DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kirsten Hoolahan
v
North Ryde Community Pre-School Inc T/A North Ryde Community Preschool
(U2017/324)

Application for Relief of Unfair Dismissal – whether employee was dismissed – whether conduct or course of conduct by the employer forced employee to resign – constructive dismissal.

Introduction

[1] On 10 January 2017 Kirsten Hoolahan (applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of her dismissal by North Ryde Community Pre-School Inc T/A North Ryde Community Preschool (Employer/respondent).

[2] On 8 February 2017 the respondent filed a response to the unfair dismissal application. In its response the respondent objected to the Commission exercising jurisdiction in relation to the application on the basis that, it submitted, the applicant was not dismissed.

[3] The respondent declined to participate in Member assisted mediation. Consequently the matter was listed for jurisdictional hearing on Wednesday, 12 April 2017.

Permission to be represented

[4] At the Mention/Directions hearing conducted on 21 February 2017, the Commission, as presently constituted, granted both parties permission to be represented. Having regard to the nature of the jurisdictional objection I was satisfied that the matter was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I allowed both parties to be represented pursuant to s.596(2)(a) of the FW Act. Consequently, permission was granted to each party to be represented.

The hearing

[5] At the jurisdictional hearing on 12 April 2017:

a) the applicant was represented by Mr Geoffrey Baldwin a solicitor, and
b) the respondent was represented by Mr John Stanton, also a solicitor.

[6] In advance of the jurisdictional hearing the parties had filed materials. Consequently, in coming to this decision the Commission, as presently constituted, has had regard to the following:

a) Form F2 – Unfair dismissal application (including Annexure A),
b) Form F3 – Employer response to unfair dismissal application,
c) Applicant’s submissions dated 7 March 2017 (Exhibit A1),
d) Affidavit of Kirsten Hoolahan dated 6 March 2017 (Exhibit A2),
e) Applicant’s reply submissions dated 30 March 2017 (Exhibit A3),
f) Respondent’s outline of submissions dated 23 March 2017 (Exhibit R1) (noting that those parts of the submissions under the heading “absence of resignation” were not relied upon), 1
g) Statement of Laura Tava-Petrelli, Director of the respondent, dated 23 March 2017 (Exhibit R2),
h) Agreed chronology of events in December 2016 (Exhibit R3).

[7] Because the parties filed Exhibit R3 no witness was required for cross-examination.

Background

[8] The following matters were either agreed between the parties or not otherwise substantially contested:

a) On 8 March 2008 the applicant commenced work with the respondent. She was initially employed on a casual basis as an additional needs support worker. By the time her employment ceased, the applicant was a full-time Early Childhood Teacher with the position titles of Special Needs Consultant, Second-in-Charge and Outdoor Teacher.
b) In 2016 a fellow employee made complaints about changes implemented by the applicant. Attempts were made to resolve the issues to no avail. In September 2016 the fellow employee made a bullying complaint against the applicant. The applicant was then stood down.
c) In May 2016 the applicant was diagnosed with anxiety and depression. This condition exacerbated after the complaint made against her in September 2016.
d) The investigation into the bullying allegation concluded in October 2016. The findings were that the applicant had engaged in “low grade bullying”. The applicant disagreed with the findings and the process of the investigation. It was proposed that the applicant be given a written warning. The applicant thought that was a harsh outcome.
e) During this time the applicant produced a number of medical certificates attesting to her unfitness for work. On 26 October 2016 she was certified unfit for work until 11 November 2016.
f) On 1 December 2016:

i. the applicant was certified unfit for work from 1/12/16 to 16/12/16,
ii. presented the certificate by email to respondent, 2
iii. The respondent’s director replied to the applicant by email 3 stating that,

“Sorry to hear you are still unwell.

Please take all the time you need to recover.

As I have already allocated you to the Outdoor Teacher position for next year, I would really appreciate you letting me know your plans as soon as possible, so we can prepare for your return together.”

g) On 5 December 2016 the applicant’s lawyers wrote to the respondent 4 in the following terms,

“…because of the wrongful actions of the North Ryde Community Pre-School, and you as its Director, [Ms Hoolahan] has been denied the ability to continue with her career by way of employment by the Pre-School and has now, in consequence of the same wrongful actions, suffered psychological injury.
….
Our client wishes, and has the right, to resume her employment in a workplace free from the current risks to her health and safety. This will take a number of actions to remediate the matters which have caused the injury, and to guard against its recurrence. To set these matters out will require a meeting between representatives of the Pre-School and of our client, and it is reasonable of us to ask that this meeting be held no later than 12 December 2016. Should the Pre-School not be prepared to attend such a meeting and to take subsequent timely remedial action, our client will be left with no alternative other than to resign, which we will take on our client’s behalf to the Fair Work Commission as a constructive dismissal under s.386(1)(b) of the Fair Work Act 2009.”


h) On 12 December 2016 the respondent replied to the 5 December 2016 letter 5 in the following terms,

“[The Pre-School] instructs it has not denied Ms Hoolahan the ability to continue in her employment, Ms Hoolahan remains an employee of [the Pre-School] but has provided medical evidence that she is unfit for work until Friday, 16^th December 2016. Accordingly, when Ms Hoolahan is fit to return to perform her full duties it is [the Pre-School’s] expectation she will return to her position.
….
If your client has specific concerns over her safety at work, she is able to formally raise these in line with the organisation’s policies and procedures.”

i) On 14 December 2016 the applicant was certified unfit for work from 14/12/16 to 20/12/16. 6
j) On 15 December 2016 the applicant presented a certificate of unfitness to respondent by email and the respondent’s director replied by email 7 in the following terms,

“Thank you for forwarding that on.
We look forward to your recovery and return in the New Year.
Merry Christmas.”

k) On 16 December 2016 (the letter was dated 12 December 2016) the respondent wrote to the applicant 8 in the following terms,

“I write in response to the provision of your latest medical certificate which declares you are unfit for work until Tuesday, 20^th December.
As you are aware, Tuesday, 20^th December is the last day before a lengthy shutdown period for the Pre-School.
….the Management Committee request that you provide them with an indication of when you will likely be fit to return to your full duties.
The Pre-School is willing to pay for a full medical examination to assess your fitness to return to full duties, or you may continue to consult with your treating psychiatrist…. Please advise method of preferred by Tuesday, 20^th December.”

l) 20 December 2016 was the last day of term. 9  The applicant was certified fit for work. 10 Also, on this day the applicant’s lawyers wrote to the respondent11 in the following terms,

“In our letter of 5 December we asked the Pre-School to engage in discussions with us and our client about action which could be taken to ensure that our client could return to her job in a safe and healthy workplace which did not pose an unreasonable risk to her well being.

The Pre-School’s response to our response has been, in effect, to deny any culpability of any kind on its part, more importantly, to ignore entirely our request for consultation as to our client’s safety at work. In this connection we point out that we did not, in our view, ask the Pre-School to do anything more than to talk with us and our client about her safe return to work. Its complete disregard of our request has sent to our client a very clear message that the Pre-School has no intention of doing anything at all to ensure our client’s health and safety at work.

As a result, our client has been left with no alternative other than to resign.”

m) At the time of the cessation of her employment the applicant earned $64,891.84 per annum.

[9] The applicant submitted she was unfairly (constructively) dismissed and seeks an Order that she be compensated in the amount of 6 months total remuneration.

Protection from Unfair Dismissal

[10] An order for reinstatement or compensation may only be issued where the Commission is satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[11] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:

(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[12] There is no dispute, and the Commission, as presently constituted, is satisfied, the applicant has completed the minimum employment period, and is covered by an enterprise agreement, namely the North Ryde Community Preschool Inc. Employees Collective Agreement 2015 (Agreement). Consequently, the Commission, as presently constituted, is satisfied the applicant was protected from unfair dismissal.

[13] I will now consider if the dismissal of the applicant by the respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[14] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Was the applicant dismissed?

[15] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386 of the FW Act provides that:

“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.”

[16] The applicant relies upon s.386(1)(b).

Was the applicant forced to resign?

[17] The applicant submitted that she was forced to resign from employment with the respondent because of conduct, or a course of conduct, engaged in by the respondent. The applicant submitted that:

a) s.386(1)(b) is “intended to encapsulate a well established test [for constructive dismissal] which has stood for a number of decades,

b) the test is that enunciated in Allison v Bega Valley Council, 12

“Did the employer behave in such a way as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?”

c) it is the applicant’s case that the refusal of the respondent to agree, not to a demand to do specific things to make the workplace safe for the applicant’s return, but instead to nothing more onerous than to meet with the applicant and her representatives to discuss what might be done to ensure a safe return, sent an unmistakeably clear message to the applicant,

d) that message was that the respondent did not care whether or not the applicant would suffer psychological damage should she return to work without any discussion or consideration of steps which might be taken to guard against the suffering of psychological harm,

e) the respondent was well aware that the applicant had suffered a psychological injury and that there was a continuing risk,

f) the respondent has obligations under NSW State legislation to provide a safe workplace,

g) the refusal of the respondent to make any meaningful response whatsoever to the applicant’s request not only struck at the heart of the trust she should have been able to repose in her employer, but also meant that it was untenable for her to return to a workplace which so obviously posed risks to her health and safety,

h) the denial of procedural fairness in the investigation also struck that necessary level of trust required in the employment relationship,

i) the applicant’s employer refused even to talk,

j) the applicant could not return to work because her health and wellbeing would have been in serious jeopardy.

[18] The respondent submitted the conduct, or course of conduct claimed to have occurred by the applicant did not fall within the meaning of s.386(1)(b) because:

a) the applicant’s submissions “are not particularly helpful in identifying the specific conduct on which she relies to support a finding that she was forced to resign”,

b) “there is no evidence that any time before 5 December 2017, the applicant made any allegation or raised any concern that the applicant might be forced to resign because of any conduct (or course of conduct) by the respondent”,

c) as at 5 December 2016 the applicant was still expressing a desire to return to work (following a meeting between the respondent, her and her representatives),

d) the only conduct identified by the applicant is the respondent’s letter of 12 December 2016 and the letter sent on 16 December 2016 (also dated 12 December 2016,

e) these letters cannot be said to have “forced the resignation of a longstanding, well regarded, competent employee who held the position of second-in-charge”,

f) the “assertion of psychological injury caused by the respondent is inconsistent with the condition of the applicant as described in the advice to the respondent from its workers compensation insurer and which was received by the respondent shortly before 5 December” 2016,

g) the letter of demand did “not provide any reasonable detail, or any detail at all, about the ‘matters which have caused injury’ or how the respondent [could] satisfy the demand that it remediate matters”,

h) the letter of demand written two weeks before the stated deadline “shows that at least 2 weeks before the alleged resignation, the applicant had decided upon a course of action and thus any resignation must be seen as a considered act on her part, and not sudden or impulsive. This does not suggest ‘forced’ conduct”,

i) it was open “to the applicant to bring her concerns [about a safe workplace] to the attention of the workplace health and safety regulator in NSW”,

j) “if the applicant was disappointed in the respondent’s reply of 12 December 2016, it was open to the applicant to ask the respondent to reconsider its position”,

k) it “was open to the applicant to raise a dispute through the grievance procedure in the applicable enterprise agreement and this extends to bringing the grievance to the attention of the Commission”,

l) it “was open to the applicant to pursue the grievance through the respondent’s Staff Grievance Policy”,

m) “in short, there were reasonable and appropriate alternatives to resignation open to the applicant”,

n) “on any fair examination of the [12 December reply] letter it is apparent to the reader that it is framed in language that is reasonable conciliatory and caring of the applicant and her circumstances.”

Legal principles

[19] The classic example of a constructive dismissal is when an employee is faced with an ultimatum from their employer to “resign or be sacked”. In examples such as these, if the employee takes up the ‘invitation’ to resign, it is the employer’s action that is the “critical action” 13 which brings the employment to an end. If the employee is left with no real choice other than to resign s.386(1)(b) will be enlivened.

[20] That is not the situation in the present matter. There was no threat of termination of employment made by the respondent. On the contrary, all of its correspondence in December 2016 expresses the expectation that the applicant will return to work.

[21] Creighton and Stewart’s Labour Law 14 observes that,

“The more difficult situation is where an employee leaves in response to unacceptable conduct by the employer that amounts to a repudiation of its obligations. Before Work Choices, there was certainly authority for treating this as a constructive dismissal, even if the employer may not have been seeking to bring the employment relationship to an end. The only question is what to make of the term “forced”, first added to the legislation by the Work Choices amendments, and retained by s.386(1)(b) of the FW Act. On the broadest interpretation, it would be enough that the employer had seriously breached its obligations in such a way that resignation could be regarded as a ‘probable result’ of the employer’s actions. There have certainly been cases where employees who have resigned in the face of unacceptable conduct by their employer have been allowed to bring claims. It is also clear that the employee does not have to prove that the employer intended them to resign. Generally, speaking, however, it has to be said that in this situation the employee must show that the employer’s conduct left them with ‘no reasonable choice but to resign,’ a formula which seems to set a higher bar than simply showing some form of fundamental breach or repudiation. For example, in Bruce v Fingal Glen Pty Ltd it was considered that there were options other than resignation open to an employee whose wages were often paid one or two days late and for whom superannuation contributions were not being made.” (citations omitted)

[22] In Davidson v Commonwealth, 15 the Full Bench refused permission to appeal against a decision at first instance which found that Mr Davidson had not been constructively dismissed in circumstances where his employer, the Department of Climate Change and Energy Efficiency, had decided to suspend him on pay while it conducted an investigation into allegations of a breach of the Australian Public Service Code of Conduct. In its decision the Full Bench cited with approval a passage from O’Meara v Stanley Works Pty Ltd,16 that,

“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 probably result or that the applicant had no effective or real choice but to resign.” 17

[23] In declining permission to appeal the Full Bench also noted the findings made by the Commissioner at first instances that Mr Davidson had alternatives to resignation, that it was open to him to engage in other conduct. 18 It then observed that,

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

[24] In Bruce v Fingal Glen Pty Ltd, 20 the Full Bench refused permission to appeal against a decision at first instance which found that Ms Bruce had not been constructively dismissed in circumstances where his employer, the Fingal Glen Pty Ltd, had frequently paid her wages late, was not paid on time for a period of annual leave and did not make superannuation contributions on her behalf. Consequently, the decision at first instance was upheld. In that decision the Senior Deputy President said he was,

“…particularly concerned that a pattern of irregular wage payments and the no-payment of superannuation ought not to be too readily taken to effectively terminate the employment relationship as distinct from creating a situation where the recalcitrant employer is bought to task, or possibly penalised under the appropriate legislation.” 21

[25] In the appeal decision the Full Bench usefully set out the relevant legislative provisions and case law as follows,

[12] According to the Explanatory Memorandum to the Fair Work Bill 2008,

“Clause 386 - Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

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

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

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

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

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


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


[16] In Pawel the Full Bench said that:

“[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...”

[17] In ABB Engineering, the Full Bench said that:

“Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

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

“[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... 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.”
(citations omitted)

[26] In coming to this decision the Commission, as presently constituted, accepts and adopts the principles summarised by the Full Benches referred to above in determining whether Ms Hoolahan was forced to resign by North Ryde Community Pre-school Inc.

Consideration

[27] The conduct complained about by the applicant was, she submitted, “the refusal of the respondent to agree … to meet with the applicant and her representative to discuss what might be done to ensure her safe return…”

[28] No doubt an employer has a duty to provide a safe workplace both at common law and under statute. There are also statutory duties to consult. However, there is nothing to be found in the correspondence sent by the respondent on 12 and 16 December 2016 that indicates that it intended to ignore those obligations. It is true that in its responses to the applicant’s letter of demand sent on 5 December 2016 the respondent did not directly engage with the request for a meeting, but that is quite different from refusing to comply with statutory obligations to consult about workplace health and safety issues. The respondent’s conduct did not rise to the high bar necessary to establish that the applicant’s employer had engaged in conduct (or a course of conduct) that repudiates the contract of employment.

[29] Further, the applicant had available to her a number of options or alternatives to resignation. In its submissions the respondent identified at least two other options available to the applicant, namely that she could have invoked the respondent’s internal Staff Grievance Policy or taken steps under the Dispute Settlement Procedure (DSP) in the Agreement.

[30] Having regard to the applicant’s dissatisfaction about how the respondent conducted the investigation into allegations made against her I can full appreciate that she would have very little confidence in the respondent fairly applying the internal Staff Grievance Policy. Accordingly, while it was an option available to her (as an alternative to resignation), as a practical measure it was unlikely to be invoked in all the circumstances.

[31] However, the same cannot be said for the DSP. It provides for a mechanism to resolve disputes about “the interpretation, application or operation of a provision of [the] Agreement or the National Employment Standards”. If unresolved internally such disputes can be “referred to the Fair Work Commission”. The Commission is invested with powers of mediation, conciliation and arbitration. The relevant clause of the Agreement that may have given rise to an application of the DSP is clause 42. It provides for procedures for dealing with job performance problems. Ms Hoolahan’s issues with the respondent arise out of its investigation of her. She had concerns about a safe return to work following that investigation. Clause 42 either directly, or indirectly, could have given her access to the DSP and ultimately access to the independent national workplace tribunal to assist her to resolve her outstanding concerns. For reasons not satisfactorily explained during the jurisdictional hearing, Ms Hoolahan decided not to invoke the DSP and seek assistance from the Commission (other than through an unfair dismissal application). Having regard to the seriousness of the issue (the respondent not responding to a request for a meeting) it was open to the applicant to resolve the matter by a means other than resignation.

[32] In addition to activating the DSP the applicant could have, if she thought she was being bullied herself, made an application to the Commission for Orders to stop bullying. Further, she could have raised concerns she had about her health and safety in the workplace with the SafeWork NSW. Again, for reasons not satisfactorily explained the applicant chose not to do so.

[33] No doubt the applicant felt annoyed or even disillusioned by the failure of her employer to respond to a request for a meeting. However, resigning in the face of that failure to respond was not an understandable response. It was certainly not the probable result of the respondent’s conduct. It could not be fairly said the applicant had no other choice other than to resign.

[34] Given the many other options available to the applicant to contest her employer’s failure to take up her request for a meeting to discuss the basis for her return to work, and taking into account the nature of the respondent’s conduct, I am not satisfied that the applicant’s resignation was objectively the probable result of the respondent’s conduct.

[35] Consequently, I find that the applicant was not forced to resign from her employment because of conduct, or a course of conduct, engaged in by the respondent.

[36] I find that the applicant was not dismissed from her employment with the respondent within the meaning of s.386 of the FW Act.

Conclusion

[37] The Commission, as presently constituted, is satisfied that the applicant was protected from unfair dismissal, but that there was no dismissal by the employer. Consequently, the application for an unfair dismissal remedy must be dismissed.

[38] An order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr G Baldwin for the applicant

Mr J Stanton for the respondent

Hearing details:

2017

Sydney,

April, 12

 1   PN135.

 2   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [22]-[24], Annexures 8, 9 & 10.

 3   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [24], Annexure 10.

 4   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [25]; Affidavit of Kirsten Hoolahan dated 6 March 2017 at [59], Exhibit KH-1 24-25.

 5   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [28]; Affidavit of Kirsten Hoolahan dated 6 March 2017 at [60], Exhibit KH-1 26-27.

 6   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [29], Annexure 11.

 7   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [29]-[30], Annexures 11 & 12.

 8   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [31], Annexure 13.

 9   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [32].

 10   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [34], Annexure 14.

 11   Witness statement of Laura Tava-Petrelli dated 23 March 2017 at [33]; Affidavit of Kirsten Hoolahan dated 6 March 2017 at [61], Exhibit KH-1 28.

 12   [1995] NSWIRC 175.

 13   Mohazab v Dick Smith Electonics Pty Ltd (No 2) (1995) 62 IR 200.

 14   6th edition (2016), pp779-780.

 15   [2011] FWAFB 6265.

 16   (2006) 58 AILR 100-529; PR973462.

 17   Ibid at [23].

 18   Davidson v Commonwealth (2011) 213 IR 120, at para 7.

 19   Ibid at para 14.

 20   [2013] FWCFB 5279.

 21   Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWC 3941, [26].

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