[2021] FWC 3125
The attached document replaces the document previously issued with the above code on 3 June 2021.
• The word ‘apology’ in the sub-title above paragraph 131 has been amended to read ‘resignation’; and
• The words ‘retraction of apology’ in paragraphs 132 and 137 have been amended to read ‘retraction of resignation’.
Joseph Hyde
Associate to Deputy President Anderson.
4 June 2021.
| [2021] FWC 3125 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Ms Nicola Hallard
v
Campus Retail Services Pty Ltd T/A The General
(U2021/2268)
DEPUTY PRESIDENT ANDERSON |
Application for an unfair dismissal remedy – manager – resignation – whether forced resignation – section 386 FW Act – no dismissal – application dismissed
[1] On 18 March 2021 Nicola Hallard (Ms Hallard or the applicant) applied to 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 Campus Retail Services Pty Ltd (Campus Retail Services or the employer). She claims to have been unfairly dismissed on 12 March 2021. She says her dismissal was a forced resignation. She seeks orders for compensation.
[2] Campus Retail Services oppose the application and raise a jurisdictional issue. It says that Ms Hallard was not dismissed but resigned. In the alternative, it says that Ms Hallard was not unfairly dismissed. In the further alternative, it says that reinstatement is inappropriate and no compensation should be ordered.
[3] An allied submission advanced by the employer is that it is a small business employer within the meaning of the FW Act, and, if it were found to have dismissed Ms Hallard, it complied with the Small Business Fair Dismissal Code.
[4] Whether Campus Retail Services is a small business employer is in dispute. Ms Hallard contends, that by virtue of its connection to associated entities (Campus Services Holdings Pty Ltd and the Adelaide University Union) the number of persons employed exceed the statutory threshold for the employer to be a small business for the purposes of the FW Act.
[5] Conciliation before a staff conciliator on 8 April 2021 and further conciliation before a Commission member on 22 April 2021 did not resolve the matter.
[6] I issued directions on 16 April 2021. In advance of the hearing, and consistent with my directions, I received witness statements and materials from both Ms Hallard and the employer.
[7] Campus Retail Services sought to be represented. Ms Hallard opposed this course. She remained self-represented. For reasons given at an interlocutory hearing on 17 May 2021, I granted permission for the employer to be represented on condition that I would provide a measure of assistance to Ms Hallard to present her case and test that of the employer, consistent with my independent statutory obligations.
[8] I heard all matters (jurisdiction, merit and remedy) by video conference on 27 May 2021.
[9] The evidence before me was oral and documentary. Four persons gave evidence:
• Nicola Hallard (applicant);
• Kathryn Howes (Finance and Commercial Manager, Adelaide University Union);
• Summa Gilbert (Human Resources Manager, Adelaide University Union); and
• Gary Sutherland (Director Campus Retail Services and General Manager Adelaide University Union).
[10] All four witnesses gave evidence conscientiously and their evidence can be relied upon. Each made extensive reference to the documentary record. Although the volume of evidence is substantial, the facts are largely not in dispute. All witnesses were co-operative in trying to piece together an accurate and agreed narrative of what occurred, particularly between 11 and 16 March 2021. What is in dispute are conclusions that should be drawn from the facts.
[11] I make this decision based on all of the oral and documentary evidence before me.
Campus Retail Services
[12] Campus Retail Services is a business operating two retail stores (The General and The Store) from the campus of the University of Adelaide.
[13] It is a private company wholly owned by Campus Services Holdings Pty Ltd which in turn is wholly owned by a holding company, the Adelaide University Union 1.
[14] It retails products mainly to students and academic staff, but is also open to visitors and the public.
[15] At the time of Ms Hallard’s resignation, it employed nine persons (mainly casuals).
Ms Hallard’s employment
[16] Ms Hallard worked continuously for Campus Retail Services for five years, from March 2016 until 12 March 2021. In 2017 she was appointed Store and Brand Merchandise Manager (which combined two former roles). She remained in this position until her resignation.
[17] The role of Store and Brand Merchandise Manager involved managerial and, if necessary, shop floor tasks in both stores. The managerial activities included product ordering, rostering, staffing, invoicing, stock control, monitoring sales, operating within budgets and preparation of reports to the board of Campus Retail Services.
[18] Ms Hallard’s role was full time. As manager, she was the senior Campus Retail Services employee.
[19] Ms Hallard enjoyed her job. She was good at it. She got on well with staff in the shops she managed and the wider Adelaide University Union. Until the events of 11 to 16 March 2021, she had good, friendly and mutually respectful relations with her reports and in particular Ms Howes and Mr Sutherland.
[20] Ms Hallard reported directly to Ms Howes, the Finance and Commercial Manager of the ultimate holding company, the Adelaide University Union. Ms Howes was located on campus but in a separate area to Ms Hallard.
[21] Less directly, but relevantly, Ms Hallard also reported to Mr Sutherland. Mr Sutherland was a director of Campus Retail Services (the company that employed Ms Hallard) and (in his full time role) General Manager of the Adelaide University Union. Ms Howes reported to Mr Sutherland. Mr Sutherland came to know Ms Hallard well, including by reviewing and discussing reports she submitted (via Ms Howes) to the Board.
[22] Ms Hallard had access to services from other arms of the Adelaide University Union (which, in its own right, employed about twenty persons). This included human resource services from Ms Gilbert with respect to staffing matters, including recruitment.
Staffing the retail stores February to March 2021
[23] Ms Hallard was responsible for staffing the two retail stores. The business of the stores fluctuated according to demand. Though operating year-round, the busiest periods coincided with academic year semesters, and in particular the start of an academic year and the start of semesters.
[24] Given the fluctuating trade, the stores were mostly staffed by casuals, including (but not exclusively) students.
[25] During 2020, with the advent of COVID-19 and the university locked down for periods, business declined significantly with consequent reductions in staffing. Two permanent (non-casual) roles were not filled as the stores operated satisfactorily with Ms Hallard and casuals as required.
[26] In October 2020, with an eye towards what she hoped to be a less disrupted academic year in 2021, Ms Hallard mentioned to Ms Howes that staffing numbers would need to return to more regular levels in 2021 including by having a budget for and recruiting the two permanent positions.
[27] Ms Hallard could not employ new staff unless there was a budget allocation for this purpose, and it was Ms Howes who (after consulting Ms Hallard and securing approvals) framed the budget.
[28] In late 2020 Ms Howes indicated in general terms to Ms Hallard that approval would be given for the recruitment of the new staff to return staffing to more regular levels.
[29] On 11 January 2021, Ms Hallard sought the services of Ms Gilbert to assist with the recruitment: 2
“Hi Summa
We are looking to advertise for some 2 full time staff for the general and 1 for the store, when you return are you able to assist me with this please.
Thanks
Nicola Hallard” (emphasis added)
[30] Ms Hallard asked Ms Gilbert to prepare a job description, an advertisement and to place the advertisement.
[31] Ms Hallard wanted the new staff to be on board by the start of the first busy period of the year (mid-February to mid-March 2021). On 13 January 2021 Ms Hallard wrote to Ms Howes: 3
“If we are gong to hire new staff can we look at doing it soon, I don’t want to be training staff o-week…”
[32] Ms Gilbert was on annual leave until 27 January 2021. On 28 January 2021 she attended to Ms Hallard’s request 4. She prepared position descriptions and an advertisement. On 3 February 2021 she placed the advertisement on seek.com and sent an ‘all staff’ email encouraging feedback from staff networks5. She applied orthodox time frames for candidate expressions of interest and interviewing.
[33] As the first busy period of the year came upon Ms Hallard (mid-February 2021), no candidate had emerged or been selected for the positions being recruited. Ms Hallard had forwarded five resumes to Ms Gilbert who had in turn discussed them with Ms Howes. Both Ms Gilbert and Ms Howes considered the candidates unsuitable. Ms Hallard began to experience pressures with staffing the stores. She discussed the matter and her options in multiple, professional and friendly communications (usually by skype) with Ms Howes. She made it known that on 2 February 2021 she had messaged Ms Gilbert: 6
“Summa I am going to be honest if I don’t get the right staff it will be my job you are putting up”.
[34] Ms Hallard was authorised by Ms Howes to increase hours for existing casuals. Ms Howes then suggested and approved, as an interim measure, the transfer of an existing employee working for the Adelaide University Union (Person A 7) to the retail stores as a permanent part time employee.
[35] Whilst this was not what Ms Hallard preferred, it was (at least initially) an acceptable interim solution (with the prospect of being a longer term solution), and one she agreed to. However, it required Ms Hallard to train up Person A in the role. On 2 March 2021 Ms Hallard messaged Ms Howes: 8
“I had a good chat with [Person A] today, so she will book in 4 sessions of training over the next 2 weeks. I also said the plan was in to do this cover with the long term plan to continue permanently. If all goes well I would like her to have more responsibility than others, such as team leadership, rostering, accounts etc as we discussed so you can see more business development”.
[36] From March 2021 Person A worked in the store (mornings). However, Ms Hallard found training staff during a busy period a distraction and something that put her behind in other work. Ms Hallard also found that Person A did not quite appreciate the intensity of the work, and her expectations. By mid-March 2021 Ms Hallard had formed the view that Person A was not really working out.
Ms Hallard’s workload February-March 2021
[37] Though Ms Hallard was not tasked with any new or abnormal duties, she found herself working under increasing pressure in February and March 2021. The academic year had commenced, the stores had returned to more standard trade after the COVID-19 year of 2020, her staffing needs had not yet been met and the interim staffing measure (Person A) was not working out as hoped.
[38] Ms Hallard had also two periods of planned annual leave – a single day on Friday 12 March 2021 (when she hoped to spend a long weekend with her husband in regional South Australia) and a longer period of seventeen days from 19 March 2021 (when she hoped to travel to Tasmania for a holiday). Leave for both of these periods had been sought from Ms Howes, and approved. The longer period was chosen by Ms Hallard because it was an anticipated quieter time after the initial busy period of the academic year.
[39] Ms Hallard let it be known to Ms Howes, in general and friendly communication, that she was feeling some pressure – particularly as a result of her unresolved staffing needs and wanting confirmation of her revised budget. This was acknowledged by Ms Howes (“this could alleviate some of your pressures” 9).
[40] In the short week of 9 March 2021 (8 March was public holiday and she was due to take a leave day on 12 March) Ms Hallard found the pressure upon her intensifying. On 9 and 10 March 2021 Ms Howes and Ms Hallard communicated about staffing. On 9 March Ms Hallard messaged Ms Howes:
“I am mindful of the time I am having to spend with [Person A] before I go away, which is taking me away from stuff I need to be doing before I go...I will be very honest, my team and I do work hard, there is no down time ever…” 10
“Will talk tomorrow but the other option is to leave [Person A] until after I come back from holidays then I’ll have more time to spend with her” 11
[41] And on 10 March 2021: 12
“…let’s revisit this [Person A] once I am back, it will give [Person A] time to digest it all…”
[42] On 10 March 2021 Ms Howes suggested that some additional casual hours could be made available and budgeted for during Ms Hallard’s upcoming longer period of annual leave. Ms Hallard considered that her staffing needs were in the busy periods not in those quieter times. Ms Hallard declined the suggestion: 13
“no I don’t need staff in the general…I have enough staff to cover the shifts in the general.”
[43] On the morning of 11 March 2021 Ms Howes messaged Ms Hallard: 14
“I hope you got some sleep last night lol. I appreciate everything you have said and agree with you that we just need staff that benefit CRS and not just to assist AUU…”
[44] During that day, Ms Hallard formed the view that she could not do her job properly and still be absent on 12 March. She resolved to cancel her annual leave for that day. She was not happy about doing so, but considered it necessary. She formed this view on her own account. She neither sought nor received direction from Ms Howes.
The 11 March all-staff email
[45] On 11 March 2021, Ms Gilbert sent an email to all Adelaide University Union staff about the departure of an employee (from an events business not directly connected to Campus Retail Services) and her intention to recruit a replacement. The email read: 15
“Hi Team
Following XX’s email about XX’s departure, we have wasted no time and advertised for this position as we have a very busy events calendar planned for the year.
As usual the role is advertised on our website as well as listed on seek.com…
Please spread the word and circulate this to your networks to help us find someone awesome.
Cheers
Summa”
[46] Ms Hallard received and read the email. It angered her. She considered that Ms Gilbert (and HR generally) had ‘dragged the chain’ in recruiting for her needs but “wasted no time” in recruiting for the needs of its own or other businesses.
[47] On the evening of 11 March 2021, from home, Ms Hallard drafted an email to Ms Howes and Ms Gilbert.
Events of 12 March 2021
[48] At 9.30am on 12 March 2021 Ms Hallard advised Ms Howes and others by email 16 that she was not taking annual leave that day (“I will just keep that day up my sleeve if you can make a note of this”).
[49] Minutes earlier, Ms Hallard noticed that she had not yet sent the email she had drafted the previous evening. She sent it at 9.24am. It read: 17
“2 months ago I told you I needed staff, imagine making the events manager work only with staff that are uni students, who can usually only work 1 shift a week, needs 5-6 weeks 2 times a year off for placement, come to you with usually no work experience, can't work exam time, drop shifts when courses get changed and who you know from the start will leave when they graduate. I get this is to look good on the AUUs reports, but you need to understand the extra strain that puts on me.
A month ago, Summa said can't we just find more casuals, Kathryn's daughters might know someone, etc etc I said to Summa then that if we don't get the right staff member it will my job they she will be advertising. That in itself should have been a red flag. Out of those applications, I did try and find the staff with relevant experience that will assist not only me by alleviating some pressure but Campus Retail Services by improving customer experience. They were apparently "elderly" (mind you they were all my age or younger so thanks for that) nothing further has happened. That put me in a very stressful position as I am now in the busiest time of the year with even less staff as I had 2 staff off on 5 week placement and none of the experienced staff I had requested.
Eventually I am asked to take [Person A], who is not customer focused, has no experience in any of the things I need and doesn't want to do the job, and then it's only for half the time I needed.
You added to my already overloaded work day by expecting me to train her during our busiest time
You have let me continue on with this lack of staff meaning I am working every night at home after putting in a full day, to try and catch up before I take my annual leave - annual leave which you yourself think is acceptable to be still working through like I have had to do for the last 4 years
I along with 2 extra staff am now at work today on a day I had booked off to go away with my husband to try and get stock into the merchandise shop, and online orders out, along with moving 87 boxes that rocked up yesterday afternoon.
To receive an all staff email about wasting no time in ensuring the events team who also have a team of volunteers to do the dirty work have staff for their busy calendar, was a fucking insult. The AUU constantly do nothing to assist me to grow Campus Retail Services from lack of marketing to lack of quality staff to not providing the basics like a fridge to sell some of the very staples of our shop.
You both either have very little respect or no knowledge of what I or my team do. My team are never included in team building events, staff morning teas or Melbourne cup lunches, no one even notices that they are missing. I am told they are not permanent enough for a gym membership, even though they have been here for a few years, they don't get hoodies when they are at home, they don't even get an ice-cream from Gary on hot days even if he did buy them from the staff member, I wasn't even recognised as a full time team member of the AUU on a team building exercise, yet you expect me to believe we are all one entity.
I am making it very very clear to both of you, if I do not get the assistance I need to do my job you can take this as my notice to leave effective from today.
Regards
Nicola” (emphasis added)
[50] Ms Howes read it immediately upon receipt. She was concerned and surprised by its content and tone (particularly the use of the phrase “fucking insult” to describe Ms Gilbert’s all-staff email), and that Ms Hallard appeared so upset and willing to resign. She contacted Ms Gilbert and they mutually agreed that Ms Howes should speak immediately to Ms Hallard about the issues raised.
[51] Ms Howes immediately contacted Ms Hallard.
[52] At 9.50am on 12 March 2021 Ms Howes and Ms Hallard met in Ms Howes’s office. Ms Gilbert was not present. Ms Howes opened the door and said words to the effect that she was concerned and surprised at the email, and said that there were steps being taken behind the scenes to provide more support to Ms Hallard. 18 Ms Hallard was upset and agitated. She almost instantly told Ms Howes that she was unsupported and that work being done behind the scenes didn’t put staff in the shop. As Ms Howes tried to get a word in, Ms Hallard told her to “fuck off” and stormed out of the office. Ms Howes chased after her and told her to come back and calm down. Ms Hallard re-entered. Alarmed at how the issue had escalated and not having previously witnessed Ms Hallard so angry or prone to swearing, Ms Howes decided to get Ms Gilbert on the phone to assist. Ms Gilbert entered the meeting by phone. After trying to explain the recruitment process, Ms Hallard again became loud and agitated accusing Ms Gilbert also of not supporting her (though Ms Hallard did not again swear). Ms Hallard then said words to the effect:19
“I can’t do this anymore. I can’t do this. I quit. You have done this.”
[53] Ms Hallard was speaking over Ms Howes and Ms Gilbert. At this point, Ms Gilbert considered the discussion unproductive and brought it to an end.
[54] The entire meeting, from the time Ms Hallard first entered Ms Howes office until Ms Gilbert terminated the meeting, occupied no more than ten minutes.
[55] There is an evidentiary dispute about whether Ms Hallard was simply “upset and sobbing” as claimed by Ms Hallard or “angry and aggressive” (as claimed by Ms Howes and Ms Gilbert).
[56] These are not mutually exclusive propositions. I find that Ms Hallard was upset. However, I also find that Ms Hallard was angry and aggressive. That she walked out of the office, that she swore (in an uncharacteristic manner) and that she did not calm down when asked to do so are all consistent with a finding that her level of upset was manifest by anger and aggression. I also find it more probable than not that by the end of the meeting and after declaring ‘I quit’ Ms Hallard was sobbing, though this would not have necessarily been evident even to Ms Howes given the speed of events and the raised emotions. Ms Hallard, in her evidence, described this moment as an ‘emotional breakdown’.
[57] Ms Hallard returned to her office. She was still upset. She decided to leave the workplace, and called her father to pick her up. She wrote a further email to Ms Howes and to Ms Gilbert. She sent it minutes later, at 10.34am. It read:
“Whilst I will own my behaviour, you need to own yours, Summa as a HR manager you have failed to recognise the very serious red flag a month ago and ever since, printing out resumes and leaving them on someone’s desk does not help. You have not checked in since to see if that red flag was getting worse,
Kathryn I tell you I am under the pump I don’t attend morning teas, lunches etc. because I tell you I don’t have the time, this is not something I have kept hidden from you, you just didn’t see the red flags. You are aware that I was up late sending messages, I told you even this week that I am working both ends of the day to get my job done, those are red flags that the stress load is building, you can do all the talking behind the scenes but ask yourself is that helping, and both of you are failures at recognising when a staff member is getting stressed out
Yes my behaviour was not appropriate but stress does that to you, stress that has gradually got worse over the last few months because I am not getting the help I need. And if you didn’t realise that by taking me away again this morning to discuss an email, without actually giving me any real help today right now when I need it that too is a failure on your behalf. Anything that you needed to say could have waited until Monday.
I have busted my ass over years for this business and love my job.
I am deeply saddened that it has had to come to this but you have left me feeling that I have no choice but to resign, I am getting physically ill and I am sorry to say you both let it get to this, as senior managers you both failed me.
Nicola Hallard
Product Manager” (emphasis added)
[58] Ms Hallard then left the workplace and went home.
[59] Ms Howes was left shocked at what had occurred especially once she read the 10.34am email which repeated the resignation. She spoke to her boss, Mr Sutherland. Mr Sutherland told her that he didn’t want to lose Ms Hallard, that she was a good person, that she had probably said and written what she had said in the heat of the moment (including having quit), that her insults were not acceptable and that it needed to be sorted out. Between Mr Sutherland and Ms Howes it was agreed that Ms Hallard should be given the opportunity to retract her resignation, and that she should also be asked to apologise to Ms Howes for telling her to “fuck off” and to Ms Gilbert for describing her email as a “fucking insult”.
[60] Over the following hours, Ms Howes spoke to staff in the store to inquire how Ms Hallard was. She was told that Ms Hallard seemed okay but had left for home.
[61] Not wanting to further inflame the situation given that Ms Hallard had gone home, but wanting to communicate the approach agreed with Mr Sutherland, at 4.10pm that afternoon Ms Howes sent Ms Hallard an email. It read:
“Hi Nicola,
Firstly I hope you are ok after the incident this morning and I note the email below with your resignation today. I am saddened that you have taken this course of action today given our positive working relationship in your working history at the General as well as the achievements. Your behaviour towards me today in my office (and on the phone with Summa) was disappointing and unacceptable. On reflection of this, if you wanted us to consider a retraction of your resignation, we would expect an apology to Summa and myself as a change in behaviour in order to repair the working relationship after today’s events.
In relation to support, Summa and I have been working with you on a proposed staffing structure (which you agreed to) and this has been evolving over the last few weeks at management level. As we are all aware, as of this week the proposed structure did not prove to be the best option for the General and you advised that the short term staffing arrangement would be suitable until you returned from your Annual Leave. It was my understanding we would then look at either a full time staff member or potentially 2 permanent part time staff at a minimum of 5 hours per day, all of which could have been rectified on your return and would of allowed us to continue to work together to find the right solution.
In light of your resignation I request that we arrange a suitable time to meet next week to discuss and make the necessary arrangements where required.
Regards
Kathryn Howes
Finance & Commercial Manager Adelaide University Union” (emphasis added)
[62] Ms Hallard read the email. She considered that Ms Howes’s willingness to allow her to rescind her resignation to be humiliating as it was conditional on her apologising. She believed that it was the employer that needed to apologise for not supporting her. She decided not to respond and wait to see what else the employer might do, despite the invitation by Ms Howes to arrange a meeting the following week.
13 and 14 March 2021
[63] Across the weekend of 13 and 14 March 2021 Ms Hallard remained at home. She did not travel to regional South Australia as planned given that she had foregone her annual leave the day prior.
[64] Over the weekend Ms Hallard gave further thought to her position. She remained upset. She decided that on the Monday morning she would see her doctor and also get some advice.
[65] Not having heard from Ms Hallard, on Sunday 14 March 2021 Ms Howes sent Ms Hallard a brief text message: 20
“Hi Nicola, just wanted to check in to see how you are? Cheers K”
[66] Ms Hallard did not respond.
15 March 2021
[67] On 15 March 2021 Ms Hallard did not attend work. She sent a text message at 8.28am advising she was unwell. Others had to open up the stores. Ms Howes rang Ms Hallard. A brief and civil discussion occurred about the events of the previous Friday. Ms Hallard said she has been unsupported. Ms Howes said that she does care. Ms Hallard said that Ms Howes might believe that but her actions speak louder than words.
[68] On the morning of 15 March 2021 Ms Hallard visited her general practitioner. She was given a medical certificate as unfit for work from 15 March to 19 March 2021, that is, up and until the day she was going on seventeen days of annual leave.
[69] After seeing her doctor, Ms Hallard also sought out advice from a local solicitor. She was advised to bring the issue with Campus Retail Services to finality.
[70] That evening, at 6.30pm, Ms Hallard wrote and sent the following email to Ms Howes and Ms Gilbert: 21
“Subject: resignation
To Kathryn and Summa
The conditions you have expected me to work under and lack of support have made it impossible to continue my employment. I resigned verbally to you on Friday. I am confirming my resignation effective immediately from Friday 12 March 2021.
Regards
Nicola Hallard”
16 March 2021
[71] At 9.44am on 16 March Ms Howes, not having read her latest emails, sent another text message to Ms Hallard: 22
“Hi Nicola, I hope you are feeling better after yesterday. Are you coming into the office today?”
[72] Ms Hallard replied an hour later (10.47am): 23
“Kathryn I have resigned effective immediately Friday I emailed that to both you and summa last night”.
[73] Ms Hallard considered that she needed to provide an explanation for her resignation to two persons with whom she had worked: a Ms Logan and Mr Sutherland.
[74] In an email to Ms Logan sent at 12.08pm on 16 March 2021 Ms Hallard said, in part: 24
“I wanted to apologise to you, I have been left with no option but to resign effective immediately last Friday…I have had to resign effective immediately as my health is suffering and even after telling both HR and Kathryn of the stress I was under, they still told me to be patient.”
[75] In a longer email to Mr Sutherland sent at 1.05pm Ms Hallard said, in part: 25
“Hi Gary, I feel I owe you a personal explanation. I have quit effective immediately due to the lack of ongoing support I have received from Kathryn and summa, I am sure they will paint a very different picture but let me assure you, I have plenty of documentation to prove Differently. It was interesting recently Kathryn asked if the level of support I had received had dropped off since she was working from home and I could honestly say no, as the level of support I received was pretty poor before. Constant requests for board reports due with an hours or couple of notice, constant questions about work ignored, constant requests for budget or wage information ignored. The fact an HR manager who does safety audits has never completed a safety audit on an environment that I sit in every day and as a warehouse is a high risk area and in 14 months she has never set foot in is alarming. The risk assessment for covid completed from her home and when I ask for clarification on procedures that can not possibly be fulfilled in our shops I am told to wing it. Being excluded from every AUU managers meeting, being excluded from every Campus Retail Services board meeting until 2 years later when Oscar noticed I wasn’t there. My team being excluded from everything and them told it's too hard to shut the shop, I have in the past covered so my team can attend, my team not being included in the free gym membership and then being told they are not permanent. They've been there for 4-5 years is that not permanent enough.
Gary I love my job hence why I have tolerated this for so long I'm spite of the treatment, I have dedicated 110% to this job and when after receiving only lip service once again I finally break down due to stress and I own my behaviour and I emailed both Kathryn and Summa and said they both have missed every big red flag I was stressed. Even Kathryn was aware I was working from 6:45am until 10:30pm that week. And up until late the next night and I was at work on a day I had booked as annual leave to try and catch up, still ignored me all day after I broke down yes I swore but I had told both of them I was stressed and they had put me in that position. And I received an email Friday at 4:30pm saying they accept my resignation but would consider with drawing it if I apologised to them both, no apology from them for putting me there, confirmed that I could no longer continue my employment. Even today a phone call from Kathryn when it occurred to her I wasn't at work, was again only interested in getting her point that she does care, and like I said to her she probably believes that, but her actions and not her words show a very very different picture. As I don't make accusations without evidence I can assure you I can back up my statements 100%.
I would like to personally thank you for the opportunity to build and represent the university merchandise, and to thank you for your kindness over the years.
I am happy to discuss any of this with you, but I need you to understand I have been left with no option as the relationships with both summa and Kathryn are irreparable.
Regards
Nicola”
[76] At 2.29pm Mr Sutherland sent Ms Hallard a text: 26
“Hey Nic
I appreciate u sending me the email, and I’m really sorry that you feel the way you do.
One thing that I have learnt in getting old is that there are absolutely always two sides to a story – somewhere out there are the answers, but they really don’t matter now.
I value you as a person Nic, happy to chat anytime. I think u need a holiday more than anything – personally I don’t think the situation with KJH or SG is irreconcilable, we can work through this together.
Happy to sit down and have a tea or something harder”
[77] Ms Hallard did not respond. She decided to travel into the city from home for the singular purpose of returning the employer’s property, being her keys to the stores and laptop. In the late afternoon, she went to the security desk of the university and deposited the property.
[78] Ms Hallard did not give or work out any period of notice of resignation. She did not return to the workplace.
[79] By 23 March 2021 (the following Tuesday) Ms Hallard had not received her final payment. She emailed Ms Howes and Ms Gilbert saying that the award required payment within seven days of termination.
[80] Mr Sutherland had been hoping that his text of a week earlier might have prompted a change of mind on the part of Ms Hallard and some thawing of the relationships. However, in light of Ms Hallard’s email of 23 March 2021, he authorised payment of final monies to Ms Hallard and reconciled himself to the reality that her time with the university as manager of the retail stores had ceased.
[81] Five days earlier, on 18 March 2021 Ms Hallard had commenced these proceedings.
[82] Ms Hallard’s application was filed within the statutorily required 21 days after the alleged dismissal. It is common ground that Ms Hallard was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. Her annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). Her employer was a “national system employer” within the meaning of section 14 of the FW Act.
[83] The matters in issue are:
• was Ms Hallard’s resignation a forced dismissal within the meaning of the FW Act?;
• if Ms Hallard was dismissed, can the employer rely upon the Small Business Fair Dismissal Code (and if so, did it comply with the Code)?;
• if Ms Hallard was dismissed and if the employer cannot rely on the Code or did not comply with the Code, was the dismissal harsh, unjust or unreasonable?; and
• if there was a dismissal and if the dismissal was unfair, should a remedy be ordered and if so what?
Forced dismissal - the legal principles
[84] Under the FW Act, a person can only be “unfairly dismissed” if they have been “dismissed” (section 385(a)).
[85] Section 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.
[86] Although arising under the previous Act, 27 the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd28 remains generally apposite to the consideration of section 386(1):
“[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 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.”
[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.” (footnotes omitted)
[87] A Full Bench (dealing with the FW Act) accepted the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli: 29
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“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.”
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)
[88] Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:
• the question as to whether the resignation was forced within the meaning of the FW Act is a jurisdictional fact that must be established by the applicant;
• a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
• the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
• conduct includes an omission 30;
• considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
• in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.
Conduct relied upon by Ms Hallard
[89] In considering whether Ms Hallard was forced to resign by conduct or a course of conduct by Campus Retail Services, I must consider Campus Retail Services’ conduct in the context that applied in the workplace and the circumstances faced by Ms Hallard based upon the evidence before the Commission.
[90] There are circumstances in which a manager’s resignation triggered by excessive workload demands, a lack of insight by an employer into the circumstances faced by the manager or a breakdown in personal relationships caused or contributed to by the employer can, individually or in combination, be objectively considered a forced resignation 31. However, being a jurisdictional fact, each matter must be determined on its own facts. It remains a high threshold to establish that a resignation made after due consideration is a dismissal.
[91] Ms Hallard asserts a course of conduct by Campus Retail Services that led to her not being supported in her managerial role and having no choice but to resign. The conduct relied upon is both act and omission:
• failure to promptly attend to her request to recruit permanent staff in time for the academic year;
• failure to ameliorate her workload and compounding her workload by requiring her to train staff;
• providing a staff member as an interim measure who was not equipped to meet her needs;
• failure to see ‘red flags’ that a lack of staffing and excessive workload was causing her stress and unwellness;
• recruiting a position elsewhere with urgency but not applying the same standard to her recruitment needs;
• not managing her emotional breakdown with sensitivity and care; and
• placing unfair terms on the retraction of her resignation.
[92] I now deal with each of these contentions.
[93] As noted, in considering these matters, it is important to recognise that the forced resignation provision of the FW Act require an objective analysis of the employer’s conduct. That Ms Hallard felt a particular way, or that the employer felt it had acted reasonably does not make it so.
Failure to promptly recruit staff
[94] Ms Hallard contends that the employer failed to promptly attend to her request to recruit permanent staff in time for the 2021 academic year.
[95] Considered objectively, I do not agree.
[96] In the last quarter of 2020, Ms Hallard did flag the issue of restoring staffing to pre-COVID-19 levels. Ms Howes gave in-principle approval for the recruitment. That was reasonable conduct, not unreasonable. It was not however until the new year turned over that any reasonable expectation existed on either the part of Ms Hallard or the employer that a recruitment process would commence. Ms Gilbert attended to the process immediately upon returning from leave in January. That was not unreasonable. Ms Hallard’s email of 11 January 2021 had contemplated the process commencing “when you return”. Ms Hallard was engaged in that process. Ms Gilbert acted promptly. Within days a position description and advertisement had been prepared, placed and circulated.
[97] It could not reasonably have been expected by either Ms Hallard or Campus Retail Services that a recruitment process commencing in January 2021 would necessarily have been completed with successful candidates in place by mid-February to mid-March 2021.
[98] Whilst there appears to have been some misunderstanding between Ms Hallard and both Ms Howes and Ms Gilbert about the process and whether it should have been continuing whilst Person A was recruited into the shop, Ms Gilbert had commenced the recruitment process in an orthodox and regular manner.
[99] However, in treating Ms Hallard’s skype message of 2 February 2021 (“Summa I am going to be honest if I don’t get the right staff it will be my job you are putting up” 32) as a “throw-away line”33, Ms Gilbert acted with a degree of indifference to the genuine need that Ms Hallard was expressing.
[100] That notwithstanding, the process on which they were jointly working continued and that it did not bear immediate fruit was largely a product of the labour market, not the process. That Ms Hallard wanted urgency and immediacy was understandable, but without an immediately emerging suitable candidate (compounded by a difference in view as to whether certain candidates were too elderly), Person A was then made available by the employer, and agreed as a possible solution. That was a reasonable course. It was only when Person A was not working out that the failure of the recruitment process to have generated a ready-to-go candidate became an obvious and compelling problem.
[101] As much as Ms Hallard saw that as the employer’s failure, the reality is that even if Ms Gilbert’s recruitment process had been accelerated it could not have guaranteed either a satisfactory candidate or one that did not first require training by Ms Hallard.
[102] Ms Howes remained in considered discussion with Ms Hallard throughout this process. She made it clear that she would also support increasing hours of existing casual staff (which Ms Hallard did). She also made suggestions about how the staff complement could be increased whilst Ms Hallard was on her forthcoming period of leave. Those suggestions were not taken up by Ms Hallard as she considered that period would be a quieter time.
[103] Whilst the employer could have acted with more urgency and been more accommodating with the resumes forwarded by Ms Hallard in early February 2021, I am not satisfied that overall the employer was responsible by unreasonable act or omission for the fact that permanent staff had not been recruited into the stores by mid-February to mid-March. Considered objectively, whilst Ms Hallard’s frustration and disappointment was understandable, Campus Retail Services did not fail to attend to Ms Hallard’s staffing needs.
Workload pressures
[104] Ms Hallard submits that Campus Retail Services failed to ameliorate her workload and compounded her workload by requiring her to train staff.
[105] I am satisfied that, in objective terms, Ms Hallard, already a hard worker, was working heavily and becoming stressed and overwhelmed by the week of 9 March 2021. That she was finding it difficult to sleep, sending texts and emails at late hours and feeling compelled to cancel her annual leave day is evidence of such.
[106] However, in the context of her role as a manager her responsibilities in the mid-February to mid-March 2021 period were not abnormal. The tasks she was required to perform had not expanded. The busy period from mid-February to mid-March 2021 was not unexpected. It was Ms Hallard’s decision to take annual leave on 12 March in the shadow of this busy period and then feel compelled to rescind it. It was not outside of Ms Hallard’s responsibilities to be required to train up a new employee. Whilst it was unfortunate that the new employee was not working out as planned, the staff member was provided in good faith and Ms Hallard knew and accepted that it came with a training obligation. That intensified Ms Hallard’s work in an already period, but hers was a role where work intensity could reasonably be expected to rise during busy periods. Ms Howes remained in active and professional communication over this period.
[107] Whilst noting that a manager will not necessarily air frustration with their superiors in a board report, in her reports to the board on 15 December 2020 and 10 February 2021 Ms Hallard did not convey an impression of staffing problems being overwhelming: 34
“Staffing
Our overall staff levels are down on previous years as we have had a few team members leave to pursue careers, with lower foot traffic on campus we have not needed to replace these staff. In 2021 we are looking to hire at least 1 or 2 fulltime team members. This will enable more consistency in both stores.”
[108] Considered objectively, Campus Retail Services did not fail to ameliorate Ms Hallard’s workload or unreasonably compound her workload by requiring her to train staff.
Unsatisfactory replacement staff
[109] Ms Hallard submits that Campus Retail Services provided a staff member (Person A) as an interim measure who was not equipped to meet her needs.
[110] Considered objectively, I do not agree.
[111] The initiative by Ms Howes to offer Person A was a response to the lack of a suitable candidate from the recruitment process and the mutual desire of Ms Howes and Ms Hallard to address the immediate staffing needs as best they could. Ms Hallard agreed to the idea and to Person A. On the face of it, both Ms Howes and Ms Hallard thought that Person A had a requisite skill set, at least as an interim measure.
[112] Whilst it was unfortunate that the new employee was not working out as planned, the staff member was provided in good faith and Ms Hallard knew and accepted that it came with a training obligation.
[113] Nor had the prospect of Person A working out been completely exhausted by the time of Ms Hallard’s resignation. Whilst the chances of it being a solution were looking grim, Ms Hallard’s messages to Ms Howes of 9 and 10 March 2021 suggested that Person A remain in the shops for a while longer and during her impending leave. Ms Howes did not demur.
Lack of insight into managerial stress
[114] Ms Hallard submits that Campus Retail Services failed to see the ‘red flags’ that a lack of staffing and her excessive workload was causing her stress and unwellness.
[115] In communications between Ms Hallard and Ms Howes during the February to March 2021 period, Ms Howes does recognise that Ms Hallard was under stress. However, as noted, Ms Howes did take steps to try to address the staffing issue, and remained in communication, was responsive and professional.
[116] Not until Ms Hallard’s message of 9 March 2021 35 was her sense of being overwhelmed becoming clearer. Until then, her communications did not provide Ms Howes with any special insight into the stresses and strains being more than an adjustment after the quieter COVID-19 year coinciding with an expected busy period and an unresolved recruitment process. Ms Hallard did not take unusual absences from work, did not complain of illness and did not deviate from her regular work. Nor did she instigate any formal complaints process, such as the internal grievance procedure36. Had she done so, Ms Howes may have had grounds to conclude something more serious was amiss, but it was only after the 9 March 2021 message about Person A and then the uncharacteristic outburst on 12 March 2021 (in writing then during the meeting in her office) that Ms Howes had real insight into Ms Hallard’s vulnerable state.
[117] I do not consider that Campus Retail Services unreasonably failed to anticipate or understand Ms Hallard’s unwellness.
Recruiting other positions with urgency
[118] Ms Hallard submits that the employer acted unreasonably when Ms Gilbert sent the all-staff email of 11 March 2021 advising that a position elsewhere in the Adelaide University Union was being recruited with urgency.
[119] Ms Hallard described this as a “fucking insult” in her email of 12 March 2021.
[120] This submission is based on the proposition that Ms Gilbert was acting urgently with respect to a soon to be vacant position in the Adelaide University Union, but not doing so with respect to Ms Hallard’s staffing needs.
[121] Objectively considered, this is (leaving aside the wholly unedifying epithet used by Ms Hallard) not fair criticism.
[122] That Ms Gilbert indicated an intention to move with urgency to fill a separate position does not mean that she was not acting reasonably with respect to Ms Hallard’s needs. As noted, the recruitment process for Ms Hallard’s needs was commenced promptly. Its failure was largely the product of the labour market, not the process.
[123] Further, what Ms Gilbert says in her email of 11 March 2021 that she intended to do with respect to the events team position was largely the same that Ms Gilbert and Ms Howes did with respect to Ms Hallard’s needs – advertise promptly on seek.com and put the word out into their network to seek suitable candidates.
Lack of care and sensitivity after heat of the moment resignation
[124] Ms Hallard submits that Campus Retail Services did not manage her emotional breakdown at the meeting on 12 March 2021 with sensitivity and care.
[125] The outburst by Ms Hallard on 12 March 2021, including raising her voice, talking over other managers and telling Ms Howes to “fuck off” was as out of character as it was insubordinate.
[126] Objectively considered, neither Ms Howes, Ms Gilbert nor Mr Sutherland for that matter mishandled the situation nor showed a lack of care in its aftermath.
[127] Ms Gilbert properly closed down the heated and unproductive exchange. In the immediate aftermath, Ms Howes properly inquired of staff in the store of Ms Hallard’s whereabouts and wellbeing. Ms Howes made a reasonable decision not to call Ms Hallard who had returned home, lest that inflame the situation. Ms Howes appropriately sought guidance from Mr Sutherland. The email sent at 4.10pm on 12 March 2021 by Ms Howes was professional, to the point, appropriately balanced, and suggested a way forward. Ms Howes took time out of her Sunday to send Ms Hallard a text inquiring as to her wellbeing, and received no reply. Ms Howes texted and rang on the Monday morning to see if Ms Hallard, who would ordinarily be at work and opening up the shops, was coming into work. That discussion was civil and not inflammatory. She texted again on 16 March.
[128] Mr Sutherland’s text of 16 March 2021 was measured and conciliatory. It also suggested a way forward even at that late stage given that Ms Hallard had confirmed her resignation.
[129] The employer’s conduct at the time of the 12 March 2021 outburst in Ms Howes’s office and over the following days did not, in an objective sense, force the resignation or force confirmation of Ms Hallard’s resignation. Ms Hallard’s subjective view of events over these days is understandably clouded by her upset, frustration and concern for her wellbeing. Through that prism she sees the employer as having acted unreasonably and forced her hand, but for reasons stated, it did not compel her to leave her job.
[130] Considered overall, an appropriate degree of interface and sensitivity by appropriate means occurred with Ms Hallard between 12 and 16 March 2021, particularly bearing in mind that it was Ms Hallard who had abused her manager, had threated to resign and then resigned, and who had then been largely non-responsive except by confirming her resignation.
Unfair terms for retraction of resignation
[131] Ms Hallard submits that it was humiliating conduct by Campus Retail Services to invite her to retract her resignation in conjunction with giving an apology.
[132] There are three elements to this submission – that it was unreasonable to make the retraction conditional on giving an apology; that the apology sought was one-sided; and that Campus Retail Services placed the onus on Ms Hallard to initiate retraction of the resignation.
[133] I agree with Ms Hallard’s assessment that the opportunity to retract her resignation advised in Ms Howes’s email of 12 March 2021 was conditional upon her apologising to Ms Howes and Ms Gilbert for her conduct that morning. Whilst Mr Sutherland did not quite intend the retraction to be conditional (in the sense that he was willing to allow a retraction and then a later apology), the intention of the employer was that Ms Hallard needed to apologise for her conduct.
[134] In expressing a willingness to consider the retraction of a resignation threatened then made in the heat of the moment and confirmed in writing half an hour later, Campus Retail Services acted reasonably and with sensitivity to the potential that leaving her job did not reflect Ms Hallard’s real intent or best interests, and that the outburst was out of character.
[135] Requiring Ms Hallard to apologise for her conduct if she wished to continue working in the business was entirely reasonable, as was tying it to any forthcoming retraction. Considered objectively, rather than it being a humiliation, it was the only way that relations which had been damaged by what was done and said could be restored. Out of character or not, the conduct had been insubordinate and unprovoked. Ms Hallard herself accepted in her evidence that her conduct warranted warning or counselling, and was sorry for it.
[136] I do not consider the apology proposal to have unreasonably been one-sided. Ms Hallard contends that if she was being asked to apologise, then Ms Howes and Ms Gilbert needed to also apologise for leaving her unsupported and vulnerable. There is no equivalence in these propositions. Ms Hallard’s conduct was unequivocally in breach of her employment responsibilities and needing accountability and acknowledgement if the employment relationship was to continue. Ms Hallard’s views about being left vulnerable and unsupported were much more contestable and whilst genuinely felt, based on my findings, are largely not supported by an overall consideration of the evidence.
[137] Nor do I consider that Campus Retail Services unreasonably placed the onus on Ms Hallard to initiate retraction of the resignation. Ms Howes, in her email of 12 March 2021, suggested to Ms Hallard that they “arrange a suitable time to meet next week to discuss and make the necessary arrangements where required.” Whilst it could be inferred from the email that one of the “necessary arrangements” was the apology, there was nothing humiliating, directive or heavy-handed about this suggestion. Clearly, unless there was further discussion, there could not be reconciliation.
[138] I do not find that Campus Retail Services acted unreasonably in the terms under which it sought an apology from Ms Hallard.
Conclusion on forced resignation
[139] In light of these findings, did the employer’s conduct individually or collectively force Ms Hallard to resign?
[140] I think not.
[141] There is no doubt that in the period from mid-February 2021 to mid-March 2021 Ms Hallard became frustrated and progressively felt unsupported because she did not have the staffing complement she needed. Arising during the first busy period of the academic year, this placed pressure on her and the need to train Person A increased her workload. Whilst she had always been a hard worker and put in hours well beyond store operating hours (including whilst on annual leave), in the week of 9 March 2021 she became overwhelmed with the workload and frustrated at having cancelled an annual leave day scheduled for the Friday of that week. The 11 March 2021 email, sent quite innocently by Ms Gilbert, triggered a reaction that was out of character, but was brewing.
[142] As noted, that an employee feels forced to have resigned by a course of events does not make it so for the purposes of the FW Act. They will have been “forced” to do so in the requisite sense if and only if, objectively considered, the employer’s conduct or course of conduct “was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign.”
[143] I have found that:
• Campus Retail Services did not fail to promptly attend to Ms Hallard’s staffing needs;
• Campus Retail Services did not fail to ameliorate Ms Hallard’s workload or unreasonably compound her workload by requiring her to train staff;
• Campus Retail Services did not seek to provide a staff member ill-equipped to meet her needs;
• Campus Retail Services did not unreasonably fail to anticipate or understand Ms Hallard’s unwellness;
• Campus Retail Services or associated entities did not recruit other positions with urgency but fail to apply a similar standard to her recruitment needs;
• an appropriate degree of interface and sensitivity was shown by Campus Retail Services to Ms Hallard after her initial heat of the moment resignation; and
• Campus Retail Services did not act unreasonably in the terms under which it proposed an apology from Ms Hallard.
[144] Nor did the employer act in a manner that objectively forced a loss of trust and respect between it and its store manager. I have not found that Ms Hallard was treated other than professionally by both Ms Howes and Ms Gilbert. There was nothing unprofessional or discourteous in their communications, written or oral. Indeed, until 12 March 2021 Ms Hallard reciprocated with mutual courtesy and professionalism. It had been a respectful relationship between manager and those around her.
[145] Ms Hallard’s managerial role, like that of many managers, necessarily involved stresses and challenges that waxed and waned. Even a good and competent manager such as Ms Hallard will experience periods of insufficient staffing, an inadequate budget, or inadequate support from senior management. Even more routinely will good and competent managers feel that way.
[146] In the context of Ms Hallard’s role, and given the aforementioned findings concerning the conduct of the employer, I do not conclude that the employer’s acts or omissions were a course of conduct that forced Ms Hallard’s resignation.
[147] Ms Hallard’s resignation was a considered course. She had alluded to its potential some weeks earlier, in the skype message to Ms Gilbert, if her staffing needs were not addressed. She threatened it in the email sent at 9.24am on the morning of 12 March 2021. Whilst she resigned verbally in the heat of the moment at around 10.00am, she formalised that decision thirty minutes later when back in the familiarity of her office. To the extent that the written resignation at 10.34am was made in the lingering shadow of emotion and not reflective of Ms Hallard’s real intent, three full days away from the workplace (including a weekend) passed before she sent a confirming resignation on the evening of 15 March 2021.
[148] Her conduct the following day (16 March), in which she repeated her resignation in a text message to her manager and then wrote detailed explanatory emails to those persons she felt owed an explanation for her leaving, underscore the considered and deliberative nature of the decision. So too did Ms Hallard’s unsolicited action in travelling into the city that afternoon for the singular purpose of dropping off her keys and laptop.
[149] Ms Hallard had clear options other than resignation if she wanted to remain employed. She had an option of retracting her resignation or at least negotiating the terms of any retraction. She chose not to take up Ms Howes offer (communicated at 4.10pm 12 March 2021) of a meeting the following week, or Mr Sutherland’s offer to meet as per his text of 16 March 2021.
[150] Ms Hallard also had the option, which could have been implemented without any further recourse to the employer, of taking personal leave as had been prescribed by her doctor on the morning of 15 March 2021 and then immediately upon the expiry of that personal leave taking the seventeen days of pre-approved annual leave. This would have continued her employment for at least a month, put time between the emotion of what had occurred and a return to the workplace, and allowed her to further reflect on her best interests. She chose not to do so. Rather, after taking legal advice and notwithstanding being armed with the doctors certificate, Ms Hallard chose to “confirm” her resignation in writing at 6.30pm that evening.
[151] The only explanation advanced by Ms Hallard for not taking this alternate course was that Ms Hallard did not believe that, upon return to the workplace, things would be different, in the sense that she would be supported with the staff and budgets she considered necessary. Apart from that being presumptuous (it presumed that the recruitment process could not be reactivated if Person A had not in fact worked out, and ignored Ms Hallard’s own suggestion that Person A remain in situ), it is reflective of the essential weakness in Ms Hallard’s case – in the context of the circumstances she found herself, hers was a manager’s general frustration with resources, support and responsiveness leading to a loss of confidence in the people around her tasked to deliver that support. In her evidence, Ms Hallard put it this way:
“there was no communication about what would change when I returned or if I returned” 37; and
“the job was not able to be returned to, there was nothing changed or support offered” 38.
[152] Whilst these views were genuinely felt, and recognising that there was a combination of problems arising by mid-March 2021 that caused Ms Hallard to become overwhelmed, I have not found that the employer’s conduct was so unreasonable or unsupportive that it gave her no real choice but to resign.
[153] Notwithstanding the pressures of her job and the intensity of those pressures on 12 March 2021, Ms Hallard had a real and effective choice. She exercised that choice by foreshadowing a resignation, by resigning verbally (in the heat of the moment), by then resigning in writing, by declining to retract her resignation and by confirming her resignation in writing three days later. The employer’s conduct was not, objectively considered, such that resignation was the probable consequence of its actions or omissions.
[154] Whilst Ms Hallard resigned because she felt unsupported and overwhelmed, she was not forced to resign. Her outburst and heated resignation was out of character, she felt the job was compromising her health and on reflection over the next three days she decided that her decision to quit would stand. She just had had enough, had lost confidence in her superiors and didn’t believe things would change.
[155] It is always possible that a manager feeling unsupported and overwhelmed will resign; but that fact alone falls far short of the “probability” required to constitute a forced resignation for the purpose of a “dismissal” under the FW Act.
[156] This was a sad and regrettable end to a relationship between a hard-working manager and a business that had been mutually harmonious and productive for five years. Regrettable as it was, these were events between adults who were unable to navigate a resolution to workplace differences and who were unable to reconcile once events got out of hand. The unfair dismissal jurisdiction is not a forum for regrets; it only deals with dismissals.
[157] Not having been forced to resign, Ms Hallard was not dismissed within the meaning of section 386(1)(b) of the FW Act.
[158] Ms Hallard was not dismissed by Campus Retail Services within the meaning of section 386(1)(b) of the FW Act. She does not advance her case by reference to section 386(1)(a) of the FW Act (and, given my findings, there is no basis upon which she could reasonably do so). There was no dismissal within the meaning of the FW Act.
[159] Not having been dismissed, it is unnecessary to consider whether Campus Retail Services was a small business within the meaning of the FW Act. Further, there being no dismissal, the issue of whether there was an unfair dismissal does not arise, nor does remedy.
[160] The application must be dismissed. An order 39 giving effect to this decision will be issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Ms N Hallard, on her own behalf.
Ms T Birss, with permission on behalf of, Campus Retail Services Pty Ltd T/A The General
Hearing details:
2021
Adelaide (with video connections)
27 May
Printed by authority of the Commonwealth Government Printer
<PR730323>
1 R1 document 27
2 R1 document 4
3 NH5
4 R1 document 6
5 R1 document 8
6 NH9
7 Anonymised in this decision as published; known to the parties in the evidence
8 NH19
9 NH15 11 February 2021
10 NH20
11 R1 document 3
12 NH22
13 R1 document 2; audio transcript, evidence of Ms Hallard at 12:11pm
14 NH23
15 R1 Document 9; names redacted from publication
16 R1 document 12
17 NH30
18 Audio transcript, evidence of Ms Hallard at 11:15am
19 A1 paragraph 15; R1 document 14
20 R1 document 3
21 NH40
22 R1 document 3
23 R1 document 3
24 R1 document 18
25 R1 document 19 (spelling errors in text corrected)
26 R1 document 20
27 Workplace Relations Act 1996 (Cth)
30 Section 12 of the FW Act
31 See for example, Ravi Sathananthan v BT Financial Group Pty Limited [2019] FWC 5583
32 NH8 page 3
33 Audio transcript 2.47pm
34 R1 document 29
35 NH20
36 R1 document 31
37 Audio transcript 11.42am
38 Audio transcript 11.51am