[2014] FWCFB 613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

SENIOR DEPUTY PRESIDENT ACTON DEPUTY PRESIDENT HAMILTON COMMISSIONER BLAIR

MELBOURNE, 19 FEBRUARY 2014

Appeal against decision [[2013] FWC 4163] of Commissioner Ryan at Melbourne on 26 August 2013 in matter number U2013/433.

Introduction

[1] The Victorian Association for the Teaching of English Inc (VATE) has appealed a decision of Commissioner Ryan of 26 August 2013 1 concerning an unfair dismissal remedy application made to the Fair Work Commission (FWC) by Ms Debra de Laps.

[2] VATE is an organisation that aims to foster the development and maintenance of the highest quality standards for the teaching of English in Victoria, through professional development, research, journals and publications.

[3] Ms de Laps was employed by VATE in 2003 as an Education Officer and in 2004 became the Executive Officer of VATE.

[4] The VATE Council, elected biennially, is responsible for all legal and fiduciary aspects of the organisation as well as policy making and strategic planning. The Executive Officer of VATE is an ex-officio non-voting member of the VATE Council. The VATE Executive, a sub-committee of the VATE Council, deals with the business of the VATE Council between its meetings. The VATE Executive is responsible for the employment of the Executive Officer of VATE. The Executive Officer of VATE is an ex-officio non-voting member of the VATE Executive. The VATE Office is headed by the Executive Officer of VATE and is responsible for the day to day running of VATE.

[5] Ms de Laps wrote to the President of the VATE Council on 14 December 2012 giving six weeks’ notice from 19 December 2012 of her intention to retire. Ms de Laps’ employment with VATE concluded on 25 January 2013.

[6] VATE contended before the Commissioner that the FWC lacked jurisdiction to deal with Ms de Laps’ unfair dismissal remedy application because Ms de Laps had not been dismissed.

[7] VATE maintained that the termination of Ms de Laps’ employment with VATE “arose out of [her] own initiative and not on the initiative of [VATE]” 2 and that she “initiated the termination of her employment by advising [VATE] of her resignation on 14 December 2012”.3

[8] The Commissioner decided that Ms de Laps was dismissed from her employment with VATE, in that while she resigned she was forced to do so because of conduct, or a course of conduct, engaged in by VATE.

[9] It is this decision that is the subject of this appeal.

Relevant law

[10] Section 394 of the Fair Work Act 2009 (Cth) (FW Act) provides that a person who has been “dismissed” may apply to the FWC for an order granting a remedy.

[11] Section 386 of the FW Act sets out the meaning of “dismissed”. Section 386(1) provides that:

“(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.”

[12] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) said in respect of now s.386(1) that:

“Clause 386 - Meaning of dismissed

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

[13] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 4 (Mohazab), the Full Federal Court of Australia considered “termination of employment at the initiative of the employer” as follows:

“The critical issue in this appeal is whether there had been a termination of the employment of the appellant. The statutory right to seek a remedy depends upon there having been. This emerges from the provisions of s 170EA(1) which reads:

‘A person (“the employee”) may apply to the Court for a remedy in respect of termination of his or her employment.’

Section 170CA provides that the object of Div 3 of Pt VIA is to give effect to the Convention concerning Termination of Employment at the Initiative of the Employer and the Recommendation concerning Termination of Employment at the Initiative of the Employer which are Schs 10 and 11 of the Act respectively. Section 170CB provides that an expression has the same meaning in the Division as it has in the Convention. The terms ‘termination’ and ‘termination of employment’ are defined in the Convention as meaning ‘termination at the initiative of the employer’. Accordingly the terms ‘termination’ and ‘termination of employment’ in the Act have the same meaning. The Convention does not, however, define the expression ‘‘at the initiative of the employer’’ and its meaning in the Convention must be gleaned from the Convention as a whole. This expression does not appear in the Act and is imported into the Act by s 170CB.

It is distracting, in our opinion, to treat the question posed in the present case to be whether the applicant resigned or had his employment terminated by the respondent. A question framed in those or similar terms assumes that a resignation is not or could not be a termination at the initiative of the employer. The present task is to construe the expression ‘termination at the initiative of the employer’ as it appears in the Convention and determine whether there has been such a termination in relation to the employment of the applicant…

It is necessary to consider the ordinary meaning of the expression ‘termination at the initiative of the employer’ in context in the Convention having regard to its object and purpose. The word ‘initiative’ is relevantly defined in the New Shorter Oxford Dictionary in the following way:

‘initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.’

And in the Concise Macquarie Dictionary in the following way:

‘initiative 1. an introductory act or step; leading action; to take the initiative. 2. Readiness and ability in initiating action; enterprise: to lack initiative.’

These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination’ in the Act, read in conjunction with Art 3 of the Convention which speaks of ‘termination . . . at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘... a termination of employment at the instance [of] the employer rather than of the employee.’’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’ ” 5

[14] In applying these principles to the facts in Mohazab, the Full Federal Court said:

“On the finding of the fact that the respondent directed the appellant to resign or have the police ‘called in’, it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee...

On the facts as found by the registrar the threat to call in the police was intended to induce a reluctant resignation in circumstances where the respondent had not completed its inquiries and had not resolved to report the matter to the police. It appears to have been accepted by the registrar as a finding that the appellant believed that a report to the police would place a stain on his character and inhibit his prospects of other employment in the future, irrespective of the outcome of a police investigation.

The proper conclusion from the facts as found by the registrar and presented to his Honour was that the respondent wanted the appellant’s resignation because it desired to terminate the appellant’s employment. There was no other reason for it to do so. It sought to do so in that way to avoid any consequences that might flow from summary dismissal of the appellant. It is apparent that on the findings of the registrar as to what occurred at the interview the respondent made it clear through its representatives that it no longer desired to employ the appellant.

In our opinion, the ‘critical action’ here, to use the expression of the Chief Justice in David Graphics, was the threat of the respondent that unless the appellant resigned the respondent would ask the police to charge him with an offence. The termination of the appellant’s employment was not at his initiative. It was a resignation obtained by the respondent by an ultimatum designed to achieve that objective. That conclusion is reinforced by the peremptory conduct of the respondent in escorting the appellant out of the respondent’s premises, leaving him to stand in a carpark to await a letter of resignation to be prepared by the respondent and brought to him to sign. That conduct by the respondent suggested summary termination of the appellant’s services by the respondent rather than voluntary resignation by the appellant.” 6

[15] The Full Federal Court decision in Mohazab was addressed by Moore J in Rheinberger v Huxley Marketing Pty Ltd 7 (Rheinberger). His Honour said:

“However it is plain from these passages 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.” 8

[16] His Honour then went on to say:

“In the present case the applicant relies both on the calling of the meeting on the Saturday morning and the manner in which it was conducted. I have already indicated I do not accept that an inference can be drawn that the meeting was called with a view to bringing about the termination of the applicant’s employment. Unless such an inference can be drawn, the effect of Wilson calling the meeting and conducting it in the way he did was merely to create the environment in which the applicant said what she did. That is, he created an environment in which the applicant came to say things consistent with her intending to resign. However he did not do so intending that result, nor does it appear to me to have been a probable result. Wilson’s conduct does not, in my opinion, constitute an act comprehended by the expression ‘‘termination at the initiative of the employer’. Something more would be needed. Mohazab illustrates a case where not only did the employer create the environment in which an employee tendered his resignation but also exerted pressure on the employee to follow the course he did. In this case there is no real basis for suggesting that the Company, through Mr Wilson, exerted any such pressure or took any step which was intended to cause the applicant to say what she did about her resignation or would probably have that result.

Moreover, in the conversation between Medlin and the applicant on Monday, 24 April 1995, the applicant did not take the opportunity to make clear to the Company that she did not wish to resign. Indeed she created the opposite impression. Nothing the Company did in contacting her and asking for a written record of the resignation could reasonably be viewed as an act intended to bring about the termination of her employment...

... The applicant has not established that there was a termination of her employment at the initiative of the Company.” 9

[17] In ABB Engineering Construction Pty Limited v Doumit 10 (ABB Engineering), a Full Bench of the Australian Industrial Relations Commission (AIRC) referred to the principles applicable to determining whether there has been a termination at the initiative of the employer saying:

“The principles applicable to determining whether in particular circumstances there has been a termination at the initiative of the employer have been considered by the Industrial Relations Court in a number of cases. In that Court, and in this Commission, the unanimous decision in Mohazab v Dick Smith Electronics (No. 2) (supra) has been adopted as an accurate statement of the primary principles. In the argument in this case, a number of other decisions were referred to by Mr Kimber and Mr Kanaan. Plainly, a decision whether there has been termination at the initiative of the employer must depend upon the facts and circumstances of the particular case. Because each case depends on the facts established, we are not persuaded that any good purpose is served by seeking to identify refinements to the broad statements made in Mohazab. We consider the relevant principle is sufficiently summarised in a recent decision of a Full Bench on another section 170ECA appeal about the principle crystallised in Mohazab:

‘That principle is that for a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign.’

When the facts of this matter are assessed against that principle, one point is almost immediately apparent. It is far from self evident that it can be said that Mr Doumit had no effective or real choice but to resign. No ultimatum was given to Mr Doumit to force his resignation. There is no evidence at all to suggest that Mr Doumit had reason to expect that his dismissal may have been imminent. Apart from Mr Kane’s action after Mr Doumit declared his intention to resign, no single act of the employer could reasonably be said to have been clearly intended to be a preliminary to dismissal, or to force a resignation. Even the ‘straw that broke the camel’s back’, Mr Kane’s declaration that Mr Doumit was lying again, appears to have been an invective flourish in an exchange that had had no conclusive outcome. Mr Kane’s style of address was offensive and abusive in the circumstances. But something more is required to convert the resignation that resulted from that act into a termination at the initiative of the employer. In this case, Mr Kanaan sought to establish that ‘something more’ in the course of conduct by Mr Kane. The circumstances pointed out by Mr Doumit establish that he had good reason to fear that Mr Kane would move against him at some time in the future. Moreover, he had good reason to believe that Mr Kane would be neither fair nor balanced in his supervisory assessment of some of Mr Doumit’s work. We accept that there is evidence that in his dealings with Mr Doumit, Mr Kane may have shown himself to be quick to allocate blame to others and slow to acknowledge his own oversights or rash denunciations. But even if Mr Doumit’s view of Mr Kane’s conduct as a manager be allowed as valid, and as the principal contributing factor that lead to Mr Doumit’s resignation, it does not follow that the conduct left Mr Doumit with no real choice but to resign.

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.” 11 [Endnote omitted]

[18] The Full Bench in ABB Engineering then said:

“In this instance, we consider that a reasonable and humane employer might well have reassured Mr Doumit that his resignation was not being sought. According to Mr Kane's evidence, he told Mr Doumit ‘It's a matter for you’ when Mr Doumit asked if Mr Kane wanted his resignation. If allowance were to be made for the different perceptions of relative power, it may be that Mr Kane's failure to unequivocally state that he was not seeking Mr Doumit's resignation might be given sufficient weight to tip the balance. Mr Kane claimed that he said he was ‘sorry’ immediately after Mr Doumit had indicated he would resign. However, circumstances belie the depth or sincerity of that comment. With alacrity Mr Kane snared a written resignation, he accepted it on a basis that converted it to an immediate termination of the employment relationship, and he mustered an escort from the premises. Such conduct, and the apparent absence of all except one enquiry as to whether Mr Doumit was acting in his own best interests, affords some basis for an inference that Mr Doumit's resignation was at least welcomed, and may have been looked for. But a comment made by Mr Doumit to Mr Grant as he got into the cab to leave the premises does nothing to erase the impression that Mr Doumit's resignation gave effect to a contingency plan he had himself devised prior to that day's developments...

… On balance, we are inclined to the view that, although angry, Mr Doumit decided to resign, announced it, and was then bundled through a termination process that he had expected and hoped would be more protracted and more open to negotiation. But the action of resigning was unequivocally his own voluntary action. He could not, in our view, be properly found to have had no real choice but to take the action.

It follows that we are unable to conclude that Mr Doumit's tender of his written resignation, with intended effect from 12 June 1996, may properly be conceived to have been a termination of employment at the initiative of the employer.” 12

[19] In Pawel v Advanced Precast Pty Ltd 13 (Pawel), a Full Bench of the AIRC in considering the authority in Mohazab said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.” 14

[20] The Full Bench in Pawel went on to say:

“[13] ... In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.

[14] In those circumstances the employer's requirement that the appellant carry out welding duties was plainly a reasonable instruction and it was not an instruction of a character which in our view would enable the appellant to say that he had no option but to terminate his employment. In our view, different considerations would arise if the instruction was unreasonable or had placed the employee under some sort of unfair pressure. This is not the case here. Accordingly, we are of the view that there was no termination of employment at the initiative of the employer. The appellant knew of the requirement to weld and chose to leave the employment rather than weld.”

[21] In O’Meara v Stanley Works Pty Ltd 15 (O’Meara), a Full Bench of the AIRC said of these decisions:

“[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 [Endnote omitted]

[22] The Full Bench in O’Meara went on to conclude that:

“[24] In this case the appellant wrote a letter on NUW letterhead resigning from his employment. It is not a situation of a ‘heat of the moment’ reaction, but rather one that appears to have been taken at least with the opportunity of obtaining advice. The letter referred to a long-standing concern that management did not take health seriously, drew attention to injuries which had been sustained and indicated that his apprehension of further injury had led to his resignation. The letter went on to state that there were certain people who were dangerous and should be cautioned and that the appellant had no alternative but to resign.

[25] The Commissioner indicated a preliminary view that the appellant had resigned voluntarily. He then provided the appellant, in accordance with the legislative requirement, with an opportunity to produce information which might persuade the Commissioner that his preliminary view was wrong. The response did not greatly assist the appellant’s case… Neither in the letter of 13 April 2006 nor elsewhere did the appellant provide information or allegations which tended to indicate that the resignation was other than voluntary. No specific allegations about the employer’s conduct in relation to occupational health and safety were made, apart from the earlier reference to an unspecified assault by a supervisor. Nor was it indicated how the relevant connection between the employer’s alleged attitude to health and safety and the employee’s resignation was to be established. It is relevant in this regard that the appellant was represented by legal practitioners. When faced with the Commissioner’s indication of a preliminary view adverse to his prospects of success and given an opportunity to provide further material, the appellant was clearly on notice that more material was needed. The fact that it was not forthcoming is significant.

[26] Taking all of the material of which we are aware into account we think it was open to the Commissioner to conclude that there was no reasonable prospect of the appellant succeeding in demonstrating that the employer’s conduct was of such a character.”

[23] Mohazab, Rheinberger, ABB Engineering, Pawel and O’Meara concerned applications made pursuant to the termination of employment provisions of the Industrial Relations Act 1988 (Cth) (IR Act) or the Workplace Relations Act 1996 (Cth) (WR Act) prior to its amendment by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices Act). At the relevant times, the terms “termination” and “termination of employment” in the IR Act and the WR Act were defined as meaning “termination at the initiative of the employer”. 17

[24] Mohazab, Rheinberger, ABB Engineering, Pawel and O’Meara concerned cases in which the employee had resigned from their employment. As a result, Mohazab, Rheinberger, ABB Engineering, Pawel and O’Meara considered whether the employee was “terminated at the initiative of the employer” in the context of the employee having resigned from their employment.

[25] The Work Choices Act amended the termination of employment provisions of the WR Act. While continuing to provide that “termination or termination of employment” means “termination of employment at the initiative of the employer,” 18 the Work Choices Act amended the WR Act to include a new section concerning resignation.

[26] Section 642(4) of the amended WR Act provided that:

“642(4) [Resignation deemed termination at initiative of employer if employee can prove that employer forced them to resign] For the purposes of this Division, the resignation of an employee is taken to constitute the termination of the employment of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.”

[27] The Supplementary Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) explained the following in respect of what became s.642(4):

“295. Proposed subsection 170CD(1C) would provide that, for the purposes of the termination of employment provisions, an employee’s resignation is taken to constitute a termination at the initiative of the employer only if the employee can prove, on the balance of probabilities, that he or she did not resign voluntarily, but that he or she was forced to resign because of the conduct (or a course of conduct) engaged in by the employer.

296. Subsection 170CD(1C) is intended to reflect the common law doctrine of ‘constructive dismissal’, reinforcing that the onus of proof in a case of alleged constructive dismissal rests upon the employee to demonstrate that there was a termination at the initiative of the employer.”

[28] In respect of the common law doctrine or concept of “constructive dismissal”, in Western Excavating (E.C.C.) Ltd. v Sharp, 19 Lord Denning MR stated:

“... If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contact, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.” 20

[29] In Spencer v Dowling and Another, 21 Hayne JA said:

“[A]n employer may act in such a way as to reveal that the employer is no longer willing to be bound by the contract of employment. In England, these cases have often involved an inquiry into whether there are implied terms in the contract of employment governing the extent to which employees will be expected to move their place of work (e.g. Little v. Charterhouse Magna Ltd. [1980] I.R.L.R. 19) or an inquiry into whether, by altering the terms and conditions of employment, the employer has repudiated the contract of employment: see e.g. Ford v. Milthorn Toleman Ltd. [1980] I.R.L.R. 30; Chitty on Contracts, 26th ed., vol. 2, (1989), para. 3983. It has also seen examination of the nature and extent of an implied obligation on an employer to preserve trust and confidence: see e.g. Courtaulds Northern Textiles Ltd. V. Andrew, and Woods v. W.M. Car Services (Peterborough) Ltd. itself. But the fundamental question presented by these so-called ‘constructive dismissal’ cases is whether the employer has evinced an intention no longer to be bound by the contract of employment, i.e. whether the employer has repudiated the contract of employment. No doubt the question whether conduct does evince such an intention is to be judged objectively…

In the end, it is important to recall that the question is whether the employer has evinced an intention no longer to be bound by the contract or has committed a breach of a term going to the root of the contract.” 22

[30] In Cameron v Asciano Services Pty Ltd, 23 Beach J stated:

“45 The applicable legal principles governing the repudiation of an employment contract were analysed by Ross J in Whittaker v Unisys Australia Pty Ltd. These principles were recently summarised by Hargrave J in Earney v Australian Property Investment Strategic Pty Ltd. I respectfully adopt Hargrave J’s summary of Ross J’s analysis in the following terms:

‘(1) The term repudiation is used in a number of senses. Relevantly, the High Court has recently stated that repudiation:

may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations. It be may termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.

(2) It is not necessary to prove a subjective intention to repudiate. The test is an objective one.

(3) Whether there has been repudiation is a question of fact.

(4) Repudiation is not to be inferred lightly. It is a serious matter.

(5) 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.

(6) Repudiation does not bring an end to a contract. It is necessary for the innocent party to elect to accept the repudiation.

(7) Repudiatory conduct may be ‘cured’ by the party in breach, but only prior to the acceptance of the repudiation. Accordingly, once the innocent party has elected to terminate the contract for breach, it cannot thereafter be cured.

(8) In the context of employment contracts, a significant diminution in remuneration, status or responsibility may constitute a repudiation. Whether or not this is so is a question of fact in each case.

(9) There may be a significant diminution in status or responsibility, even where the employee retains the same remuneration and title.

(10) However, there are circumstances where a considerable change in the nature of an employee’s duties may not amount to a repudiation. Although an employer cannot usually force changes of status and responsibility upon an employee, the circumstances of a particular case may permit a degree of flexibility in approach, with each party being required to provide “some reasonable give and take”. In such cases, repudiation may not be inferred in the absence of serious non-consensual intrusions upon the status or responsibilities of the employee.’ ” [Endnotes omitted]

[31] Section 386(1)(b) of the FW Act is similar, but not identical, to s.642(4) of the WR Act.

[32] Section 386(1)(b) of the FW Act was considered by a Full Bench of the FWC in Kylie Bruce v Fingal Glen Pty Ltd (in liq) 24 (Fingal Glen).

[33] In Fingal Glen, the Full Bench said:

“[13] The test of constructive dismissal in the context of the unlawful termination provisions of the Industrial Relations Act 1998 was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v Huxley Marketing Pty Ltd (Rheinberger). The commonly quoted statement of principle in Mohazab is that:

‘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’.

[14] It is important that this passage be read in the context of the judgment as a whole. It is clear that the requirements set out by the Full Court in the passage quoted are necessary, but not sufficient, to establish that employer action constitutes constructive dismissal.

[15] These principles of constructive dismissal have been applied to the unfair dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the Australian Industrial Relations Commission in Pawel v Advanced Precast Pty Ltd (Pawel) and ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering), and we accept the Applicant’s submission that those decisions are relevant to any consideration of s.386(1)(b) of the Act...

[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara)...

[19] Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act.” [Footnotes omitted]

[34] In their comments below this extract, the Full Bench in Fingal Glen said:

“[21] Assuming for present purposes that the test applied by the Senior Deputy President is materially different to that set out in O’Meara, we are not satisfied that in the circumstances of the present case the Applicant was dismissed. In relation to whether the Applicant had ‘any effective or real choice but to resign’, two points should be noted. First, as referred to by the Senior Deputy President, there were options other than resignation by which the Applicant could have addressed the persistent late payment of her wages. Secondly, we accept that in some circumstances the late payment of wages and/or a failure to pay superannuation may be such as to amount to conduct which has forced an employee to resign. However in the circumstances of the present case we are not persuaded that persistent delays of 1-2 days in payment, with some longer delays, and a failure to pay superannuation, left the Applicant with no effective or real choice other than to resign.

[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...

[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.

[24] In the circumstances of the present case, resignation was a possible and foreseeable result of the Respondent’s conduct, and in many respects a reasonable response in the circumstances. However this is not itself sufficient to demonstrate that the Applicant’s resignation was in effect a dismissal. Given the other avenues available to the Applicant to pursue her complaints, and taking into account the nature of the Respondent’s conduct, we do not consider that the Applicant’s resignation was objectively the probable result of the Respondent’s conduct, and therefore that the Applicant was forced to resign because of that conduct. In this regard, we note that although there were delays in the payment of wages, the delays were short and the Applicant was paid her wages in full, and that the Applicant did not take any further steps to pursue her complaints other than raising them with the Respondent.

[25] For all the above reasons, we conclude that even if there is a material difference between the test applied by the Senior Deputy President and that set out in the relevant authorities, the Senior Deputy President’s conclusion in relation to s.386(1)(b) was correct...

[25] It does not appear to us that there is any real question as to the correct principles to be considered in applying s.386(1)(b) of the Act. Section 386(1)(b) reflects the common law principles of constructive dismissal set out in Mohazab, Rheinberger, Pawel and ABB Engineering, and summarised in O’Meara...

[29] Plainly the existence of alternative means to address an employer’s conduct may be relevant to the consideration of whether an employee had ‘no effective or real choice but to resign’ and/or the probability that they would resign as a response to that conduct, but the weight to be given to the availability of such remedies will depend upon the nature of both the employer’s action and the available remedy in a given case. The question of the nature of the employer conduct required to constitute dismissal will likewise vary greatly from case to case and according to all of the facts and circumstances of a particular matter. It follows that any decision on appeal will be of only limited relevance beyond the circumstances of the particular case.” [Footnotes omitted]

[35] Having regard to the terms of s.386(1)(b) of the FW Act, the Explanatory Memorandum in respect of s.386(1)(b), its predecessor in the amended WR Act and the decisions in respect of the common law doctrine of “constructive dismissal”, there may be some question as to whether all of the dicta in the case law to which the Full Bench in Fingal Glen refers are applicable to s.386(1)(b) or whether s.386(1)(b) is narrower than some of that dicta. However, for reasons which will become apparent, we do not need to determine that issue in this matter.

Decision at first instance

[36] In his decision in considering VATE’s jurisdictional objection, the Commissioner begins by stating:

“[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.”

[37] The Commissioner then goes on to consider various interactions between Ms de Laps and VATE from 9 August to 14 December 2012.

[38] The Commissioner concludes in respect of these interactions that:

• various actions initiated by members of the VATE Council led Ms de Laps to suffer further stress and anxiety; 25

• the conduct of the VATE Council in appointing Mr Martin Nally, a consultant, to assist in the return to work of Ms de Laps from 9 August 2012 was highly inappropriate, as he conflated that role and his role in settling a grievance between the VATE Council and Mr Terry Hayes, Chairperson of the Conference Committee for the 2011 VATE national conference, who had engaged in intimidatory conduct towards Ms de Laps; 26

• Mr Nally and Ms Monika Wagner, Acting President of the VATE Council, acted improperly in engaging with Ms de Laps in regard to the resolution of the grievance of the VATE Council with Mr Hayes, whilst Ms de Laps was on a certificate of incapacity for work from 13 to 20 August 2012; 27

• the hostility of members of the VATE Council towards Ms de Laps or their attempts to undermine her was demonstrated by:

- the hostile manner in which Mr Nally and Ms Wagner questioned or reacted to Ms de Laps on 29 August 2012 in a meeting about issues raised by Mr Hayes, 28



- Ms Wagner and Ms Marion White, Acting Treasurer of the VATE Council, while meeting with Ms de Laps on 27 September 2012 to raise legitimate matters, doing so in an accusatory and angry manner, 29

- Ms White visiting the VATE office when Ms de Laps was absent and looking for documents on Ms de Laps computer and giving instructions to VATE staff, 30

- Ms Wagner inaccurately reporting to a 17 October 2012 meeting of the VATE Council about the 27 September 2012 meeting with Ms de Laps, 31

- Mr Brenton Doecke, the newly elected Treasurer for VATE, referring to Ms de Laps at the VATE Council meeting on 17 October 2012 as a mere staff member who is not entitled to speak or put a proposal at a VATE Council meeting, 32

- Ms Mary Mason, a member of the VATE Council, in moving at the 21 November 2012 meeting of the VATE Council to have Ms de Laps excluded from the meeting on undetailed grounds of misconduct and failure to follow VATE Council directives, 33 and

- Mr Doecke’s advice of 6 December 2012 to Ms de Laps that as the Treasurer of VATE he would work with the VATE Accounts Officer rather than Ms de Laps; 34

• Ms Wagner’s letter of 10 December 2012 to Ms de Laps to attend a formal meeting on 12 December 2012 to discuss Ms de Laps’ performance and conduct during her employment at VATE only gave Ms de Laps two days’ notice of the meeting notwithstanding the possible breadth of the issues for the meeting and denied Ms de Laps an advocate at the meeting; 35

• Ms Wagner’s letter of 13 December 2012 to Ms de Laps to attend a meeting on 17 December 2012, in light of the meeting on 12 December 2012 not having taken place, while broadly detailing the allegations against Ms de Laps, effectively denied her an advocate, only gave Ms de Laps three and a half days to prepare and did not disclose the material the VATE Council had relating to the allegations; 36

• Ms de Laps’ retirement letter of 14 December 2012 was sent after she had sought legal advice and, as such, was a carefully considered act by Ms de Laps; 37 and

• the making of allegations by the VATE Council against Ms de Laps did not constitute conduct intended to force Ms de Laps to resign or which had the probable consequence of forcing Ms de Laps to resign. 38

[39] After so concluding, in respect of these interactions, the Commissioner says:

“[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.’

[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.’

[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.’

[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.” [Endnotes omitted]

[40] The communications between Ms de Laps and VATE from 10 to 13 December 2012 were highly relevant to the Commissioner’s decision. We set them out. We also set out Ms de Laps’ resignation letter to VATE.

[41] On 10 December 2012, Ms de Laps received the following letter from VATE:

“10 December, 2012

Ms Debra de Laps

[Address]

Dear Debra

Re: Employment at Victorian Association for the Teaching of English Inc (VATE)

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 12^th 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.

Yours sincerely,

Monika Wagner

President”. 39

[42] On 11 December 2012, Ms de Laps sent the following email to Ms Wagner:

“Monika

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

Debra”. 40

[43] Ms Wagner responded as follows:

“Dear Debbie,

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.

Regards,

Monica”. 41

[44] Ms de Laps wrote to Ms Wagner on 12 December 2012 as follows:

“12.12.12

To Monika

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

Your letter dated 10^th 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 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.

Debbie”. 42

[45] On 13 December 2012, Ms Wagner sent the following letter to Ms de Laps:

“13 December 2012

Ms Debra de Laps

(Address)

By Email

Private and Confidential

Dear Debra

Re: Proposed Meeting

I refer to your letter of 12 December 2012 in response to my requests to meet with you.

The purpose of the meeting was to outline certain matters relating to your performance and conduct. The specifics of those matters were to be outlined at that meeting for you to then respond to a later date. We were not expecting you to respond in that meeting and no decisions have been made regarding any of the matters to be raised.

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.

VATE Council do however think it is important to respond to some of the specific matters raised in your most recent letter and do so as follows:

1. There is no connection between Work Cover and anything to be discussed. This I supported by the matters contained in the attached Agenda.

2. We are happy for the meeting to be ‘an open meeting’ (that is not a without prejudice basis).

3. Our meeting requests have been provided with reasonable notice and within reasonable time frames.

4. Finally we must note that your first response to my meeting request was that you were ‘unavailable tomorrow evening due to a prior commitment’. There was no mention of any medical certificate.

The meeting is to be held on Monday 17 December 2012 at 2.30pm at VATE offices in Collingwood. Ross Huggard, Vice-President and myself will meet with you.

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.

Yours sincerely,

Monika Wagner

President

MEETING AGENDA - VATE OFFICES, MONDAY 17 DECEMBER 2012

A. Alleged Misconduct Issues

1. You misled VATE in relation to insurance matters and have left VATE and potentially council Members exposed to potential liability.

2. Issues surrounding the:

(a) dismissal of Mr Terry Hayes;

(b) use of office resources and reimbursement issues (i.e. paying for your husband’s flights to Mildura, utilizing VATE’s telephone for private telephone calls);

(c) the claiming of medical expenses; and

(d) reporting of confidential VATE’s discussions incorrectly to a third party.

5. You working of a 4 day week when your employment is predicated on being full-time (5 days per week).

6. Not following lawful directions of VATE Council, such as:

(a) by the President to not send emails to the nominees on behalf of the Council.

(b) not complying with the Treasurer’s 10 October 2012 directive to show where reimbursements were made; and

(c) when the President and Treasurer (at meeting with you 27 September) agreed that they would summarise the Minutes of Council’s September meeting, you unilaterally amended the Minutes yourself.

7. You inappropriately directed staff to report every telephone call or visit from certain specified members of VATE Council.

8. You deliberately and inappropriately provided a report which contains defamatory and offensive comments in relation to VATE members. (We refer to the Executive Officer’s Report November 2012).

9. You have constantly exhibited disrespectful demeanour towards VATE members. We again refer to the November 2012 EO Report and calling the Secretary ‘an idiot’.

B. Alleged Poor Performance Issues

1. You failed to keep VATE informed of pertinent issues;

(a) In relation to the AATE Conference in 2011, you failed to compile the data required for the financial report. Following the Conference, you the failed to advise VATE that the profit made in 2011 obliged VATE to pay 15% of the profit, over $5,000, to the AATE;

(b) E4AC Contract with ESA - you failed to inform VATE that this contract was lost; and

(c) Hilton Contract issues.

2. You failed to advise the VATE in accordance with VATE’s Rules of Association.

3. You failed to perform the inherent requirements of the job dutifully and diligently.

4. You failed to properly manage staff.

5. You failed to provide and Executive Officer’s report of an acceptable quality.

C. Next Steps

1. VATE Council will consider your answers and meet with you to discuss and findings or to seek further information.

2. Depending on the outcome and to ensure you understand the seriousness of the situation we advise that disciplinary action may be taken against you including the termination of your employment (either summarily or with notice), you may be issued with a formal warning or put on a formal performance improvement plan.

3. Any such action will of course be in accordance with your contract of employment and take into account any of VATE’s statutory obligations.

D. Other Matters”. 43

[46] On 14 December 2014, Ms de Laps sent the following letter to Ms Wagner:

“STRICTLY PRIVATE AND CONFIDENTIAL

Friday 14 December 2012

Dear Monika,

I write to inform you of my decision to retire from my position as Executive Officer of VATE, and I am hereby providing 6 weeks notice, as required by my contract. I calculate that six weeks from today is 25 January 2013 and I will expect to receive prior to that date a full statement in writing of all leave and other entitlements for my review. Any other appropriate formalities requiring my attention may be forwarded to me by email and will be promptly dealt with.

I have given consideration to your recent communications, including the agenda items you have sent to me for the proposed meeting to review my performance and conduct at VATE over the past ten years.

As you are aware, I have already provided you with both written and verbal explanations for all of the items of alleged misconduct or poor performance about which I had previously been interrogated by you, the Secretary and members of the Executive. The other items listed are new to me, and extremely vague. It is clear to me that the ‘process’ you are purporting to implement is simply a sham, and that your disposition towards me and the outcome of the ‘review’ are predetermined.

I emphatically deny all the accusations you have made against me, as they have absolutely no basis in fact. I am satisfied that a fair-minded and independent examination of all the events would have exonerated me of any wrongdoing. However, you have ignored my request for an independent performance review and are committed to a particular course, which is regrettable. I have enjoyed the confidence and numerous previous Councils and office bearers over almost ten years, and have always provided loyal and honest service to VATE and its members. I believe my record speaks for itself, and where necessary I will act to protect my reputation.

It would be appreciated if you would now respect my privacy and allow me to be the first to inform the staff of my decision, by the close of business on Wednesday 19 December 2012. To that end, I trust that you will also adhere to the agreed confidentiality attaching to these matters and not communicate this news to Council members or anyone else before that date and time.

Kindly acknowledge receipt of this letter.

Yours sincerely

Debbie de Laps

Executive Officer, VATE”. 44

Grounds for appeal

[47] VATE submits the Commissioner erred in concluding Ms de Laps was dismissed because:

• there was nothing in the Commissioner’s findings that provided a proper basis for a conclusion that Ms de Laps was “dismissed” within the meaning of the FW Act;

• the Commissioner’s finding that Ms de Laps was denied procedural fairness as demonstrated by VATE’s communications to Ms de Laps between 10 and 13 December 2013 was not open to him; and

• the Commissioner’s finding that Ms de Laps was denied procedural fairness is irrelevant to the question of whether she was “dismissed” within the meaning of the FW Act.

[48] Ms de Laps maintains that VATE’s grounds of appeal do not identify appealable error. However, she goes on to submit that if the Full Bench determines “the Commissioner erred in his conclusion that Ms de Laps was forced to resign within the meaning of s.386(1)(b) of the FW Act, the Decision ought be upheld on additional grounds as set out in [her] Notice of Contention dated 20 November 2012.” 45

[49] Those contentions are that the Commissioner erred:

• in failing to regard VATE as having demonstrated their hostility towards or undermining of Ms de Laps by wrongly debiting Ms de Laps’ personal leave;

• in concluding that the conduct of members of an Executive Committee of VATE towards Ms de Laps at a meeting she attended on 7 November 2012 was not conduct which was intended to force Ms de Laps to resign; and

• in concluding that the making of allegations by VATE against Ms de Laps did not constitute conduct either intended to force Ms de Laps to resign or which had the probable consequence of forcing Ms de Laps to resign, in circumstances where the allegations were frivolous, had already been dealt with or were totally unsubstantiated.

Consideration of the appeal

[50] We think it is apparent from the Commissioner’s reasons for decision that his conclusion that the approach adopted by VATE in its communications with Ms de Laps between 10 and 13 December 2012 was not designed to accord her procedural fairness was fundamental to his decision. In particular, to his decision that Ms de Laps was dismissed in that while she resigned, she was forced to do so because of conduct, or a course of conduct, engaged in by her employer.

[51] In our view his conclusion that the approach of VATE between 10 and 13 December 2012 was not designed to afford Ms de Laps procedural fairness was not open to him. We have come to this view for the following reasons.

[52] Under the FW Act, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”. 46 Given that legislative provision and in the absence of any other obligation to allow an advocate, we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness.

[53] Nor do we think that the timeframe between 13 December 2012, when Ms de Laps received the letter advising her of the meeting, and 17 December 2012, when the meeting was to be held, can be regarded as so tight as to constitute an element of procedural unfairness, notwithstanding the weekend between those dates. Under cross-examination Ms de Laps conceded the response she provided to the Commission in respect of the allegations in the 13 December 2012 letter of VATE could have been provided to VATE at the meeting on 17 December 2012 if that meeting had gone ahead. 47

[54] Further, it is not apparent why, in itself, VATE’s failure to disclose in its letter to Ms de Laps of 13 December 2012 the material available to it in respect of its allegations against her constituted procedural unfairness by VATE.

[55] Since a conclusion of the Commissioner which was fundamental to his decision that Ms de Laps was dismissed was not open to him, the Commissioner’s decision that Ms de Laps was dismissed was affected by significant error.

[56] We have considered the conduct, or course of conduct, engaged in by VATE that Ms de Laps maintains forced her to resign from her employment with VATE. In our view, that conduct or course of conduct was not such as to place her in a position where she was forced to resign.

[57] Ms de Laps maintains that various incidents by VATE following her return to work undermined her. These included:

• the appointment of Mr Nally in respect of both her return to work plan and a grievance between Mr Hayes and the VATE Council;

• a failure by the VATE President and Treasurer to regularly contact her and respond to her emails;

• the inappropriate questioning by and aggressive and berating questioning tone of Mr Nally, and the body language of Ms Wagner, at a meeting with Ms de Laps on 29 August 2012;

• the angry and accusatory tone of Ms White at a meeting with Ms de Laps on 27 September 2012 and Ms Wagner’s subsequent inaccurate report to the VATE Council on that meeting;

• VATE incorrectly debiting Ms de Laps personal leave and VATE’s delay in responding to her correspondence on the matter;

• Ms White making requests of and issuing instructions to VATE staff and searching Ms de Laps computer while Ms de Laps was absent from the VATE office on Mondays;

• the agenda for a meeting of the VATE Council being prepared without consultation with Ms de Laps;

• Mr Doecke advising Ms de Laps at a VATE Council meeting on 17 October 2012 that she was a mere employee not entitled to put proposals or speak at meetings of the VATE Council;

• the line of questioning directed to Ms de Laps at the VATE Executive Committee meeting of 7 November 2012 and the subsequent suggestion by Mr Ross Huggard, a member of the Executive Committee, that Ms de Laps had suggested that Executive Minutes not be circulated to the VATE Council;

• the motion to exclude Ms de Laps from the VATE Council meeting on 21 November 2012 on the undetailed grounds of misconduct and failure to follow VATE Council directives;

• Mr Doecke’s advice of 6 December 2012 to Ms de Laps that in future, as the Treasurer of VATE, he would work directly with the Accounts Officer at VATE rather than Ms de Laps;

• Ms Wagner’s letter to Ms de Laps of 10 December 2012 inviting her to a formal meeting on 12 December 2012 to discuss her performance and conduct at VATE to which she could bring a support person but not an advocate;

• Ms Wagner’s email to Ms de Laps of 11 December 2012 requiring her to attend the meeting on 12 December 2012 and advising her that her failure to respond appropriately may be deemed a failure to follow a lawful and reasonable VATE direction; and

• Ms Wagner’s letter to Ms de Laps of 13 December 2012 attaching numerous issues related to misconduct and poor performance to be discussed with Ms de Laps at a meeting on 17 December 2012, advising her that she may be subject to disciplinary action and giving her effectively one business day to prepare.

[58] We consider these incidents.

[59] We see no difficulty in Mr Nally being appointed in respect of both Ms de Laps’ return to work plan and the grievance between Mr Hayes and the VATE Council. There were obvious matters relevant to both issues, such as whether Mr Hayes would again contest a position on the VATE Council which could have affected Ms de Laps’ return to work plan. In the circumstances, having someone independent such as Mr Nally acting in respect of both issues was reasonable.

[60] In the period in which Ms de Laps maintains the VATE President and Treasurer failed to regularly contact her and respond to her emails, 48 Ms de Laps was often absent from work on personal leave.49 Moreover, there was contact between Ms de Laps and the VATE President and Treasurer over this period, by at least, email.50

[61] We have no doubt that Ms de Laps perceived that at the meetings with which she is concerned the VATE representatives and/or Mr Nally were aggressive, berating, angry, accusative and the like. However, a fair reading of her or her supporters’ notes of those meetings does not reveal that was the general tenor of the meetings. 51

[62] Further, while Ms Greta Caruso gave evidence that at the meeting of 29 August 2012 that she attended as a support person for Ms de Laps, Mr Nally and the VATE representative were hostile, patronising and rude, 52 later she evidenced that she can use emotive and strong language inappropriately.53

[63] Mr Tony Thompson, who attended the meeting on 27 September 2012 as a support person for Ms de Laps, also gave evidence that:

• a VATE representative at the meeting was accusatory about Ms de Laps’ personal telephone calls on VATE’s mobile telephone;

• the VATE representative asked Ms de Laps about her working hours at VATE of only four days a week, Ms de Laps responded that she worked 38 hours a week over four days from Tuesday to Friday and if more work was required or she needed to make up additional hours then she would do it on the weekend or occasionally on a Monday, and the VATE representative responded with words to the effect of “Come on Deb, on your salary?”; and

• the VATE representative inappropriately and callously questioned Ms de Laps about whether she was in fact working from home as was required with the return to work schedule.

[64] Ms de Laps’ notes of the meeting of 27 September 2012, however, do not record any discussion about telephone calls. In addition, in respect of the VATE representatives’ questioning of whether Ms de Laps was in fact working from home and the comment on Ms de Laps’ working hours, Ms de Laps’ notes are relevantly as follows:

“MGW [Marion White] And what were you working on at home.

DD [Deborah de Laps] Well, working on the AATE project.

MGW And it took how many days to do AATE PROJECT?

DD Oh Marion I don’t know!

MGW All right well lets move on...

Amazed at my salary and hours

MGW Debbie, you have never said to me, this comes as a complete surprise to me that you are receiving the salary you receive and effectively working .8.

TT [Tony Thompson] but it isn’t .8 it’s full time over 4 days.

MGW where during those 4 weeks did you work weekends or nights. You didn’t come to the council meeting that night for example. I just didn’t see any evidence of it and it’s just bit of a surprise and I don’t think it’s in the contract, but that’s OK. We’ll get all this stuff regularised, that’s ok.

DD Well I’ve been here 10 years and I have never worked on a Monday, ever.

MGW But you’ve never had 3 months off either, come on, be fair.

DD God what are you talking about Marion, I pretty much had a nervous breakdown.

MGW Debbie we appointed Kate to be acting EO for the whole of this period.

DD What period? (MGW showed me on the calendar).

TT but that doesn’t have anything to do with Debbie’s work hours.

DD Well I didn’t know that, nobody told me.

MGW How could you not know?

DD Because nobody has talked to me about it. Ever, in this whole time. I eventually read it in some minutes somewhere recently...

MGW What were the things you were working on while you were working from home?

(DD explains again the various projects she worked on. TT added correspondence and conversations he’d had with DD about the state conference during that time)

MGW That’s great, that’s what I needed to hear.” 54

[65] We do not think these notes demonstrate an inappropriate approach by VATE or its representatives.

[66] Mr Huggard’s email to VATE Council Members following the 7 November 2012 VATE Executive Committee meeting to which Ms de Laps took offence was as follows:

“Dear Council Colleagues,

As Marion has indicated here, should you have items you would like to be included on the Agenda for the 21 November Council meeting, please Email me these by Tuesday 15 November.

Please also be aware that Executive had a lengthy meeting last night, and Minutes were taken of this meeting. At Debbie’s suggestion, these will not be tabled in accordance with commonly accepted organisational practice, given that matters relating to sensitive personnel issues and the like are often examined at Executive. However, Executive will naturally keep all Councillors apprised of key matters discussed and indeed will be making a number of key recommendations arising out of this meeting.

Regards

Ross Huggard” 55

[67] Ms de Laps sent the following email to Mr Huggard in regard to the above email:

“Hello Ross

The email you sent to Council incorrectly identifies me as having suggested that minutes of Exec meetings should not be tabled in future. It was, in fact, Mary’s very clear statement that what is discussed at Exec has to be confidential - that things such as staffing issues come up should not be distributed more widely. I agreed firmly with her understanding of long-established processes but I did not raise it in the first instance.

It is for that reason that minutes have not historically been taken nor kept on file. I note that there is only one set of Exec minutes on file since July - dated 26 August - not a complete set of all the meetings you’ve held as was claimed last night (including the one on 10 October which Monika had specifically assured the carry over Council members via email would not take place).

Regards

Debbie.” 56

[68] Mr Huggard responded to Ms de Laps shortly thereafter by email as follows:

“Hi Debbie,

I am sorry if you believe I misrepresented you in any way by this reference and this was not intended. Rather, I perceived through the meeting that you endorsed this agreed, but hitherto unstated practice, so that in no sense Councillors were under any misapprehension. Moreover, it seemed to me that your endorsement of this being the practice was important.

At any rate, now Councillors will be clearer about the status of such minutes.

Regards

Ross Huggard” 57

[69] We think the above email exchange reveals that Ms de Laps may have misconceived Mr Huggard’s intentions in respect of his advice to the VATE Council about VATE Executive Committee minutes.

[70] We also think the evidence reveals that VATE’s incorrect debiting of Ms de Laps’ personal leave was caused by the VATE representatives’ confusion about her work arrangements and a delay in the settlement of her workers’ compensation entitlements. In the circumstances, we do not think there was an inordinate delay by VATE in dealing with the matter.

[71] Ms White’s making requests of and issuing instructions to VATE staff and searching Ms de Laps computer on Mondays when she knew Ms de Laps was likely to be absent from VATE seems unusual. However, Ms White was the Acting Treasurer of VATE.

[72] In respect of the preparation of the agenda for the VATE Council meeting without consultation with Ms de Laps, in her witness statement Ms de Laps says that at the 27 September 2012 meeting it was agreed there needed to be a meeting prior to the first meeting of the newly elected VATE Council to determine an agenda for the first meeting. 58 However, Ms de Laps’ notes of the 27 September 2012 meeting do not record such an agreement.59 In any instance, we regard her complaint about not being consulted on the agenda as trivial.

[73] While Ms de Laps was told at the 17 October 2012 VATE Council meeting that she was a mere employee and not entitled to put proposals to or speak at the meeting, the minutes of that meeting in fact record Ms de Laps speaking to the meeting in respect of the President’s report on the 27 September 2012 meeting with Ms de Laps, as well as speaking prior to and after the President’s report. 60

[74] The evidence of Ms Janny McCurry, a person who attended the 21 November 2012 VATE Council as a support person for Ms de Laps, in respect of Ms de Laps’ concerns about that 21 November 2012 meeting was as follows:

“12. Early in the meeting, Ms de Laps asked to be allowed to give a finance report as she was concerned that the new Council members needed to be aware of their responsibilities in relation to financial governance and the annual audit (which was to take place early in 2013). Ms Wagner allowed Ms de Laps to do this.

13. When Ms de Laps presented her financial report, there was no response or reaction from any of the Council members. Based on my observations of the demeanours of the Council members, it appeared that they were not interested in Ms de Laps’ financial report. This was in stark contrast to my experience on Council where Council members were always very interested in the Executive Officer’s financial reports.

14. Ms de Laps then asked that she present her Executive Officer’s Report. Ms Wagner looked at Mary Mason (Ms Mason) and said, “Mary?”. Immediately, Ms Mason said words to the effect that she wished to move that Ms de Laps’ report not be accepted on the grounds of Ms de Laps’ misconduct and disobedience. This was then followed by a prolonged silence in the meeting room. Ms Wagner did not say anything.

15. Eventually, a member of the Council (I do not recall who) asked Ms Mason to explain what she meant. Ms Mason said that she would refuse to discuss this until Ms de Laps left the meeting room. Ms White then said that Ms de Laps and I should leave the room. Two other Council members, Leigh Abercromby and Yasmin McCafferty, objected to this request and asked that Ms Mason explain what she meant. Ms Mason did not comply with this request. Shortly after this, a Council member, Jan May, started to cry and left the meeting room.

16. Ms de Laps and I then left the meeting room.” 61

[75] Ms Leigh Abercromby, a VATE Council member at the 21 November 2012 meeting, gave the following evidence about what happened in respect of Ms de Laps’ concerns:

“16. I attended the VATE Council meeting on 21 November 2012. At the beginning of the meeting, a motion was tabled by Ms Mason to immediately exclude Ms de Laps from the meeting. I did not know prior to the meeting that Ms Mason was going to move this motion. Ms de Laps then left the meeting.” 62

[76] We note there is a difference between the evidence of Ms Abercromby and Ms McCurry as to what motion was actually moved at the meeting on 21 November 2012 and when it was moved. Nonetheless, while the exclusion of Ms de Laps from the VATE Council meeting could have been better handled by the VATE Council.

[77] In respect of Mr Doecke’s advice of 6 December 2012, Ms de Laps says in her witness statement:

“On 6 December 2012 … Mr Doecke advised me that he would be working directly with the Accounts Officer in his role in the future and not with me. This was contrary to the way in which the Council had dealt with me throughout my time as Executive Officer … I was very upset and angry by Mr Doecke’s decision to no longer deal with me in the future in his capacity as Treasurer. I regarded this as completely undermining my authority and role as Executive Director.” 63

[78] However, we think Ms de Laps’ mischaracterises Mr Doecke’s email. Mr Doecke’s email to Ms de Laps on 6 December 2012 was as follows:

“Thu, December 6, 2102 17:42

Hello Debbie

Jonathan at QBE attempted to contact me by phone yesterday, after your call to QBE about the re-crediting of Personal Leave days.

I asked Marion to phone Jonathan this morning on my behalf (my study leave in Germany means that we are still in a transitional phase with respect to the transfer of responsibilities from Marion to me as Treasurer, and I am relying on her to give me support with regard to matters of this sort). I am now arranging with Marion to visit the VATE office next Monday to work with the Finance Officer on re-crediting these days of Personal Leave that were entered on 30 July to 2 November.

I am expecting to be at the VATE office at 3pm next Monday, December 10. I am especially keen to meet with Sarah, as I am expecting that she will be the key person with whom I need to be in dialogue in my role as Treasurer of the Association.

I will email Sarah directly to confirm an appointment for 3pm next Monday.

Best wishes,

Brenton” 64

[79] We have earlier set out the letters from VATE to Ms de Laps between 10 and 13 December 2012 and our view of the Commissioner’s characterisation of those letters.

[80] An objective analysis of the conduct of which Ms de Laps complains indicates that generally it does not bear the character she ascribes to it. Further, while Ms White’s action on Mondays when Ms De Laps was absent seems unusual and VATE could have better handled Ms de Laps exclusion from the VATE Council meeting of 21 November 2012, neither conduct in our view could be regarded as conduct, or part of a course of conduct, which forced Ms de Laps to resign. Nor do we think the VATE letters to Mr de Laps between 10 and 13 December 2012, or their content, can be regarded as falling into that category.

[81] There is no evidence that Ms de Laps was effectively instructed to resign by VATE in the face of a threatened or impending dismissal. No ultimatum designed to achieve her resignation is evident.

[82] Nor do we think the conduct, or course of conduct, by VATE on which Ms de Laps relied gave her no reasonable choice but to resign.

[83] The evidence does not establish that VATE’s conduct, or course of conduct, was intended to bring Ms de Laps’ employment to an end, that cessation of the employment relationship between Ms de Laps and VATE was the probable result of VATE’s conduct or course of conduct, or that because of VATE’s conduct or course of conduct Ms de Laps had no effective or real choice but to resign. There is no real basis for suggesting VATE exerted pressure or took any step which was intended to cause Ms de Laps to resign or which probably would have had that result.

[84] We are fortified in our view by evidence Ms de Laps gave under cross-examination. In her witness statement to the proceedings before the Commissioner, Ms de Laps responded to the issues raised in the VATE letter to her of 13 December 2012. Under cross-examination before the Commissioner, Ms de Laps gave the following evidence about these matters:

“PN64

In your witness statement, you've gone through each one of these issues that has been raised and put your side of the story. That's right, isn't it?---Those that were able to be responded to, I have provided a response to.

PN65

Well, there are several where you say it's too general to come up with any response, but generally in your witness statement you've gone through and provided your response to the issues which were on this agenda. That's right?---I have provided some responses.

PN66

And the responses you've provided in your witness statement could of course have been provided to the employer at the meeting on 17 December, if that meeting had gone ahead. That's right?---They could have.

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.”

[85] Such evidence about her being able to respond to matters raised in VATE’s letter to her of 13 December 2012 at the meeting VATE set for 17 December 2012 and her potentially being put on a performance management contract is not consistent with the notion that when she resigned from her employment at VATE, Ms de Laps was forced to do so because of conduct, or a course of conduct, engaged in by VATE.

[86] In the circumstances, in our view none of the conduct by VATE, either individually or as part of a course of conduct, is sufficient for Ms de Laps to be successful in claiming she was forced to resign because of conduct, or a course of conduct, engaged in by VATE.

Conclusion

[87] We consider it is in the public interest that we grant permission to appeal from the Commissioner’s decision. For the reasons we have given, we consider the Commissioner’s decision was affected by significant error manifesting an injustice. 65 We grant permission to appeal.

[88] Further, for the reasons given, we are satisfied that while Ms de Laps resigned from her employment with VATE, she was not forced to do so because of conduct, or a course of conduct, engaged in by VATE. Ms de Laps was not dismissed within the meaning of the FW Act.

[89] Accordingly we quash Commissioner Ryan’s decision of 26 August 2013 in matter U2013/433 and dismiss Ms de Laps unfair dismissal remedy application in matter U2013/433. An order 66 giving effect to our decision is being issued at the same time as this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

M. Champion of Counsel with G. Haros for the Victorian Association for the Teaching of English Inc.

M. Felman of Counsel for Ms Debra de Laps.

Hearing details:

2013.

Melbourne:

December 10.

 1   De Laps v Victorian Association for the Teaching of English Inc, [2013] FWC 4163.

 2   De Laps v Victorian Association for the Teaching of English Inc, U2013/433 at Fair Work Commission Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy.

 3   Ibid.

 4   (1995) 62 IR 200.

 5   Ibid at pp.203-206.

 6   Ibid at pp. 206-207.

 7   (1996) 67 IR 154.

 8   Ibid at pp.160-161.

 9   Ibid at p.161.

 10   Print N6999.

 11   Ibid at pp.11-12.

 12   Ibid at pp.13-14.

 13   Print S5904.

 14   Ibid at [13].

 15   PR973462.

 16   Ibid at [23].

 17   Mohazab v Dick Smith Electronics Pty Ltd, (1995) 62 IR 200 at 203.

 18   Workplace Relations Act 1996 (Cth), s.642(1).

 19   [1978] QB 761.

 20   Ibid at 769.

 21   [1997] 2 VR 127.

 22   Ibid at 160-161.

 23   [2011] VSC 36.

 24   [2013] FWCFB 5279.

 25   De Laps v Victorian Association for the Teaching of English Inc, [2013] FWC 4163 at [48].

 26   Ibid at [51].

 27   Ibid at [53].

 28   Ibid at [19] and [54].

 29   Ibid at [62].

 30   Ibid at [67].

 31   Ibid at [70].

 32   Ibid at [71] and [74].

 33   Ibid at [86].

 34   Ibid at [88].

 35   Ibid at [91].

 36   Ibid at [94] to [96].

 37   Ibid at [98].

 38   Ibid at [103].

 39   Appeal Book in C2013/6008 at p.168.

 40   Appeal Book in C2013/6008 at p.172.

 41   Ibid.

 42   Ibid at pp.174-175.

 43   Ibid at pp.176-178.

 44   Ibid at p.193.

 45   Appeal exhibit F1 at paragraph 49.

 46   Fair Work Act 2009 (Cth), s.387(d).

 47   Transcript in U2013/433: De Laps v Victorian Association for the Teaching of English Inc at PN 66.

 48   Appeal Book in C2013/6008 at pp.9-10.

 49   Ibid at pp. 88, 100 and 104.

 50   Ibid at pp. 85, 90-92, 97-99 and 102-103.

 51   Ibid at pp. 121-124, 157-163 and 243-249.

 52   Ibid at p.241.

 53   Ibid at p.242.

 54   Ibid at pp.122-123.

 55   Ibid at p.165

 56   Ibid at p.164

 57   Ibid.

 58   Ibid at p.19.

 59   Ibid at pp.121-124.

 60   Ibid at pp.136-138.

 61   Ibid at pp.263-237.

 62   Ibid at p.227.

 63   Ibid at pp.25-26.

 64   Ibid at p.166.

 65   GlaxonSmithKline Australia Pty Ltd v Makin, [2010] FWAFB 5343 at [26]-[27].

 66   PR547865.

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