1
Fair Work Act 2009
s.394—Unfair dismissal
Nurses Kurucuk
v
Mining One Pty Ltd
(U2018/5069)
COMMISSIONER MCKINNON MELBOURNE, 2 NOVEMBER 2018
Application for Relief of Unfair Dismissal – termination at the initiative of the employer –
whether dismissed – repudiation of contract of employment – whether forced to resign by
conduct of employer.
Introduction
[1] Mining One Pty Ltd (Mining One) is a mining and geotechnical engineering
consultancy based in Melbourne.
[2] Nurses Kurucuk was employed by Mining One as a Graduate Geotechnical Engineer
on 4 July 2011 until 10 May 2018, when she advised Mining One that she was accepting its
repudiation of her contract of employment with immediate effect. On 16 May 2018, she
applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair
Work Act 2009 (the Act).
[3] Kurucuk says she was forced to resign because of conduct, or a course of conduct,
engaged in by Mining One between March 2017 and May 2018, involving:
a) Inappropriate and unwelcome advances by her direct supervisor;
b) Harassment, bullying and victimisation by her managers;
c) Ongoing refusal by Mining One to investigate or address her complaints about (b)
above; and
d) Unilateral variations to her terms and conditions of employment.
[4] On 23 May 2018, Mining One responded to the unfair dismissal application. It denies
the alleged conduct and says that Kurucuk was not dismissed.
[5] The matter was conciliated on 27 July 2018 and was not settled. After seeking the
views of the parties, a hearing was held on 1, 2 and 16 August 2018 in Melbourne. The parties
were represented with permission.
[2018] FWC 6620
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 6620
2
Preliminary matters
[6] Section 382 of the Act provides that a person is protected from unfair dismissal if, at
the relevant time, they:
have completed at least the minimum employment period; and
earn an annual income of less than the high income threshold, are covered by a
modern award or are employed under an applicable enterprise agreement.
[7] There is no dispute that Kurucuk’s employment was longer than the minimum
employment period and that her annual income was less than the high income threshold.1 She
is protected from unfair dismissal.
[8] Under section 385, a person has been unfairly dismissed if the Commission is satisfied
that they have been dismissed; the dismissal was harsh, unjust or unreasonable; and if
relevant, the dismissal was not consistent with the Small Business Fair Dismissal Code or not
a case of genuine redundancy.2
[9] At the time of the alleged dismissal on 10 May 2018, Mining One says it employed 58
employees.3 That means that Mining One was not a small business employer at the relevant
time and the Small Business Fair Dismissal Code4 did not apply.5
[10] No issue of redundancy arose. I find that the alleged dismissal was not a case of
genuine redundancy.
[11] Unfair dismissal applications must be made within 21 days after the dismissal took
effect, or such further period as the Commission allows. For the reasons that follow,
Kurucuk’s employment came to an end on 10 May 2018. Her application was filed within the
required 21 day timeframe.
[12] The question is whether Kurucuk was dismissed from her employment, and if so,
whether the dismissal was harsh, unjust or unreasonable.
The history of events
[13] Over the period from 2015 until May 2017, Kurucuk and Abouzar Vakili, a Principal
Geotechnical Engineer and work colleague, became friends. Vakili is an expert in numerical
modelling (NM), a specialised geotechnical software skill used for geotechnical design and
analysis. It is a feature of the work of most geotechnical practitioners. It is distinct from 3D
non-linear inelastic NM using finite element or finite difference methods (specialised NM),
which is a highly specialised skill in the Australian labour market with less than ten
recognised experts in the field.
1 Form F3 - Employer response to unfair dismissal application filed on 23 May 2018
2 Fair Work Act 2009 (Cth), s.385
3 Form F3
4 Fair Work Act 2009 (Cth), s.388
5 Fair Work Act 2009 (Cth), s.23
[2018] FWC 6620
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[14] Vakili is the developer of NM software called StopExamine. StopeExamine makes
specialist numerical modelling easier to apply by non-specialists, by automating some of the
NM steps.6
[15] Kurucuk says her relationship with Vakili was nothing more than work colleagues, but
the evidence persuades me that it was more than that. The two exchanged friendly messages
and emails and shared meals or drinks together from time to time, both in connection with
work and outside of work.
[16] On 17 May 2017, Kurucuk and Vakili had an argument at work after Kurucuk became
upset about an instruction Vakili had given her and Vakili asked why she was not more
respectful toward him.7
[17] On 18 May 2017, Kurucuk and Vakili were driving together to a client site. Vakili
commented on how Kurucuk behaved toward him. Kurucuk told Vakili he was “mixing
personal and professional” and wanted to “get into her pants”. She said she had saved all his
text messages. After becoming upset, Vakili apologised and promised not to communicate
with Kurucuk outside of work or about matters unrelated to work.8 Both agreed to continue to
work together professionally and to keep their discussion confidential.9 That evening, they
had dinner together. They discussed how to improve their working dynamics going forward.
[18] Vakili made a note about the events of 17 and 18 May 2017 on his return to the office
on 19 May 2017.10 It records his interpretation of Kurucuk’s comment about keeping his text
messages as a threat. According to his note, Kurucuk said she didn’t think he had harassed
her; that she wanted to keep the conversation confidential and that they both promised to keep
things professional. I accept the note as an accurate record of the discussion. Consistent with
their agreement, no report was made to Mining One about what had occurred.
[19] Kurucuk knew that Vakili had taken her comment about the text messages as a threat.
As she said (referring to David Lucas, another Principal Geotechnical Engineer who she had
worked to for many years):
“I felt bad about Abou and how he seemed. I didn’t want him to feel threatened. I said
I didn’t want that – that’s why I asked him if he wanted I would work to David
instead.”11
[20] The text messages referred to by Kurucuk in her discussion with Vakili on 18 May
2017 and then again in her discussion with Stribley on 5 December 2017 were not in
evidence. It was not put to Vakili, and he did not explain, why he did not produce them.
Kurucuk said she lost the messages when she was travelling to Europe in July 2017. If that
were the case, she could not have had them when she told Stribley that she did. I do not accept
that the text messages were lost. The more likely scenario is that neither Vakili nor Kurucuk
wanted them to be made public. The consequence of that finding is that Kurucuk was not
6 Audio recording of Hearing 1-2 August 2018, Evidence of Abouzar Vakili and Nurses Kuruck
7 Exhibit 1, Statement of Abouzar Vakili, Attachment AV-5
8 Exhibit 1
9 Audio recording of Hearing on 2 August 2018, Evidence of Nurses Kuruck
10 Exhibit 1, [50] and Attachment AV-5
11 Audio recording of Hearing on 2 August 2018, Evidence of Nurses Kuruck
[2018] FWC 6620
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honest when asked about the text messages. That taints the credibility of her evidence in this
proceeding, which at times involved an exaggeration of the facts.
[21] On Saturday 3 June 2017, Kurucuk and Vakili got into another argument at work.12
The two were under pressure to deliver a presentation on the ‘Goonyella project’ for a client
the following Monday. They each made upsetting accusations about the other. Kurucuk felt
insulted and Vakili felt his reputation was in question. After time apart, Kurucuk contacted
Ben Roache, Geotechnical Manager, asking him to come to work the next day to discuss the
project.13 Roache is Vakili’s boss and was the responsible Project Manager for the project. At
the time, he was unaware of the issues between Kurucuk and Vakili.
[22] The Goonyella job appears to have been the source of considerable pressure and
tension between Roache, Kurucuk, and to a lesser degree, Vakili. Vakili offered to help
Kurucuk with it, although she was working to Roache. Kurucuk was dealing with a few
competing priorities at the same time, including some more urgent work. Vakili was also
under time pressure.
[23] On Sunday 4 June 2017, Roache arrived at work to a tense situation. He was
discussing another employee’s resignation with Vakili when Kurucuk approached them and
said she would probably be the next one to resign.14 She proceeded to tell Roache that she was
having problems working with Vakili and that he had insulted her. The three of them talked it
through, including over lunch. The result was an agreement to change the office seating
arrangements to improve communication.15 Neither Vakili nor Kurucuk told Roache about the
events of 17 and 18 May 2017.
[24] The next few days at work were busy and relationships between Kurucuk, Vakili and
Roache were strained. Vakili was then on annual leave from 8 to 30 June 2017 and Kurucuk
was on annual leave from 17 June 2017 to 30 July 2017.
[25] On 31 July 2017 Kurucuck returned to work and met with Roache. He asked if she
was prepared to continue working with Vakili and she said she was.
[26] On 1 August 2017, Kurucuk was late for work. Roache counselled her about her late
arrival and the need to work a full work week.16 Kurucuk reacted strongly to the reprimand,
reminding him of the amount of overtime she had worked in the past.
[27] On 2 August 2017, Kurucuk sought informal advice from Lucas about her working
relationship with Vakili and Roache.17 She told him about what had happened in May 2017
with Vakili and asked him to keep it confidential. They discussed options to deal with her
concerns, including making a complaint, Lucas talking directly to Roache, or seeking a
female mentor from outside the business. The focus was on trying to resolve matters
informally so that Kurucuk could continue to learn from Vakili as resident NM expert.18
12 Exhibit 1; Exhibit 11, Statement of Nurses Kuruck
13 Exhibit 2, Statement of Ben Roache at [11]
14 Exhibit 1, [63]
15 Exhibit 2, Attachment BR-3; Seating changes were implemented from 26 July 2017
16 Exhibit 2, [27]
17 Exhibit 11, [35]
18 Exhibit 5, Statement of David Lucas
[2018] FWC 6620
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[28] On 3 August 2017, Kurucuk was asked by Roache to come into his office. I accept his
evidence that she shouted at him to ‘go away’. They subsequently met in his office and
Roache raised concerns about Kurucuk’s work performance, including her earlier
communication with him, not keeping a work diary and working her core hours. Kurucuk
again became upset, calling on him to “just sack me” and accusing him of harassment. He
asked her to put the allegation of harassment in writing and provide it to the Managing
Director, Gary Davison.19 She did not do so.
[29] The incident prompted Roache to consider giving Kurucuk a warning about her
behaviour. After an informal discussion with Lucas, who mentioned that she had raised his
management of her as a concern, he decided against it.20
[30] On 4 August 2017, there was a productive work meeting between Kurucuk, Roache
and Vakili. Roache thought things were getting ‘back on track’.21 Things appear to have
settled down after that point for a time.
[31] On 26 September 2017, Roache received a client request for on-site consultancy at the
Mt Arthur mine from 6 to 30 October 2017.22 While he initially considered Vidoe Tasevski, a
Senior Engineering Geologist, for the work, Tasevski was unavailable and Kurucuk was
asked to go to the Mt Arthur mine instead. She worked at Mt Arthur from 9 October to
10 November 2017 and received positive feedback about her work from the client as well as
from one of Mining One’s Directors, Kevin Dugan, Roache and Vakili.
[32] On 30 October 2017, Dugan recommended Kurucuk for work on the Siviour Graphite
Project he was managing. At face value, the recommendation was made because Dugan felt it
was a good fit for her skills and a professional development opportunity for her, involving a
level of autonomy. Roache and Vakili also agreed to the recommendation.23
[33] On 2 November 2017, Dugan contacted Kurucuk about the Graphite Project. Kurucuk
asked why she was being given work that was not NM work. Dugan advised that Vakili was
reluctant to work with her.24 The comment upset Kuruck, who told him she wanted to discuss
it on her return to the office.
[34] On 3 November 2017, Kurucuk sent an email to Roache and Vakili asking about likely
projects coming up and indicating a preference for modelling and underground work. Roache
replied but did not confirm what work Kurucuk would do on her return from Mt Arthur.25.
Vakili did not reply. His father was unwell and he was dealing with his family situation.
[35] On 8 November, Dugan emailed Kurucuk indicating that Vakili had her down for NM
work on the ‘Brockman 2’ project, “probably in Jan”.26
19 Exhibit 2, [30] – [31]
20 Ibid, [32]
21 Ibid, [35]
22 Ibid, Attachment BR5
23 Ibid, Attachment BR8
24 Exhibit 11, [40] – [41]
25 Exhibit 2, Attachment BR-9
26 Ibid, Attachment BR-14
[2018] FWC 6620
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[36] On 15 November 2017, Kuruck returned to the Melbourne office and went to see
Dugan. They discussed his comment that Vakili was reluctant to work with her and Dugan
offered to sit down with them both if it would help.27
[37] On 30 November 2017 there was a meeting with Vakili, Kurucuk and another
employee about the Brockman 2 project. According to Vakili, Kurucuk acted so
unprofessionally in that meeting that he had to close the door. Kurucuk was unhappy about
the type of work she was being asked to work on, as it was not specialised NM work and she
wanted to know why. After the meeting, Kurucuk was upset and took the rest of the day off as
annual leave.28
[38] It was at that point Kurucuk decided to formally raise concerns with senior
management of Mining One about why Vakili was reluctant to work with her, and why she
was not being given NM work.29
[39] On 1 December 2018, Kurucuk emailed Lyn Stribley, Director of Mining One,
advising that she had a work related issue and was seeking some advice. They met soon after
on 5 December 2017.30
[40] Stribley’s notes of the meeting are marked “Confidential”. They record Kurucuk
saying that she and Vakili had dinner and drinks a few times and that he ‘wanted to get into
her pants’ but she said no. She said she had kept text messages from him.31 She said she may
be imagining it, but she felt he was now ignoring her work wise, and gave the example of an
email he had sent to Harley Greaves and Lucas which should also have gone to her as she was
working on the project. She didn’t want people to know about what happened between her
and Vakili in May 2017 but she wanted her work situation addressed. She said she knew she
was aggressive in meetings but liked working with Vakili and wanted to continue. Stribley
suggested that Kurucuk talk to Roache and Vakili to set out a professional development plan
for her career. Kurucuk agreed to email them about it.32
[41] As agreed, Kurucuk sent an email to Roache and Vakili on 5 December 2017.33
Coincidentally, on 5 December 2017 Kurucuk received an email from another colleague and
NM expert at Deakin University offering her a job.
[42] After some resistance from Roache, he, Kurucuk and Vakili agreed to meet on
8 December 2017. The meeting did not go well. After discussing Kurucuk’s professional
development plan, Roache advised Kurucuk that she would report to him instead of Vakili
from that point onwards. Kurucuk became agitated and angry. She accused them both (and
Mining One) of taking action behind her back and not discussing things with her. She accused
27 Exhibit 7, Statement of Kevin Dugan
28 Exhibit 11; Exhibit 1
29 Exhibit 11, [52]
30 Exhibit 8, Statement of Lyn Stribley, Attachment LS-2; Exhibit 9, Supplementary Statement of Lyn Stribley, Attachment
LS-28
31 Exhibit 8, [19]; Exhibit 11, [132]
32 Exhibit 9, Attachment LS-28
33 Exhibit 8, Attachment LS-2
[2018] FWC 6620
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Vakili and Roache of misconduct. She said Vakili had been ignoring her for the past 6
months.34
[43] According to notes taken by Vakili after the meeting, Kurucuk said if the change was a
restructuring, she should receive a redundancy package and be let go.35 The meeting ended
and Kurucuk left the office. Later that day, emails were sent between Roache and Kurucuk as
well as from Vakili to Kurucuk. Roache confirmed that Kurucuk would now report to him and
that the focus in 2018 would be on “modelling using StopExamine when the opportunities
come in, and a focus on developing your client base and building project flexibility.”36
Kurucuk responded by expressing her disappointment and frustration and alleging
“discrimination at work”. Vakili advised that he was happy to discuss Kurucuk’s concerns
about his management style as long as Kurucuk could “remain calm”.37 It does not appear that
Kurucuk responded to Vakili.
[44] Kurucuk emailed Roache the next day to advise that she was “very sick and badly
affected from the way I am treated”.38 There are two conflicting versions of this email in the
evidence, one dated Friday at 12.49pm39 and one dated Saturday at 7.49am40. As the meeting
ended at approximately 3.00pm on Friday, I find that the Saturday version accurately records
the time of the email.
[45] From 11 December 2017, Kurucuk began seeking advice about her situation at work
and made an appointment with her doctor for January 2018.41
[46] In the week from 15 December to 22 December 2018, Mining One was trying to
arrange a consultant for further site work at the Mt Arthur mine in January 2018. Kurucuk
was asked to go and said she could not, as she needed to be in Melbourne. Roache was not
aware that the reason for her refusal was that she had medical appointments booked.42 He
tried to insist on her going because from his perspective it met client needs and Kurucuk had
little other work booked for January. She again refused and he expressed his disappointment,
indicating that they would discuss the matter on 3 January 2018 after the Christmas break.43
[47] Mining One closed for Christmas from 22 December 2017 to 2 January 2018. Kurucuk
took sick leave from 3 January 2018 and returned to work on 8 January 2018.
[48] On 9 January 2018, Roache, Kurucuk and Stribley met. Roache secretly recorded the
meeting. The transcript records a discussion about performance concerns Roache held with
Kurucuk, her complaint about the change in reporting line from Vakili to Roache and some of
the issues with Vakili and Roache. Kurucuk said:
34 Exhibit 1, Attachment AV-11
35 Ibid, Attachment AV-11
36 Exhibit 11, Attachment NK-4
37 Ibid, Attachment NK-4
38 Exhibit 2, Attachment BR-18
39 Exhibit 11, Attachment NK-5
40 Exhibit 2, Attachment BR-18
41 Exhibit 11, [71]
42 Audio recording of Hearing on 2 August 2018, evidence of Nurses Kurucuk
43 Exhibit 2, BR-21
[2018] FWC 6620
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“I knew there was something wrong for a long time and I didn’t want to point people.
I wanted to give it a little bit of time. I talked a little bit with people, waiting for it to
be fixed. I thought I’d give it a bit of time things will get better, but things got bad.”
[49] Kurucuk accused Roache of harassing her by trying to insist on her taking the Mt
Arthur job. She said he was not being professional and not trusting her. Roache noted his
concern about Kurucuk and Vakili’s work relationship and that he needed it to work as there
were a lot of modelling jobs coming up from the end of January. Kurucuk was asked what the
solution could be and said changing offices had been good. She suggested coffee with Roache
and Vakili so that Vakili could tell her what he was unhappy about. They discussed the
importance of good communication. Stribley said it was important to Mining One for
Kurucuk to feel comfortable, respected and appreciated at work. After some encouragement,
Kurucuk agreed to document her concerns for Mining One to address and to try working with
Vakili again. Roache told Kurucuk if she was still feeling uncomfortable after coffee with
Vakili, she was to let him know because there were options they could take, such as engaging
a professional to assist.44
[50] On 11 January 2018, Kurucuk, Vakili and Stribley met. Agreement was reached on a
range of matters including the need for better communication, professional and respectful
behaviour and the sharing of NM work. Stribley proposed to Kurucuk that she report to her
directly on an interim basis and proposed another meeting the following week to see how
things were progressing.45
[51] On 12 January 2018, Kurucuk agreed with Stribley’s email summary of the meeting
outcome and ended with the words “See you next week”.46
[52] On 16 January 2018, Kurucuk and Dugan were walking back to the office from a
meeting about a potential project when Dugan suggested she start reporting to Lucas again to
help with her issues with Vakili. Kurucuk became upset, saying she felt treated poorly and
that working to Lucas again wouldn’t make sense in terms of furthering her career.47 It was
the last day Kurucuk attended work.
[53] On 17 January 2018, Kurucuk did not attend work and instead commenced sick leave.
Medical certificates were obtained for the periods commencing 17 January 2018 to 25 January
2018; 25 January 2018 to 25 February 2018; 23 February 2018 to 2 March 2018; 5 March
2018 to 2 April 2018; 3 April 2018 to 28 April 2018 and 28 April 2018 to 12 May 2018.48
[54] On 26 February 2018, Kurucuk and Stribley spoke over the telephone. They discussed
a potential work opportunity for Kurucuk. Kurucuk declined the offer of work as she was on
sick leave and advised Stribley that she was suffering from stress and anxiety.49 According to
Stribley, Kurucuk indicated that she was not sure if she wanted to return to work. In reply,
Stribley asked if Kurucuk wanted to leave. The context of this conversation and the language
used by Stribley is in dispute. I find that the conversation occurred in the context described by
44 Transcript of meeting, 9 January 2018
45 Exhibit 8, Attachment LS-4
46 Ibid
47 Exhibit 7; Exhibit 11, Attachment NK-7
48 Exhibit 7, Attachment LS-5
49 Exhibit 9
[2018] FWC 6620
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Stribley – that is, she was trying to understand what Kurucuk wanted to do, not encouraging
her to resign.50
[55] On 16 March 2018, Kurucuk emailed a detailed set of allegations of harassment,
bullying and differential treatment at work (the complaint). The allegations ran to 27 pages
plus attachments, and were accompanied by a medical certificate for the relevant period.51
Stribley responded to the email that day that she would “look at it soon”. The following day,
on 17 March 2018, Stribley emailed Kurucuk about the complaint and advised “we will make
sure all these issues you mention are addressed on your return to work”.52
[56] On 9 April 2018, Mining One received a letter from Kurucuk’s lawyers alleging a
range of contraventions of the law, reserving her rights and indicating that she was “unlikely
to be fit to return to work at Mining One in the foreseeable future.” The letter said “it appears
that returning to work at Mining One is now untenable”.53
[57] On 12 April 2018, lawyers for Mining One responded, advising they were seeking
instructions and authorising unpaid leave for Kurucuk who had exhausted her accrued leave
entitlements. The letter directed Kurucuk to refrain from any work related duties or
attendance at work until further notice as she was unfit for work. It also indicated that her
work email account was to be suspended.54
[58] On 13 April 2018, Kurucuk made a workers’ compensation claim.
[59] On a date that is not established but prior to 18 April 2018,55 Kurucuk was offered
employment with Deakin University in its School of Engineering.
[60] On 18 April 2018, Mining One received notification of the claim.56 On the same day,
Mining One suspended Kurucuk’s email account access and Deakin University confirmed its.
offer of employment to her.
[61] There is a dispute about whether Kurucuk’s lawyers rang Mining One’s lawyers on
24 April 2018 and left a message for a return call but nothing turns on it.
[62] On 26 April 2018, Kurucuk accidentally sent an email to Stribley in Turkish.57
Translated, it said “They gave me the job. Now I need your help. I need to say no.”58
According to Kurucuk, the role was geotechnical civil engineering in residential work and the
salary was lower than she was prepared to accept. She refused the offer of employment within
50 Exhibit 8
51 Exhibit 8, Attachment LS-6; Exhibit 11, Attachment NK-7
52 Exhibit 8, Attachment LS8
53 Exhibit 11, Attachment NK-8
54 Ibid, Attachment NK-9
55 Email to Kurucuk from Deakin University, 18 April 2018 at 1.13am, referring to an attached “revised” contract of
employment
56 Exhibit 8, Attachment LS-14.
57 Exhibit 10, Text message received from Lyn Stribley dated 26 April 2018 at 12:41
58 Audio recording of Hearing on 2 August 2018, evidence of Nurses Kurucuk
[2018] FWC 6620
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a couple of days.59 From that date, Mining One was aware that Kurucuk was actively seeking
alternative employment.
[63] On 30 April 2018, Kurucuk accepted the offer of employment from Deakin University
with a commencement date of 16 July 2018.60 On the same day, Kurucuk provided Mining
One with a medical certificate for the period from 28 April 2018 to 12 May 2018.61
[64] On 10 May 2018, Kurucuk’s lawyers again wrote to Mining One asserting that she had
accepted its repudiation of her contract of employment and seeking payment of 6 months’
“reasonable notice of termination”.62 No mention was made of Kurucuk having accepted an
offer of alternative employment with Deakin University, even though she knew by then that it
“meant I had to resign from Mining One.”63
[65] On 15 May 2018, Mining One’s lawyers responded, asserting that Kurucuk remained
employed and subject to an ongoing workers compensation claim.64 On 16 May 2018,
Kurucuk filed her application to the Commission.
Was Kurucuk dismissed?
[66] Section 386(1) of the Act provides that 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 their employment, but was forced to do so because of
conduct, or a course of conduct, engaged in by his or her employer.
[67] Kurucuk “accepted” the alleged repudiation of her contract by Mining One on 10 May
2018, based on its accumulated conduct at that time. Termination of employment on that basis
would fall under the first limb in section 386(1)(a) above.
[68] In this proceeding, the legal position was put differently. Kurucuk now says that
because of Mining One’s conduct, she was forced to resign for the purposes of section
386(1)(b) of the Act. Put that way, it seems conceded that her alleged ‘acceptance’ of its
repudiation of contract was a resignation, albeit at Mining One’s initiative.
[69] To the extent that it is necessary to do so, I deal with both the first and second limb of
section 386.
Section 386(1)(a) - repudiation of contract
[70] Whether there has been a repudiation of the contract of employment is a question of
fact to be determined objectively. Relevantly, repudiation may occur where there is a serious
59 Ibid
60 Email from Nurses Kurucuk to Deakin University, 30 April 2018 at 4.40pm
61 Exhibit 8, Attachment LS-17
62 Ibid, Attachment LS-18
63 Audio recording of Hearing on 2 August 2018, evidence of Nurses Kurucuk
64 Exhibit 8, Attachment LS-19; Exhibit 11, Attachment NK-11
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non-consensual intrusion on the nature of the employee’s status and responsibilities in a way
which is not permitted by the contract, or if an employer seeks to bring about a change in the
employee’s duties or place of work which is outside the scope of the contract of employment.
If an employee did not agree to such change(s), which if agreed would amount to a variation
of the contract, they may claim to have been constructively dismissed.65
[71] Assessment as to whether the alleged breach is of such gravity or importance that the
contract itself has been repudiated can only be made once the terms of the contract of
employment said to have been breached are known. 66 An employer who, by their conduct,
repudiates the contract of employment, does not automatically bring the contract of
employment to an end. Instead, repudiation gives the employee who is not in breach the
option to decide whether to continue in their employment or to accept the repudiation and
treat the contract as at an end.67
The contract of employment
[72] On 9 March 2012, Mining One and Kurucuk entered into a contract of employment,
key terms of which provided for Kurucuk to:
1. undertake the role of Graduate Geotechnical Engineer (described in a Job Description
attached to the contract);
2. earn a salary of $85,000 inclusive of superannuation, plus mobile phone and a
professional society subscription each year;
3. perform a minimum of 7.6 hours of work per day, Monday to Friday;
4. work at the locations of Mining One’s Melbourne Office or any of its or client offices
either within Australia or overseas;
5. accept certain confidentiality, post-employment and intellectual property restraints;
6. give or receive one months’ notice of termination except in the case of serious
misconduct;
7. accrue paid and unpaid leave entitlements; and
8. comply with workers’ compensation and anti-discrimination obligations.68
[73] The job description for “Graduate/Junior Geotechnical Engineer” attached to the
contract of employment provided for the position to report to “Senior Geotechnical Engineer”
and described, in general terms, the responsibilities of the position as follows:
“Performance of geotechnical or geological assignments at various field locations
associated with particular projects. Office based analysis and design duties arising
from either Mining One derived field data or data supplied by others. Preparation for
draft reports for review by the Project Manager. Level of responsibility will vary with
the experience of the employee, as the position description covers both junior and
more senior staff.” (emphasis added)
65 City of Sydney RSL & Community Club Limited v Balgowan [2018] FWCFB 5; see also Koompahtoo Local Aboriginal
Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
66 North v Television Corporation Ltd (1976) 11 ALR 599
67 [2018] FWCFB 5
68 Exhibit 8, Attachment LS-1; Exhibit 11, Attachment NK-1
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[74] The contract of employment was varied when Kurucuk was promoted to the role of
Geotechnical Engineer in August 2012. Other than by removal of the word “Graduate” in her
title, the job description did not change. The contract was later varied again in April 2017 to
increase Kurucuk’s salary to $120,000 inclusive of superannuation.69
[75] Initially, and except for a brief period from July 2012 to April 2013, Kurucuk reported
to Lucas.70
[76] In or about March 2017, her reporting line changed and Kurucuk reported to Vakili.71
The change was negotiated with Kurucuk when an opportunity arose to support her interest
and professional development in specialised NM. The change in reporting line came about
following the departure of another senior NM employee, creating an opportunity for Kurucuk.
It was mutually beneficial. For Kurucuk, it have her priority of access to the type of work she
was most interested in. For Mining One, it meant retaining Kurucuk, who was a valued
employee but had indicated she was considering leaving the business and was an opportunity
to rebuild its NM team after the departure of two senior numerical modellers.
[77] Kurucuk says the change in reporting line from Lucas to Vakili represented a variation
to the contract of employment. According to Lucas, the change was made on the basis that
Kurucuk would still be available for other work as required, including occasional site work.72
I prefer his evidence on this issue.
[78] It follows that I do not accept that the change was made on the basis that Kurucuk
would perform NM work or specialised NM work either primarily or to the exclusion of any
other work that may be required of a Mining One Geotechnical Engineer. Mining One is a
consulting business with fluctuating workflows. It relies on other businesses for its work,
which varies depending on client requirements. Employees are allocated to projects based on
the work available and skills alignment with project specifications.
[79] The change in reporting line required her to continue reporting to the position of
Principal Geotechnical Engineer. In that respect, it was not a change that required her consent.
It did not vary the requirement for her to perform geotechnical or geological assignments at
various field locations associated with particular projects. It was consistent with the existing
requirement for her to perform office based analysis and design duties arising from either
Mining One derived field data or data supplied by others. Preparing draft reports for review
by the Project Manager remained part of her role. With the change, she was best placed to
access specialised NM work but her remit remained that of Geotechnical Engineer, as set out
in the contract of employment and attached job description.
Did Mining One repudiate the contract of employment?
[80] The alleged repudiation of contract in this matter is the “lack of any meaningful
attempt to respond to correspondence sent to Mining One on 16 March 2018 and 9 April
2018” and/or her prior complaints.73 I deal with each separately.
69 Form F3; Exhibit 2
70 Exhibit 5, [4]-[5]
71 Ibid, [6]
72 Ibid
73 Exhibit 11, Attachment NK-10
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Not responding to legal correspondence
[81] The events following receipt of Kurucuk’s complaint on 16 March 2018 are set out in
detail above. Stribley initially responded quickly by indicating that she would “look at it
soon” and the next day advised that Mining One would make sure the issues were addressed
on her return to work.74
[82] The obvious difficulty with that approach was that Kurucuk did not return to work,
although in my view she had no intention of doing so after 16 March 2018. She had been
considering leaving Mining One for some time.75 She had raised the prospect of leaving on 23
November 2016 when asked by Lucas to attend work on time or advise if she was delayed.
On 4 June 2017, she suggested to Roache and Vakili that she would be the next to resign. She
had goaded Roache to “just sack me” and then in December 2017, invited the offer of a
redundancy package. On 26 February 2017, she told Stribley she was not sure if she wanted to
come back. Importantly, from 5 December 2017, she had the option of alternative
employment with Deakin University, working with other NM experts. She was also cynical
about the likely result of sending her letter of allegations to Mining One. In her own words: “I
thought once I sent that letter I would lose my job.”76
[83] That is not to say Mining One did nothing in response to the letter of 16 March 2018.
It took steps to seek advice and assistance before it eventually became clear that Kurucuk was
not coming back. Its decision to suspend that activity was, in the circumstances,
understandable.
[84] It is true that despite a flurry of legal correspondence, Mining One did not respond in
any meaningful way to Kurucuk’s lawyers after 9 April 2018 until she had asserted
repudiation of contract on 10 May 2018. By that stage, lawyers were involved and litigation
in some form was likely anticipated.
[85] I find that Mining One delayed its response to Kurucuk’s letters of 16 March 2018 and
9 April 2018 because it considered that she was unlikely to return to work. That was a
reasonable view to hold in the circumstances. It was not a repudiation of contract. Kurucuk
continued to be paid her leave entitlements and was later granted unpaid leave while her
workers’ compensation claim was under consideration.
Not responding to prior complaints
[86] The first complaint Kuruuck made was on 4 June 2017, when she told Roache of her
problems working with Vakili. Roache attempted to address Kurucuk’s concerns
immediately, by direct discussion with both of them together. He did so based on the
information he had available to him at the time. For a time, it seemed to be effective.
[87] Kurucuk subsequently sought out advice from Lucas, but she did so on a confidential
basis. It was not a complaint to Mining One.
74 Exhibit 8, Attachment LS8
75 Exhibit 1, AV1; Exhibit 2; Exhibit 8; Exhibit 11
76 Audio recording of Hearing on 16 August 2018, Evidence of Nurses Kuruck
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[88] Kurucuk only sought intervention from senior management after 2 November 2017
when Dugan told her Vakili was reluctant to work with her. Dugan offered to help if he could
and made informal inquiries. He took no active steps to address the concerns and did not
understand that he had been asked to do so. It was an inadequate response, but it was not a
repudiation of Kurucuk’s contract of employment.
[89] A formal complaint was made by Kurucuk on 5 December 2018. Stribley responded
appropriately by treating the matter seriously and meeting promptly with Kurucuk to
understand her concerns. She initiated steps to assist in resolving the concerns, largely by
agreement with Kurucuk.
[90] Kurucuk chose not to continue working through the process commenced with Stribley
and instead to effectively cease work.
[91] Taking the whole of the history of this matter into account, I am not persuaded that
Mining One’s combined or separate responses to complaints made by Kurucuk establish its
repudiation of her contract of employment.
Forced resignation
[92] The second limb in section 386(1)(b) of the Act defines dismissal as the circumstance
where a person has resigned from their employment, but was forced to do so because of
conduct, or a course of conduct, engaged in by their employer.
[93] Employment will terminate on the employer’s initiative if something the employer
does (or fails to do) is the principal contributing factor which leads to the termination of the
employment relationship and that act resulted directly or consequentially in the termination of
the employment.77
[94] In Bupa Aged Care Australia Pty Ltd v Tavassoli78 a Full Bench of the Commission
summarised the approach to dealing with alleged ‘forced’ resignations under section
386(1)(b) of the Act as follows:
“(2) A resignation that is “forced” by conduct or a course of conduct on the part of the
employer will be a dismissal within the second limb of the definition in s.386(1)(b).
The test to be applied here is whether the employer engaged in the conduct with the
intention of bringing the employment to an end or whether termination of the
employment was the probable result of the employer’s conduct such that the employee
had no effective or real choice but to resign. Unlike the situation in (1), the requisite
employer conduct is the essential element.”79
Section 386(1)(b) - was Kurucuk forced to resign?
Inappropriate and unwelcome advances by Vakili
77 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205
78 [2017] FWCFB 3941
79 Ibid, [47]
[2018] FWC 6620
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[95] The evidence establishes that by the start of 2017, Vakili had developed romantic
feelings toward Kurucuk.80 Kurucuk did not share Vakili’s feelings but she valued her
relationship with him, including because of his NM expertise and its potential benefit to her
own career.81 She wanted a working relationship with him and made ongoing efforts to that
effect. She was also curiously protective of him, as the following response to a question about
why her concerns were not put in writing to Mining One until 16 March 2018 shows:
“…I thought they just wanted my complaint in writing so Mining One could use it
against [Vakili], put him in a corner and buy his software. I didn’t want things to
escalate. I thought my complaint would work for Mining One better so he didn’t leave
because they relied on his expertise.”82
[96] Kurucuk was aware of Vakili’s attraction to her before May 2017 but there is no
evidence that before then she had indicated to him that his behaviour was unwelcome. Once
she did so, he apologised, promised to stop and stopped.
[97] Mining One was not aware of Vakilis’ advances toward Kurucuk until 5 December
2017. I do not consider that the communication of that conduct to Lucas on a confidential
basis prior to that time brought it to the attention of Mining One. By the time it came to the
attention of Mining One, the relevant conduct had long since ceased.
[98] It is rarely without risk for a supervisor to express feelings for a subordinate, given the
obvious power imbalance likely to exist in the relationship and the consequences that may
flow from a situation where those feelings are not, or are no longer, shared.
[99] Vakili’s conduct was unwise but I am not satisfied that it was harassment. It was not
intended to bring Kurucuk’s employment to an end and I am not persuaded that termination of
Kurucuk’s employment was the probable result of his conduct such that, by May 2018, she
had no effective or real choice but to resign. Had that been the case, it is reasonable to assume
that Kurucuk’s employment would not have continued for as long as it did after May 2017
when the conduct of concern ceased.
Harassment, bullying and victimisation by managers
[100] This set of allegations relates to the alleged conduct of Vakili and Roache in the period
from May 2017 to January 2018. It falls into three broad categories involving: the exclusion
of Kurucuk from specialised NM work; poor communication between Vakili and Kurucuk
and the deteriorating relationship between them; and Roache’s direction to Kurucuk that she
report to him and his other “micromanagement, unwarranted criticism and harassment”.
Exclusion of Kurucuk from specialised NM work
[101] Kurucuk says that after 18 May 2017, Vakili and Mining One stopped giving her
specialised NM work. Mining One says that Kurucuk continued to undertake NM work as
well as other available work.
80 Exhibit 11; Audio recording of Hearing
81 Exhibit 11 at [23], Audio recording of Hearing
82 Audio recording of Hearing on 16 August 2018, Evidence of Nurses Kuruck
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[102] There is a dispute about the distinction between general ‘StopExamine’ NM work and
specialised NM work. I accept that there are varying degrees of difficulty in the different
types of NM work and that StopExamine is easier work than specialised NM work not using
StopExamine. Regardless of whether the use of StopExamine is categorised as NM work or
specialised NM work, the evidence establishes that it is not the type of work Kurucuk was
seeking to do.
[103] Timesheets and graphs adduced by each party show the various projects on which
Kurucuk worked and how much of that work was NM work. There is no comparable evidence
before me about the volume of NM work undertaken by Vakili or Mining One as a whole in
the relevant period, that might enable an objective assessment of the amount of available work
allocated (or not allocated) to Kurucuk in the relevant period.
[104] It is clear that in the second half of 2017, the work undertaken by Kurucuk was mostly
general geotechnical engineering work and that after September 2017, she did very little, if
any, specialised NM work. Part of that period was taken up by Kurucuk’s annual leave (July
2017). In August 2017, she did some specialised NM work and some general NM and other
geotechnical work.83 In September 2017, and except for work using StopeExamine, she did
not do any specialised NM work.84 From October to December 2017 she was working at the
Mt Arthur Mine. The fact that she was not the first choice for that work tends against an
inference that she was sent away because of her issues with Vakili. From around October
2017, Vakili was also dealing with his fathers’ illness which is likely to have diverted at least
some of his attention from the workplace.
[105] Kurucuk says she did not know if there was a downturn in NM work after June 2017
or if there was any such work to be done in October and November 2017. Vakili and Roache
say the volume of NM work declined in the last quarter of 2017 and Roache says there was
enough to keep Vakili busy on modelling, but that his available work also declined through to
January 2018 and then “picked back up”. There is nothing to contradict this evidence and I
accept it.
[106] It was, accordingly, reasonable for Mining One to ask Kurucuk to perform a range of
geotechnical work, including general and specialised NM work and site work, consistent with
her contract of employment and in circumstances where there was a decline in the available
NM work for her to do.
[107] Having said that, I find that it was both Vakili’s reluctance to work with Kurucuk and
the positive client feedback Dugan had received about her work which prompted Dugan to
recommend her for projects that did not require her to report to Vakili. Roache and Vakili
agreed to Dugan’s recommendations. There is no evidence they were the ones to initiate
arrangements of that kind.
[108] It is also clear that the volume of NM work was likely to, and did, increase from the
end of January 2018. Kurucuk’s involvement in that work was expressly contemplated. By
that time, her concerns about not being given NM work had been raised with Mining One and
an agreement had been reached on matters including the sharing of NM work.
83 Exhibit 12, Applicant’s graph on time sheet chart
84 Ibid
[2018] FWC 6620
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[109] The evidence does not establish that Kurucuk was excluded from available specialised
NM work.
Poor communication and the deteriorating relationship between Vakili and Kurucuk
[110] The relationship between Vakili and Kurucuk was not without difficulty. In its earliest
stages the two were friends but that began to change, starting with Vakili making his feelings
known to Kurucuk and her responding with the threat about having kept his text messages.
While they invested time in seeking to talk through their personal issues together, it is clear
that matters remained unresolved, fuelling a number of robust and often confrontational
exchanges between them at work, including in June and November 2017. One of the agreed
outcomes of their argument in May 2017 was that Vakili would limit his communications
with her to work matters. After their arguments in early June 2017, that evolved largely into
only email communication. As much as they both agreed on the need for a professional
relationship between them, their conduct toward each other was often less than professional.
Each shares some responsibility for that result.
[111] By November 2017, I accept that Vakili was reluctant to work with Kurucuk. The best
evidence as to why that was the case is equivocal. According to Dugan, Vakili was “having a
hard time working with her” except on a project by project basis. In my view, the most likely
explanation for his reluctance is that Vakili was seeking to avoid inter-personal conflict with
Kurucuk at work. Kuruuck explained that he did not like confrontation. On at least two
occasions, in May and June 2017, he had asked Kurucuk why her response to his work
requests was different to her response to work requests from Lucas. Implicit in his question
was the difficulty he was having managing their relationship as manager and subordinate. It is
also clear that having worked for Mining One for a number of years, by 2016 (while still
reporting to Lucas), Kurucuk considered herself a professional who did not need to be told
what to do and did not always take well to instruction on matters she felt treated her “like a
school kid”, such as her attendance at work or completion of timesheets.
[112] The evidence establishes both that the communication between Vakili and Kurucuk
after June 2017 was more limited than it had been prior to that time, and that their relationship
was deteriorating. Each had a role to play in that regard. It did not mean that Mining One’s
conduct was intended bringing the employment to an end or that the situation was such that
termination of the employment was the probable result such that Kurucuk had no effective or
real choice but to resign.
Roache’s “micromanagement, unwarranted criticism and harassment” and the change
in reporting line
[113] Kurucuk says that Roache’s managerial style amount to micromanagement,
unwarranted criticism and harassment. She also says the change in reporting line from Vakili
to him was unreasonable and a unilateral variation to her terms and conditions of
employment.
[114] After 4 June 2017, Roache knew that Kurucuk and Vakili were having difficulty
working together but he did not have any real appreciation as to why. He attempted to resolve
the issue directly by talking with them and changed their seating arrangements. Further
[2018] FWC 6620
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incidents arose and discussions were had. After early August 2017, for a time at least, he
thought things had been resolved.85
[115] There was a subsequent escalation of conflict between Kurucuk and Vakili on 30
November 2017. Then, on 8 December 2017, they met with Roache and he told Kurucuk that
she would now report to him. There is a conflict in the evidence about whether that outcome
was determined in advance of the meeting. Roache says he only decided to change her
reporting line after further evidence of the conflict between Kurucuk and Vakili in the
meeting. Vakili says the change was agreed before the meeting. The discrepancy does not
make sense in that, if there was some cooperation between Roache and Vakili ahead of time,
one would expect their stories to coincide. I find that the change in reporting line was
discussed between Roache and Vakili in advance of the meeting and that while Vakili
understood that to be a likely outcome, Roache went into the meeting contemplating the
change, but with an open mind.
[116] In circumstances where there had been recent conflict between them, it was reasonable
for Roache to alter Kurucuk’s reporting line. Roache was the next manager in the hierarchy
above Vakili. He had responsibility both for Kurucuk and Vakili. In circumstances where
Roache was seeking to reduce the opportunity for further conflict between them, it was an
appropriate decision to make and consistent with his duty of care. It was not harassment or
bullying or victimisation. It was a reasonable management request.
[117] In addition to the change in reporting line, Kurucuk says she was subject to
unreasonable conduct by Roache, including on:
15 June 2017 – when she was asked to postpone her annual leave on the day before it
was due to commence and criticised for refusing the request
1 August 2017 – criticising her for not working her daily hours and not working well
when she arrived at work late after sleeping in due to jet lag
2 August 2017 – telling her to be ‘less emotional’
26 September 2017 – being sent to work at a project that did not relate to specialised
NM work
20-22 December 2017 – repeatedly asking her to work interstate for three weeks after
she refused and then saying he was disappointed with her refusal.
[118] The annual leave issue arose after Kurucuk was asked to take annual leave coinciding
with Vakili’s leave and agreed to do so. I accept Roache’s evidence that she then booked a
longer period of leave than was anticipated and did not seek approval in advance. The longer
period of leave ended up coinciding with a critical time for work on the Goonyella project and
this created difficulties for Roache, who was responsible for the project but had hoped
Kurucuk would manage it.86
[119] In seeking to overcome his concerns about delivery of the project, he asked Kurucuk if
she could defer her leave. The request itself was not unreasonable but the amount of notice
given was. It was then reasonable for Kurucuk to refuse the request, at least in relation to the
three week leave period that coincided with Vakili’s leave. The latter period of leave may not
85 Audio recording of Hearing on 1 August 2018, Evidence of Ben Roache
86 Exhibit 2 , Attachment BR-1
[2018] FWC 6620
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have been approved at the time it was booked, but was ultimately approved by Roache by the
time it was due to commence.
[120] Kurucuk was unhappy about criticism of her on 1 August 2017, but again it was
reasonable for Roache to ask her about arriving for work three hours late. I accept that Roache
subsequently suggested that she be less emotional at work, but as Kurucuk conceded in the
hearing, she had been emotional in her meeting with Roache the day before. The comment did
not constitute harassment, bullying or victimisation.
[121] I have set out above the circumstances that gave rise to the request that Kurucuk work
at the Mt Arthur mine both in September and December 2017. In September 2017, Roache
needed someone to do the work and it coincided with a decline in NM work. Kurucuk agreed
to the assignment and did it well. Given the feedback she received, it is no surprise that she
was considered for further work at Mt Arthur by both the client and Mining One.
[122] I have also set out the circumstances in which the repeated requests by Roache that
Kurucuk work at Mt Arthur mine in January 2018 arose. I am satisfied that the requests were
made in response to a genuine client need and in an attempt to deal with mixed messages
given to the client about whether there would be someone available to do the work. It aligned
with what Roache understood was Kurucuk’s availability, as she had no leave booked over
the period and had no significant other work planned. Kurucuk said she was unable to go and
I accept that she had a reasonable basis to resist the request to be away from home for long
periods. However, she chose not to provide any explanation, or to seek any accommodation
from Mining One, about her situation. She simply said no. If she was uncomfortable raising
her situation with Roache, the other obvious choice was Stribley, who by that time was aware
of the issues and was likely to try and support her, including if necessary, on a confidential
basis. Roache acted on the information he had to hand. He did so in his capacity as
Geotechnical Manager, and his request was both reasonable and lawful. Kurucuk refused to
follow the direction and did not explain her reasons why. I am not satisfied that Roache’s
conduct in relation to the request to work at Mt Arthur mine was harassment, bullying or
victimisation.
[123] While Kurucuk may have had concerns about how she was treated by Roache, as the
history of this matter makes clear her behaviour towards him was also frequently
inappropriate. Roache was responsible for managing the work of the geotechnical team
overall and it was reasonable for him to expect Kurucuk to work cooperatively with him.
[124] That is not to say that Roache’s conduct was without reproach. His decision to record
the meeting on 9 January 2018 was likely made because Kurucuk had previously accused him
of harassment and misconduct and he wanted an accurate record of the discussion. Whatever
his motivation, the decision to do so without telling Kurucuk or Stribley was entirely
inappropriate. There was no reason why the consent of both Stribley and Kurucuk could not
have been sought in advance.
[125] Roache gave evidence that he had since been spoken to about it and that it was not to
be repeated.87 While Stribley was not aware of that exchange and in the hearing said she
“thought it was ok”, her attitude did not authorise the relevant conduct at the time. I find that
the recording was not authorised by Mining One.
87 Audio recording of hearing on 1 August 2018, Evidence of Ben Roache
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[126] Overall, I am not persuaded that Kurucuk’s managers engaged in any harassment,
bullying or victimisation or that their conduct was such that it was either intended to, or did,
leave her with no choice but to resign from her employment.
Ongoing refusal by Mining One to investigate or address complaints about
harassment, bullying and victimisation
[127] Kurucuk says Mining One failed to investigate or address her complaints about
harassment, bullying and victimisation. In particular, she relies on the following workplace
complaints:88
4 June 2017 – telling Roache the next person to resign would probably be her;
9 June 2017 – telling Roache of her ongoing concerns about Vakili’s attitude to her;
1 August 2017 – telling Roache she felt she was being asked to work beyond her
understanding despite having voiced her concerns several times
2 August 2017 – telling Lucas about her problems with Vakili
2 November 2017 – telling Dugan she was being given tasks unrelated to her job and
being told in response that Vakili was ‘reluctant to work with’ her
15 November 2017 – asking Dugan to arrange a meeting with Vakili to help her
understand and address any of his concerns
5 December 2017 – telling Stribley about Vakili’s behaviour toward her and its effect
on her wellbeing.
[128] The conversation on 4 June 2017 occurred in response to a conversation between
Roache and Vakili following two recent heated exchanges between Kurucuk and Vakili. Both
Kurucuk and Vakili had agreed to try and resolve their issues privately, without the assistance
of Mining One. Roache did not ignore the situation he found when he arrived at work on 4
June 2017. He talked through the issues with both Kurucuk and Vakili and they had lunch
together. Seating arrangements were changed as a result. Roache was not aware of the earlier
incident in May 2017 and was not in a position to fully appreciate the situation he was facing.
To the extent that Kurucuk’s comment that she might resign was a complaint about
harassment, bullying and victimisation, I am satisfied that Roache responded appropriately in
the circumstances.
[129] The conversation on 9 June 2017 followed the conversation on 4 June 2017. Vakili
had now gone on annual leave and Kurucuk was due to commence her leave within a few
days. Roache and Kurucuk discussed sitting down with Vakili when everyone was back from
leave to resolve any problems.89
[130] As soon as Kurucuk returned from leave, she spoke with Vakili and then Roache.
Roache must have spoken with Vakili in the interim, because he told Kurucuk that Vakili was
willing to keep working with her. He asked Kurucuk how she felt, and she confirmed she was
willing to work with Vakili. As is evident, Roache took steps to address the concerns raised
by Kurucuk on 9 June 2017.
88 Applicant’s Outline of Submissions, 20 June 2018
89 Exhibit 11, Attachment NK-7
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[131] The concern raised by Kurucuk on 1 August 2017 must be seen in context. Kurucuk
was responding to performance issues being raised by Roache. The performance issues were
not trivial, and included her arriving for work three hours late. Kurucuk was taking the
opportunity given to her to respond to the concerns and she did so. It was not a complaint
about harassment, bullying or victimisation.
[132] The issues discussed on 1 August 2017 related to the Goonyella job. As things
transpired, timeframes for delivery on the project coincided with both Vakili and Kurucuk
being on leave, causing frustration for Roache and prompting his request that she delay her
leave.
[133] It is apparent that there was already tension between Roache and Kurucuk about the
Goonyella project, including because of their email exchanges about it during her leave and
Kurucuk’s email that she was going to ‘forget about it’.90 She and Vakili disagreed on the
level of detail required. Kurucuk felt out of her depth and unsupported. She wanted Vakili’s
help but did not obtain it. There were expressions of frustration among each of Roache,
Kurucuk and Vakili in connection with the Goonyella project. I am not satisfied that they
were in the nature of complaints. Even if they were, the concerns were addressed by a
reallocation of the work away from Kurucuk to Roache while she was on leave.
[134] As noted earlier, the conversation with Lucas on 2 August 2017 occurred on the basis
that Kurucuk was seeking advice but wanted it to remain confidential. It was not a complaint
to Mining One.
[135] The allegation of harassment made by Kurucuk on 3 August 2017 was in response to
Roache raising valid concerns about Kurucuk’s work performance. He asked her to put the
allegation in writing to the Managing Director, Gary Davison but she did not do so.91
[136] The words ‘harassment’ and ‘discrimination’ were used by Kurucuk again in the
meeting on 9 January 2018. The alleged harassment was Roache’s handling of the request for
her to work at Mt Arthur mine, which I have dealt with above. No explanation of the nature of
any alleged discrimination was made. Roache immediately asked Kurucuk to set out her
concerns to the Managing Director but again, Kurucuk chose not to do so.92
[137] The conversation between Kurucuk and Dugan on 2 November 2017 put Dugan on
notice that there were workplace issues that needed to be addressed, but the detail of those
issues was not made fully apparent even on 15 November 2017 when they met to discuss
them. Dugan and Kurucuk came away from that meeting with different impressions of where
things had been left. Kurucuk thought Dugan had agreed to arrange a meeting between her
and Vakili. Dugan understood that he had offered to do so if it would help, but that he had not
been asked to do so. I accept Dugan’s explanation that he was waiting for her to ask for a
meeting, and that the only steps he took after that were informal discussions with those
involved. I am left with the impression that he could have done more.
[138] Mining One’s response to Kurucuk’s concerns between 15 November and 1 December
2017 was inadequate. Mining One was ill equipped to deal with the issues she had raised.
90 Exhibit 1, Attachment AV-7; Exhibit 2, Attachment BR-1
91 Exhibit 2, [30] – [31]
92 Transcript of meeting, 9 January 2018
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There was no useful workplace policy available to Kurucuk to follow in dealing with her
concerns. Mining One had a draft policy dealing with Equal Employment Opportunity,
Discrimination, Harassment, Bullying and Workplace Violence, but the policy was not made
known to Kurucuk. Dugan was in a position to intervene and knew that Vakili and Kurucuk
were supposed to be working together but that Vakili (as her manager) was reluctant to do so.
He decided not to intervene and instead to leave it to Roache and Vakili, the very managers
that were the subject of her concerns. His response, as well as Roache’s various efforts to
manage the issues without escalating them to more senior management, were inadequate.
[139] When Kurucuk formally raised her concerns with Mining One on 1 December 2017,
after trying to resolve matters on her own, without success, it was too late. In her own words,
she had ‘lost trust’ and told Stribley so.
[140] Even so, Stribley was not in a position to know that nothing she did would be likely to
help, and appropriately she began taking steps to assist Kurucuk on and from 5 December
2017. She did so with knowledge of the personal issues between Vakili and Kurucuk and with
the understanding of her task as helping to repair their working relationship and getting
Kurucuk more actively engaged in specialised NM work. She sought to meet with those
involved and to put processes in place she thought might assist. Ultimately, those processes
were not followed, because Kurucuk ceased work on 16 January 2018 and did not return.
[141] In my view, by that time Kurucuk was contemplating her departure from Mining One.
[142] She had been approached via LinkedIn message on 5 December 2017 from Bre-Anne
Sainsbury, another NM expert, offering her post-doctorate work with the university.93 While
Kurucuk gave unequivocal evidence that the message was not received until after 16 March
2018, her evidence is inconsistent with the date evident on the message itself. The
discrepancy is important because on Kurucuk’s account, the offer from Deakin University
came after (rather than some considerable period of time before) her letter of 16 March 2018.
[143] Contrary to her account, I find that the offer of employment with Deakin University
initiated on 5 December 2018 was starting to crystallise by 16 March 2018. Vakili’s evidence
was that he heard about her employment with Deakin University on or around 5 March 2018
and there is nothing to contradict that evidence.
[144] In the period from 22 to 27 March 2018, Mining One took active steps to seek external
advice and assistance in relation to Kurucuk’s complaints.94 Kurucuk’s lawyers then wrote to
advise that her return to work appeared “untenable”. Having received that advice, it is
unsurprising that Mining One suspended its proposed investigation of the complaints.
[145] Taking all of the circumstances into account, I am not persuaded that inadequacies in
the handling of Kurucuk’s concerns before 5 December 2017 was intended to bring her
employment to an end or that it had, as its probable result, the termination of her employment
such that she had no effective choice but to resign. The evidence is to the contrary. Mining
One was seeking to resolve the issues it was aware of and to support her continued
employment. It had included her in its plans for 2018, including NM projects commencing in
January or February 2018.
93 LinkedIn message from Sainsbury to Kurucuk, 5 December 2017 at 3.56pm
94 Exhibit 8, Attachments LS9 and LS10
[2018] FWC 6620
23
[146] Kurucuk had a range of options available to her, including continuing with the process
agreed on 11 January 2018 or working on other projects or with other managers. Those
options did not align with her career objectives. In the end, it was her acceptance of
alternative employment with Deakin University that forced her to resign from Mining One.
[147] The language she used to do so was in terms of an acceptance of repudiation of
contract. Properly characterised, I am satisfied that her letter (via her lawyers) to Mining One
on 10 May 2018 was a resignation. Her employment ended on that day.
Conclusion
[148] I am not satisfied that the termination of Kurucuk’s employment was on the initiative
of Mining One.
[149] It follows that Kurucuk was not dismissed for the purposes of section 386 of the Act.
[150] The application is dismissed.
COMMISSIONER
Appearances:
F Leoncio for the Applicant.
B Avallone for Mining One.
Hearing details:
2018.
Melbourne:
August 1, 2 and 16.
Printed by authority of the Commonwealth Government Printer
PR701787
OF THE FAIR WORK THE AUSTRALIA MMISSION THE
