1
Fair Work Act 2009
s.394—Unfair dismissal
Pamela Dawes
v
Presbyterian Care Tasmania
(U2014/4709)
DEPUTY PRESIDENT WELLS HOBART, 20 JUNE 2014
Application for relief from unfair dismissal – alleged constructive dismissal – resignation –
existence of employer course of conduct – jurisdictional objection – whether termination at
the initiative of employer.
Introduction
[1] Ms Pamela Dawes was employed by Presbyterian Care Tasmania (PCT), an aged care
provider, from 7 March 2011 until 28 January 2014. Ms Dawes claimed that she had been
unfairly dismissed as she was forced to resign her employment because of conduct engaged in
by PCT.
[2] PCT objected to Ms Dawes application on the grounds that Ms Dawes had terminated
her own employment in a letter of resignation dated 28 January 2014.
The Meaning of Dismissed
[3] The meaning of dismissed is found at s.386(1) of the Fair Work Act 2009 (the Act)
and states:
“(i) 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.”
[4] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) said in respect of
now s.386(1) that:
MNC: 2014 FWC 4067
DECISION
E AUSTRALIA FairWork Commission
2
“Clause 386 – Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken
to be dismissed. A person is dismissed if the person’s employment with his
or her employer was terminated on the employer’s initiative. This is intended
to capture case law relating to the meaning of ‘termination at the initiative of
the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995)
62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if
they resigned from their employment but were forced to do so because of
conduct, or a course of conduct, engaged in by their employer. Conduct
includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law
concept of constructive dismissal, and allow for a finding that an employee
was dismissed in the following situations:
where the employee is effectively instructed to resign by the
employer in the face of a threatened or impending dismissal; or
where the employee quits their job in response to conduct by the
employer which gives them no reasonable choice but to resign.”
The Applicant’s evidence
[5] Ms Pamela Dawes gave evidence in support of her case both by written statement1 and
oral evidence. Ms Dawes was an Extended Care Assistant working at Presbyterian Care at
Warrane in Tasmania having commenced employment with PCT in March 2011.
[6] In her witness statement Ms Dawes discussed a workplace incident that took place
prior to Christmas 2013 involving conflict between residents which had occurred when an
employee, Ms Kelly Vanderlaan, had left the area without telling Ms Dawes. Ms Dawes
became angry with Ms Vanderlaan, but later apologised for becoming angry. It was after this
incident Mr Dawes said she became aware of rumours about her circulating among other staff
in the facility.
[7] As a result of hearing about this gossip, Ms Dawes telephoned Ms Felicity Weeding,
the Facility Manager at PCT on 28 January 2014 at 9am. Ms Dawes told Ms Weeding of her
concerns and indicated she should speak with Ms Vicki Hinds. It was said that Ms Weeding
replied with “right, leave it with me”.2 Ms Dawes heard nothing further and commenced her
shift at 4pm that day.
[8] Ms Dawes stated that at about 5.30pm Ms Tuffin, Nurse Manager, asked to see her.
They went to see Ms Weeding in her office. It was Ms Dawes’ evidence that the meeting took
between 30 and 45 minutes and that from the outset of the meeting both Ms Weeding and Ms
Tuffin were standing up, speaking quickly and in an emotional state. Ms Weeding told Ms
Dawes that Ms Vanderlaan had written a statement saying that Ms Dawes had hit a resident
and had also spoken badly about certain residents.
3
[9] Ms Dawes stated that she said “I don’t remember hitting anyone”.
[10] Ms Dawes said that she advised Ms Weeding of her past conversations with Ms
Vanderlaan and that she had stated “I hate men who hit women”.3 Ms Dawes said this was in
response to Ms Vanderlaan confiding in her about a domestic violence situation. She said that
Ms Weeding and Ms Tuffin were discussing during the meeting with her that if staff cannot
cope in ADARDS then they ought to try Riverview Lodge. On cross-examination, Ms Dawes
denied that she had misrepresented this and other parts of the discussions during the meeting
or misrepresented the demeanour or actions of Ms Weeding or Ms Tuffin.
[11] It was Ms Dawes’ evidence that Ms Weeding then put to her that she could resign or
they would be calling the Police in. Ms Dawes said that the impression Ms Weeding gave was
that she would have to wait in the office until the police arrived. She also stated that she was
aware there were no union delegates rostered on shift that day.
[12] Ms Dawes confirmed under cross-examination that she did ask during the meeting
what her options were.
[13] Ms Dawes said the allegations shocked her and that she had heard about Police
escorting other employees from the premises previously. Ms Dawes said she was worried
about facing a police investigation and that it would be shameful and embarrassing and that
she didn’t want to be in that situation. Ms Dawes stated that she told Ms Weeding that she
would deal with the matter tomorrow and that is when Ms Weeding said “You can do it now”
and handed her a pad and pen. She said with the threat of the police being called she wrote out
her resignation.
[14] Under cross-examination Ms Dawes stated that she had never witnessed employees
being removed from the workplace by police, but had heard other staff talking about it having
happened.
[15] Ms Dawes stated that she had no intention to resign her position that day and only did
so because of pressure from her employer. Ms Dawes said that at no time did Ms Weeding or
Ms Tuffin indicate that she was being stood down on full pay while the matter was to be
investigated.
[16] Ms Dawes said she then left the office with Ms Tuffin; that Ms Tuffin got Ms Dawes’
personal belongings and she then left the workplace.
[17] It was the evidence of Ms Dawes that she had no opportunity to provide a reasoned
response to the allegations and no opportunity of seeking advice from her Union. Ms Dawes
states that at no stage have the police made any contact with her about her work at PCT.
PCT Inc’s evidence
[18] Ms Felicity Weeding, the Care and Services Manager – South at PCT’s care facility at
Warrane gave evidence both written4 and oral.
[19] Ms Jenny Tuffin, Nurse Manager – South and Clinical Nurse Consultant at PCT’s care
facility at Warrane also gave evidence both written5 and oral in support of PCT’s case.
4
[20] After Ms Dawes phone call, Ms Weeding discussed the matter with Ms Tuffin. Ms
Tuffin stated that on 28 January 2014, at about 2pm, she made enquiries of another employee,
Ms Vicki Hinds. That conversation elicited information that Ms Vanderlaan was saying that
Ms Dawes had struck a resident.
[21] Whilst Ms Weeding’s written statement indicated it was Ms Tuffin who had spoken
with Ms Hinds, Ms Weeding’s oral evidence was that she herself had spoken with Ms Hinds.
On cross-examination on this point, Ms Weeding stated she thought she might have spoken
with Ms Hinds on the phone.
[22] It was confirmed by Ms Tuffin that she was aware there had been some friction
between Ms Dawes and Ms Vanderlaan arising from the previous workplace matter.
[23] As a result of the discussions between Ms Tuffin and Ms Hinds, a meeting was
arranged between Ms Weeding, Ms Tuffin and Ms Vanderlaan on 28 January 2014, which
took place at around 4.15pm. During the course of this interview Ms Vanderlaan alleged Ms
Dawes, on 8 January 2014, had slapped a resident and had spoken inappropriately to other
residents. Ms Weeding obtained a written statement from Ms Vanderlaan which contained
information in dot point form. Ms Vanderlaan signed and dated that complaint. Both Ms
Weeding and Ms Tuffin said that Ms Vanderlaan received counselling for not having reported
the alleged incident earlier than she did.
[24] Under cross-examination there was a conflict between the evidence of Ms Tuffin and
Ms Weeding as to what occurred in the meeting with Ms Vanderlaan as to whether they had
tested the veracity of the allegations made by Ms Vanderlaan.
[25] It was said by both Ms Weeding and Ms Tuffin that Ms Vanderlaan had given her
excuse for non-reporting as being that Ms Tuffin was on annual leave at the time and she did
not want to talk to anyone else about the matter. Further Ms Vanderlaan had said that the
previous friction with Ms Dawes in the workplace had also been a consideration for her not
reporting it earlier.
[26] The evidence of Ms Tuffin and Ms Weeding was that Ms Weeding rang the CEO of
PCT, Mr John Brooks; after the written allegation was obtained from Ms Vanderlaan and that
he had advised them to suspend Ms Dawes on full pay and investigate the matter.
[27] It was Ms Weeding’s evidence that PCT does not have a dedicated Human Resource
(HR) Department; that everything must go through the CEO and that HR matters are usually
outsourced to James O’Neil and Associates. Ms Weeding also advised she was not aware of a
policy in relation to suspension or stand down, but that those types of matters were always a
decision for the CEO.
[28] Ms Tuffin and Ms Weeding’s evidence was that at about 5pm on 28 January 2014 they
met with Ms Dawes. Both stated that the meeting took about 15 minutes, was opened with
advice that they had been investigating Ms Dawes complaint from that morning, that they
were seated during the meeting and their demeanour was calm. Ms Weeding then advised Ms
Dawes that in the course of those enquiries a serious allegation had been raised against her
and that she was to be suspended on full pay.
5
[29] Both Ms Weeding and Ms Tuffin stated that the allegation was read to Ms Dawes and
that she was offered a copy but she declined to take it. The allegation contained, inter alia,
that Ms Dawes had tussled with and slapped a female resident and that she had said to two
other residents with a raised voice “I hate violent men”.
[30] Ms Weeding said at paragraph 6 of her witness statement that Ms Dawes declined to
look at the statement and that “Pamela had a very resigned look on her face and a flat affect
and stated ‘I don’t remember hitting anyone’”. Ms Tuffin’s statement said, at paragraph 8, the
same.
[31] Ms Weeding said she outlined to Ms Dawes the process to be followed which was to
involve “…suspension on full pay, an investigation and report to the Police.”6 Ms Weeding
confirmed a number of times on cross examination that she had advised Ms Dawes that the
matter would be reported to the Police.
[32] It was Ms Tuffin’s oral evidence that Ms Weeding had told Ms Dawes that the Police
were “usually” involved. When taken to her written statement that said “Felicity outlined
process to Pamela that was to be followed i.e. suspension on full pay, an investigation and
report to the Police”, Ms Tuffin said her written statement should have included the word
“usually” and that Ms Weeding has used that word in the meeting with Ms Dawes.
[33] There was conflict between the evidence of Ms Tuffin and Ms Weeding in relation to
whether the meeting discussions included anything about the comment “I hate men who hit
women”. Ms Tuffin denied that there was any conversation about men hitting women. Ms
Weeding’s oral evidence was that there had been some talk of it in the meeting but not to the
level of detail provided by Ms Dawes.
[34] It was the evidence of both Ms Weeding and Ms Tuffin that it was at this point in the
meeting that Ms Dawes asked what her options were. Both Ms Weeding and Ms Tuffin said
that she was advised by Ms Weeding that she could participate in the investigation process or
resign. Ms Weeding and Ms Tuffin said that Ms Dawes said she wanted to resign.
[35] Ms Weeding and Ms Tuffin both confirmed that Ms Dawes said “...she would go away
and put her resignation in writing”7 and that Ms Weeding told Ms Dawes should could “...do
it now and provided her with pad and pen”8. Ms Weeding’s evidence was that she did not
want Ms Dawes going into other areas of the facility as she had been suspended.
[36] Ms Weeding said she believed she would have told Ms Dawes that the meeting was
not a disciplinary meeting as this was her usual process.
[37] Ms Weeding and Ms Tuffin both stated that after Ms Dawes wrote out her resignation,
she gave it to Ms Weeding and was escorted from the workplace by Ms Tuffin.
[38] Both Ms Weeding and Ms Tuffin confirmed under cross-examination that they did not
suggest to Ms Dawes that she might like to get some advice before resigning.
[39] Ms Tuffin and Ms Weeding said it was an unexpected turn of events when Ms Dawes
offered to resign. It was refuted by both Ms Weeding and Ms Tuffin that the meeting was
designed to elicit a resignation from Ms Dawes and that they never told Ms Dawes that if she
resigned then the Police wouldn’t be called.
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[40] Ms Tuffin and Ms Weeding confirmed that the matter was never reported to Police Ms
Tuffin said that as some 20 days had elapsed since the alleged assault and the report, there
was no physical evidence available to sustain an investigation. Ms Weeding’s view was that
as Ms Dawes had resigned any possible risk had been eliminated.
[41] Under cross-examination Ms Tuffin confirmed her knowledge of an approved aged
care provider’s obligations under the Aged Care Act 1997 to “…take reasonable measures to
ensure staff members report any suspicions or allegations of reportable assaults to the
approved provider (or other authorised person), to the Police or the Department…”9
[42] When questioned about the mandatory reporting requirements of aged care facilities,
both Ms Weeding and Ms Tuffin conceded that they were aware of the requirements to report
any allegations of assault of residents.
[43] It was put to Ms Weeding under cross-examination that the reason for the meeting
with Ms Dawes on 28 January 2014 was to elicit a resignation from her so they would not
have to investigate the matter or make a report to the Police or the relevant Commonwealth
Department. Ms Weeding denied this.
Submissions
[44] It was submitted by Mr Eddington for the applicant that the circumstances of this case
were similar to those in Mohazab v Dick Smith Electronics Pty Ltd10(Mohazab) and that
s.386(1)(a) is the relevant section of the Act applying in this matter.
[45] To that end it was said that most of the submissions made by the respondent relating to
Bruce v Fingal Glen Pty Ltd11 (Bruce) were premised on the wrong section of the Act, that
being s.386(1)(b).
[46] Mr Eddington advocated that under the Act the previous provision relating to
termination at the instigation of the employer, (namely s.642(4) of the Workplace Relations
Act 1996), had been broken into two parts, section 386(1)(a) and (b).
[47] Whilst the Mohazab case was conducted under section 170EA(1) of the Industrial
Relations Act 1988, the predecessor to the Workplace Relations Act 1996, Mr Eddington
submitted that the Fair Work Bill 2008 Explanatory Memorandum specifically mentioned
Mohazab as an example of the type of case law to be captured by s386(1)(a) of the Act. Mr
Cameron representing PCT disputed this point, instead submitting that the Explanatory
Memorandum (paragraph 1528) made no mention of Mohazab applying to a termination
under s.386(1)(a).
[48] Mr Eddington submitted that the employer had given Ms Dawes no time to consider
her position, instead giving her pen and paper to write out her resignation. This, it was said,
together with the threat of calling in the Police, was action to obtain a resignation from Ms
Dawes and therefore the termination was similar to Mohazab and was at the initiative of the
employer. Further, that the lack of a report to the Police or the Department after the
resignation was obtained should be taken as the motivation for the employer’s actions.
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[49] Referring to the Bruce case, an appeal which upheld a single member decision which
found the employee (Bruce) had not been dismissed by her employer, Mr Eddington stated
that this case involved an entirely different set of circumstances which involved a course of
conduct by the employer over a considerable period of time and that it only considered
s.386(1)(b). Therefore, it was not relevant to the circumstances of this matter. Mr Eddington
said that unlike Bruce, Ms Dawes had no real choice but to resign, so therefore both tests in
(a) and (b) of s386(1) had been met. Upon obtaining the resignation, no report was made to
Police and the matter was not reported to anyone, as PCT are required to do under
legislation.12
[50] It was further submitted that an investigation of elder abuse stains the reputation of an
aged care worker, even when innocent, and can do irreparable damage to a career and this was
what Ms Dawes wished to avoid.
[51] The applicant’s submissions addressed the principle in Briginshaw v Briginshaw13
(Briginshaw) stating that a decision maker should proceed cautiously where a serious
allegation has been made and that if the decision is likely to produce grave consequences, the
evidence should be of high probative value. Mr Eddington submitted that as the matter was
not investigated the Briginshaw principle has not been adhered to.
[52] It was submitted by Mr Cameron, for PCT, that on reading the original application
filed with the Commission, Ms Dawes was claiming relief under s386(1)(b) and that is what
should be considered in this matter.
[53] Mr Cameron stated that the principle of Briginshaw does not apply in this case. In
support of this submission, the respondent referred to Hassan & Abejaron v Nestle Dairy
Products.14
[54] It was Mr Cameron’s submission that for s.386(1)(b) to apply in this case, Ms Dawes
had to be put in a position where she had no other option but to resign, and that the evidence
provided that she did have the option of participating in the investigation of the allegations.
Mr Cameron referred the Commission to Victorian Association for the Teaching of English
Inc v Debra de Laps15 and Bruce, as cases dealing with whether a ‘reasonable choice’ was
available to the employee.
[55] Mr Cameron said that the statements of the respondent’s witnesses were not a blow by
blow description of what occurred in the meeting with Ms Dawes, but they were united in
their evidence that no duress was applied and it was Ms Dawes who had requested to know
what her options were.
[56] It was submitted that the respondent provided Ms Dawes with the options of
participating in the investigation or she could resign and that this did not amount to duress.
[57] Mr Cameron submitted that the delay in reporting the allegations was explained by the
respondent’s witnesses as being due to Ms Tuffin being on leave from the workplace and that
the CEO had made the decision not to report the matter to Police.
In-reply Submissions
8
[58] It was submitted by Mr Eddington that the respondent’s submissions as to the CEO,
Mr Brooks, being the decision maker relating to non-reporting of the matter to Police was
problematic for them as Mr Brooks was not called to give evidence. Mr Eddington submitted
that an inference could be drawn from the Jones v Dunkel16 rule, that is, I should infer that the
evidence that could have been provided by Mr Brooks would not have been of assistance to
PCT’s case, had it been before the Commission.
Consideration
[59] In order for there to be access to a remedy to unfair dismissal, the employee must have
been dismissed in accordance with s.386 of the Act. Accordingly, I am required to determine
on the evidence whether Ms Dawes was dismissed at the initiative of PCT or whether she was
forced to resign due to the conduct engaged in by PCT.
[60] In order to amount to a termination at the initiative of the employer the applicant must
have been forced to resign by a course of conduct engaged in by PCT.
[61] I deal firstly with the conflict in the evidence.
[62] Both respondents’ witness statements are remarkably similar in nature with very
specific phrases being identical. Ms Tuffin advised that she had formulated notes after the
meeting of 28 January 2014 and sent those to Ms Weeding. It was said these notes formed the
basis of both witness statements. I note that whilst this is not an optimum practice for
producing witness statements, I am satisfied that the drafting approach of PCT’s witnesses
was not one of collusion and it did not affect their independent recollection of events, which
was born out in the oral evidence.
[63] There was considerable contradiction between the evidence of Ms Dawes and PCT’s
witnesses as to the proceedings of the meeting of 28 January 2014. Conflict of evidence is not
unusual in a case such as this. Due to the conflicting nature of much of the evidence, I have
relied on those evidentiary matters which are common to the parties. Where I have preferred
the evidence of one party over another, I have indicated why that is so.
[64] It is common ground that PCT did not advise Ms Dawes that her employment was
terminated. The argument advanced by Mr Eddington for the applicant, that Ms Dawes was
dismissed pursuant to s.386(1)(a) is a curious one. I am unable to accept his submissions that
the reference to Mohazab at paragraph 1528 of the Fair Work Bill 2008 Explanatory
Memorandum provides that the circumstances applicable in Mohazab would be a termination
pursuant to s.386(1)(a) of the Fair Work Act 2009. It is clear, in my view, that separating the
provisions of s386(1) was to allow for a termination that is clearly and unambiguously made
by the employer, whilst also providing for a termination, such as in Mohazab, where an
employee resigns through a course of conduct embarked on by the employer.
[65] Mohazab was found to be a termination at the initiative of the employer, under
legislation which, at the time, was not separated into two distinct part, as we currently see
with s.386(1). Should Mohazab have been conducted under the current legislation, it is my
view it would be a termination pursuant to s.386(1)(b). Accordingly, Ms Dawes’ argument
that she was terminated pursuant to s.386(1)(a) must fail.
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[66] I turn now to whether Ms Dawes’ resignation was effected pursuant to s.386(1)(b) of
the Act, as the applicant’s representative submitted that Ms Dawes’ resignation also fitted that
test under the Act.
[67] The evidence and submissions put on behalf of Ms Dawes were directed at a finding
that PCT had engaged in conduct which amounted to forcing a resignation from Ms Dawes. In
this respect Ms Dawes relied on the following:
the allegations were not tested for veracity before being put to her;
an ultimatum was made to her to resign or the Police would be called in;
obtaining a resignation would obviate PCT’s responsibility to investigate the matter;
obtaining a resignation would obviate PCT reporting the allegations to the resident’s
family; and
obtaining a resignation would obviate PCT reporting the allegations to the relevant
Commonwealth Department.
[68] I am satisfied on the evidence provided by all three witnesses, that Ms Dawes was
advised of the allegations made against her and that the matter would require investigation
and reporting to the Police.
[69] Ms Dawes confirmed in her testimony that she did, during the meeting of 28 January
2014, ask Ms Weeding what options were available to her. This indicates, in my view, Ms
Dawes was presented with a set of circumstances and wished to consider what was best for
her in the situation.
[70] Ms Dawes indicated to Ms Weeding she would take some time to complete her written
resignation. I conclude, therefore, that Ms Dawes was aware she could go away and complete
her resignation, however she chose to write out her resignation then and there when given that
option.
[71] Whilst there were some contradictions in the evidence of both Ms Weeding and Ms
Tuffin, they were not of sufficient moment. Whilst their evidence was corroborative on those
matters of substance required to be considered when dealing with the question of constructive
dismissal, I have preferred that corroborated evidence to the evidence of Ms Dawes.
[72] In Mohazab, the Full Federal Court said:
“On the findings of the fact that the respondent directed the appellant to resign or have
the police ‘called in’, it is our view that what occurred was a termination of
employment at the initiative of the employer. When an employee has no effective or
real choice but to resign it can hardly be said that the termination of her or his
employment is truly at the employee’s initiative. But for the insistence of the
employer, termination of employment would not cross the mind of the employee…
On the facts as found by the registrar the threat to call in the police was intended to
induce a reluctant resignation in circumstances where the respondent had not
completed its inquiries and had not resolved to report the matter to the police. It
appears to have been accepted by the registrar as a finding that the appellant believed
that a report to the police would place a stain on his character and inhibit his prospects
10
of other employment in the future, irrespective of the outcome of a police
investigation.
The proper conclusion from the facts as found by the registrar and presented to his
Honour was that the respondent wanted the appellant’s resignation because it desired
to terminate the appellant’s employment. There was no other reason for it to do so. It
sought to do so in that way to avoid any consequences that might flow from summary
dismissal of the appellant. It is apparent that on the findings of the registrar as to what
occurred at the interview the respondent made it clear through its representatives that
it no longer desired to employ the appellant.
In our opinion, the ‘critical action’ here, to use the expression of the Chief Justice in
David Graphics was, the threat of the respondent that unless the appellant resigned the
respondent would ask the police to charge him with an offence. The termination of the
appellant’s employment was not at his initiative. It was a resignation obtained by the
respondent by an ultimatum designed to achieve that objective. That conclusion is
reinforced by the peremptory conduct of the respondent in escorting the appellant out
of the respondent’s premises, leaving him to stand in a carpark to await a letter of
resignation to be prepared by the respondent and brought to him to sign. That conduct
by the respondent suggested summary termination of the appellant’s services by the
respondent rather than voluntary resignation by the appellant.”
[73] I am of the view there is considerable divergence of the circumstances in Mohazab and
this case. I accept the evidence of the respondent’s witnesses that they never indicated to Ms
Dawes that they no longer desired to employ Ms Dawes. I note Ms Dawes never stated this
was the case. Whilst Ms Dawes was advised that the Police would be involved, she was not
told by Ms Weeding or Ms Tuffin that unless she resigned the Police would be asked to
charge her with an offence. Further, the resignation was not provided to Ms Dawes for her to
sign. Ms Dawes wrote out her own resignation after considering whether she would take some
time before doing so.
[74] Ms Dawes also indicated in evidence that she was aware that the union delegate was
not on shift on 28 January 2014. I conclude from this evidence that Ms Dawes was aware that
union advice was a relevant consideration for her. However, she still wrote out and tendered
her written resignation.
[75] The Full Bench decision in P. O’Meara v Stanley Works Pty Ltd17 contains a useful
summary of the principle authorities on constructive dismissal under the legislation at that
time, which includes Mohazab:
“[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 of has the probable result in bringing the employment
relationship to an end. It is not simply a question of whether “the act of the employer
[resulted] directly or consequently 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
11
analysis of the employer’s conduct is required to determine whether it was of such a
nature that resignation was the probably result or that the appellant had no effective or
real choice but to resign.”
[76] In the earlier Full Bench decision of ABB Engineering18 mentioned above, the Bench
also stressed the importance of examining the employer’s conduct to ascertain whether it
supported a conclusion that the employee in question had been constructively dismissed:
“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.” (emphasis added)
[77] I accept the submissions of Mr Eddington in relation to the Bruce decision and note
the circumstances of that case involved a long period of conduct and as such that case has
little precedent value, with the cases mentioned above being more relevant.
[78] I have accepted the evidence of PCT’s witnesses, due to its corroborating nature, that
the employer did intend to call the Police as part of any investigation and that subsequent to
the resignation of Ms Dawes, there was no need to conduct the investigation as the person
whom the allegations had been made against was no longer in the workplace. This is not an
uncommon position for an employer to take. It is however noted that PCT may have breached
their obligations under the Aged Care Act 1997 by not reporting the allegation in accordance
with s63.1AA.19
[79] I also accept the corroborated evidence of Ms Weeding and Ms Tuffin that they did
not resolve to obtain a resignation from Ms Dawes and that they were surprised when Ms
Dawes asked how she could resign.
[80] I am satisfied that on an objective analysis of all the matters set out above and taken
together, they do not amount to a course of conduct taken by PCT which gave Ms Dawes no
reasonable choice but to resignation. It was open to Ms Dawes to participate in the
investigation that was to commence. The investigation, had it been completed, may have
found that there was no substance to the allegations made by Ms Vanderlaan. Therefore I am
unable to find that Ms Dawes was forced to provide her resignation because of conduct
engaged in by PCT.
[81] Mr Eddington submitted that the principle in Briginshaw had not been fulfilled in this
matter. I accept the argument advanced by Mr Cameron in this matter that Briginshaw does
not apply in this case as “The standard of proof required of a party who bears the onus in civil
litigation is proof on the balance of probabilities, even where the matter to be proved involves
criminal conduct.” 20
[82] It was also submitted by Mr Eddington that I should draw adverse conclusions
concerning PCT’s failure to call Mr Brooks as a witness. The pertinent facts were set out in
the evidence of PCT and I have not been required to rely on that particular submission made
12
by Mr Cameron. As such I do not draw any adverse conclusions from the failure of PCT to
call additional witness evidence.
Conclusion
[83] I find that there was no termination of Ms Dawes’ employment pursuant to s.386(1)(a)
or (b). As a consequence, there has been no dismissal for the purposes of s.385 of the Act and
the application for relief pursuant to s394 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Eddington, Health Services Union No. 1 Tasmanian Branch, for the Applicant.
Mr A Cameron, James O’Neil and Associates, for the Respondent.
Hearing details:
Hobart
2014:
6 June.
Printed by authority of the Commonwealth Government Printer
Price code C, PR552198
1 Exhibit A1 – Witness statement of Pamela Dawes.
2 Exhibit A1 - paragraph 10.
3 Exhibit A1 - paragraph 12.
4 Exhibit R2 – Witness Statement of Felicity Weeding.
5 Exhibit R1 – Witness Statement of Jenny Tuffin.
6 Paragraph 7 of Ms Felicity Weeding’s statement.
7 Exhibits R1 and R2.
8 Ibid.
9 Exhibit A2 - Compulsory Reporting Guidelines For Approved Providers of Residential Aged Care, Office of Aged Care
Quality and Compliance, June 2008, Department of Health and Ageing, page 3.
10 (1995) 62 IR 200.
11 Bruce v Fingal Glen Pty Ltd [2013] FWCFB 5279 PR539675 per Boulton J, Gooley DP and Hampton C.
12 Aged Care Act 1997, section 63.1AA(1) and (2).
13 [1938] HCA 34.
14 [AIRC] Dec577/00 M Print S6338.
OF FAIR WORK G WORK COMMISSION AUSTRALIA THE S
13
15 [2014] FWCFB 613 PR547139 per Acton SDP, Hamilton DP and Blair C.
16 (1959) 101 CLR 298 at 312.
17 (2006) PR973462 at [23] per Giudice J, Watson VP, Cribb C).
18 ABB Engineering Construction Pty Ltd v Doumit (1996) Print N6999 (Munro J, Duncan DP, Merriman C).
19 Exhibit A3.
20 Hassan & Abejaron v Nestle Dairy Products [AIRC] Dec577/00 M Print S6338 per Watson SDP, Acton SDP and
Hingley C, were at paragraph [14].
