[2017] FWC 1335

The document previously issued with the document reference [2017] FWC 1335 on 7 March 2017 is replaced with the attached. The document references have been updated.

Kelly Amos

Associate to Commissioner Spencer

Dated 22 May 2017

[2017] FWC 1335 [Note: An appeal pursuant to s.604 (C2017/1481) was lodged against this decision - refer to Full Bench decisions dated 28 March 2017 [[2017] FWCFB 1689] and 30 May 2017 [[2017] FWCFB 2638] respectively for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Glenyce Ham
v
Dr Allan Clarke T/A CJ Orthopaedics Pty Ltd
(U2016/11771)

COMMISSIONER SPENCER

BRISBANE, 7 MARCH 2017

Application for relief from unfair dismissal, jurisdictional objection, whether termination at the initiative of the Employer, Orthopaedic surgeon, medical Practice Manager, impact of personal relationships on workplace, constructive dismissal, contributing conduct.

[1] An application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy was filed by Ms Glenyce Lorraine Ham (the Applicant/Employee) on the grounds that the termination of her employment from Dr Allan Clarke T/A CJ Orthopaedics Pty Ltd (the Respondent/the Employer) was harsh, unjust and/or unreasonable. The application alleged that the Applicant’s employment commenced on 12 May 2005, as set out in the Applicant’s contract of employment, and the dismissal took effect on 21 September 2016.

[2] The matter was listed for conciliation before a Fair Work Commission (FWC) Conciliator however, the Respondent filed an objection to the application made by the Applicant. The conciliation was cancelled as the Respondent pressed their objection, and elected for this to be dealt with in the first instance. The Applicant subsequently held a medical certificate that stated, the Applicant was not able to participate on an indefinite basis. The Applicant provided her husband with authority to appear on her behalf, at a Directions conference. The Parties did not consider the matter could be resolved and sought the arbitration of the matter. The Applicant provided a medical clearance to attend the Hearing.

[3] The jurisdictional issue in this case is: whether the Employee’s employment was terminated at the “initiative” of the Employer (as per s.386(1)) or whether the Applicant resigned from her employment, voluntarily.

[4] The Applicant was self-represented, together with her husband Mr Keith Ham. The Respondent was represented with permission 1, by Mr Dev Pillay, Senior Associate of Moray and Agnew Solicitors.

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

Background

[6] The Respondent was a prominent orthopaedic surgeon in the Sunshine Coast Medical community. The Applicant had held a series of Medical Practice management positions and also stated she was well known and well-connected in the Sunshine Coast medical community.

[7] The Applicant commenced working for the Respondent’s medical practice in 2005, employed as a medical secretary/receptionist. During the Applicant’s employment her role had changed to include the responsibilities of practice manager.

[8] The Applicant filed an Unfair Dismissal application with the Commission on 24 September 2016, alleging she was forced to resign from her employment with the Respondent, due to the Respondent’s conduct.

Relevant Provisions of the Legislation

[9] Section 385 of the Act provides:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

[10] Further the Act at s.386(1) provides:

386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

[11] Further the Act at s.387 provides:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other Employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the Employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the Employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Summary of the Respondent’s Submissions

[12] The Respondent submitted the Applicant resigned, after providing a written resignation, on 21 September 2016 and was not forced into resigning. 2

[13] The Applicant developed a friendship with the Respondent’s ex-wife, Mrs Clarke. The relationship arose due to Mrs Clarke’s involvement with managing the practice’s finances, where she regularly interacted with the Applicant. In early 2012 the Respondent separated from his wife, which resulted in her ceasing involvement with the practice. The Applicant at all times stated she had not been made aware of the demise of their marriage, and it can be inferred from her evidence and conduct, that she took offence to not being informed of this.

[14] The Respondent at a subsequent time, in 2013, commenced a personal relationship with Ms Emma Wallace, a practice nurse in the Patient Flow Team at the Sunshine Coast University Hospital.

[15] The Respondent conducted surgery at the Sunshine Coast University Hospital. The Respondent came to consider that the Applicant’s interaction with the Patient Flow Team (that managed patients in the surgery theatre lists of the Sunshine Coast University Hospital) was less than acceptable. The Respondent attributed this to the fact that Ms Wallace commenced working in the Patient Flow Team on or about October 2014, and the Applicant was aware they were in a relationship.

[16] A series of events occurred over a period of time that caused the Respondent concern in terms of the Applicant’s management of the practice and her attitude to Ms Wallace. Prior to the end of the employment relationship, a number of the Respondent’s concerns were confirmed. The Respondent stated he was informed, shortly after Ms Wallace commenced employment with the Patient Flow Team, that the Applicant had telephoned the Team leader Ms Roseanne Tucker and told her she did not want to have any contact with “that woman” (Ms Wallace) and all contact with the Applicant should go through the team leader. From then onwards, the Respondent and Ms Wallace, after learning of this conversation, decided to deal directly with each other (regarding practice matters), as much as possible, to avoid any further issues with the Applicant. There were subsequent occasions, where emails were exchanged between Ms Wallace and the Applicant for work purposes. The Respondent was concerned with the Applicant’s lack of basic salutations in the emails, which were indicative of the Applicant’s resistance to work with Ms Wallace. The Applicant refuted this, and stated the emails were her usual, business-like manner.

[17] The Respondent submitted he later contacted Ms Tucker by telephone to discuss the phone conversation she had received in 2014 from the Applicant, in relation to Ms Wallace. The Respondent submitted Ms Tucker remembered the details of the conversation and clearly provided her recollection of the conversation, in an email to the Respondent as below.

“From: Roseanne Tucker

Date: 31 August 2016 at 13:53 AEST

To: Emma Wallace

Good afternoon Allan,

I am writing this email to confirm a conversation I had with Glenys (your Practice manager). I was roughly November 2014 – December 2014 a month or two after Emma Wallace started working in the patient flow team. At that time I was the team leader and had spoken to Glenys on many occasions. On one practically day we were talking and she asked if I would make sure that Emma did not call her like Wayne did and asked if all calls could come through me. I mentioned that I could not promise this as I am not clinical and the reason why Wayne called was sometime out of my scope. I did not mention this to Emma for a while as I had never meet her before she joined the team.

Kind Regards,

Roseanne”

[18] In early 2015 other issues arose that caused the Respondent concern regarding the management of his practice. The Applicant left the practice prior to 12.30pm on a Friday afternoon without notifying the Respondent. Between surgical cases the Respondent phoned the office, but it went through to voicemail. The Respondent assumed the Applicant was either on the phone or on lunch. Further to this, the Respondent sent an email at approximately 12.30pm to the Applicant outlining instructions for her. It was only later that afternoon the Respondent became aware the Applicant had not attended to the email, and was still not answering the office phone. The Respondent came to the conclusion she had left the office prior to 12.30pm. This had implications for the surgical list on the Monday. The Respondent subsequently advised the Applicant he did not mind her leaving slightly early on a Friday, if it was quiet, it was not expected that she would leave before 12.30pm, without first informing the Respondent. The Applicant responded, as submitted by the Respondent, stating she was not at fault and that the Respondent should have known to call her on her personal mobile. The Respondent asked the Applicant to notify him if she intended to leave before 3pm on a Friday in the future. The Respondent stated, the Applicant responded by saying “it was never like this when (the Respondent’s ex-wife) was still around”.

[19] In April 2016 the Respondent purchased a new office for the practice. The Respondent at this point, had decided the patient care in the practice could be enhanced by involving Ms Wallace’s nursing skills. The Respondent raised this with the Applicant, the Applicant expressed no opinion for Ms Wallace’s involvement in the practice, other than saying “Ok”. The Respondent stated he confirmed with the Applicant there was no proposed change to the Applicant’s role, rather Ms Wallace’s involvement would relieve the Applicant of tasks she did not enjoy.

[20] From 1 July 2016 the practice commenced operating from the new office. The Respondent submitted the consequence of moving to the new office meant there was no cover available, if the Applicant was sick or otherwise out of the office. Previously the office had been shared with another specialist, where their secretary could provide assistance if required. Therefore, the Respondent requested the Applicant to provide Ms Wallace a basic understanding on how the office runs, and how to perform critical tasks so that Ms Wallace could stand in at short notice if required. The Applicant was not enthusiastic about teaching Ms Wallace, and indicated it was too much.

[21] In August 2016 the Respondent again raised the idea of Ms Wallace’s involvement in the practice with the Applicant. The Respondent considered the Applicant in the previous discussion, appeared to oppose the idea. Following this discussion there were further interactions between the Applicant and the Respondent, where the Respondent reached the view that the Applicant acted inappropriately towards him, and also with respect to Ms Wallace and the Patient Flow Team.

[22] The Respondent submitted on 24 August 2016 he asked the Applicant to email the theatre list to Ms Wallace, identifying the patients the Respondent treated at the Sunshine Coast Private Hospital on 22 August 2016. The Respondent submitted, indicative of the Applicant’s on-going attitude to Ms Wallace, the Applicant had not included a greeting or explanation as to why the document was being provided, to Ms Wallace. The Respondent submitted in evidence at the hearing, Ms Wallace asked him when she received the email what it was about, in order so that she could respond. Dr Clarke’s evidence on this point was challenged, given that Ms Wallace responded to the Applicant’s email within two minutes of receipt of the email, and she was clearly aware why she had been sent the list. The Respondent’s evidence gives an insight into potentially his bias towards, or protectiveness of, Ms Wallace. This has been taken into account in the consideration of this matter. The email sent is as provided below.

“From: Glenyce @ Dr Allen Clarke

Sent: Wednesday, 24 August 2016 12:19 PM

To: Wallace, Emma

Subject: Dr Allen Clarke, theatre list Monday 22/08/2016 SCPH, Buderim

Kind regards

Glenyce Ham”

[23] Ms Wallace had replied to the above email as follows:

“From: Wallace, Emma

Sent: Wednesday, 24 August 2016 12:21 PM

To: Glencye @ Dr Allen Clarke

Subject: Dr Allen Clarke, theatre list Monday 22/08/2016 SCPH, Buderim

Thank you I’ll endeavour to call them this afternoon.

Emma Wallace

CLINICAL NURSE, PATEINT FLOW”

[24] On 26 August 2016, the Applicant called in sick, and sent an email to the Respondent, which stated as follows:

Dear Allen

I am feeling extremely stressed by the verbal harassment from yourself and Emma which has been happening over the last three years.

I had a dreadful night.

It has to stop, it is just pointless. It is not only affecting my health but becoming the undoing of our long, happy and successful work relationship.

I will be seeking medical advice when I can get an appointment. Fiona McGrath is only here one day a week now, so I will try and get to see Gordon Stone.

Regards

G

[25] The Respondent submitted he was perplexed by the Applicant’s email as this was the first time she referred to any verbal harassment. The Respondent further submitted, the Applicant had only emailed Ms Wallace a few times for work purposes, and first met her in early July 2016 at the new office. The Respondent wrote the following response to the email received from the Applicant on 26 August 2016:

Dear Glenyce

I am surprised at your allegations of “verbal harassment”. I have not once verbally harassed you.

I have spoken to you about your conduct on 3 occasions. This does not constitute verbal harassment.

When you confirmed completely untrue rumours about me and nursing staff at SCPH with Mrs Clarke. You had no right to discuss anything you had heard let alone did not have firsthand knowledge of. Your loyalty should have been to me and you should have spoken to me about the rumours first before discussing them with anybody else.

When you were away from the office on a Friday afternoon without notifying me which resulted in a major disruption to the theatre list the following week when you were unable to action the email I sent early that afternoon to rearrange the list.

When you were sending “shouty emails” to patient flow at SCUPH. This was brought to my attention by the manager of patient flow. The emails were inappropriate and it was entirely reasonable that I speak to you about this issue.

If you feel there have been instances outside these times that I have verbally harassed you I would appreciate it if you would advise me of the specific instances.

Emma has never verbally harassed you. You only met her six weeks ago and I have been present at most of few brief encounters you have had with her. All other contact (four occasions in almost 2 years) with her by email about public patients has been monitored by the patient flow manager and her conduct has been professional and courteous at all times.

I did not appreciate the way you rolled your eyes on 25.8.16 when I brought up the issue of the email you sent to Emma on 24.8.16 and the way you repeatedly referred to her as “that woman” before finally realizing you were referring to her that way. I expect you to be courteous and respectful towards Emma at all times and towards me when I bring up any work issues with you.

We have indeed had a very good working relationship and your work and professionalism has been outstanding during that time.

It would be a pity to allow your unfounded bias against Emma to affect that relationship. Unlike the unfounded rumours about nursing staff and me at SCPH which you chose to confirm to Mrs Clarke, you would be well advised to ignore the unfounded ones about Emma that came from Caloundra Hospital. Your stress is related to your reaction to a misguided perception of Emma’s role in my separation and an admirable although, given your employment position, unrealistic loyalty to Mrs Clarke.

I really appreciate you coming in this week despite your cough. I hope it settles soon.

Sincerely

Allan

[26] A discussion took place on 29 August 2016, regarding the verbal harassment alleged by the Applicant. The Applicant responded to the Respondent, saying she had documented the occasions of verbal harassment, but refused to provide the Respondent with the documentation or provide the details of them.

[27] The Respondent submitted a conversation took place with the Applicant on 6 September 2016. During this conversation, the Respondent again raised with the Applicant the need for her to teach Ms Wallace the basics of the office, so she could stand in at short notice if required. The Respondent submitted the Applicant responded by saying words to the effect “I had to go to University to learn that… I can’t do it… sit beside her and teach her my job… too tiring… If you want me to train Emma… no… no”. The Respondent submitted he then raised the issue of the phone call with Ms Tucker, as he now recognised a longstanding pattern of resistance to working with Ms Wallace. The Respondent submitted the Applicant denied making the call to Ms Tucker, and stated “I don’t know Roseanne, I didn’t know Emma was even working in that department, I don’t even know what patient flow is”. The Respondent submitted that the Applicant went on to express her concerns with a number of issues, including that it was unreasonable to bring a third person into the practice, and that partners involved in practices are a disaster, however Mrs Clarke was the exception to the rule. The Respondent submitted, the Applicant raised concerns with him for failing to advise her of his separation from Mrs Clarke, and she had said unidentified people had told her that Ms Wallace and the Respondent were “chitty chatty” at the hospital and she told him to “go home, get drunk and forget about it”.

[28] The Respondent submitted between 7 September 2016 and 16 September 2016 he delayed further discussions on the Applicant’s inappropriate behaviour of 6 September 2016, as the Applicant was undergoing medical tests.

[29] On 20 September 2016, a further meeting took place between the Applicant and Respondent to discuss the unsatisfactory conduct of the Applicant. The Respondent submitted after the meeting the Applicant responded robustly and made several accusations against the Respondent. Most relevantly, the Applicant questioned the Respondent’s integrity and criticised the Respondent for failing to notify her of his marriage breakdown. After the Applicant expressed her feelings, whilst the Respondent stated he mostly passively listened, the tone of the conversation improved between them. The Respondent understood that an agreement had been reached about Ms Wallace’s involvement in the practice, and that an effort would be made by the Applicant to interact professionally with Ms Wallace.

[30] Further to this on 20 September 2016, the Respondent queried with the Applicant if there was an issue with the phones, as Ms Wallace had texted him that a patient had queried about a document, and was having difficulties getting through to the office. The Applicant’s in response to the inquiry, as submitted by the Respondent, was she had become aware of patient complaints about Ms Wallace. The Respondent stated he had previously been involved in resolving some patient complaints with Australian Prudential Regulation Authority (APRA), and upon reflecting on the Applicant’s statement that night, it had caused him concern. (This matter is dealt with in more detail in the considerations).

[31] On 21 September 2016, another meeting took place between the parties. At the meeting the Respondent attempted to raise issues about the Applicant’s behaviour in the meeting from the previous day, and an exchange on this occurred. The Respondent stated the Applicant responded aggressively and complained that the Respondent had failed to show her loyalty. The Respondent submitted the Applicant suddenly stated ‘our relationship has ended’ and volunteered to write a resignation and provided the Respondent with two weeks’ notice. The Respondent asked the Applicant to provide four weeks’ notice; the Applicant refused and reiterated 2 weeks.

[32] The Respondent submitted on 21 September 2016 at 08:30am, during the meeting (the Respondent had taped this interaction without the Applicant’s knowledge), the Applicant tendered her handwritten resignation, which stated the last working day would be 5 October 2016. The Respondent further submitted that before 03:00pm the Applicant left the office early, without notice, and did not return to work.

[33] The Respondent submitted that after the resignation took place, the Applicant did not attempt to withdraw the resignation, the Applicant did not act as if the resignation was not valid and the Applicant did not claim she had been forced to resign until an Application was filed with the Fair Work Commission, on 24 September 2016.

[34] The Respondent submitted on 22 September 2016 he received an email from a Medical Centre containing a letter, stating the Applicant was not fit for normal duty, from 21 September 2016 until 7 October 2016.

[35] On 23 September 2016 the Respondent sent an email to the Applicant requesting for her to submit a request for sick leave via text or email, and to return the office keys and office manual, as it appeared the Applicant would not be returning to work prior to 5 October 2016. The Respondent submitted he sent a further three text messages to the Applicant requesting the office equipment to be returned. However no response was received from the Applicant, regarding the office equipment or requesting sick leave.

[36] The Respondent submitted the Applicant voluntarily resigned from the practice due to the following reasons: the Applicant first mentioned resignation of employment without any prompting or encouragement by the Respondent, despite being allowed sufficient time to ‘cool down’ and attempt to withdraw the resignation, the Applicant did not do so; the Applicant insisted on only giving two weeks’ notice of termination, even though the Respondent wanted the Applicant to give four weeks’ notice; and, all of the Applicant’s actions following her resignation are consistent with the Applicant resigning voluntarily. In particular, the Applicant did not explicitly make any mention of her being forced to resign until she filed this application.

Summary of the Applicant’s Submissions

[37] The Applicant submitted her termination of employment was a constructive dismissal, due to the conduct, which was engaged in by the Respondent that forced her to resign. The Applicant claims she was forced to resign, purely as a result of the Respondent’s “incessant and unabated conduct” towards her over a considerable period of time, concerning the same issue of Ms Emma Wallace, which had been addressed numerous times. The Applicant contended Ms Wallace was agitating Dr Clarke, and causing the disruption to the working relationship.

[38] On 18 December 2014, the Applicant submitted she had asked the Respondent for a pay rise, to place her in alignment with the Health Professionals and Support Services Award 2010 (the Award). It had become apparent to the Applicant during conversations with others in similar positions, her rate of pay was below the Award. When the Applicant advised the Respondent of this, she stated he reacted with surprise. The Applicant submitted, that annually on her birthday, Mrs Clarke would write her a letter granting her a pay rise. For the past 9 years the Applicant had never been required to make a request, for a pay rise.

[39] The Applicant submitted a meeting occurred in mid-January 2015, where the Respondent raised the pay rise enquiry and stated “how dare you ask for a pay rise”. The Applicant claimed that at this time she had been receiving $27 per hour, the Award rate for the Applicant’s experience and employment period was $34 per hour. The Respondent is alleged to have said her pay was sufficient for what she did, and in his opinion she did not deserve a pay rise. The Applicant felt this was a ‘below the belt’ insult and she was disgusted. The Applicant considered that given his response, there was a change in their working relationship from this point.

[40] The Applicant submitted the Respondent had accused her of refusing to speak to Ms Wallace on the phone. The Applicant was not aware that the Respondent’s partner was Ms Wallace, nor was she aware Ms Wallace was working at Patient Flow at the times she had been alleged to have acted inappropriately. The Applicant had thought about having a private meeting with Ms Wallace, the Respondent was happy for this to occur, but had stated he did not like confrontation; the meeting did not occur.

[41] The Applicant sent an email to the Patient Flow Team which was typed all in capital letters; this email was subsequently raised by the Respondent. The Applicant submitted the email was not intended to be interpreted as ‘shouting’ and she was not aware it represented this. The Applicant submitted she and the Respondent had a chuckle about the ‘shouty email’ several times, as neither of them knew what this had meant. The email is below.

From: Dr Allan Clarke

Sent: Tuesday 13 January 2015 9:44AM

To: Tuxford, Kate

Subject: RE: Week 62

CAN YOU PLEASE TELL WHOEVER CALLED ALEXA AND TOLD HER SURGERY WAS ON MONDAY 19/01/15 THIS IS NOT CORRECT

DR CLARKE IS NOT SEEING HER UNTIL TUESDAY 20/01/15 AND HE WILL ALLOCATE THE DATE

PLEASE DO NOT CALL THE PATIENTS AND TELL THEM MISINFORMATION

THANK YOU

AND YES I AM FRUSTRATED

Glenyce

[42] The Applicant submitted she had conversed with Ms Tucker from the Patient Flow team regularly by phone and email. The Applicant further submitted she had a great rapport with the Patient Flow team, and the email was never raised. The Applicant alleges it was Ms Wallace, who made an issue of the email and brought it to the attention of the Respondent, as a means of attempting to demean the Applicant’s character.

[43] The Applicant submitted the phone call made by the Respondent to Ms Tucker (previously referred to) from the Patient Flow team, regarding preventing the Applicant’s interactions with Ms Wallace, was continually been raised by the Respondent. The Applicant felt the number of times this allegation had been raised was monotonous and stressful. It had become clear to the Applicant at this stage, that the Respondent doubted the Applicant’s honesty.

[44] A conversation on 15 January 2015 took place between the Applicant and the Respondent. The Applicant submits the length of the conversation, and the number of issues raised, were extensive. The Applicant deemed this conversation to be confrontational, abusive, bullying and classified it as harassment. The Applicant further submitted she felt this conversation was a betrayal of her trust, severe victimisation and that she was devastated and emotionally, mentally and physically shattered, as a result of it.

[45] The Applicant submitted the Respondent’s actions were reflective of his desire to drive the Applicant out of the practice, and force her to resign. The Applicant argued the Respondent had made working at the practice unbearable, and too difficult for the Applicant to stay. The Applicant stated that the Respondent had relentlessly pursued her with allegations and threats. 3 The Applicant stated she had kept notes of the exchanges.

[46] On 20 September 2016, the Applicant was requested by the Respondent via email, to attend a meeting. At the meeting, the Applicant was provided with a meeting agenda. The meeting commenced, with the Respondent giving a statement regarding Ms Wallace’s expertise as a clinical nurse and commending her involvement with the practice. The agenda went on to include topics such as management of the office, Ms Wallace’s involvement with the practice as practice nurse and bookkeeper, work ethics of the Applicant and the Applicant’s resistance in training Ms Wallace the duties of her job. The parties endeavoured to re-set their workplace relationship at this meeting.

[47] The Applicant stated she was concerned on 21 September 2016, upon entering the office in the morning, the Applicant found the Respondent sitting in the spare office with his laptop open. This was unusual for the Respondent to arrive at this time, and the Applicant stated she was fearful of another confrontation. The Applicant submitted the Respondent had invited her to take a seat, and began to continually shout at her “you are a liar”. During this time it was revealed by the Respondent he had been taping their conversations, of which the Applicant was unaware and requested a transcript. The Respondent then advised the Applicant he was issuing her with a warning.

[48] The Applicant submitted she pleaded with the Respondent as to why he was supporting and believing the Patient Flow team and questioning her integrity, to which the Respondent answered because “you are a compulsive liar”. It was then at this point the Applicant had felt the Respondent had given her no option but to resign. The Applicant wrote out her resignation, and presented it to the Respondent.

[49] The Applicant submitted, upon taking into consideration all of the above mentioned reasons, the conduct of the Respondent forced the Applicant to resign, and she was constructively dismissed.

Summary of Respondents Submissions in Reply

[50] The Respondent denied bullying the Applicant at any relevant time, denied subjecting the Applicant to any verbal abuse at any relevant time and denied speaking or treating the Applicant inappropriately at any relevant time.

[51] The Respondent submitted the Applicant never raised any allegation of verbal abuse or complained of his behaviour until 26 August 2016. The issue of bullying had never been raised, until the commencement of these proceedings.

[52] It is the Respondent’s view that the Applicant unjustifiably saw the involvement of Ms Wallace in the practice, as a threat to her authority. Consequently, the Applicant resisted Ms Wallace’s involvement and overreacted emotionally, to any suggestion that Ms Wallace could contribute, or be involved in the practice.

[53] The Respondent accepted that the Applicant asked for a pay rise on or about 18 December 2014. The Respondent believed that the Applicant was being paid in accordance with the Health Professionals and Support Services Award 2010 at all times.

[54] The Respondent submitted his motivation in speaking with the Applicant on 21 September 2016, was to discuss the events of the previous day and inform the Applicant of his views of her unsatisfactory behaviour. The Respondent’s aim was to address the Applicant’s performance issues, improve her attitude and for the Applicant to work well with Ms Wallace in the practice.

Summary of Applicant’s submissions in reply

[55] The Applicant submitted she was not aware of and had not been advised that the Respondent and his wife had separated, or that the Respondent had commenced a personal relationship with Ms Wallace.

[56] The Applicant set out the Respondent knew from the date of his separation, and the commencement of his relationship with Ms Wallace, that Ms Wallace’s involvement with the practice would cause a problem, due to the Applicant’s personal and close friendship with Mrs Clarke.

[57] The Respondent submitted one of the intentions of involving Ms Wallace in the practice was to reduce the Applicant’s workload and time pressures, as well as allow the Applicant to focus on those aspects of the role she enjoyed and was specifically trained to do. The Applicant submitted in reply, she was not under any time constraints or workload pressures, and she had managed the practice on her own for many years.

[58] The Respondent submitted Ms Wallace’s involvement would assist with covering the Applicant when required. The Applicant submitted in reply this has never been an issue in 11 years, as she had always arranged replacement staff. The Applicant stated she rarely was sick and had approximately 120 days of sick leave unclaimed.

[59] The Applicant further stated, she is claiming dismissal under duress, due to the Respondent’s persistent and relentless bullying, verbal abuse and harassment since December 2014. The Applicant stated she kept a list of these instances, but did not detail such.

Considerations

[60] To effect the jurisdiction of the Commission, the Act requires the Commission to be satisfied that the Applicant’s employment was terminated at the initiative of the Employer or that the Applicant resigned from her employment with the Respondent, but was forced to do so as a result of the conduct of the Respondent.

[61] The Applicant must demonstrate that the Respondent forced her resignation and the Respondent took action with the intent to bring the employment relationship to an end.

[62] The Applicant in this matter had worked as the Respondent’s medical receptionist/secretary for some 11 years. In that role the Applicant had significant autonomy and played a central role in managing her Employer’s Orthopaedic Surgeon’s Medical Practice.

[63] On the material before the Commission, both parties were well known in the medical community of the North Coast.

[64] Dr Clarke’s ex-wife had been involved in the practice in assisting with the administration with the practice. She provided administrative support to the Applicant and on the Applicant’s evidence they had developed a friendship and were friends on Facebook.

[65] In deciding whether a dismissal has taken place, the Commission must consider the factors in section 386(1).

[66] It is often a fine line analysis of the conduct in these situations. From the conduct of the Employer in the current case at the final meeting, it can be concluded that the Applicant, had no real choice but to resign. The words of the Applicant’s resignation were unambiguous, the Employer was entitled to rely on them as such 4. The Employee took no steps to revoke the resignation until making the current application5. The Applicant’s resignation brought the contract to an end, there was no requirement for the Employer to accept or reject the resignation, but what must be considered are the events that lead to this.

[67] The final meeting, from which the resignation arose, requires analysis as do the prior events. The Respondent recorded the meeting, both Parties were given an opportunity to review the recording. The Applicant was not aware the conversation was being recorded, but agreed to listen to it, comment on it and understood a transcript of the recording would be made by the Commission. She stated she could not be sure if the recording was the whole conversation, or had been edited. Her evidence was that Dr Clarke during this conversation had called her a liar, in a hostile manner.

[68] In the case of a forced resignation, where the Employee submitted that they had no real choice but to resign, the onus is on the Employee to demonstrate that the resignation was forced, or not voluntary. That is, they must prove that the Employer forced them to resign and that the principal contributing factor leading to the termination, was pressure from the Employer to resign.

[69] In assessing whether there was a termination at the initiative of the Employer, on the facts of the matter, the principle to be applied against the particular circumstances, was summarised in the decision of Mohazab v Dick Smith Electronics (No 2) as follows:

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.” 6

[70] The decision of O’Meara v Stanley Works Pty Ltd  7(O’Meara) considered the concept of termination at the initiative of the Employer. The Full Bench of the Australian Industrial Relations Commission referred to a number of authorities when discussing this concept, which are relevant to this application:

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

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

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an Employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the Employer. But narrow though it be, it is important that the line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the Employer may be too readily invoked in circumstances where it is the discretion of a resigning Employee, rather than that of the Employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the Employee that causes the employment relationship to cease, it is necessary to ensure that the Employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The Employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the Employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the Employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the Employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab 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.” 8

(emphasis added)

[71] The approach of the Full Bench in O’Meara is adopted when considering the circumstances of this application against the criteria of s.386(1)(a) of the Act. Thus, it is necessary to examine whether the Applicant’s employment was terminated at the initiative of the Employer, and the conduct of the Employer must be scrutinised to determine whether it was such that she was forced to resign. Each of these criteria has been considered. In reading the transcript of the final meeting below, the Employer set out his complaints with the Applicant’s conduct. It can be concluded that his responses during this meeting had the probable result of bringing the employment relationship to an end. It is also arguable, that in setting up this meeting he intended to bring the employment relationship to an end.

[72] The recorded conversation of the final meeting instigated by the Employer early on 21 September 2016:

DR CLARKE: When you’re done could you come in? I’d like to chat to you again, please. I just want to chat to you about yesterday. We sat here yesterday and I thought we had come to an agreement to put the past behind us and to move on. Don’t roll your eyes, Glenyce.

MS HAM: I’m not rolling.

DR CLARKE: You rolled your eyes.

MS HAM: I didn’t. I just went - okay.

DR CLARKE: Roll eyes and sigh.

MS HAM: Okay, I’m sorry, Allan. You said to me we won’t discuss this again.

DR CLARKE: Yes, exactly. I sat here and in good faith I said to you let’s let bygones be bygones, let’s move forward. We shook hands and I meant that. Yesterday was your last chance. So - - -

MS HAM: You need to put that in writing.

DR CLARKE: So the first thing that happens is I get a call saying Mrs Beck can’t get hold - can’t get through to the office and it rings out. So what do I do? I come out and say, “Glenyce, there must be a problem with the phones.” That’s what I said to you, “Mrs Beck can’t get through.”

MS HAM: Bark.

DR CLARKE: Bark, Beck - I’m not sure. The first thing you did was - you reached for the mobile and said, “Yes, I want to speak to you about these offensive texts”, in front of patients. Don’t roll your eyes again, Glenyce.

MS HAM: I - I didn’t say, “offensive.”

DR CLARKE: You’ve just rolled your eyes again.

MS HAM: Allan, Allan - - -

DR CLARKE: You’ve just rolled your eyes again.

MS HAM: Okay, I rolled my eyes again.

DR CLARKE: Yes.

MS HAM: I’m sorry. I didn’t say, “offensive texts.” I wanted to speak to you about this.

DR CLARKE: No, you said offensive.

MS HAM: Okay.

DR CLARKE: I said to you, “We have put that behind us.”

MS HAM: Okay.

DR CLARKE: Okay. Nevertheless, I felt that I should point out to you the text was not offensive, it was completely - the only thing - the text did not say that the office was unattended. The text said, “Sorry you couldn’t get through.”

MS HAM: Okay.

DR CLARKE: So there was nothing untoward - - -

MS HAM: Okay.

DR CLARKE: - - in that text. The other issue that you brought up yesterday, which is really relevant, is that you said there had been two complaints.

MS HAM: I didn’t say complaints. I beg your pardon.

DR CLARKE: What did you say?

MS HAM: I did not say, “complaints”, at all.

DR CLARKE: What did you say?

MS HAM: I said there was issues raised to me - issues raised to me and I said to these people, “If you need to speak about it don’t speak to me. Speak to Dr Clarke.” I’ll tell you who it is because that’s all you’re doing, is pushing me - it was redacted. Not redacted - redacted and his wife, and they feel that they did not get - because she is a nurse, that it was just on her condition that redacted could look after redacted, end of story, done. You know now. You know and that’s all you wanted to know. I’m going to say something to you too - - -

(Names redacted by Fair Work Commission)

DR CLARKE: Yes.

MS HAM: - - which concerns me greatly.

DR CLARKE: Yes.

MS HAM: As a result of all of this not once - I’m not going to do that - not once did you defend me, did you show loyalty to me, did you support me.

DR CLARKE: In what?

MS HAM: In all of this Patient Flow stuff - not once.

DR CLARKE: Why should I support you?

MS HAM: Because I am your secretary, I am your practice manager, I have been here for 13 years. I am so sorry that you have to question me - why you have to support me.

DR CLARKE: Why should I support - - -

MS HAM: Why should you support me? Allan, that is appalling.

DR CLARKE: Let me answer - why should I - - -

MS HAM: Well, I know - I’m not righting this wrong any more. I’m not right.

DR CLARKE: Let me answer that question - - -

MS HAM: Allan, no.

DR CLARKE: - - let me answer that question.

MS HAM: No.

DR CLARKE: You’ve asked me why, now let me answer it.

MS HAM: That is appalling.

DR CLARKE: Because when you phone Roseanne and you instruct Roseanne that Emma should have no contact with you - “Make sure that Emma has no contact with me” - - -

MS HAM: That is their words, not mine, and that is where you show lack of support, because you do not believe you.

DR CLARKE: I do not believe you, Glenyce, and I’ll tell you why.

MS HAM: You do not believe me. Yes, it’s recorded. It’s recorded. You’ve got proof. I would like the proof.

DR CLARKE: I will tell you why I don’t believe you; because you can lie without batting an eye.

MS HAM: Excuse me, what on - - -

DR CLARKE: You stood there on 6 September in front of that clock - you said to me, “Go home, get drunk and forget about it.”

MS HAM: I want the tape recording. I want to hear it.

DR CLARKE: And then yesterday - - -

MS HAM: I want to - I want to hear it. I did not say that.

DR CLARKE: - - you sat down and you denied saying that.

MS HAM: I did not say that and you told me you taped it. I want to hear the tape.

DR CLARKE: I will not dignify that request.

MS HAM: Because you can’t.

DR CLARKE: I’m not going to go through hours of tape.

MS HAM: Because you can’t - because you can’t.

DR CLARKE: Nevertheless - - -

MS HAM: That is appalling. Our relationship has ended, finished. I will go out now and I will write a resignation and that is where it’s going to be and I will give you two weeks’ notice.

DR CLARKE: Four.

MS HAM: Two - I only have to give you two and you will pay me my entitlements because if you don’t - - -

DR CLARKE: I will. That’s not an issue.

MS HAM: I am going to do that. This is the last thing I believed was going to happen this morning. You do not show impartiality. You show total support and you have not shown impartiality. You are just saying it there now. You have not defended me. You have not - - -

DR CLARKE: How would I defend you? When - - -

MS HAM: That is - how can you defend me? End of story. I’m sorry. It’s not going to work. You cannot keep doing this to me. This is just not on, Allan.

DR CLARKE: Glenyce, please sit down.

MS HAM: Allan, I am going to write a resignation and I’m going to give you two weeks’ notice, official notice. Then I’m going to go to fair trade ombudsman.

DR CLARKE: That’s your right and you can do that.

MS HAM: And I will do that and I have all the proof in the world for everything. I will not have my dignity and my - - -

DR CLARKE: I will not be lied to.

MS HAM: I have not lied to you.

DR CLARKE: You lied straight-faced to me yesterday.

MS HAM: When? What did I - - -

DR CLARKE: About what you said to me on Tuesday 6 September at 4.10 pm - - -

MS HAM: “Go home and get drunk?” Allan, I do not - I am not a drinker. You’re not a drinker. That is not my words.

DR CLARKE: I drink.

MS HAM: You don’t drink, you have a bit of beer or something. That - are not my words. That is not my style. I did not say that at all and I object to that and I want proof of that off a tape recording that I can hear and I can produce.

DR CLARKE: Okay.

MS HAM: All right, I’m going to resign. I’m not going to stay. I’m not going to (indistinct) and I’ll give you two weeks’ notice from today.

DR CLARKE: Okay.”

[73] On examining the final exchange, the context of the discussion was that Dr Clarke had taken the irregular step of coming in early to the medical practice for the discussion. He had been particularly concerned at the Applicant’s mention of patient complaints being received, given his recent experience with the patient complaints to APRA. He indicated he could not support the Applicant, due to her recent conduct. Given the Applicant had sole responsibility for the Respondent’s practice, she considered her position untenable and resigned. On this conclusion, she had no option. The Employer’s conduct in indicating he could not support the Applicant, was sufficient to force this resignation. The Applicant had no choice in this matter, given Dr Clarke’s attitude; it was clear he no longer held any trust and confidence in the employment relationship.

[74] However, what must also be examined are the events prior to the final conversation. The Applicant had previously been a devoted Employee as evidenced by Mrs Clarke’s emails. The emails providing an annual salary increase, as set out below, are beautifully written and conveyed the gratitude of both Mr and Mrs Clarke. Mrs Clarke clearly played an integral role in maintaining the running of the practice. It is understandable that the Applicant felt affronted when she asked Dr Clarke for a pay increase, and the Applicant submitted, he stated “how dare you ask for a pay rise? 9” as per the Applicant’s statement.

[75] Each year Mrs Clarke had provided a letter on the Applicant’s birthday and a salary increase. Below is an example of two of these annual emails that expressed their appreciation to the Applicant, for her commitment and work in the practice, (prior emails had conveyed increases of 5%):

23/11/2009

Dear Glenyce,

Happy Birthday once again. Another year has flown by and it is once again time to celebrate our birthdays. Thanks for all you have contributed to the successful year we have had this year. Without your cheerful, efficient and caring presence in the office we would be lost.

I am pleased to advise you that we will be increasing your salary by 3% from the beginning of January. I wish you well with your surgery and during your recovery.

With love

(Christian name withheld by Commission)

15/11/2011

Dear Glenyce,

Happy Birthday from both of us, another year has passed by and it has been a pleasure having you as such an important part of our practice. Your efficiency and professionalism do not go unnoticed, but it is the loyalty and the special way you make each and every patient feel important which adds such immeasurable value to the everyday running of the practice. For this we thank you. I hope that the next year will be an even better one for us all.

We would like to inform you that your salary will be increased by 3.6% as of the 1 January 2011.

Wishing you only good things in your life in the next year,

With love and friendship,

(Christian name withheld by Commission)” 10

[76] The Applicant indicated that the difficulties in the relationship between herself and Dr Clarke significantly coincided with her request to him for a pay increase in 2015, he expressed surprise and indicated he would think about it over the Christmas break. The Applicant was concerned at his response and the manner in which he had conveyed it. She attributed a particular shift in their relationship to the events during this time. The Applicant set out a series of dates dating back to 2014 11 where she states he had allegedly verbally abused her. 

[77] The Applicant stated, she noticed a real change in Dr Clarke’s demeanour towards her at this time. The Parties referred to a further incident in 2015, as indicative of a further change in their working relationship, when the computer and phone network of the practice went down. After calling for IT assistance, it was found that Dr Clarke had overlooked paying the Telstra account. The Applicant, having been involved in managing the practice and patients that day, without the availability of the computer, was frustrated when this became known as the cause. Dr Clarke indicated he did not appreciate the way the Applicant had spoken to him and stated “just pay the bill”.

[78] The Applicant stated she was unaware Dr Clarke’s marriage had broken down, or that the Respondent had assumed a new relationship. It is inconceivable on the evidence before the Commission, that the Applicant was not aware of the marriage breakdown or that Dr Clarke had commenced a new relationship with Ms Wallace. Clearly when Mrs Clarke discontinued her involvement in the business the Applicant would have been aware of the changed circumstances, given the Applicant and Mrs Clarke were friends and had a long association at the practice, and that the Parties all confirmed they were also well connected in that medical community. The Applicant’s evidence that she was unaware of these circumstances is unable to be reconciled with the facts. Dr Clarke talked about how these things were well known in the Sunshine Coast medical community. On her own evidence, the Applicant indicated she was well connected in the medical community of the Sunshine Coast. In addition, the Applicant’s husband Mr Ham talked about making small talk with Ms Wallace, when he saw her in his role as an orderly, at the Sunshine Coast University Hospital, where Ms Wallace also worked. Whilst Mrs Ham acknowledged that the Respondent’s personal life was not her business, it was clear from her responses, demeanour and reaction to Ms Wallace, that she had felt insulted by not being directly informed of all of these circumstances.

[79] On review of the circumstances, a clear communication from the Respondent to the Applicant was warranted regarding the workplace changes, that his wife would no longer play a role in the practice, confirming the nature of the on-going employment relationship now without his wife's involvement, and how he expected things would operate in the practice to provide certainty for the Applicant. The Applicant however did not challenge the Employer’s evidence, that he had requested her to accommodate for Ms Wallace in the business. Dr Clarke had provided an assurance to the Applicant of his continued requirement of her role, and that there was no expectation of any change to her role, rather quite the opposite, that she played a significant part in the practice.

[80] Dr Clarke’s evidence was that he had understood Mrs Ham had been advised of the marriage breakdown, by his wife. He stated at the time he had seen a two page email his wife had written to the Applicant; explaining the marriage breakdown and how they wished to continue things in the practice as normal. He was under the impression that this had been sent to the Applicant. The Applicant denied receiving this. She stated that she only became aware that Dr Clarke had commenced a new relationship when a courier referred to ‘Dr Clarke’s new lady friend’ when he came into the rooms. Mrs Ham’s evidence on this matter is not credible, she clearly knew the marriage had finished and Dr Clarke was in a new relationship with Mr Wallace.

[81] Dr Clarke emphasised, after he had moved to new premises, had aimed to introduce Ms Wallace to the business in her role as Practice Nurse to assist with patient care after surgeries. The aim was also to have her trained in order that she could relieve the duties for the Applicant when required. Dr Clarke emphasised that he had made it clear that this was a separate role to the Applicant’s and that her job was in no way in jeopardy; quite the opposite he argued the Applicant provided a significant service and role in his business.

Section 386(1)(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.

[82] In assessing the nature of the resignation, it is necessary to further trace the events between the parties prior to the resignation. The Applicant tendered her resignation to the Respondent on 21 September 2016. The resignation letter provided as follows:

21/9/2016

Dr Allan Clarke

Orthopaedic Surgeon

Dear Allan

It is with regret after 13 years I must tender my resignation due to irreconcilable issues.

I am appalled at your lack of loyalty, support and defence of me in my role.

This resignation will take affect from 2/52 and I will leave the premises on Wed 5/9/16.

I expect my entitlements ie 19 weeks holiday owing plus leave loading to be paid into my bank account upon my departure.

Yours sincerely

GH” 12

[83] The Respondent submitted the Applicant claimed she resigned from her employment but was forced to do so because of the conduct, or course of conduct engaged in by her Employer. The Respondent denied the existence of any such conduct or course of conduct, but that the Applicant was opposed to Ms Wallace’s introduction into the workplace. Ms Wallace started work in the Respondent’s practice from April 2016. Dr Clarke explained that he planned on introducing Ms Wallace into the practice as follows:

15. In October 2014, Emma started working as a clinical nurse in the patient flow team of Sunshine Coast University Private Hospital (‘patient flow team’). I performed surgery at this hospital. Emma’s position with the patient flow team required her to regularly liaise with doctors’ offices (including my practice) to coordinate the management of the surgical patients. I understood that Emma had to speak to the applicant from time to time and also correspond with her via email as part of her role.

16. Shortly after Emma started in the patient flow team, Emma told me the applicant phoned the team leader Roseanne Tucker (there are 4 team members) and told Roseanne:

(a) the applicant did not want to have any contact with Emma; and

(b) all contact with the applicant should be through the team leader.”

[84] In assessing the conduct prior to the last meeting it is necessary to repeat some of the exchanges. Dr Clarke stated he noticed that after the 2014 Christmas break when the Applicant sought the pay increase, whilst he said she had received almost what she had asked for, he noticed a change in the Applicant’s behaviour. He was very concerned on 13 January 2015 when he became aware that the Applicant had sent an email to Kate Tuxford of the Patient Flow Team. The email read as follows:

From: Dr Allan Clarke

Sent: Tuesday 13 January 2015 9:44AM

To: Tuxford, Kate

Subject: RE: Week 62

CAN YOU PLEASE TELL WHOEVER CALLED ALEXA AND TOLD HER SURGERY WAS ON MONDAY 19/01/15 THIS IS NOT CORRECT

DR CLARKE IS NOT SEEING HER UNTIL TUESDAY 20/01/15 AND HE WILL ALLOCATE THE DATE

PLEASE DO NOT CALL THE PATIENTS AND TELL THEM MISINFORMATION

THANK YOU

AND YES I AM FRUSTRATED

Glenyce

[85] The Respondent submitted that shortly after he became aware of the email, he spoke to the Applicant about the email;

Relevantly:

I told the applicant I considered the tone and content of the email to be inappropriate; and

I asked the applicant to be professional and courteous in all her dealings with the patient flow team.” 13

[86] The Respondent complained about the email the Applicant sent to Ms Wallace on 24 August 2016, attaching the theatre list, he was concerned that it had not been conveyed appropriately and indicated her attitude towards Ms Wallace. The Respondent’s evidence in respect of her reply email as set out below:

From: Glenyce @ Dr Allan Clarke

Sent: Wednesday, 24 August 2016 12:19 PM

To: Wallace, Emma

Subject: Dr Allan Clarke, theatre list Monday 22/08/2016 SCPH, Buderim

Kind regards

Glenyce Ham

[87] Ms Wallace had replied to the above email as follows:

“From: Wallace, Emma

Sent: Wednesday, 24 August 2016 12:21 PM

To: Glencye @ Dr Allen Clarke

Subject: Dr Allen Clarke, theatre list Monday 22/08/2016 SCPH, Buderim

Thank you I’ll endeavour to call them this afternoon.

Emma Wallace

CLINICAL NURSE, PATEINT FLOW”

[88] On the face of the email it is business like and perfunctory, but the Respondent’s allegation is made against the context that there had been a reluctance exhibited by the Applicant to work with Ms Wallace. The Applicant’s evidence however, that this was the usual manner (in the course of a busy practice) that she sent this information. The same cannot be said about her email above of 13 January 2015; completed in capital letters, being forwarded to the Patient Flow Team where Ms Wallace worked.

[89] Regarding Ms Wallace’s involvement in the practice, the Respondent submitted:

The applicant said words to the effect of “it was unreasonable for me to bring a third person into the practice”, and that “partners involved in practices are a disaster” but that “Mrs Clarke was the exception to the rule.” 14

[90] The Applicant’s on-going allegiance to Mrs Clarke was unnecessary and contributed to the breakdown of the working relationship. There is no evidence that Mrs Clarke required such, and she was not a party to the proceedings.

[91] In terms of the lead up to the resignation, the Respondent submitted the following:

29. On 25 August 2016, I had a face to face conversation with the applicant at the practice. Relevantly, during the conversation:

(a) I informed the applicant that I thought the theatre list email should have said something like “Hi Emma, Allan asked me to send you this document”. I did this in a calm and non-confronting manner;

(b) the applicant responded by rolling her eyes;

(c) the applicant did not appear to accept the point I was making about the theatre list email and went off-topic – most relevantly the applicant:

(i) referred to Emma as “that woman”;

(ii) implied that Emma has “hurt her” and was responsible for my marriage break-up; and

[92] As previously set out, on 26 August 2016, the Applicant called in sick and sent the Respondent an email, which stated as follows:

Dear Allan

I am feeling extremely stressed by the verbal harassment from yourself and Emma which has been happening over the last 3 years.

I had a dreadful night.

It has to stop, it is just pointless. It is not only affecting my health but becoming the undoing of our long, happy and successful working relationship.

I will be seeking medical advice when I can get an appointment. Fiona McGrath is only here one day a week now, so I will try and get to see Gordon Stone.

Regards

G 15

31. I was perplexed by the applicant’s email as this was the first time she had referred to any “verbal harassment” by me or Emma. Further to the fact the applicant was referring this claimed harassment going back over three years was particularly confusing. To the best of my knowledge, the applicant had only emailed Emma a few times for work purposes and first met her in person in early July 2016 at the new office.

32. On 26 August 2016, I responded to the applicant’s email by sending an email, which stated as follows:

Dear Glenyce

I am surprised at your allegations of “verbal harassment”. I have not once verbally harassed you.

I have spoken to you about your conduct on 3 occasions. This does not constitute verbal harassment.

When you confirmed completely untrue rumours about me and nursing staff at SCPH with Mrs Clarke. You had no right to discuss anything you had heard let alone did not have firsthand knowledge of. Your loyalty should have been to me and you should have spoken to me about the rumours first before discussing them with anybody else.

When you were away from the office on a Friday afternoon without notifying me which resulted in a major disruption to the theatre list the following week when you were unable to action the email I sent early that afternoon to rearrange the list.

When you were sending “shouty emails” to patient flow at SCUPH. This was brought to my attention by the manager of patient flow. The emails were inappropriate and it was entirely reasonable that I speak to you about this issue.

If you feel there have been instances outside these times that I have verbally harassed you I would appreciate it if you would advise me of the specific instances.

Emma has never verbally harassed you. You only met her six weeks ago and I have been present at most of few brief encounters you have had with her. All other contact (four occasions in almost 2 years) with her by email about public patients has been monitored by the patient flow manager and her conduct has been professional and courteous at all times.

I did not appreciate the way you rolled your eyes on 25.8.16 when I brought up the issue of the email you sent to Emma on 24.8.16 and the way you repeatedly referred to her as “that woman” before finally realizing you were referring to her that way. I expect you to be courteous and respectful towards Emma at all times and towards me when I bring up any work issues with you.

We have indeed had a very good working relationship and your work and professionalism has been outstanding during that time.

It would be a pity to allow your unfounded bias against Emma to affect that relationship. Unlike the unfounded rumours about nursing staff and me at SCPH which you chose to confirm to Mrs Clarke, you would be well advised to ignore the unfounded ones about Emma that came from Caloundra Hospital. Your stress is related to your reaction to a misguided perception of Emma’s role in my separation and an admirable although, given your employment position, unrealistic loyalty to Mrs Clarke.

I really appreciate you coming in this week despite your cough. I hope it settles soon.

Sincerely

Allan

[93] As previously referred to, Dr Clarke contacted Ms Tucker, from the Patient Flow Team, to verify the Applicant’s alleged call to that team, regarding the Applicant’s preference not to deal with Ms Wallace. Dr Clarke stated that Ms Tucker’s recall of the conversation was consistent with the information provided by Ms Wallace back in 2014. Dr Clarke asked Ms Tucker to put the details of the conversation in writing, and he received the following email two days later, which was consistent with what Ms Tucker had relayed over the phone:

Good afternoon Allan,

I am writing this email to confirm a conversation I had with Glenys (your Practice manager). I was roughly November 2014 – December 2014 a month or two after Emma Wallace started in the patient flow team. At that time I was the team leader and had spoken to Glenys on many occasions. On one practically day we were talking and she asked if I would make sure that Emma did not call her like Wayne did and asked if all calls could come through me. I mentioned that I could not promise this as I am not clinical and the reason why Wayne called was sometime out of my scope. I did not mention this to Emma for a while as I had never meet her before she joined the team.

Kind Regards,

Roseanne

Roseanne Tucker

Surgical Services Sunshine Coast Hospital and Health Service” 16

[94] Dr Clarke provided a USB of the recording of the final meeting made without the Applicant’s knowledge or consent. The Applicant was able to listen to the recording and the recording has been transcribed as part of the transcript, as set out previously.

[95] As a result of the meeting of 20 September2016, Dr Clarke said that they had reached a position where they could move forward. Dr Clarke’s summary of this meeting of 20 September 2016 was as follows:

42. At 8 am on 20 September 2016, the applicant and I had a face to face meeting in the room. I initiated this meeting because I wanted to address the issues of 6 September. Relevantly:

(a) I started the meeting saying words to the following effect:

The reason I wanted to call this meeting is because I was disturbed by some of the things that came up in the meeting or the discussion we had the other night. Let me say at the outset, I want to resolve this, I want us to work together well, we have worked together well for years, but there are issues that have come up over the last few years that have to be resolved.

Let me just say that I don’t want any of the vitriol, the personal attacks and so on that I was subjected to that Tuesday to occur again today, so we can have a courteous, professional discussion about the issues that I want to raise, if you want to raise anything you can go ahead now and raise it now and we can chat about it and then I can raise what I want to.

(b) The applicant responded by saying words to the following effect:

I just want to say that I am not prepared to discuss any of this anymore after today I am not going to discuss any of this, this, all of this has been going on for weeks, I want it finished.

(c) The applicant did not wish to raise any other issues at this point. The applicant appeared calm and in control and put forth her point of view robustly (as she always did during our interactions).

(d) In a calm manner I told the applicant the following:

(i) I had wanted to bring Emma to work into the practice some time ago to assist with pre-operative assessment of patients, to phone patients post operatively and give patients the best post-operative management possible. However, I did not do this because I was mindful of how the applicant would react to that given the closeness of the relationship that she had with

Mrs Clarke.

(ii) In around October to December 2014, I became aware that the applicant had made the 2014 call to patient flow (referred to at paragraph 16 above) and thought that this was inappropriate but did not raise this with the applicant because I was aware that the applicant might had some ‘raw issues’ relating to Emma. Consequently, I decided to deal with Emma directly as much as possible when required (instead of involving the applicant).

(iii) I also became aware of the email the applicant sent to Kate Tuxford of the patient flow team on 20 January 2015 (referred to at paragraph 19 above), which I considered to be rude and inconsistent with how the applicant usually interacted with the patient flow team (especially Rosanne).

(e) The applicant listened silently up until this point but then appeared to become agitated and kept interrupting me. The applicant denied everything and said “Allan, you are questioning my integrity, Allan, you are questioning my integrity and that is all I am going to say”.

(f) The applicant had much more to say and was responding quite aggressively and not trying to understand the point I was making by raising the issues. During the ensuing exchange, the applicant said words to the following effect: “You did not give me the respect and the decency when you and Mrs Clarke parted because I didn’t even know. A rep came in and told me (about my relationship breakdown with Mrs Clarke) and the bottom dropped out of my world”. I took this to mean the applicant was upset about my relationship breakdown with Mrs Clarke and the fact I did not inform her directly about it.

(g) Eventually the applicant calmed down and I raised the issue of Emma being involved in the practice as the practice nurse and bookkeeper. I asked the applicant to teach Emma the basics of bookkeeping. After some initial resistance, the applicant agreed to this. After this, I told the applicant: “I can categorically state she is not here to take over your job”. The applicant responded by saying: “Well I don’t mind Allan, I don’t mind at all. My time is coming to an end”. I took the applicant’s comment to be a reference to her retiring. I then confirmed that it was not my intention to get Emma to perform the applicant’s role even after the applicant retired.

(h) I then raised the issue of the “get drunk” comment made by the applicant on 6 September 2016. The applicant denied making this comment. I then informed the applicant that I did not accept this denial as I specifically recalled and documented her making the comment because I was so shocked and upset by it.

(i) After this, the tone of the conversation improved. I felt that we had reached agreement about Emma’s involvement in the practice. I said to the applicant words to the following effect: “Okay, what I want to know is if we can work together, that there can be respect and can you work with Emma. I am committed to making it work and I see no reason why it can’t work just like it worked with Mrs Clarke. I will put all these issues behind us and move on”. The applicant said “I don’t know if I can work, I will try, that’s all I can say, I will try”.” 17

[96] However Dr Clarke stated that further events occurred on 20 September 2016 that when he reflected on them overnight caused him to have the meeting with the Applicant the next day, he stated:

44. At approximately 10 am on 20 September 2016, I received a text message from Emma saying that Mrs B (a patient Emma had called for post-operative follow-up) could not get through to the office phone. I wanted to confirm with the applicant if there was an issue with the office phone and went to the reception area to discuss the issue with the applicant. I noticed that there were patients present in the reception area. I then had the following interaction with the applicant:

(a) I said words to the following effect to the applicant: “Glenyce, I think there must be a problem with the phone. Mrs B can’t get through on the office phone” (meaning the office landline).

(b) The applicant immediately reached for the office mobile phone and said “I want to speak to you about this ‘offensive text’ ... . It implied the office was unattended” in front of patients. I looked at the office mobile phone and recognised the text message the applicant was trying to show me. Relevantly, it was a text message that Emma had sent to a patient the week previously with a reply from the patient, which I had then forwarded to the applicant for her to contact the patient and action the patient’s request (as Emma was not comfortable forwarding it directly to the applicant) A screen shot of the text message is annexed hereto and marked ‘AC-6’ (‘the text message’).

(c) I did not want to discuss the text message at this time (particularly given our conversation could be overheard by patients) and said to the applicant words to the following effect: “That is in the past .... There is no need to discuss it now” as I nodded towards the patients in the room.

(d) We then ceased our conversation and did not discuss the matter further.

45. Later that day, (at approximately 4:30 pm) the applicant told me she had received two complaints from patients about Emma (‘the patient complaints’). I was immediately concerned about the suggestion that patients had complained, so I asked the applicant to provide me with further details about the patient complaints. However, initially the applicant refused to provide me any further details about the patient complaints other than saying she told the patients to speak to me about any issues they may have with Emma. Eventually she reluctantly gave me the name of one of the patients but absolutely refused to give me the name of the second patient except to say that I would be surprised at who it was. I did not pursue the matter further at this time, as it was late in the day. The applicant left work for the day shortly after this.

46. I later reflected on what the applicant had told me about the patient complaints. I was deeply concerned that the applicant refused to tell me who the second complaint was or what they were complaining about. Relevantly:

(a) In my view all patient complaints should be treated seriously.

(b) In my experience patients will often complain to a nurse or staff member, but may feel too intimidated to complain to the surgeon.

(c) It has been my experience that no matter how minor a complaint may be perceived to be, it should be addressed in a timely fashion as any complaint had the potential to adversely affect the doctor-patient relationship and give rise to a more serious complaint later on.

47. After the applicant left work for the day, I more carefully considered the text message and formed the view the text message was not offensive or critical of the applicant. I therefore considered the applicant had misconstrued the meaning of the text message and overreacted. I also thought her attempt to try and speak to me about the text message in front of patients was clumsy and inappropriate.

48. I felt disappointed when I reflected on the day’s events. Relevantly:

(a) after our discussion in the morning, I thought the applicant and I had resolved the issues and agreed to move forward and work positively in the practice (with Emma being involved) - I felt very good about this;

(b) however, the applicant’s behaviour in attempting to raise issues about the text message and the patient complaints (without providing full details of the complaints) caused me to question if the applicant would be able to move on and work constructively with Emma. It appeared to me that the applicant was focussed on creating issues related to Emma. Even more so, I felt that she was playing games with me by saying “There have been complaints about Emma” and then refusing to tell me. I felt that the applicant’s actions in relation to this, was causing me unnecessary stress. I could not understand why the applicant raised the issue if she was not going to provide full details so that I could promptly address any issues.

49. I resolved to discuss the text message and the patient complaints with the applicant the next day.” 18

[97] Dr Clarke organised the face-to-face meeting with the Applicant early on 21 September to address the issues of the previous day. As a result of this meeting the Applicant tendered her resignation.

[98] Dr Clarke stated he did not put any pressure on her to provide the resignation and that he was not with her when she wrote it. The Applicant denied this, and stated given the Respondent’s hostile pronouncement that he could not support her, she felt all she could do was resign.

[99] The Applicant did not report for work on the day following this meeting, and provided a medical certificate for the notice period. The Applicant tendered a medical clearance to attend the Hearing. She stated she had not been medically able to apply for work and had been in the care of her general practitioner and a psychologist. The Applicant did not provide any medical evidence. This was not challenged by the Respondent. The Respondent paid to the Applicant her entitlements.

[100] Both parties were asked in accordance with the Full Bench decision in James Jones T/A The Pet Cemetery & Crematorium v Ms Raquel Ciuzelis 19 how long they considered the employment relationship would continue. Whilst Dr Clarke recognised the tenuous nature of the continuing relationship, Mrs Ham indicated she intended to work until age 65. However it was clear with the Applicant maintaining notes of the series of exchanges between them, that had caused her concern, the Respondent taping their conversations, and the animosity and lack of trust that was building in the relationship with Ms Wallace’s introduction to the practice, that the continuing employment would have been very short lived.

[101] The mention of the client complaints, arising from the exchange between the parties on 20 September 2016, caused significant concern for Dr Clarke, given that he had in the prior year been involved in the resolution of some patient complaints before the APRA. Accordingly, mention of patient complaints caused him reason for worry and he was focused on achieving early intervention, and was concerned that the Applicant had not passed on the patient names to him, and she had an obligation in accordance with her employment to do so.

[102] Dr Clarke stated he thought the Applicant’s alleged prior comment to the Respondent (which she denied) - ‘Go home forget about it and get drunk’, was a cavalier and disrespectful way to talk to him. Her denial of this comment, he stated, caused him a further loss of trust and confidence in her and he conveyed this to her, at the final meeting.

[103] The Applicant considered it was the agitation against the Applicant by Ms Wallace to the Respondent, that was occurring in his home life, that was causing his reaction to her, at the practice. Ms Wallace conceded that there had been conversations regarding this, but there was no real evidence of a pointed objection or strategy towards removing the Applicant, by Ms Wallace.

[104] This employment relationship, fundamentally required loyalty to the surgeon, given his reliance on the Applicant in her duties. She was responsible for the major running of his practice. The Applicant’s assessment at the final meeting was correct on hearing Dr Clarke could not support her and that he was indicating she was dishonest, there was no other option but for her to resign. Dr Clarke’s commentary, indicated he no longer had total respect and trust in her discharging her duties for him.

[105] However this growing animosity and mistrust in the relationship, was based on a range of interactions the Applicant contributed to. Relevantly, the Applicant’s interaction with the Patient Flow Team; a lack of preparedness to accommodate Ms Wallace into the practice when the Employer had directed such and there was a need for the Applicant to have professional contact with her; the lack of responsibility the Applicant took in terms of leaving the office unattended very early one Friday afternoon; and the consequences of that for the Respondent’s Monday Patient list. These interactions suggest it was therefore unlikely that the relationship would have continued for much longer than another two weeks given the volatility in the employment relationship. It is unfortunate after such a successful, steady and mutually beneficial employment relationship that it had devolved to be unworkable. The documenting and taping of phone conversations were evidence of the distrust between the parties. 

Conclusion

[106] Whilst the Applicant in this matter tendered her resignation, it is considered that a constructive dismissal pursuant to section 386(1)(b) occurred. That is, the Employee has resigned from her employment but was forced to do so because of conduct engaged in by her Employer.

[107] The resignation arose from a meeting with the Employer, during which he set out that he could not support her, given her interactions with the Patient Flow Team, her resistance to him introducing Ms Wallace into the business and that he considered she had lied to him. The aggregate of the comments, when his recording of the final meeting is reviewed, amount to a dismissal.

[108] The day prior to the meeting, from which the resignation arose, the Employer and Employee had reached a position where they were endeavouring to move on with the employment relationship. The meeting that occurred the next day at the Employer’s instigation could have been managed to effect a different outcome, which maintained the employment relationship but provided a clear disciplinary response. That is, he could have obtained the patient complaint details and warned the Applicant about her conduct in withholding this information, given the potential for repercussions for him, if such matters are not resolved in a professional and early manner.

[109] In this matter, a different outcome may have been able to be achieved, following this meeting. However on the evidence, any ensuing employment relationship would have been short lived and this is mainly due to the contribution of the Applicant to the prior events, impacting the on-going employment relationship.

[110] The Employer was at liberty to make appropriate personal and business decisions, as he chose. He had no obligation to advise his Employee of his marital status, reciprocally the Applicant would have no such obligation to advise the Employer of changes in her personal life, unless it affected the discharge of her duties. Likewise, Dr Clark as an orthopaedic surgeon was at liberty to integrate a practice nurse of his choosing into his medical practice to assist with patient care, after he performed surgeries. This was practical from a medical and business sense.

[111] The Applicant’s resistance to Ms Wallace acting in this capacity in the business, on the evidence, was linked only to her acrimony towards Ms Wallace given the breakdown of Dr Clarke’s marriage to his former wife, who Mrs Ham maintained an on-going loyalty to. There was no substantiated evidence to suggest that Dr Clark intended to undermine or jeopardise Mrs Ham’s continuing management role of the practice. The Applicant clearly contributed to the circumstances of the failure of the employment relationship. The workplace, given these unsettling attitudes, had developed a volatility that was not commensurate with an on-going working relationship of the type required in the management of a medical practice.

[112] Given that unfair dismissal occurred rather than a resignation it has been determined, that is the Applicant tended her resignation, but in circumstances where she had no option at the final meeting. It is therefore necessary to consider the section 387 criteria, as to whether the dismissal was harsh, unjust or unreasonable. In the current circumstances, although the Applicant provided her resignation. The Employer had a valid reason for dismissal, given the Applicant’s conduct in rejecting the Employer’s requests to integrate Ms Wallace into the business, unprofessionally communicating this attitude to other parties external to the practice such as the patient flow team and in effectively withholding patient complaint information, particularly in the context of Dr Clarke’s recent history, as was known to the Applicant.

[113] A valid reason to be within the meaning of s.387 is a reason that must be “sound, defensible or well founded” rather than one that could be “capricious, fanciful, spiteful or prejudiced” 20 . The Commission must undertake an objective analysis of all the facts21 in determining whether there was a valid reason, and in that regard, the entire factual matrix is relevant22.

[114] The Respondent had provided lawful directions to the Applicant to accommodate Ms Wallace in the business and to train her in the Applicant's relevant duties. The Applicant acted in opposition to those directions, and refused by her conduct to undertake them. Further, the withholding of the details of the patient complaints was a repudiation of the Applicant’s obligations of trust and confidence, required in the employment contract. On review, clear timely communication from Dr Clarke to Mrs Ham, regarding the operation of the practice (after his wife had left the business due to the separation) would have been appropriate, rather than relying on a communication from his ex-wife to his Employee, that he understood had been sent. A practical course in hindsight would have been that a direct discussion should have occurred to clarify the situation of the on-going employment relationship, and how the practice would operate without his ex-wife to confirm the Applicant's salary matters, and any administrative issues for the Applicant given Mrs Clarke would no longer in the business.

[115] The Applicant was made aware in the final meeting and in the meeting on the day prior, of the Employer’s reasons for being concerned with her conduct. The Applicant was given a chance to respond at the meeting on 20 September 2016. She considered that an Agreement had been reached on this day this changed. When the Employer, out of frustration with the patient complaints and the events that were occurring between them, made his views clear that he could not support the Applicant, which resulted with her resignation.

[116] In terms of the requirements of s 387 the Applicant was not notified prior to this final meeting, therefore a support person was not present at this meeting or the prior meetings. The Employer had organised to covertly tape the meeting. The Employer’s practice is deemed to be a small business and whilst he had representation during these proceedings, there was no evidence that during this prior period he had access to dedicated human resource management specialists or industrial relations expertise. The manner in which the employment relationship ended must be considered in this context.

[117] It is relevant in considering these matters that the nature of this employment relationship is taken into account; the surgeon is dependent on the practice manager in maintaining his professional standing and interests to his patients, the hospitals where he undertakes the surgeries. The Applicant clearly had a significant responsibility in managing the practice and liaising effectively with patients. Whilst the applicant had previously discharged these duties well. The diminished trust and confidence the Employer had in her performing this autonomous and responsible role in his practice.

Remedy

[118] Having decided that Mrs Ham was unfairly dismissed, that is the resignation was provided in circumstances where as a result of the final discussion, she was left with no option as she could not continue to perform her role, given the Employer had indicated he could no longer support her in this role. It is necessary to determine whether a remedy for the unfair dismissal should be applied. In relation to remedy, s. 390 of the Act provides as follows:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[119] For reasons set out below, s. 391 of the Act in relation to remedy is not relevant. In relation to compensation s. 392 of the Act provides:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s Employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the Employer’s enterprise; and

(b) the length of the person’s service with the Employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the Employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the Employer during the 26 weeks immediately before the dismissal; and

(b) if the Employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the Employee for the period of leave in accordance with the regulations.”

[120] Sections 390(1)(a) and (b) of the Act, are satisfied as Mrs Ham was a person protected from unfair dismissal, as she has been unfairly dismissed. Mrs Ham has made an application for an unfair dismissal remedy under s. 394 of the Act. Mrs Ham does not seek reinstatement. Both parties indicated distrust for the other; reinstatement is not an appropriate remedy, the relationship cannot be retrieved.

[121] In relation to an Order for compensation, taking into account that, but for the meeting on 21 September 2016 that lead to the resignation, the employment would have continued for only a further short period, (as per the reasons provided). There is no evidence of any financial incapacity on the part of the Respondent or that the Order for compensation will have any impact on its viability.

[122] For the purposes of s. 392(2)(c), on the evidence the Applicant would have remained in employment for a period of no more than 3 addittional weeks and would have ceased employment at or before that time, on the basis of the Applicant’s service she was owed 5 weeks wages in lieu of notice, she provided 2 weeks’ notice on resignation and this was provided in sick leave. The further 3 weeks would have also discharged any notice period.

[123] The approach to the calculation of compensation which has been adopted, is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket 23. That approach, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey24; Jetstar Airways Pty Ltd v Neeteson-Lemkes25 and McCulloch v Calvary Health Care26. In this matter the Applicant’s conduct in contributing to the final circumstances mitigates against an award of compensation. The amount represents the weeks to finality if the dismissal as was open to the Employer had been effected at that stage as was the affect of the Respondent’s comments that lead to the tendering of the resignation. The weeks represent the further lapse of time to finality had the dismissal been implemented in a procedurally fair manner at that time.

[124] In terms of s 392 (1) – (5):

1. An order for the payment of compensation in the amount below would not affect the viability the Respondent’s business.

2. Mrs Ham had a relatively lengthy period of employment and no deduction from compensation should be made on this basis.

3. But for the dismissal, Mrs Ham would likely have earned an amount of another 3 weeks of wages.

4. I make no deduction for contingencies.

5. I make no deduction for failing to mitigate loss.

6. The amount of additional notice was paid in the two weeks wages she was provided on resignation.

7. I make no deduction for income likely to be earned during the period between the making of my order and the actual compensation.

8. This leaves an amount of compensation of 3 weeks of wages (less tax).

9. I make no deduction in respect of misconduct, but have not increased the initial weekly amount as the contract would not have continued, due to the Applicant’s contribution to the circumstances.

10. The amount of compensation is less than the compensation cap calculated in accordance with s. 392(5) and s. 392(6).

[125] Based on the aforementioned reasons it is determined that compensation in the amount of 3 weeks wages, less taxation at the rate (the Applicant was in receipt of at the end of the employment relationship), should be paid to Mrs Ham within 14 days of the date of this Decision as compensation for the procedural issues related to the dismissal. The amount takes into account her contributing conduct.

[126] An Order 27 to that effect will issue with this Decision.

Seal of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

Mrs G Ham and Mr K Ham, for the Applicant

Mr D Pillay, Solicitor, Moray & Agnew Lawyers, and Dr A Clarke for the Respondent

Hearing details:

2017:

Noosa Magistrates Court

9 February 2017

Final written submissions:

Applicant – 13 January 2017

Respondent – 13 January 2017

 1   Mrs Glenyce Ham v Dr Allan Charles Clarke T/A CJ Orthopaedics Pty Ltd [2017] FWC 186

 2   Respondent’s outline of argument dated 20 October 2016 at [2]

 3   Applicant’s sworn outline of argument dated 24 October 2016 at [76]

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

 5   Minato v Palmer Corporation Print N5682 at p.7 per Munro J, Harrison DP and Lawson C.

 6   Print N5682 at p.7 per Munro J, Harrison DP and Lawson C.

 7   (2006) 58 AILR 100.

 8   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [21] to [23].

 9   Applicant’s sworn outline of argument dated 24 October 2016 at [5.15]

 10   Applicant’s Submissions: ‘Outline of Argument’ Annexure AOA – 1

 11   Applicant’s Submissions in Reply: Annexure GH – C ‘Dates of confrontations’

 12   Applicant’s Submissions: ‘Outline of Argument’ Annexure AOA – 13

 13   Respondent’s submissions: Affidavit at [20].

 14   Respondent’s Submissions: Affidavit at [38] sub (d)

 15   Applicant’s Submissions: ‘Outline of Argument’ Annexure AOA – 8

 16   Respondent’s Submissions: Annexure AC - 5

 17   Respondent’s Submissions: Affidavit at [42].

 18   Respondent’s Submissions: Affidavit at [44]-[49].

 19   [2015] FWCFB 84, PR559729

 20   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 per Northrup J

 21   Annetta v Ansett Australia (2009) 98 IR 233 at [10] per Giudice J, Williams SDP and Cribb C

 22   Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413 per Lee Tamberlin and Marshall JJ

 23   (1998) 88 IR 21.

 24   [2013] FWCFB 431.

 25   [2014] FWCFB 8683.

 26   [2015] FWCFB 2267

 27   PR590722

Printed by authority of the Commonwealth Government Printer

<Price code G, PR590809>