[2017] FWC 5434
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Miss Amanda Bengel
v
Gloss Accessories Pty Ltd T/A Gloss Accessories
(U2017/7424)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 20 OCTOBER 2017

Application for an unfair dismissal remedy - jurisdictional issue - whether employee resigned or was dismissed – claim of forced resignation – approved extended leave revoked by employer – operational basis for revocation – employee resignation made under pressure of difficult choice – choice exercised – employee not dismissed – application dismissed

[1] Ms Amanda Bengel has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her (alleged) dismissal by Gloss Accessories Pty Ltd (Gloss Accessories). She claims to have been unfairly dismissed on 26 June 2017, with the dismissal taking effect on 5 July 2017.

[2] Gloss Accessories operates retail shops selling health and beauty products. It operates two stores in South Australia, at the Marion and Elizabeth Shopping Centres. Ms Bengel was Manager of the Marion store. She commenced in November 2015. At the date of the (alleged) dismissal she had worked nineteen months as a full time manager. Her employment was governed by a contract of employment underpinned by the General Retail Industry Award 2010.

[3] Ms Bengel’s application was lodged within the statutorily required 21 days after her dismissal took effect.

[4] Ms Bengel seeks a finding that her dismissal was an unfair dismissal within the meaning of the FW Act, and an order for compensation. She considers reinstatement inappropriate.

[5] Gloss Accessories raises a jurisdictional issue. It contends that Ms Bengel was not dismissed but resigned her employment on 26 June. Accordingly it claims that Ms Bengel could not have been unfairly dismissed within the meaning of the FW Act. In the alternative, it contends that the dismissal was not harsh, unjust or unreasonable.

[6] A hearing by determinative conference was conducted on 13 October. Evidence and submissions on the jurisdictional matter and the merits (as well as remedy) were presented. Both parties were self-represented; Ms Bengel for herself (in person) and Area Manager Khalia McClatchey for Gloss Accessories (by telephone from interstate). At the hearing’s conclusion, I reserved my decision.

[7] Three issues arise for decision: first, was Ms Bengel dismissed within the meaning of the FW Act; second, if so, was the dismissal unfair within the meaning of the FW Act (that is, was it “harsh, unjust or unreasonable” having regard to the factors in section 387); and third, if so, what is the appropriate remedy?

[8] It was common ground between the parties that Ms Bengel was a person protected from unfair dismissal under the FW Act (section 382). The (alleged) dismissal was not governed by the Small Business Fair Dismissal Code (section 385(c)) nor was the termination a case of genuine redundancy (section 385(d)). On the evidence, I am satisfied this is correct.

The Requirement to have been Dismissed

[9] Under the FW Act, a person can only be “unfairly dismissed” if they have been “dismissed” (section 385(a)).

[10] Section 386 of the FW Act provides that:

(1) A person has been dismissed if:

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

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

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

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

(b) the person was an employee:

(i) to whom a training arrangement applied; and

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

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

(c) the person was demoted in employment but:

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

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

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

[11] The provisions of section 386(2) and (3) do not apply in this matter.

[12] Having raised the jurisdictional issue, Gloss Accessories bears the legal onus of establishing that Ms Bengel was not dismissed. However in circumstances where an employee resigns but claims their resignation was, at law, a dismissal an evidentiary burden exists on the employee to establish that the termination was at the initiative of the employer or forced by the employer’s conduct. 1

[13] In this matter it is not in dispute that Ms Bengel resigned in writing by email sent to Ms McClatchey at 11.24pm on Tuesday 27 June. The circumstances leading up to that email and the employer’s response to it are discussed later in this decision.

[14] The definition of dismissal in section 386(1) has two elements: dismissal at the initiative of the employer, and forced resignation. Consistent with a recent decision of a Full Bench of this Commission, 2 during the hearing I drew to the attention of both Ms Bengel and Gloss Accessories the provisions of section 386(1) and these two elements. Ms Bengel confirmed that she was pursuing her application under the ‘forced resignation’ provision in section 386(1)(b). In these reasons I deal primarily with the forced resignation issue. I do however also satisfy myself whether section 386(1)(a) is made out.

The Legal Principles

[15] The legal principles governing the application of section 386(1) are well established. Together with an analysis of its legislative history, they were recently set out by a Full Bench of this Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli 3 as follows:

“(1) There may be a dismissal within the first limb of the definition in section 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in section 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” 4

[16] Although decided under a previous Act, 5 the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd6 remains generally relevant to the consideration of section 386(1):

“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 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 that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

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.” 7

[17] Although determined by the English Court of Appeal, the following approach taken in CF Capital PLC v Willoughby 8  is also generally consistent with that of Australian Court and Tribunals:

“37. The ‘rule’ is that a notice of resignation or dismissal (whether given orally or in writing) has effect according to the ordinary interpretation of its terms. Moreover, once such a notice is given it cannot be withdrawn except by consent. The ‘special circumstances’ exception as explained and illustrated in the authorities is, I consider, not strictly a true exception to the rule. It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be. The need for such a so-called exception to the rule is well summarised by Wood J in paragraph 31 of Kwik-Fit’s case and, as the cases show, such need will almost invariably arise in cases in which the purported notice has been given orally in the heat of the moment by words that may quickly be regretted.

38. The essence of the ‘special circumstances’ exception is therefore that, in appropriate cases, the recipient of the notice will be well advised to allow the giver what is in effect a ‘cooling off’ period before acting upon it. Kilner Brown J, in paragraph [15] of his judgment in Martin’s case understandably referred to such a period as an opportunity for the giver of the notice to recant, or to withdraw his words; and this is in practice what is likely to happen. I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.”

The Witnesses

[18] Five witnesses gave oral evidence in support of statements lodged with the Commission based on my pre-hearing directions. 9 Ms Bengel for herself and three witnesses (in person) which she called: her sister Ms Ashleigh Bengel; a former Casual Sales Assistant Michaela Manser; and a Casual Sales Assistant Cassandra Soteriou. Ms McClatchey gave evidence for Gloss Accessories.

[19] Three other witness statements were lodged with the Commission prior to the hearing: Elisabeth Smallacombe (by Ms Bengel); and Emma Stankovich and Sarah-Rose Davies (by Gloss Accessories). None of these three persons were made available at the hearing to give oral evidence on their statements. Ms Bengel opposed the admission of the statements of Ms Stankovich and Ms Davies into evidence on the ground that she wished to cross examine each on their evidence. No adequate explanation was given by Gloss Accessories for their non-attendance. I admitted the three statements of the non-attending witnesses into evidence but on the basis that their evidence had not been subject to cross examination or questioning by myself and would be given reduced weight, if any, as a consequence.

[20] The jurisdictional matter, as well as the merits, turns largely (but not exclusively) on two telephone conversations between Ms Bengel and Ms McClatchey on 27 June and the subsequent conduct and thought process of Ms Bengel that evening and the conduct of the same parties the following day. Of some but lesser relevance is the conduct of Ms Manser and the working relationship between Ms Bengel and Ms Stankovich. Certain facts were contested, with different versions of events, whilst other facts are conceded or uncontested. Issues of credit, particularly relating to the contested facts, are relevant.

[21] Ms Bengel gave evidence in a direct and calm manner. I found her to be an impressive witness, with clear and honest recall and a willingness to both concede and hold her ground under questioning where the evidence warranted. She was organised without sounding rehearsed. Her evidence was consistent with the documentary record.

[22] Ms McClatchey’s evidence was brief but to the point. She too was generally truthful and open in her answers when questioned. However her recall was not as precise as Ms Bengel, and on some matters she was somewhat vague or needing to have her memory refreshed.

[23] The evidence of Ms Manser was clear and generally reliable. The evidence of Ms Soteriou was of limited scope and relevance as she was not directly involved in the issues to be determined. The evidence of Ms Ashleigh Bengel is relevant to the events of the evening of 27 June and was direct, plausible and able to be relied upon.

[24] I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of the Full Bench of this Commission which recently said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 10

[25] Some of the oral evidence and evidence in witness statements tendered strayed into the field of irrelevant considerations, hearsay, opinion and assumption. I place reduced levels of weight on such evidence except where it is corroborated by direct evidence, is uncontested or is inherently believable.

[26] I note that this is not an inquiry into the general staffing relationships between persons employed by Gloss Accessories in Adelaide. I only take into account evidence about personal relationships or conduct where it is relevant to the facts that need to be determined on Ms Bengel’s application and the employer response.

[27] While I consider that each of the witnesses who gave oral evidence were generally reliable to the best of their recall, where there are disputed facts and it is necessary to make a finding on those facts I prefer the evidence of Ms Bengel over the evidence of Ms McClatchey due to her more precise and reliable recall.

[28] I determine this matter on the basis of all the evidence and submissions before me.

The Events of 27 June

[29] Ms Bengel resigned on the evening of 27 June after being told by Ms McClatchey earlier that day that extended annual leave which had been previously approved by the employer was revoked.

[30] By email of 31 May 2017, 11 Ms Bengel had applied to Ms McClatchey for twelve weeks extended leave to take a family holiday to Europe (11 July to 30 September). Ms Bengel had raised this possibility informally with Ms McClatchey as early as December 2016 and over preceding months (including at a face-to-face meeting on 19 January). The 31 May email confirmed her intention. The evidence before me is that Ms Bengel had four weeks of accrued leave when she made the request. The remaining eight weeks were requested at the discretion of the employer and, if granted, to be taken as unpaid leave.

[31] After an email prompt by Ms Bengel, Ms McClatchey replied on 6 June. 12 She approved the leave in the following terms:

“This will be fine as long as you have extensive cover in your store to allow for both your shifts, Emma’s RDOs and unexpected cover needed during the time you will be absent….Can you also please draft up the rosters for the time you will be absent and send them through to me for early approval?

[32] Ms Bengel replied 13 saying that she was “happy that you would be willing to accommodate this leave for me as I love my job and really don’t want to jeopardise my position here”. However she drew Ms McClatchey’s attention to the fact that she hadn’t mentioned that her Assistant Store Manager Emma Stankovich also had approved leave in the middle of her projected absence. Ms Bengel sought approval to hire two casuals to help cover her (Ms Bengel’s) period of absence.

[33] Ms Bengel also subsequently (14 June) provided Ms McClatchey with draft store rosters. Those drafts included provision of shifts across this period for an experienced casual store employee, Ms Manser.

[34] Ms Bengel booked and paid for her holiday.

[35] At about 3.20pm on 27 June Ms McClatchey rang the Marion store. She asked to first speak to Ms Stankovich. Then she spoke to Ms Bengel. The call lasted 30 minutes. Ms McClatchey confronted Ms Bengel with knowledge she (McClatchey) had acquired (from Ms Stankovich and Ms Davies) that Ms Manser was intending to resign forthwith, to go on a European holiday with Ms Bengel, and would not be available to cover Ms Bengel’s absence. Ms Bengel said that it wasn’t her place to communicate another employee’s resignation, and that to her knowledge Ms Manser had not officially resigned, simply expressed an intention to do so. Ms McClatchey became angry. Her tone changed. She accepts that she accused Ms Bengel of withholding information from management and that doing so was unprofessional and not in keeping with her responsibilities. Ms Bengel says that Ms McClatchey went further, accusing her of being a “deceptive liar” and not manager material, and threatening to report her behaviour to the company owner. Ms Bengel challenged her to do so, as she considered she had done no wrong. The call was left on the basis that Ms McClatchey would consider how the company would respond.

[36] Ms McClatchey called Ms Bengel back about an hour later, at 5.00pm. Her tone was firm but less angry. She told Ms Bengel that the company owner (Mr Jeremy King) had been consulted. The company had decided to revoke its approval for her leave. Ms Bengel says the reason given to her for the revocation was that she did not tell management that Ms Manser was resigning. Ms McClatchey says that the reason she gave was because the company had been misled and information had been withheld.

[37] In between these two phone calls Ms Bengel informed Ms Manser that Ms McClatchey had reacted badly when finding out that Ms Manser was planning to resign. Ms Manser, who had intended to submit her formal resignation that week, forwarded a written resignation that day.

[38] Ms Bengel left work for the day. Five hours later, at 11.24pm that evening, she sent a written resignation to Ms McClatchey (copied to Mr King) in the following terms:

“Dear Khalia and Jeremy

Firstly I would like to express how disappointed I am with the result of today’s conversation.

It is with regret that you have given me no option but to resign from my position as Store Manager of Gloss Marion. Consider this my two weeks’ notice, last day of work being 10th July 2017.

As my leave was approved on the 6th of June, I have already made travel plans that cannot be cancelled, nor changed.

As mentioned in my leave request members of my immediate family live overseas, and this is a once in a lifetime opportunity to travel together.

Khalia had not noticed at the time of my leave approval that Emma would also be on leave over the same dates. I brought this to Khalia’s attention, as I had no intention to be deceitful but to assist with my leave approval, and wanted to ensure that the store was sufficiently staffed during the period I was away.

Over the course of my employment as manager at Gloss Marion I have always acted in the interest of the company. The fact that my leave has been revoked two weeks before my departure leaves me in an impossible position.

It is apparent that this is a punishment for not informing Khalia of the possible intention of resignation of a casual in my store.

This information is not mine to pass on, and I find it exceptionally unprofessional that it has now been gossiped about by Emma and Sarah; a staff member from another store.

I would like an explanation as to why Emma’s leave has not been revoked, nor has she received any punishment that I am aware of, although she has known the same information, for the same length of time, as I have. I understand that she did not say anything because she also felt that it was not her business or place to say.

[she then comments on Emma’s relationship with staff]

[she then comments on Ms Bengel’s contribution to the Marion store]

I have enjoyed my working time for Gloss, and working with Sarah and Khalia.

It is with regret and not of my choosing that I submit this resignation.

Regards

Mandy Bengel” 14

[39] Ms Bengel drafted this resignation with the support and assistance of her sister, Ashleigh Bengel. She discussed the events of that day with her sister during the course of that evening. She also had a telephone discussion with her mother during which she discussed her dilemma. Ms Bengel wanted a prompt response from her employer. Having not yet heard back, at 2.10pm the following day (28 June) she sent Ms McClatchey an email requesting a reply.

[40] Ms McClatchey had read the resignation email on the morning of 28 June. She says she held some concern that Ms Bengel had resigned as this meant the loss of a Store Manager. She sought advice from her superior, Ms Jamais Bennett. After consulting Ms Bennett it was decided that Gloss Accessories would accept Ms Bengel’s resignation. Ms McClatchey sent the following email to Ms Bengel at 4.20pm that day:

“Good afternoon Amanda

Your resignation from Gloss Accessories has been accepted and your last day of employment will be the 10th of July 2017. During your next two weeks you will need to work to the high standard that is expected of you and perform all duties expected of a store manager. Prior to the completion of your last shift you will need to return any Gloss property and confirm once actioned via email. I wish you all the best in your future endeavours.

Kind regards

Khalia” 15

[41] Ms Bengel confirmed this arrangement by return email 16 with Ms McClatchey on 30 June. She requested a statement of service.

[42] One further communication in this timeline is relevant. On 4 July she sent Mr King via Ms McClatchey a lengthy email 17 that followed up a phone call Ms Bengel had with Ms McClatchey on 29 June (the day after the resignation was accepted). In both that call and email Ms Bengel expressed dissatisfaction that Ms Stankovich (she believed) had accessed her resignation email via the Marion store computer, had deleted its search history, had communicated that information to others before Ms Bengel had the opportunity to advise her staff she was resigning and that the company had permitted this to occur and not investigated these concerns. Ms Bengel asserted that Ms Stankovich’s conduct was bullying and workplace harassment. She sought a response by 6 July, and to be contacted in writing only.

[43] As events transpired, Ms Bengel’s last working day with Gloss Accessories was 5 July, not 10 July. Ms McClatchey spoke to Ms Bengel on 5 July and indicated that it was best for all concerned if she finished on that day given the circumstances. Ms Bengel agreed provided she be paid until 10 July (which she eventually was). A statement of service was not provided and, as at the Commission hearing, still had not been. Other than this development, Ms Bengel’s complaint of bullying and harassment was not responded to.

Was Ms Bengel Dismissed?

[44] Ms Bengel resigned because, in her words, she considered herself to have been placed by her employer in an “impossible position”. Her resignation email says it is “with regret” and “not of her choosing”. 18 Her application to the Commission says she was “forced to resign”.19 Her evidence was that she resigned “under duress”.20

[45] Her evidence and submission was that she considers her resignation to have been forced for four reasons:

[46] These were the grounds on which Ms Bengel contends that she was forced to resign “because of the conduct or a course of conduct engaged in by her employer” within the meaning of section 386(1)(b) of the FW Act. She relies on them individually, and as a combined course of conduct.

[47] Each of the grounds involves alleged conduct by the employer. I now deal with each of them.

Unreasonable Revocation of Leave

[48] This is the principal ground on which it is claimed that the employer forced Ms Bengel’s resignation.

[49] There is no contest between the parties that leave was approved on 6 June after a formal request for leave on 31 May. That formal request was no surprise to the employer – it had been discussed informally for months prior. There is also no contest that the leave was revoked in the second phone call between Ms Bengel and Ms McClatchey on 27 June.

[50] Ms Bengel believed that the revocation was punishment for not telling Ms McClatchey prior to 27 June of what she knew about Ms Manser intending to resign from the store.

[51] I am in no doubt that this is what prompted the employer’s decision to revoke the leave. The revocation was decided and advised in the context of the ‘angry’ phone conversation between Ms McClatchey and Ms Bengel a few hours earlier.

[52] In the abstract it could be said that a decision to revoke one employee’s leave because the intended resignation of another employee has not yet been advised to an employer is unreasonable. However, context matters. In this case, the employee concerned (Ms Manser) was an employee under the control of Ms Bengel who was her store manager. Ms Manser was an experienced casual employee, one of only five persons regularly rostered in the store. Nor was Ms Bengel’s leave approval unconditional. It was expressly conditional on adequate staffing cover for her extended period of absence and presentation of rosters. The leave itself involved a large component of unpaid leave for which there was no contractual or other entitlement. Consistent with that condition Ms Bengel submitted draft rosters to the employer for its approval to cover her absence, that included Ms Manser working hours during this period.

[53] In these circumstances it was understandable that Ms McClatchey would react negatively on finding out that Ms Manser would not in fact be working during this period. Although Ms Manser had not officially resigned, the evidence is that Ms Bengel knew that Ms Manser intended to do so that very week. Indeed, Ms Bengel knew that Ms Manser intended to do so weeks earlier because for at least the initial part of the trip overseas Ms Manser would be travelling with Ms Bengel. The only aspects of Ms Manser’s intention that Ms Bengel was unsure about was whether she would resign to go on her holiday or seek (unpaid) absence as a casual employee, and the day she would officially tell the employer.

[54] The knowledge Ms Bengel held about Ms Manser’s intention and their holiday plans was relevant to Ms Bengel’s relationship to her employer because she, as store manager and an applicant for leave, led her employer to believe that Ms Manser would be at work during her absence. I accept Ms McClatchey’s evidence that the presence of an experienced employee like Ms Manser in the store during Ms Bengel’s intended absence was relevant to the company being satisfied with the draft rosters on which the grant of leave was conditioned.

[55] While the decision to revoke all approved leave (including the accrued paid component and the discretionary unpaid component) was a severe reaction and could understandably be characterised by Ms Bengel as ‘punishment’ it was grounded on a valid operational basis. The draft roster Ms Bengel had submitted was deficient (in that Ms Manser would not be working scheduled hours) and Ms Bengel knew (at that time) that in all probability that it was deficient in the form it was submitted. Intentionally or not, the employer was misled on a material issue.

[56] Further, within limits, an employer has the right (particularly with respect to management employees) to determine the time for taking leave, even accrued leave; and further, the fact that Ms Bengel was seeking approval to employ two new casuals to cover her absence (and as it turned out that of Ms Manser) and had not received that approval did not make the revocation of her leave unreasonable. It is an employer’s decision whether or not to employ new staff; one that Ms Bengel could request but not demand.

[57] In these circumstances, I do not consider the decision to revoke Ms Bengel’s leave unreasonable.

Unreasonable Claim of Withholding Information

[58] Ms Bengel acknowledged in her resignation letter and in her evidence that she did not tell Ms McClatchey of what she knew about Ms Manser’s almost certain absence during Ms Bengel’s period of requested leave. Ms Bengel’s explanation is that she did not consider this information “hers to pass on”.

[59] Once again, context matters. The information concerned a matter on which Ms Bengel had made (contrary) representations to the employer. Given Ms Bengel’s position as store manager, it is not unreasonable that her knowledge of a firm but (yet to be communicated) intention of resignation of an employee under the manager’s control should be communicated to the employer if it is relevant to forward planning between the employer and the manager. It was not store gossip about Ms Manser that Ms Bengel held, but a body of information relevant to decisions Ms Bengel was asking the employer to make. Ms Bengel’s desire to allow Ms Manser’s resignation to be made known to the employer only at a time of Ms Manser’s choosing (so she would not be taken off the roster earlier than needed) clouded Ms Bengel’s judgment about her responsibilities as store manager.

[60] In this context, it is not unreasonable that Ms McClatchey questioned Ms Bengel’s standing as a manager in the direct and angry manner that she did on 27 June.

Unreasonable Time Frame to Make a Decision

[61] Gloss Accessories did not specify a time frame for Ms Bengel to consider her position once it advised that her leave was revoked. However, Ms Bengel believed that she needed to make a rushed decision that evening because it was only two weeks before she was due to leave for Europe and, in order to comply with her contractual obligations, if she was to resign then she would have to give Gloss Accessories two weeks’ notice.

[62] No doubt the pressure of the moment led Ms Bengel to believe that she had no option but to make an immediate decision. Of course, in hindsight there were other options. For example, she could have asked Gloss Accessories to accept a lesser period of notice to allow her to consider her options. There is no evidence before me that reliably supports Ms Bengel’s contention that the timing of the events of 27 June were constructed by Gloss Accessories to put maximum time pressure on her to hasten her resignation. Ms McClatchey confronted Ms Bengel with the information she had acquired (from Ms Stankovich and Ms Davies) after having acquired that information. The evidence does not suggest that there was a lengthy delay between these events.

[63] In any event, as Ms McClatchey communicated no time frame to Ms Bengel for her response, then it cannot be said that Gloss Accessories unreasonably imposed a time frame for her decision.

Failure to Investigate Complaints about Ms Stankovich

[64] The evidence supports Ms Bengel’s contention that Ms Stankovich went behind her back and accessed and communicated information about her intentions, Ms Manser’s intentions and Ms Bengel’s resignation in a manner that would reasonably cause offence to Ms Bengel as a store manager. I give no weight to Ms Stankovich’s witness statement as claims contained therein are in dispute and she was not called by Gloss Accessories to give evidence or be cross examined on it. Me Bengel’s evidence on these matters is believable.

[65] This does not mean however, that Gloss Accessories acted unreasonably in using information communicated to it by Ms Stankovich. Ms Bengel’s case in the Commission is against Gloss Accessories, not Ms Stankovich. While the evidence supports a conclusion that Gloss Accessories failed to act on or take any serious steps to investigate Ms Bengel’s complaints about Ms Stankovich’s conduct (including the claim that she had improperly accessed Ms Bengel’s email and then deleted its search history) this was a complaint made to Gloss Accessories on 29 June and 4 July, that is, days after Ms Bengel’s resignation was communicated and accepted. It is not conduct by Gloss Accessories that bears on the question whether Ms Bengel was forced by the conduct of the employer to resign on 27 June.

Conclusion on the Jurisdictional Issue

[66] I readily accept that Ms Bengel resigned under the burden of immense pressure. She felt she had to choose between her job and a once-in-a-lifetime family holiday. It was not a choice she wanted to make. She liked her job; she was good at her job; and there was no evidence to the contrary before me. The consequences of forgoing the holiday were equally confronting – a loss of irreplaceable family time as well as a financial cost given that tickets and the like had been booked.

[67] Although the pressure of the moment did not lead Ms Bengel to consider options short of resignation, they were there. She could have sought more time from Gloss Accessories to make a decision. She could have opened a negotiation to shorten her holiday by seeking a fresh approval for the four weeks accrued leave but not the eight weeks unpaid leave. She could have asked Ms Manser to abandon her holiday plans. She could have acknowledged that she had (intended or not) misled Gloss Accessories about Ms Manser working during her absence, and apologised for that. Whether any of these options would have been agreed by Gloss Accessories or assisted is not to the point; the point is that Ms Bengel only saw her dilemma in black and white terms.

[68] The explanation why Ms Bengel saw her choice so starkly is not just her belief that the time for decision was short. On the evidence, I find that Ms Bengel was shocked and taken aback that the employer had expressed a loss of confidence in her and had criticised her management judgment in such stark language. For Ms Bengel this was deeply upsetting and shook her to the core. She was an excellent store manager and prided herself in what had been achieved in her time in charge. She had a strong work ethic. The confidence of her employer was important to her. I find that, in part, her resignation was influenced by the fact that she saw her promising future with Gloss Accessories put under a cloud once Ms McClatchey said what she said, and then, with the support of the company owner, decided to revoke her leave.

[69] Nor was Ms Bengel’s resignation a heat of the moment decision. She made the decision having removed herself from the immediate geography of the workplace and dialogue with work colleagues. She spent five hours at home, with family seeking their counsel, before she drafted (with her sister’s help) and sent a resignation email. Ultimately she chose the holiday at the expense of her job. It was not a choice she wished to make. It was her preference to have both. But in the circumstances, she was no longer able to have both.

[70] For these reasons, I do not consider that Ms Bengel’s resignation was forced by the conduct or a course of conduct by Gloss Accessories within the meaning of the FW Act. As a Full Bench of this Commission recently said:

“The well-established test for a forced resignation was restated in the recent Full Bench decision in Bupa Aged Care Australia Pty Ltd v Tavassoli. The employer must have engaged in conduct with the intention of bringing the employment to an end, or termination of the employment must have been the probable result of the employer’s conduct, such that the employee had no effective or real choice but to resign. 21

[71] Gloss Accessories intended to revoke Ms Bengel’s leave but it did not intend that she resign. Although her choice was difficult and painful, it was an effective choice that was left to her and made by her.

[72] Nor do I consider that Ms Bengel was terminated at the initiative of the employer within the meaning of section 386(1)(a) of the FW Act. No action was taken by the employer to dismiss, and its decision to accept her resignation was independently considered over a number of hours by the employer. It was not unreasonable for the employer to accept her resignation.

[73] Notwithstanding this finding, I note Ms McClatchey’s concession in her closing submission at the hearing that she and the employer could have handled the situation better. I agree. To the extent options short of resignation were open to Ms Bengel those same or similar options were open to Gloss Accessories short of not accepting her resignation. It could have, but chose not to open a calm dialogue about possible solutions to the dilemma Ms Bengel had created for herself and the store. It sided, unreasonably so on the evidence, with the actions of Ms Stankovic without objectively assessing or investigating her conduct. The consequence is that Gloss Accessories lost a good and competent store manager who, at worst, made an error in submitting a misleading forward roster that set off this unfortunate chain of events. Inexplicably, Gloss Accessories has not yet provided the statement of service it had promised. At the hearing it undertook to rectify that ‘oversight’.

[74] That said, Ms Bengel was not dismissed within the meaning of the FW Act. As she was not dismissed, questions whether her dismissal was harsh, unjust or unreasonable (and issues of remedy) do not arise.

[75] In conjunction with the publication of this decision I issue an Order dismissing the application.

DEPUTY PRESIDENT

Appearances:

Ms A. Bengel, on her own behalf.

Ms K. McClatchey, for the Respondent.

Hearing details:

2017.

Adelaide.

13 October.

 1   Australian Hearing v Peary (2009) 185 IR 359 at [30]

 2   “It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.” Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [48]

 3   [2017] FWCFB 3941 per VP Hatcher, DP Binet and Cribb C

 4   Ibid at [47]

 5   Workplace Relations Act 1996 (Clth)

 6   (2006) 58 AILR 100

 7   Ibid at [23]

 8   Court of Appeal (Civil Division) per Rimer LJ [2011] EWCA 1115. See also Gunnedah Shire Council v Grout (1995) 134 ALR 145

 9   Directions, DP Anderson 10 August 2017

 10   Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

 11   Attachment A, Statement of Amanda Bengel Exhibit A1 Email 31 May 2017 4.32pm

 12   Attachment B, Statement of Amanda Bengel Exhibit A1 Email 6 June 2017 12.38pm

 13   Attachment B, Statement of Amanda Bengel Exhibit A1 Email 6 June 2017 1.33pm

 14   Attachment D, Statement of Amanda Bengel Exhibit A1 Email 27 June 2017 11.24pm

 15   Attachment D, Statement of Amanda Bengel Exhibit A1 Email 28 June 2017 4.21pm

 16   Attachment G, Statement of Amanda Bengel Exhibit A1 Email 30 June 2017 10.18pm

 17   Attachment H, Statement of Amanda Bengel Exhibit A1 Email 4 July 2017 10.36pm

 18   Attachment A, Statement of Amanda Bengel Exhibit A1 Email 31 May 2017 4.32pm

 19   Form F2 Unfair Dismissal Application 10 July 2017 paragraph 3.1

 20   Statement of Amanda Bengel 5 October 2017 Exhibit A1 page 13

 21   Fitzgerald v Woolworths [2017] FWCFB 2797 at [24] 17 October 2017

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