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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Jessica Maher
v
AJ & MT Properties Pty Ltd t/a Belle Property South Brisbane
(U2013/2049)
DEPUTY PRESIDENT ASBURY BRISBANE, 8 OCTOBER 2013
Application for unfair dismissal remedy - Jurisdiction - Applicant terminated on the
employer’s initiative - Jurisdictional objection dismissed.
[1] The following decision, now edited, was issued following a hearing on 2 October
2013.
[2] Jessica Maher applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair
dismissal remedy with respect to the cessation of her employment with AJ and MT Properties
Pty Ltd trading as Belle Property South Brisbane (Belle Property). Belle Property objects to
the application on the grounds that Ms Maher resigned her employment on 1 June 2013, and
that the application was made outside the time required in s.394 subsection (2) of the Act.
This decision deals with those objections.
[3] Evidence was given by Ms Maher and by her father, Mr Dan Maher, and by a Director
of Belle Property, Ms Bettina Jude. I have considered all of the evidence in the material
tendered. Neither of the witnesses, Ms Jude nor Ms Maher, provided a statement of evidence
and instead provided submissions containing factual assertions. Much of the material was
irrelevant to the matters for determination in this application.
[4] I have also considered the statements made in the form F2 application for an unfair
dismissal remedy and the form F3 employer's response to that application to supplement the
material filed. Ms Maher states in her application that she was employed from 5 July 2010
until 4 June 2013. On 1 June 2013 she was involved in a discussion with Ms Jude during
which she asked for a week of stress leave. When this was refused Ms Maher states that, "I
then verbally offered to hand in a resignation as I felt I desperately needed time to myself
away from Bettina and the workplace." Ms Jude declined the offer of resignation and agreed
that Ms Maher could take a one week period of leave.
[5] In the statements and/or submission filed by Ms Maher it is also asserted that when
Ms Jude declined her request for a week's leave she asked Ms Jude whether she required her
to resign and said, "If that is the case, I'm happy to hand in a resignation." Ms Maher further
asserts that she had no intention of resigning and that Ms Jude declined her offer. According
to Ms Maher it was agreed that she would work on 3 June 2013, a day that she was scheduled
[2013] FWC 7853
DECISION
E AUSTRALIA FairWork Commission
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to have off, and that her stress leave would start on 4 June 2013. Ms Maher did not work on
that day, and there is conflicting evidence about whether Ms Maher or Ms Jude cancelled the
appointment. It is not necessary to resolve this matter.
[6] Ms Maher's father, Mr Dan Maher, gave evidence of a telephone discussion with
Ms Jude on 1 June 2013 about issues between Ms Jude and Ms Maher and whether Ms Maher
was upset or unwell. Mr Maher's account of the discussion makes no mention of Ms Jude
informing him that Ms Maher had resigned her employment. Mr Maher also states that
Ms Jude told him that Ms Maher was not very good at her work and that Ms Jude would have
to do something about it.
[7] Ms Jude said that Ms Maher came to work on 1 June 2013 unsuitably dressed and
spoke on her mobile telephone instead of dealing with clients at various properties that she
was working in with Ms Jude on that date. Ms Jude said, "On reflection it would seem that
Jess was doing everything in her power for me to sack her and, God knows, the way she
behaved, I had good reason to do so." Ms Jude also said that when she did not respond to
Ms Maher's request for stress leave, Ms Maher gave her a verbal resignation.
[8] In her written statement and her oral evidence to the commission Ms Jude said that
Ms Maher was crying and, "Throwing a tantrum", during their meeting. Ms Jude sent a letter
to Ms Maher dated 4 June 2013 in the following terms:
With reference to our conversation on Saturday, 1 June, having given the matter
much consideration, I have reached the decision that I accept your resignation as of
that date. You are under the award to give two weeks' notice from that date. This
means that your employment with Belle Property South Brisbane ends on Saturday,
15 June 2013. We thank you for your service to Belle and wish you all the best.
[9] On 7 June 2013 Ms Maher responded by letter and stated that she had not resigned,
and that the letter of 4 June had come as a surprise. Ms Maher concedes in the letter that
during the conversation on 1 June 2013 when her request for stress leave was declined, she
said that if that was the case she was happy to hand in her resignation and that this was
refused by Ms Jude. Ms Maher goes on to assert that the letter of 1 June 2013 is a summary
dismissal and seeks two weeks' payment in lieu of notice and employment benefits.
[10] Ms Maher provided a medical certificate issued on 5 June 2013 covering an absence
from 4 to 8 June 2013. Ms Jude responded to Ms Maher by further letter dated 11 June 2013
and that letter states that: "Ms Maher should have turned up for work on 11 June, that due to
shortness of staff in the office when she threatened to resign if I did not give you the time off",
that Ms Jude had accepted the resignation as of 1 June. "We have enclosed your latest pay
slip," and goes on to say, "We need property returned."
[11] At some point Ms Maher posted a comment on her Facebook page that she was no
longer working for Belle and that she was “pretty happy about that”. 35 persons “liked” the
comment, including one who said that it was about time.
[12] After considering the evidence, I do not accept Ms Jude's assertion that Ms Maher
resigned her employment. Leaving aside the question of whether an offer of resignation can
be retrospectively accepted, it is clear from the correspondence that in purporting to accept
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that offer Ms Jude dismissed Ms Maher. As a Full Bench of the Commission said in Dover
Ray v Real Insurance Pty Ltd in relation to repudiation of contract:
“The test for intention is not a subjective one, depending on the actual intention of
the repudiating party. Intention is to be judged from what the other party reasonably
infers from the actions or words of the party who is alleged to have repudiated the
contract.”
[13] The Full Bench went on to state that:
“The employment contract would not come to an end unless the other party elected
to accept the repudiation of the contract.”
[14] In my view, the correspondence of 4 June and 11 June 2013 makes it clear that
Ms Maher threatened to resign and that Ms Jude on 4 June 2013 accepted that threat, and it
was that which brought the employment to an end, because I am not satisfied that it was a
clear resignation, an offer to resign does not automatically constitute a resignation and does
not necessarily bring a contract of employment to an end. In the present case the offer of
resignation was given on 1 June 2013 and it was not accepted at that point.
[15] Ms Jude's letter of 4 June 2013 seeking to retrospectively accept Ms Maher's
resignation brought Ms Maher's employment to an end so that she was dismissed, or
alternatively Ms Jude persisting in the view that Ms Maher had resigned when Ms Maher
sought to clarify the situation, and conceding in her letter of 11 June 2013 that Ms Maher had
threatened to resign, further indicates support for the proposition that it was Ms Jude's
acceptance of the repudiation that brought the contract to an end.
[16] It is also the case that an employee who resigns in the heat of the moment or while in a
distressed state may withdraw that resignation provided the retraction is swift and
unequivocal. On Ms Jude's own evidence, Ms Maher was crying and “throwing a tantrum”
at the point she offered her resignation, and Ms Jude was concerned enough about her state to
contact her parents. Ms Maher states that she was not aware that her offer to resign had been
accepted until she received Ms Jude's letter of 4 June 2013, and that up until that point she
believed she was on sick leave.
[17] Upon receiving the letter informing her that Ms Jude was purporting to accept her
offer of resignation, Ms Maher made it clear that she had not intended to resign, and
unequivocally withdrew any assertion of that nature and set out the assertion that she had not,
in fact, resigned. Ms Maher also provided a medical certificate covering her for the period
from 4 to 8 June 2013 and was paid for that period. In my view, by refusing to accept the
withdrawal of Ms Maher's “resignation” and by persisting with the view that she had, in fact,
resigned when she had simply threatened to do so, Ms Jude brought about the termination of
Ms Maher's employment so that she was dismissed.
[18] The dismissal took effect on 4 June 2013 when Ms Jude sent the letter accepting the
threatened resignation the application was made on 23 June 2013. The application is made
within the time required in s.396(2) of the Act. There is no evidence that Ms Maher is not a
person protected from unfair dismissal. Accordingly the jurisdictional objections are
dismissed and an order to that effect will issue with this decision. The effect is that the matter
will now proceed to formal hearing.
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DEPUTY PRESIDENT
Appearances:
Ms J. Maher on her own behalf.
Ms B. Jude on behalf of the Respondent.
Hearing details:
2013.
Brisbane:
October 2.
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