit a report as she saw fit. Further, upon me asking a question regarding the decision at the meeting of Council on 12 September 2012 not to increase membership fees for 2013, Mr Doecke stated that I was merely a staff member and not entitled to speak or put a proposal at a Council meeting. I was humiliated and shocked by this comment by Mr Doecke. No one intervened as Mr Doecke was talking to me.”

[26] On the morning after the Council meeting Ms de Laps who was “upset about the Council meeting the previous evening” (para 97 of Exhibit A5) went to see her treating physician who declared her unfit for work from 18 October 2012 until 26 October 2012.

[27] Whilst it is not clear from the evidence it appears that Ms de Laps only returned to work on 7 November 2012 4 and on the evening of the 7 November 2012 Ms de Laps attended the first meeting of the newly elected Executive Committee.
Ms de Laps’ notes of the meeting were Attachment DL-36 to Exhibit A5.

[28] At paras 100 to 110 of Exhibit A5 Ms de Laps details what happened at the Executive Meeting. After the meeting Mr Huggard sent an email to all Council members in which he said "at Debbie's suggestion, no Executive minutes would be circulated". Ms de Laps considered this comment to be a misrepresentation of what occurred at the Executive Meeting and she sought that Mr Huggard correct the misrepresentation which he declined to do. Ms de Laps subsequently addressed this issue in her report to the Council meeting on 21 November 2012.

[29] On 21 November 2012 Ms de Laps attended the Council meeting accompanied by her support person, Ms Janny McCurry. Ms de Laps describes her involvement in the Council meeting as follows:

“114. Very early on in the meeting, Ms Mason moved to have me dismissed from the meeting on the grounds of "misconduct and failure to follow all of Council directives". No details were given regarding the nature of the misconduct and, despite my request, Ms Mason declined to give me any details while I was present in the room. I was extremely upset by the conduct of Ms Mason and it was very embarrassing and humiliating for me. Prior to the events described in this witness statement, I had never been asked by VATE Council to leave a Council meeting. The directive and Ms Mason's motion was unexpected and did not give me any opportunity to say anything before I left the room. I was humiliated, shocked and distraught by what had occurred.” 5

[30] At paras 117 - 119 Ms de Laps describes events after that Council meeting:

“117. The following day, on 22 November 2012, three members of the Council

resigned.

118. For the three weeks after the allegations against me were made at the Council meeting on 21 November 2012, I received no further communication from the VATE Council. I did not have any idea what the nature of the misconduct alleged against me was. I felt completely isolated by the Council and very distressed at the way I had been treated.

119. On 29 and 30 November 2012, I managed and oversaw the running of VATE's annual State conference, which was attended by 850 people. In my opinion, the conference was a success. At the conference, no member of Council approached me or spoke to me. VATE's annual State conference is the association's major annual event. No concerns about my conduct or performance in relation to this conference was articulated to me at any stage.”

[31] On 10 December 2012 Ms Wagner wrote to Ms de Laps in the following terms:

“The purpose of this letter is to invite you to a formal meeting to discuss your performance and conduct during your employment at VATE.

The discussion will be held on a confidential and without prejudice basis.

We propose to hold the meeting on Wednesday 12th December at 5pm at the VATE Offices in Collingwood.

The following persons, Monika Wagner, President, and Ross Huggard, Vice-President, will be present on behalf of VATE.

You may bring a support person if you wish. Please note that the role of the support person is to provide you with emotional support. The support person is not to act as your advocate and should not speak on your behalf. In the event a support person attends the meeting with you, please (provide us with your support person's details prior to the meeting. Please let us know whether the proposed date, time and venue are suitable to you.

Should you have any questions, please contact me.”

[32] On the same day Ms de Laps went to see her treating doctor who certified her unfit for work on 11 and 12 December 2012. At 4.45pm on the same day Ms de Laps emailed Ms Wagner, cc’d to Mr Huggard as follows:

“Monika

I regret that I am unavailable tomorrow evening due to a prior commitment. I will be in touch again regarding your correspondence.

Debra”

[33] Ms Wagner replied at 10.58pm the same day as follows:

“Our written request to attend the meeting provided you with sufficient notice to make arrangements to attend, particularly as the time of the proposed meeting is within your ordinary hours of work.

Accordingly, your response is unreasonable and we require you to attend.

Please advise us of the support person (if any) you wish to bring to the meeting. We

require this information tomorrow morning.

Failure to respond appropriately may be deemed as a failure by you to follow a lawful

and reasonable direction by your employer.”

[34] On 12 December 2012 Ms de Laps wrote to Ms Wagner in reply to the letter of 10 December 2012

“Regarding your emails over the past two days, I make the following observations:

Your letter dated 10th December was received by me late on Monday when I returned from a medical appointment.

The letter 'invites' me to a 'proposed' meeting at a time and date which was not reasonably possible for me to attend. I informed you of this fact as soon as possible, as your letter invited me to do in its penultimate paragraph.

I am therefore somewhat surprised at your legally formulated threat which quite wrongly but deliberately seeks to characterise and interpret this as a 'failure to follow a lawful direction' by you as my employer. Such language designed, so it would seem, to intimidate me is neither helpful nor appropriate.

The letter indicates that you wish to discuss my 'performance and conduct during [my] employment at VATE' which I note covers a significant number of years. Given also the recent unanswered correspondence sent on my behalf seeking details of my leave entitlements and full details of the allegations of misconduct now made, I believe it is quite reasonable for me to ask you to provide in advance of the proposed meeting an outline of the specific issues you wish to discuss in order that I can be properly prepared.

I am quite willing to attend an appropriate meeting and co-operate fully with an 'annual review of performance' as provided by my contract notwithstanding that there has not previously been any such formal review since 2008. I have noted however the urgency you now attach to conducting this meeting shortly prior to the end of this calendar year. In view of my existing appointments and duties combined with the impending vacation period I suggest that this could be more reasonably arranged in the new year.

I would in any event be grateful if you could suggest some alternative times during working hours to conduct the review and also confirm that you will provide me with an agenda prior to the meeting, setting out the items or topics you wish to address. I will expect reasonable notice of such further appointed time to enable me to arrange for a support person to be present. The name of the person will be provided before the meeting as requested.

I agree that the meeting should be treated as confidential however please note·that I do not agree for it to be held on a 'without prejudice basis' as there is on my understanding simply no valid reason or purpose for this. On the contrary, assuming the review is to be conducted in good faith, transparency of the process must of course be assured.

As you will be aware there remain some unanswered concerns of mine regarding certain issues which flowed from my resumption of employment after my illness which was, as you know, the subject of a Work Cover 'bullying' claim. These concerns have been previously expressed to you in writing on a number of occasions. I trust therefore that these issues will all be properly addressed by you in the near future and that the timing of this annual review is not, as it would now appear, a response to those genuine complaints and the exercising of my rights as an employee, including those under the Fair Work Act.

Given my complaints as expressed, including relationship issues which have arisen only since the election of the new Council, from which I sense a degree of hostility, I query whether natural justice can be adequately afforded to me in the review process which you personally seek to conduct without any opportunity being allowed for advocacy on my behalf. I propose therefore that the review should be conducted by an appropriately qualified and independent consultant to ensure that the process is unbiased and conducted with the procedural and substantive fairness that should underpin such reviews. I have a genuine and reasonable concern that the flow of recent communications I have received from you, and the negative attitudes freely demonstrated by other members of the new Council, suggest that there is a potential conflict in you personally conducting the review of my performance in such circumstances.

Take Notice therefore that I am willing comply with any lawful and reasonable direction by my employer including to co-operate fully in respect of the conduct of an annual performance review and will continue to perform my duties to the best of my ability and to serve the interest of the·organisation as and when required. I do however object to any treatment that is either unlawful, patently unfair, contrary to natural justice or is inconsistent with my statutory or contractual rights.

I look forward to your response.”

[35] Ms Wagner replied to Ms de Laps in writing on 13 December 2012 advising Ms de Laps that the meeting would be held on Monday 17 December at 2.30pm and provided an agenda for the meeting which contained a list of 22 specific allegations against Ms de Laps which were set out in 15 paragraphs. The letter also contained the following:

“In any event we are happy to work with you in the manner you have suggested and attach an agenda for you. Please be prepared to discuss all the matters in the agenda.

We look forward to seeing you and your support person at that time.

VATE Council is offering you every opportunity to meet and discuss the issues under consideration. However, we must note that your failure to attend could result in decisions being made based on the material currently available to Council.

We hope you take the opportunity to be heard as you state in your letter.”

[36] Ms de Laps gave evidence as follows:

“190. After reviewing the 13 December 2012 letter and the attached meeting agenda, I was very distressed and upset. I regarded the allegations of misconduct and poor performance as either being issues that had previously been satisfactorily dealt with, trivial or unsubstantiated. I regarded the allegations against me as a continuation of the way I had been treated by the new Council, particularly Ms White and Ms Wagner. It was clear to me that the new Council no longer wanted me to continue as the Executive Officer of VATE and no longer had any confidence in my ability to perform the role satisfactorily. I believed that I no longer had the respect or trust of the Council, particularly Ms Wagner, Ms White, Mr Huggard, Mr Doecke and Ms Mason. This had been a pattern of conduct that I had seen from the time that these individuals had joined the Council, with the exception of Mr Huggard, who had been on the Council for a number of years prior.

191. After much deliberation with my family and friends, I reluctantly decided that I had no option but to retire.

192. On 14 December 2012, I wrote a letter to the President of the Council. In this letter I refuted the allegations against me, and gave six weeks' notice of my intention to retire from 19 December 2012.”  6

[37] In her oral evidence before the Commission Ms de Laps, in examination in chief, said:

“PN54. Mr Feldman: You'll see at paragraph 191 you say, "After much deliberation with my family and friends, I reluctantly decided that I had no option but to retire." Can you please tell the Commissioner what you mean by "I had no option but to retire"?---

Ms de Laps: Yes. I felt that I had been - that the outcome of my time at VATE was going to be that I would be terminated one way or another and I formed that view because over past months the people mentioned in paragraph 190 had been deliberately trying to undermine me, and I felt that they were - it was a witch hunt. They were trying to get rid of me. I was incredibly stressed and unwell. I felt like I'd been hanging on by my fingertips for months and when I got that letter on 13 December, it felt to me like they had stomped on my hands and I had to let go. I slipped and let go. So, I was certain that I was going to be sacked.

PN108. Mr Millar: Now, was this letter something that you spoke to your lawyer about drafting?---

Ms de Laps: I drafted it first and then showed it to my lawyer.

PN63. At the time I received that letter, as I said, I was devastated to see a huge list of accusations against me that had never ever previously arisen, particularly given that the people who were raising these allegations had never worked with me and many of the allegations pertained to a period prior to them joining the counsel. To me it just looked like a further example of the way that they were circling around me, trying to get me to leave.

PN67. You could, if you had chosen, have attended that meeting. You'd agree with that?---If I hadn't been so stressed and if I hadn't already provided answers to some of those matters previously, yes, I probably could have attended that meeting, but because I had previously discussed a number of those issues and believed that I had completely exonerated myself in relation to those matters, I was totally - "devastated" is the only word I can use to see them being tabled now as allegations of poor performance or misconduct. They had never been badged as that to me previously.

PN68. But you felt if you put your responses, you may well be exonerated from the concerns that were raised in the letter?---I didn't believe that that was an option. I believed that there was only two options; that I would either be terminated or put on a performance management contract.

PN71. And you knew it was important that you attend that meeting if your employment was to be ongoing?---What I believed was that the decision had already been made and that there was no point in my attending the meeting.

PN76. I believe that if there had been an independent mediator or person conducting the meeting with me, that it would have been possible to exonerate myself; but I believed I'd already exonerated myself on several accounts and that those explanations had been not accepted even though I'd been told they had been accepted at the time. So the fact that they had reappeared on this agenda, made me believe that nothing I could say would exonerate me.

PN93. You decided to resign instead of attending the meeting on 17 December. That's right, isn't it?---I believed that the termination was the inevitable outcome.

PN96. I chose to use the word "retire" because, in the end, I wanted to retain some shred of dignity and to be able to say to all of my friends and professional associates when they learned tat I'd suddenly disappeared from VATE, that I had decided to retire rather than that I'd resigned or that I'd been sacked.

PN101. You've referred elsewhere in your statement to going and seeing a lawyer. I think it was the following week. I don't want to know anything about your discussions with the lawyer, but were you in discussions with a lawyer prior to you submitting the resignation?---I was in discussion with Mr Cornish prior to that, but that was not who I spoke to the following week.

PN102. So before putting in your resignation - Mr Cornish is your lawyer?---Yes.

PN103. Before putting in the resignation, you had spoken to him?---I had.”

Applicant’s Submissions

[38] The Applicant’s submissions filed on 26 April 2013 state in part:

“99. As the language of s.386(1)(b) indicates, it is not necessary to identify a single act which forces the employee to resign. Rather, it is sufficient to establish a "course of conduct" on behalf of the employer. This is consistent with the principles surrounding the doctrine of repudiation, where it has been held that repudiation may be evidenced by a single act or by an accumulation of conduct in circumstances where no individual act on its own constitutes a repudiation.

100. In this case, it is alleged that in the circumstances, it was an accumulation of the conduct of the VATE Council which had the effect that Ms de Laps had no real choice, or in Ms de Laps's words "no option" but to resign. This conduct was born out of a change in the composition of the VATE Council form (sic) one which was very supportive and worked well with Ms de Laps for a period often years, to a Council that was, in the majority, supportive of Mr Hayes. This was in circumstances where Ms de Laps had made a WorkCover complaint by reason of Mr Hayes conduct, and the former Council had relinquished Mr Hayes of organizational responsibility in VATE. This led to a dispute between Mr Hayes and the former VATE Council and Ms de Laps.

101. The new Council, led by Ms Wagner, Ms White and Mr Doecke, supported Mr Hayes and displayed great hostility and antagonism towards Ms de Laps. In summary, this conduct included:

(a) Engaging Mr Nally to settle the grievance between Council and Mr Hayes and also to facilitate Ms de Laps’ safe return to work. This was, at it highest, a careless and incompetent appointment that exposed Ms de Laps to further involvement in Council's dealing with Mr Hayes in circumstances where she was returning to work following a bullying claim (which was accepted) which had caused Ms de Laps great distress. Ms de Laps made it clear on a number of occasions that she did not want to become involved in any mediation or reconciliation between Council and Mr Hayes;

(b) The inappropriateness of the appointment of Mr Nally was confirmed in his meetings with Ms de Laps on 14 and 29 August 2012. These meetings were ostensibly about discussing and managing Ms de Laps' return to work. Instead they focused on Mr Hayes's grievance with VATE, questioned the bona fides of Ms de Laps complaint against Mr Hayes, and were generally conducted in a hostile and accusatory way which led to great distress to Ms de Laps. Further, VATE refused to even discuss replacing Mr Nally as Ms de Laps return to work provider after Ms de Laps expressed to Council her distress at the progress of her return to work program. This conduct is particularly egregious given that Ms de Laps was in a vulnerable state having just returned to work following depression and anxiety, borne out of the very issues that Mr Nally sought to explore with Ms de Laps in her RTW;

(c) Ms Wagner and Ms White, in a meeting with Ms de Laps on 27 September 2012, questioning Ms de Laps working hours arrangements with VATE in circumstances where this had already been agreed upon by VATE and never questioned for the 10 years since Ms de Laps had been performing the role of Executive Officer. There was also an accusation that Ms de Laps was not in fact working from home in according with the RWT plan when Ms de Laps was not in the office. This was effectively accusing Ms de Laps of misleading behaviour and gross misconduct, without any basis. Again, this took place when Ms de Laps was vulnerable by reason of her recent depression and anxiety, and her taking further sick leave by reason of the way she was being treated by VATE;

(d) Continually undermining the authority of Ms de Laps as the Executive Officer;

(e) Questioning, at an Executive Committee meeting on 7 November 2012, whether Ms de Laps properly briefed other VATE staff members while she was away on sick leave. This was in circumstances where Ms de Laps had provided instructions to staff

28 members and bad also been discouraged by Council to perform duties while on sick leave;

(f) Council dismissing Ms de Laps from the Council meeting on 21 November 2012 on the grounds of misconduct, without any prior warning that this was an issue. This was a humiliating way in which to treat an Executive Officer of 10 years standing without any previous history of misconduct or poor performance. After this meeting, many Council meetings made disparaging remarks about Ms de Laps' "mental illness". Council knew Ms de Laps was trying to recover from the depression and anxiety that led to her WorkCover claim and sick leave, and yet subjected her to this humiliation, and effectively commenced performance managing her; and

(g) Sending Ms de Laps a letter on 13 December 2012 (three weeks after being thrown out of the November Council meeting) outlining 19 allegations of misconduct and poor performance and giving Ms de Laps effectively one business day to prepare for this meeting. As will be discussed below, these allegations were either frivolous, bad already been dealt with, or were totally unsubstantiated.

102. By reason of the above, the Council, by a course of conduct designed to undermine, distress and humiliate Ms de Laps left her with no choice but to resign. In short, VATE's conduct forced Ms de Laps to resign for the purposes of s.386(1)(b).”

[footnotes omitted]

Respondent’s Submission

[39] The Respondent’s submissions filed 17 May 2013 state in part:

“12. It is obvious that as at the date of resignation, there were live issues concerning the Applicant's performance and conduct in her role. The Respondent differs from the account given by the Applicant in her material in many respects - the Respondent was taking measured and reasonable steps to address serious issues concerning the Applicant's conduct and performance. But the meeting which was intended to obtain the Applicant's response had not occurred- it was set for Monday 17 December 2012, (after the Respondent had originally invited the Applicant to a meeting on 12 December 2012 which the Applicant said she could not attend because of a "prior commitment" and later, after being queried by the Respondent, provided a medical certificate for her absence).with a detailed meeting agenda having been provided. The Applicant chose to resign instead of attending that meeting. She was perfectly entitled to resign, but she cannot have it both ways: by choosing to resign she prevented the performance issues being pursued and determined, and she cannot now claim the employer acted to terminate her employment.

13. Having made her decision "reluctantly" and after "much deliberation", she presumably decided that resigning before the scheduled meeting was the better course. It was a voluntary act. She is in no position now to complain that the performance and conduct concerns did not justify termination of employment when it was her decision, and not the employer's, to bring that termination about.

14. On a proper analysis, this is not a case of an employee being forced to resign, but instead an employee who chose to resign, and then, much later, changed her mind. That much is clear from paragraph 216, where the Applicant refers to having "deeply regretted having retired". She refers to having "considered withdrawing my retirement notice", although clearly she did not, at any time, purport to do so. Her subsequent regrets do not bring about a retrospective change in the free nature of the decision made by her to resign from her employment.

15. The free nature of that decision to resign is emphasised from the Applicant's conduct after the resignation was submitted. She wanted to agree on the way her departure was communicated, and to have an opportunity to meet with the staff (see DL-52 and DL-55). As detailed in paragraphs 194 to 197 of her witness statement, the Applicant decided not to sign a deed which had been proffered by the Respondent. It was a reasoned decision. This was not a case of an employee who simply did as she was requested by the employer, as a result of being overborne or intimidated by the employer's actions. She was capable of making her own decisions, without being forced into taking steps which were detrimental to her interests. Moreover, it is clear that the Applicant was receiving legal advice, at least from 19 December 2012 (see paragraph 201), yet there was no suggestion of the Applicant seeking to withdraw her resignation, either in the immediate aftermath of resignation or in the six week notice period through to 25 January 2013. It was a considered and deliberate action of the Applicant in deciding to resign from her employment.

16. It follows that at no point did the employer's actions have the actual or intended effect of bringing about the termination of employment, which was voluntarily decided upon by the Applicant.”

The Case Law

[40] Both parties took me to relevant case law. Ms de Laps relied primarily upon the decision of Deegan C in Davidson v Commonwealth of Australia 7, where the Commissioner provided a useful summary of the case law. VATE drew my attention to a number of relevant authorities and in particular the decision of Bissett C in Ashton v Consumer Law Action Centre.8

[41] VATE also drew my at attention to the decision of DP Sams in Gunther and Daly v Melouney T/a Easts Riverside Holiday Park  9 where the Deputy President cited extensively from a decision of Roberts C in Daffey v MSS Security P/L10.

[42] In Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) a Full Court of the Industrial Relations Court of Australia said:

“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.”

and

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”  11

[43] In Pawel v Australian Industrial Relations Commission (Pawel) Dowsett J of the Federal Court said:

“When an employee resigns, he or she has usually reached a decision, taking into account many factors. Some may be entirely personal and unrelated to any "misconduct" on the part of the employer........ That dissatisfaction will often have been arguably caused (in part or in whole) by a decision or decisions of the employer. If "initiative" implies only causation, it will usually be arguable that the employer has "initiated" the termination............ I do not accept that any employee whose decision to resign was, to some extent, motivated by action or inaction on the part of the employer, may initiate proceedings pursuant to subs 170CE(1). Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer.” 12

[44] In P O’Meara v Stanley Works Pty Ltd (O’Meara), a Full Bench of the AIRC said:

“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.”  13

[45] A further relevant decision is that of a Full Bench of Fair Work Australia in Davidson v Commonwealth of Australia:

“[14]It was submitted by the Applicant, relying upon the decision in J. Searle v Moly Mines Limited, that in determining the issue of jurisdiction the Commissioner should not have considered the reasonableness of the Applicant’s response to the conduct of the Department, only the fact that the conduct lead to him leaving his employment. We consider that this submission involves a misunderstanding of the statutory requirement in s.386(1)(b) of the Act and what was decided in J. Searle v Moly Mines Limited. The inquiry as to whether the conduct of an employer has “forced” an employee to resign necessarily requires consideration as to the appropriateness of the employee’s response: whether the conduct of the employer left the employee with no reasonable choice but to resign.”  14

[46] Finally I note the recent decision of a Full Bench of the Fair Work Commission in Bruce v Fingal Glen P/L (in liq)  15, which said:

“[22] In relation to whether on “an objective analysis of the employer’s conduct” the late payment of wages and failure to pay superannuation “was of such a nature that resignation was the probable result”, we note that the Full Bench in O’Meara was drawing from Rheinberger. In that case Justice Moore said that:

‘However it is plain from these passages [in Mohazab]that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct’. 

[23] The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but “would, on any reasonable view, probably have that effect”. Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.”

Consideration

[47] I now need to determine whether there was conduct or a course of conduct by VATE which, judged objectively, was intended to bring the employment relationship to an end or had the probable result of bringing the employment relationship to an end. I also need to have regard to the response of Ms de Laps to the conduct of VATE and whether her decision to retire was because she was left with no reasonable choice but to retire/resign.

[48] I accept the evidence of Ms de Laps that various actions initiated by members of VATE led to Ms de Laps suffering stress and anxiety which led to Ms de Laps requiring time off work to recover from the stress and anxiety. However whilst various actions initiated by members of the Council led to Ms de Laps suffering further stress the cause of the further stress cannot solely be laid at the feet of VATE as part of the cause of the stress and anxiety suffered by Ms de Laps was caused by the conduct of Ms de Laps.

[49] The actions of Ms White, Ms Wagner and Mr Huggard in employing Mr Nally, to settle a grievance between Mr Hayes and the Council of VATE, combined with the action of the Council of VATE in deciding to appoint Mr Nally to advise on the development of a RTW plan for Ms de Laps was cited by Ms de Laps as part of the conduct that forced her to retire/resign.

[50] In written submissions filed with the Commission Ms de Laps complains that the employment of Mr Nally to settle a grievance between Mr Hayes and the Council of VATE was “at its highest, a careless and incompetent appointment that exposed Ms de Laps to further involvement in Council's dealing with Mr Hayes in circumstances where she was returning to work following a bullying claim (which was accepted) which had caused Ms de Laps great distress.” There appears to be no justification for this assertion. Mr Hayes had a grievance with the Council of VATE over the refusal of the Council to put a matter to the members of VATE through the requisition process. VATE were entitled to employ someone to assist in resolving this grievance.

[51] I am of the view that the conduct of the Council of VATE in also appointing Mr Nally to assist in the RTW of Ms de Laps was highly inappropriate. It may have been possible for a single person to carry out the two separate roles without causing further stress to Ms de Laps but it certainly was not practical to do so. Mr Nally did not approach each task as a separate matter but rather conflated both matters together. There was clear conflict between the two specific roles Mr Nally agreed to perform for VATE. The evidence of Ms de Laps that Mr Nally also informed Ms de Laps “that part of his investigation was to establish whether my allegations of bullying against Mr Hayes were "vexatious". Given that Mr Nally was also engaged by VATE to assist Ms de Laps return to work after suffering a workplace injury through Mr Hayes intimidatory conduct the conflict of interest between Mr Nally’s two roles couldn’t have been clearer.

[52] Ms de Laps was advised of the appointment of Mr Nally on 9 August 2012. Ms de Laps spoke to Mr Nally after the 9 August 2012 and agreed to meet him on 14 August 2012. Ms de Laps attended her doctor on 13 August 2012 and was given a certificate of incapacity for the period 13 August 2012 to 20 August 2012. Once having been deemed unfit to work Ms de Laps was entitled to spend the period of incapacity away from work so that she could regain her capacity to work. Yet, despite being incapacitated for work Ms de Laps attended a meeting on 14 August 2012 with Mr Nally. After the meeting on 14 August 2012 Ms Wagner sent an email to Ms de Laps on 17 August 2012 concerning the RTW plan and Ms de Laps responded by email on 19 August 2012. Ms Wagner then replied to Ms de Laps email on 20 August 2012.

[53] Neither Mr Nally nor Ms Wagner should have had work related contact with Ms de Laps whilst she was incapacitated for work where the contact was part of the process of resolving a dispute between Mr Hayes and the Council of VATE. It would appear that Mr Nally and Ms Wagner acted improperly in that Ms de Laps had every right not to attend any meeting with Mr Nally or to engage with any member of the Council of VATE concerning the resolution of the dispute between Mr Hayes and the Council of VATE whilst she had a certificate of incapacity for work. I note however Ms de Laps that attended a meeting with Mr Nally and engaged by email with Ms Wagner. However it is clear that Ms de Laps attended a meeting with Mr Nally and Ms Wagner on the basis that it was a meeting only in regard to the RTW yet the meeting turned into a discussion about resolving the dispute between Mr Hayes and the Council of VATE.

[54] I accept the evidence of Ms de Laps and Ms Caruso concerning the meeting held on the 29 August 2012 that the attitude of Mr Nally and Ms Wagner was hostile towards Ms de Laps. Ms de Laps was very distressed by the conduct of Mr Nally and Ms Wagner at the meeting and this level of distress continued for some days.

[55] Ms de Laps made two appropriate responses to the meeting of 29 August 2012.

[56] Firstly, she contacted the WorkCover insurer who advised her “to apply for a conciliation with the Accident Compensation Conciliation Service (ACCS), as I needed to challenge the acceptance of only limited liability for compensation arising out of my WorkCover claim (that is, liability only until 29 July 2012).” Ms de Laps made the application for conciliation.

[57] Secondly, Ms de Laps sought advice from her solicitors and she instructed them to write to VATE, which they did on 7 September 2012 and which Ms de Laps emailed to the Council of VATE on 10 September 2012.

[58] Notwithstanding that Ms de Laps had formally communicated her concerns to the Council of VATE through her solicitors letter, Ms de Laps then on 11 September 2012 sought to engage in a conversation with Ms White on the reasons behind the letter. Not surprisingly Ms White did not engage with Ms de Laps but simply listened to her. Ms de Laps described the one sided conversation thus:

“I told Ms White that I did not intend to involve lawyers beyond that one letter, but I simply wanted to make the Council listen to me and talk to me about my concerns. I asked Ms White whether she believed that my WorkCover claim had been vexatious as had been suggested by Mr Nally. Ms White refused to answer. I asked her three times, and each time she ignored the question. I interpreted this as Ms White having the view that she thought my WorkCover claim was vexatious. Ms White then told me that she had done what I had asked and listened to me and that she had nothing to say. She left without further discussion.”

[59] The conclusions drawn by Ms de Laps concerning Ms White are quite unreasonable. One day after having received formal communication from Ms de Laps solicitor it would have been unusual for any member of the Council of VATE, let alone the Officers of the Council, to have engaged in conversations with Ms de Laps about the solicitors letter. This is especially so given that the Council of VATE was due to meet on 12 September 2012.

[60] It would have been more prudent for Ms de Laps to wait until after the Council of VATE had formally responded to her solicitors letter before attempting to engage in conversation with any member of the Council of VATE about the letter. It was prudent for Ms White not to respond to Ms de Laps and it is unreasonable for Ms de Laps to interpret Ms White’s silence in the way she did.

[61] Ms de Laps did not attend the Council meeting on 12 September 2012 as her doctor had restricted her hours of work and the 12 September 2012 was not one of the days that she was working.

[62] On 27 September 2012 Ms de Laps met with Ms Wagner and Ms White. This was a work day for Ms de Laps and she was fit to work on that day. Ms de Laps in her witness statement paints a very negative picture of this meeting and of the conduct of Ms White in particular. Having regard to both the evidence of Ms de Laps and Mr Thompson (exhibit A4) who accompanied Ms de Laps to the meeting as her support person it is clear that the questioning of Ms de Laps about her use of a phone and other matters was quite robust. However even on Ms de Laps and Mr Thompson’s evidence it is clear that each issue raised at the meeting was a matter that could legitimately be raised by the Council with its Executive Officer. The conduct of Ms Wagner and Ms White at the meeting is relevant and tends to support the contention of Ms de Laps.

[63] It is also clear from the evidence that on 30 September 2012, 3 days after this meeting, the Council of VATE formally responded to the letter from Ms de Laps solicitors. Ms de Laps solicitors sent a further letter to the Council of VATE on 12 October 2012 raising issues concerning Ms de Laps leave entitlements and the RTW plan. The Council of VATE responded to this letter through their own solicitors on 2 November 2012 and again on 13 November 2012.

[64] During this period Ms de Laps complains of conduct by VATE which Ms de Laps describes as “continual undermining of Ms de Laps in her role as Executive Officer”.

[65] Ms de Laps complains about in November 2012 Ms White called Ms de Laps and advised her that days off work since 29 July 2012 would be dealt with as personal leave. In early November 2012 the position adopted by Ms White was correct. At that time Ms de Laps WorkCover claim only related to a period up to 29 July 2012. It was only on 12 November 2012 that the issue was resolved at a conciliation with the Accident Compensation Conciliation Service when the insurer agreed to pay WorkCover compensation for the period from 2 July 2012 until 5 November 2012. The reinstatement of Ms de Laps leave with VATE only occurred on 6 December 2012 when the insurer advised Mr Doecke to do so.

[66] Ms de Laps complains about Ms White attending the office and searching for documents on Ms de Laps computer and making requests and issuing instructions to staff.

[67] The conduct of Ms White, in her capacity as Acting Treasurer, visiting the office when Ms de Laps was not there and looking for documents on Ms de Laps computer and giving instructions to staff is not a matter which must be characterised, as Ms de Laps asserts, as conduct undermining the Executive Officer. In any organisation the elected officers of the organisation have statutory obligations (in this case under the Associations Incorporation Act) to manage the affairs of the organisation. Even on the evidence of Ms de Laps it appears that Ms White was carrying out the Treasurer’s role. However, the conduct of Ms White in visiting the office when Ms de Laps was not there and looking for documents on Ms de Laps computer and giving instructions to staff appears to be inconsistent with the very purpose of having an Executive Officer and to that extent supports the contentions made by Ms de Laps.

[68] Ms de Laps complains about Mr Huggard sending out the Agenda for the meeting of the Council on 17 October 2012 without having sought any involvement from Ms de Laps who “had always played a role in determining the agenda for Council meetings”.(para 94 of A5)

[69] The contention that Mr Huggard was acting to undermine Ms de Laps is not the only plausible explanation for Mr Huggard’s actions. It is very clear from Ms de Laps own evidence (Attachment DL-36 to A5) that Mr Huggard took the view that when Ms de Laps was incapacitated for work that it was not necessary for her to have contact with VATE nor to respond to communications from the Executive Committee or Council. The evidence supports a conclusion that Mr Huggard was not acting in the way contended for by Ms de Laps.

[70] Ms de Laps complains that the President, Ms Wagner, inaccurately reported to the 17 October 2012 meeting of the Council of VATE on the meeting between Ms de Laps and Ms Wagner and Ms White on 27 September 2012. From Ms de Laps evidence it is clear that Ms Wagner’s report to Council was not entirely accurate. Ms de Laps addressed this matter in her report to Council where she had the opportunity of putting the record straight. The conduct of Ms Wagner supports the contention of Ms De Laps that members of the Council of VATE were hostile towards her.

[71] Ms de Laps complains that Mr Doecke, a newly elected member of the Council of VATE, referred to Ms de Laps as “merely a staff member and not entitled to speak or put a proposal at a Council meeting” during the 17 October meeting of the Council of VATE.

[72] On the 18 October Ms de Laps visited her doctor because she “was very upset about the Council meeting the previous evening” and her doctor recommended that Ms de Laps take leave until 26 October 2012. In her evidence Ms de Laps describes the symptoms she suffered both before and after her visit to her doctor on 18 October 2012 and that her doctor considered that these symptoms were being caused by the stress Ms de Laps was experiencing at work.

[73] It is easy to appreciate that Ms de Laps would have suffered stress over this period given that matters had escalated to the point where Ms de Laps was communicating to the Council of VATE through her solicitors and the Council of VATE were communicating to Ms de Laps through their solicitors.

[74] To the extent that Ms de Laps was very upset about the Council meeting on 17 October 2012 it would appear that this level of upset cannot and should not be wholly attributed to conduct which was part of a course of conduct to force Ms de Laps to resign. Ms de Laps does not assert that Mr Doecke’s comments were wrong. The complaint by Ms de Laps is that she was “humiliated and shocked” by the comment. If the comment was true: ie that the Executive Officer did not under the rules of VATE have the right to speak at Council nor to put proposals to Council, then Ms de Laps sense of shock and humiliation was misplaced. It might very well be a shock to an Executive Officer to be reminded that the Executive Officer position does not have speaking rights or the right to put matters before the Council but that is merely a shock that needs to be got over. The conduct of Mr Doecke is supportive of the contention of Ms de Laps that members of the Council of VATE were hostile to her and the position expressed by Mr Doecke appears to be inconsistent with the very purpose of VATE having an Executive Officer.

[75] On 7 November 2012 Ms de Laps attended the first meeting of the newly elected Executive Committee which had been elected at the 17 October 2012 meeting of the Council of VATE. Ms De Laps complains about the conduct of that meeting and in particular the conduct of Ms Wagner and to a lesser extent the conduct of Mr Huggard.

[76] Ms de Laps took extensive and very detailed notes of the Executive Meeting of 7 November 2012 and these were exhibited as Attachment DL-36 to Exhibit A5. A careful reading of those notes does not support a contention that members of the Executive Committee were acting in a manner which was intended to force Ms de Laps to resign.

[77] One of the issues discussed at the Executive Meeting was the content of the Director’s Liability insurance that applied to Council members. The issue had been raised at the Council meeting on 17 October 2012.

[78] At the Executive Committee meeting Ms White identified that she had investigated the level of Directors Liability insurance and had found that it did not cover protection for legal action as threatened by Ms de Laps solicitor. Ms White advised that she had arranged for a cover note to extend the insurance protection for Council members. The rest of the conversation on this matter was recorded by Ms de Laps in her notes as follows:

“MGW Regarding insurance. Debbie made some opening remarks at the last Council

meeting that said we were all covered by Directors Liability insurance. In fact, given the legal threat contained in your lawyer's last letter it seems we are not in fact covered for that sort of threat. I was so concerned about it that I investigated further and took out a cover note. Is there anything you want to say about that?

(DD spoke about how that insurance was first purchased back in 2004 on the advice of the Treasurer at the time)

MGW it is a standard sort of cover, but in the situation that your lawyer puts us in it doesn't cover us. (more discussion about the details etc. Decision to follow it up and to notify Council at the next meeting.)

MGW Normally that is something Debbie would do so I'm happy to hand that over to her.

RH Are you comfortable doing that Debbie?

DD Of course! I have no trouble at all separating out my dispute with you (gesturing to the three of them) and my responsibilities as EO. No difficulty whatsoever.

MGW Well it would be very important that you make sure that we are covered by insurance to be protected from your lawyer's threats.”

[79] Not only was Ms de Laps of the view that she could easily separate the dispute she had with VATE from her duties as Executive Officer but also the Executive Committee were content to give Ms de Laps the job of ensuring that each Council Member was properly insured against any legal action that Ms de Laps might take against VATE.

[80] Given that this is Ms de Laps evidence there is nothing which suggests that any member of the Executive Committee at that meeting was engaging in conduct which was intended to force Ms de Laps to resign.

[81] A further issue discussed at the Executive Meeting concerned the outcome of the National Conference which had been held in 2011. The evidence of Ms de Laps through her notes of the meeting shows that members of the Executive were concerned about a potential liability to pay a portion of the profits of the National Conference to the national association. Questioning of Ms de Laps was firm but not unfair and it appears that the questioning was necessary to allow members of the Executive Committee to understand the issues and the consequences.

[82] On 21 November 2012 Ms de Laps attended the meeting of the Council of VATE but was required to leave the meeting. Ms de Laps account of the meeting is set out above in para 28 of this decision.

[83] Whilst Ms de Laps was “humiliated, shocked and distraught” by being required to leave the Council meeting this is not sufficient to make out a contention that VATE was engaging in a course of conduct intended to force Ms de Laps to resign.

[84] The very nature of an organisation such as VATE means that where a member of the Council wants to raise allegations of misconduct against the most senior employee of the organisation such allegations should in the first instance be disclosed to the Council in the absence of the employee. This is exactly what occurred.

[85] It is completely understandable that Ms de Laps would be “humiliated, shocked and distraught” by events but that is to do no more than acknowledge Ms de Laps personal and subjective reaction to events as they occurred.

[86] The conduct of Ms Mason in moving a motion to have Ms de Laps excluded from the meeting appears to have occurred in a manner most calculated to openly attack Ms de Laps in her presence. The conduct of Ms Mason certainly supports the overall contention of Ms De Laps as it discloses a level of hostility between Ms Mason and Ms de Laps.

[87] The next event that Ms de Laps complains of is the conduct of Mr Doecke who was elected as the Treasurer at the Council of VATE meeting on 17 October 2012. Mr Doecke advised Ms de Laps on 6 December 2012 that he “would be working directly with the Accounts Officer in future and not with” Ms de Laps. Ms de Laps “was very upset and angry” with the decision of Mr Doecke and Ms de Laps regarded this decision as “completely undermining my authority and role as Executive Officer”.(para 122 of witness statement)

[88] It was for the newly elected Council and the newly elected Executive Committee to decide how they would meet their obligations as elected officers of the organisation. Mr Doecke’s intention to have direct contact with the Accounts Officer related to his role as Treasurer. Ms de Laps may not have been pleased with this but it was not for her to prevent Mr Doecke from carrying out the obligations placed upon him as the Treasurer of an incorporated association. Very clearly at one level there is nothing wrong with Mr Doecke’s conduct. However, the conduct of Mr Doecke appears to be inconsistent with the very purpose of VATE having an Executive Officer.

[89] On 10 December 2012 Ms Wagner initiated a request for Ms de Laps to attend on 12 December 2012 a “formal meeting to discuss your performance and conduct during your employment at VATE.” The events between 10 December and 14 December 2012 are set out above at paras 31to 36.

[90] Given the history of events leading up to 10 December 2012 including the broad assertion of “misconduct and failure to follow all of Council directives” raised by Ms Mason at the 21 November 2012 Council meeting, the letter of 10 December 2012 from the President of the Council of VATE must be seen in the context of that recent history.

[91] The letter put Ms de Laps on notice that her entire performance and conduct during her employment with VATE was up for discussion. Notwithstanding the possible breadth of issues that may have been raised Ms de Laps was only given 2 days notice of the meeting and was specifically denied the opportunity of having an advocate at the discussion. The letter from Ms Wagner as President of the Council of VATE made it very clear that Ms de Laps support person would have an extremely limited role:

“You may bring a support person if you wish. Please note that the role of the support person is to provide you with emotional support. The support person is not to act as your advocate and should not speak on your behalf.”

[92] The tone and content of Ms de Laps response to this letter is understandable. In particular Ms de Laps complained about the lack of detail in relation to the issues to be discussed:

“The letter indicates that you wish to discuss my 'performance and conduct during [my] employment at VATE' which I note covers a significant number of years. Given also the recent unanswered correspondence sent on my behalf seeking details of my leave entitlements and full details of the allegations of misconduct now made, I believe it is quite reasonable for me to ask you to provide in advance of the proposed meeting an outline of the specific issues you wish to discuss in order that I can be properly prepared.”

[93] Ms de Laps also raised a specific concern in relation to the fairness of the proposed meeting:

“Given my complaints as expressed, including relationship issues which have arisen only since the election of the new Council, from which I sense a degree of hostility, I query whether natural justice can be adequately afforded to me in the review process which you personally seek to conduct without any opportunity being allowed for advocacy on my behalf. I propose therefore that the review should be conducted by an appropriately qualified and independent consultant to ensure that the process is unbiased and conducted with the procedural and substantive fairness that should underpin such reviews. I have a genuine and reasonable concern that the flow of recent communications I have received from you, and the negative attitudes freely demonstrated by other members of the new Council, suggest that there is a potential conflict in you personally conducting the review of my performance in such circumstances.”

[94] The actions of VATE in setting out in detail the allegations made against Ms de Laps in the letter dated 13 December 2012 was necessary in order to accord any degree of procedural fairness towards Ms de Laps. However, the letter from Ms Wagner, as President of the Council of VATE, merely reiterated that Ms de Laps could have a support person in attendance and thus must be accepted as being a refusal to allow Ms de Laps to have an advocate on her behalf. Notwithstanding the fact that the letter from Ms Wagner, as President of the Council of VATE, contained 22 specific allegations, some of which were extremely broad, Ms de Laps was only given 3 and half days to prepare to discuss all the matters in the agenda.

[95] Importantly, the letter from Ms Wagner, as President of the Council of VATE, on 13 December 2012 made it very clear that the Council of VATE was already in possession of material relating to the allegations and that if Ms de Laps failed to attend the meeting on 17 December then this “could result in decisions being made on the material currently available to Council”.

[96] Whilst the letter from Ms Wagner, as President of the Council of VATE, on 13 December 2012 included a list of the allegations it did not disclose “the material currently available to Council”.

[97] In her oral evidence to the Commission Ms de Laps explained her subjective position very clearly and colourfully. (See extracts of transcript at [37] of this decision.)

[98] It is relevant to note that the letter of retirement sent by Ms de Laps was only sent after Ms de Laps sought legal advice. In that sense it was a carefully considered act on Ms de Laps’ behalf.

[99] The very fact that Ms de Laps has been able to present to the Commission a detailed response to each of the allegations of misconduct made against her suggests that she had the ability to do so at either a meeting with Ms Wagner, President of the Council and Mr Huggard, Vice President of the Council or to an independent investigator.

[100] I have no doubt that there were factions or camps within the Council of VATE. One of those factions or camps appears to have been aligned with Mr Terry Hayes and one with Ms de Laps 16. There may very well have been unaligned Council members. The balance within the Council amongst the three groups appears to have been significantly altered after the Council meeting on 21 November 2012 when three Councillors resigned.

[101] I certainly discern that Ms de Laps was taken aback by the conduct of the new Council in making a significant number of serious allegations about her performance in the role of Executive Officer, but as the most senior employee in the organisation Ms de Laps is accountable to the Council and in turn the Council is accountable to the membership of the organisation for the proper conduct of the affairs of VATE.

[102] There is nothing novel about a new governing body of a membership based organisation deciding to investigate the past conduct of employees of the organisation, including the most senior employee.

[103] The making of allegations by the Council against Ms de Laps does not constitute conduct which was intended to force Ms de Laps to resign or which had the probable consequence of forcing Ms de Laps to resign.

[104] Even if Ms de Laps is correct in that of some members of the Council were motivated to try and have Ms de Laps removed even on the evidence of Ms de Laps it is clear that it is never contended that each and every member of Council was so motivated.

[105] I note the submission put by Mr Millar of Counsel on behalf of VATE in describing the options available to Ms de Laps in dealing with the issues she had with VATE.

“PN311. Mr Millar: Now, there may be all sorts of grievances that the applicant has, and clearly there are, about things that happened during the course of the employment relationship. She had many concerns which clearly magnified in number of intensity towards the end of employment relationship. She also had issues concerning a return to work from WorkCover.

PN312. But none of that means that the applicant in the end was forced to retire or resign. She may well have had - she may well have had, and it's not necessary to determine, every reason to be irritated about the way matters had developed internally. But that doesn't mean she was forced to resign. If she was irritated there are ways in which these matters can be discussed and resolved. And, clearly, from the respondent's perspective there were serious concerns that the employer wanted to discuss and resolve, and things didn't reach that point because the applicant decided to go first.”

[106] I note the submission of Mr Millar as to what other reasonable options Ms de Laps had available to her other then resigning.

“PN503. THE COMMISSIONER: Just on that, what reasonable choice did the applicant have other than to resign?

PN504. MR MILLAR: What reasonable choice? The applicant's choice was to attend and answer whatever allegations were put to her - - -

PN505. THE COMMISSIONER: So in your contention, that's a reasonable choice?

PN506. MR MILLAR: Absolutely. She was still an employee and still required to follow the lawful and reasonable directions of the employer, including the reasonable inquiries that were being made about a series of workplace matters. It was, in my submission, incumbent upon her if she continued as an employee to answer those allegations. She avoided an earlier meeting because of apparently a prior commitment. But instead of attending the meeting she chose to resign first. So, yes, she had an option which was to attend the meeting.

PN507. THE COMMISSIONER: I'm not using the word option. I'm very deliberately using the word "reasonable choice", because that's the test in the full bench in Davidson, where they pose the question, "whether the conduct of the employer left the employee with no reasonable choice but to resign".

PN508. Which means, when you ask the question the other way, what other reasonable choices did the employee have? You're saying that attending the meeting was a reasonable choice.

PN509. MR MILLAR: Indeed, and reporting for work as usual was the reasonable choice. Not resigning was the reasonable choice. Attending the meeting, answering the queries and dealing with whatever the outcome may have been - a warning, counselling, performance plan, dismissal or no action whatsoever if the concerns had been satisfied - were all reasonable choices that were open. It's not as if the only realistic option for the applicant was to resign. The employer fully expected and had reason to expect that its letter, requiring the applicant to attend for a meeting and to discuss the issues that were canvassed in the agenda, would be followed and that the applicant would cooperate as any employee receiving that form of letter should.

PN510. So there was an option which was simply performance of the employment contract and it's not as if the applicant had no ability to do anything but resign. She could have simply continued on and we'll never know what would have happened because her reasoned decision to prevent the consequences that she saw flowing from attendance at the meeting meant that it will always be a mystery what the fate of the parties had been had she not chosen to resign.”

[107] VATE also contended that:

“6. On any view, the Applicant had options other than resignation available to her. Most obviously, she could have simply attended the meeting which the employer had asked her to attend, and provided a response to the detailed concerns raised. The fact that the Applicant made a considered decision to resign, after "much deliberation" and "speaking to family and friends” emphasises that resignation was a voluntary choice rather than a response forced upon her.

7. Even if it could be said that resignation was the "possible and foreseeable result" of the employer's actions, or even a "reasonable response", it is clear from the Full Bench decision (Bruce v Fingal Glen P/L) that this is not enough. Resignation must be "objectively the probable result of the Respondent's conduct". That test is not made out. The probable result was simply the Applicant attending the meeting as requested.” 17

[108] Ms de Laps contended that “the decision by the Applicant to resign was not freely made but was objectively the reasonable and most likely result of the conduct of the Respondent over a sustained period.”

[109] In considering this matter I have had regard to the decision of a Full Bench of the AIRC in ABB Engineering Construction Pty Limited v Doumit which stated:

“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.” 18

[110] I have approached the task of considering the evidence of the Ms de Laps which supports her contention that she was forced to resign by examining each of the matters relied on by Ms de Laps and by removing the subjective interpretation of those events as given by Ms de Laps and replacing it with an objective assessment. The result of looking at the evidence objectively is that much of what Ms de Laps asserts falls away but some very important elements remain which point to a course of conduct by the Council of VATE which would objectively have the probable result of causing Ms de Laps to resign.

[111] I have also had regard to the requirement as stated by the Full Bench in Davidson v Commonwealth of Australia that:

“The inquiry as to whether the conduct of an employer has “forced” an employee to resign necessarily requires consideration as to the appropriateness of the employee’s response: whether the conduct of the employer left the employee with no reasonable choice but to resign.”  19

[112] In this regard I have specifically taken into account whether the action of resigning was an appropriate response given the very clear alternative response available to Ms de Laps of continuing her employment and attending the meeting that had been scheduled for 17 December 2012 I do not consider that the approach adopted by VATE in its communications with Ms de Laps between 10 December 2012 and 13 December 2012 was designed to accord procedural fairness to Ms de Laps. Whilst a list of 22 allegations was given to Ms de Laps on 13 December 2012 the lack of disclosure by VATE of the material they already had in their possession together with the tight timeframe of having a meeting on 17 December 2012 and together with the refusal to allow Ms de Laps to have an advocate at the meeting on 17 December 2012 all strongly point to a process that was not intended to be fair.

[113] There is a real sense that VATE was giving “lip service” to the concept of procedural fairness. I am minded of the comment made by Moore J in Wadey v YMCA Canberra where His Honour said:

“In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.” 20

[114] The process adopted by VATE and as outlined earlier in this decision does not appear to have been intended to allow Ms de Laps a proper opportunity to defend herself against allegations of misconduct and certainly does not appear to have been designed to ensure a fair outcome. I note that when dealing with less serious matters concerning Mr Hayes intimidatory conduct of employees of VATE that the Council of VATE utilised the services of an external agent yet chose to reject the request made by Ms de Laps to have her conduct investigated by an independent external person.

[115] In the context of all of the other events and conduct which took place in the latter part of 2012 it appears to me that the response of Ms de Laps was appropriate and was a reasonable response to the actions of VATE. Rather than considering Ms de Laps’ decision to resign as “she presumably decided that resigning was the better course” as does VATE, I have in this decision considered the evidence and the evidence itself supports a finding that Mr de Laps’ decision to resign was an appropriate response to the conduct of VATE.

Conclusion

[116] I am satisfied that, on an objective assessment of the conduct of VATE, acting through its elected Council and Executive Committee and Officers, the conduct was of such a nature that Ms de Laps’ resignation was the probable result of such conduct or that Ms de Laps had no real or effective choice but to resign. Having carefully considered the response of Ms de Laps to the conduct of VATE, acting through its elected Council and Executive Committee and Officers, I consider that Ms de Laps’ response in “retiring” from her employment was an appropriate response to the conduct. I consider that Ms de Laps was left with no reasonable choice but to resign. There were in my view no other reasonable choices available to Ms de Laps.

[117] I find that Ms de Laps was dismissed from her employment with VATE in that while Ms de Laps resigned from her employment, she was forced to do so because of conduct, or a course of conduct, engaged in by her employer.

[118] The file in this matter will be returned to the Panel Head in charge of the Unfair Dismissals Panel for allocation to a Member for arbitration of the merits of the application.

COMMISSIONER

Appearances:

M. Felman, of Counsel, for the Applicant

R. Millar, of Counsel, for the Respondent

Hearing details:

2013.

Melbourne:

May 21