[2011] FWA 4024 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anthony Marks
v
Melbourne Health
(U2011/145)
DEPUTY PRESIDENT IVES |
MELBOURNE, 24 JUNE 2011 |
Termination of employment.
[1] This decision relates to an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) made by Mr A. Marks (the Applicant) alleging that the termination of his employment by Melbourne Health (the Respondent) was unfair within the meaning of s.385 of the Act.
[2] The Respondent objected to the application on the jurisdictional grounds that the Applicant’s employment was neither terminated at the employer’s initiative nor was the Applicant forced to resign due to the employer’s conduct.
[3] The matter proceeded by way of hearing on 6 and 7 June 2011.
[4] Sworn evidence was adduced from the following witnesses:
[5] The Applicant’s father, Mr M. Marks filed a written statement, however he was not called to give evidence as he was not required for cross-examination. It was conceded by the Respondent that consideration could be given and, if necessary, weight afforded to Mr M. Marks’ unsworn statement. 1
Background
[6] The Applicant was employed by the Respondent for a period of approximately 10 years.
[7] At the time of the termination of his employment on 14 January 2011 the Applicant was the Environmental Services Manager for the Respondent, reporting directly to Mr Dolby.
[8] For two weeks in October 2010 the Applicant worked on the night shift, completing his last shift on the morning of Saturday 23 October 2010.
[9] The Applicant was again in attendance at his place of work, albeit during his off-duty hours, in the early morning of Sunday 24 October 2010.
[10] The Applicant claimed not to know why he attended at his place of work on 24 October 2010 2 but claimed to have been, at the time, ‘very distressed’3 and ‘upset.’4
[11] At 4.16am on 24 October the Applicant sent an email, in the following terms, to Mr Dolby and Mr McCambridge:
‘Hi Michael and Graham,
I just wanted to let you know that I will be resigning in my position of Environmental Services Manager early next year. At this stage I most probably will resign as of 14th Jan 2011. I just wanted to make sure I gave you both enough notice to find a replacement for me.
I have really enjoyed working at RMH and will continue to do whatever I can over the next 2 months before I leave to ensure a smooth transitional process with the next Environmental Services Manager.
Thanks to you both for your continued support over the past many years.
Kind regards,
Anthony Marks’ 5
[12] Mr Dolby and Mr McCambridge responded by email expressing surprise and seeking to meet with the Applicant during the following week to which the Applicant on 25 October 2010 emailed back:
‘No problems will catch up with both of you this next week. Sorry for the shock, that’s why I wanted to give plenty of notice so it wouldn’t be all of a sudden.’ 6
[13] On Monday 25 October 2010 the Applicant was on an accrued rostered day off.
[14] On 26 October 2010 Mr M. Marks, the Applicant’s father, provided Ms Gorman, a work colleague and family friend, with a medical certificate covering the Applicant and asked Ms Gorman to deliver it to the Respondent, explaining that the Applicant was suffering from glandular fever.
[15] Ms Gorman delivered the medical certificate on 27 October 2011 and on the same day advised Mr Dolby of what she knew of the Applicant’s illness. When asked what she knew of the Applicant’s planned resignation Ms Gorman denied any knowledge.
[16] On 9 November 2010 Ms Gorman received a visit from members of the Applicant’s family including the Applicant’s father. Ms Gorman was advised that the Applicant was not suffering from glandular fever as she had been previously told but that he had been undergoing therapy for stress and anxiety and had attempted suicide.
[17] In response to advice from Ms Gorman including that Mr Dolby required the Applicant to contact him, Mr M. Marks explained that the Applicant was ill, had no intention of resigning and, inter alia, felt intimidated by Mr Dolby. Ms Gorman was requested to provide a further medical certificate to the Respondent.
[18] On 10 November 2010 Ms Gorman passed on to Mr Dolby the information, including the medical certificate, garnered from the Applicant’s family. Mr Dolby then advised Mr McCambridge of the information received from Ms Gorman.
[19] Mr Dolby tried on numerous occasions to contact the Applicant by telephone. However the Applicant did not receive the calls as he had purposely left his work mobile phone in the office on 24 October 2010. He stated during his oral evidence that he left the phone there because ‘at that point I didn’t want to come back and - I was just mixed up and I thought “I’m not taking this phone with me.”’ 7
[20] On 3 December 2010 Mr M. Marks and the Applicant’s sister visited Ms Gorman. The Applicant was also present, under medication, 8 and on the basis, as it was advised to Ms Gorman, that it was ‘no longer safe for him to be left alone.’9 Ms Gorman was asked to deliver a further medical certificate to the Respondent and she, in turn, asked the Applicant to contact Mr McCambridge to which he agreed. The Applicant subsequently claimed not to recall this aspect of the conversation with Ms Gorman and failed to contact Mr McCambridge. Mr Dolby and Mr McCambridge were advised by Ms Gorman of the content of her meeting with the Applicant and his family.
[21] On either 22 or 23 December 2010 Mr Dolby requested Ms Gorman to deliver a letter to the Applicant’s home. The letter had previously been posted to the Applicant but apparently to an incorrect address and not received. The letter was in the following terms:
‘Dear Anthony,
Re: Resignation
Please be advised that you are required to attend a meeting scheduled for 2.00pm on Thursday 23 December 2010. We require your attendance at:
Facilities Management Meeting Room 1
Ground Level - Materials Handling Centre
Flemington Road
Royal Melbourne Hospital - City Campus
The purpose of this meeting is to discuss arrangements in relation to your email of 24 October 2010 in which you advised us of your resignation which is to be effective 14 January 2011.
Please confirm your attendance at this meeting by contacting me on [telephone number provided] or [telephone number provided] by 5pm Monday 20 December 2010 or Troy Cox [telephone number provided]
Yours sincerely,
Michael McCambridge
Director, Facilities Management’ 10
[22] On the evening of 23 December 2010 Ms Gorman delivered the letter to Mr M. Marks. Mr Marks advised Ms Gorman that the Applicant ‘had attempted suicide earlier that day.’ 11
[23] On the following day Ms Gorman passed on details of the events and conversations regarding the Applicant to Mr Dolby and Mr McCambridge.
[24] The Applicant did not attend the meeting nor did he contact the Respondent in respect of the meeting.
[25] The Respondent forwarded a letter dated 5 January 2011 to the Applicant. The Applicant claims not to have read the letter until 9 January 2011. The letter is in the following terms:
‘Dear Anthony,
Re: Resignation
I am writing to you in relation to a meeting that was scheduled for 2.00pm on Thursday 23 December 2010 and your ongoing employment with Melbourne Health.
The purpose of this meeting was to discuss arrangements in relation to your email of 24 October 2010 in which you advised us of your resignation which is to be effective 14 January 2011.
Following your failure to respond to this request to meet with us, and given that we have had no response to any of our attempts to contact you by telephone or mail since your email of 24 October 2010, we are now writing to advise that your resignation will be processed in accordance with your email of 24 October 2010. Subsequently, your employment will be terminated effective 14 January 2011.
Any entitlements that Melbourne Health is required to pay to you in relation to your employment will be paid in due course.
I would like to take this opportunity to thank you for your years of service and the contribution you have made to Melbourne Health over many years and wish you well in your future endeavours. Please contact me if you would like to return at any time for a farewell afternoon tea where we can more formally recognize your contribution to Melbourne Health.
Yours sincerely,
Sally Campbell
Executive Director, Corporate and Information Services’ 12
[26] The Applicant wrote a letter, apparently dated 6 January 2011 and addressed to Mr McCambridge, which he acknowledged forwarding to the Health Services Union of Australia (HSUA) on 7 January 2011. 13 Mr McCambridge received the letter, along with a termination of employment form, on 12 January 2011 after it was forwarded to him by a representative of the HSUA. The content of the letter is as follows:
‘Dear Michael,
Please be advised that I was unable to attend the scheduled meeting for 14.00 on Thursday 23rd December 2010 as I did not receive notification of this meeting prior to receiving an unsigned copy of a letter post 21.00 pm Wednesday 22nd December 2010, when it was hand delivered to my family home by Brenda Gorman (see enclosure 1). I understand that Graham Dolby had indicated to Brenda Gorman that my position may be terminated on the 14th of January should I not attend the meeting. I find this to be extremely unprofessional and not in line with the Melbourne Health Values.
As you are aware I have provided a Medical Certificate valid til 28th January 2011 and am currently on personal leave. I believe that the purpose of the scheduled meeting was to discuss my impending resignation and an email received by Graham Dolby and yourself.
Firstly I wish to clarify what the supposition email was stating; the words “at this stage” and “most probably” are clear and precise in reference to the 14th of January 2011 (see enclosure 2) At the time of sending the supposition email, I was endeavouring to deal unsupported with overwhelming work related issues and insurmountable stress. Considering the date and time the email was sent and my subsequent personal leave almost immediately following the sent email, this should have indicated to you that the email was sent under duress and could at no time be considered an official resignation.
Following an extensive period of consideration it is with regret that I will be resigning as of the 17th of June 2011. My last working day will conclude COB Friday the 17th of June 2011 (see enclosure 3).
Upon my return to work, the threatening, intimidating and discriminating behaviour exhibited by Graham Dolby in the past will not be tolerated. Of the utmost importance at this point is for me to obtain complete recovery, the ongoing indirect harassment by Graham Dolby and Melbourne Health is proving to be a major hindrance and not acceptable. I would also like to express my disappointment in the fact that you allowed Graham Dolby to coerce a colleague and personal friend to act in an inappropriate and uncharacteristic manner in order to facilitate a response from myself. My intent is to return to work as soon as my recovery is complete. Considering the disregard shown towards my current health issues, it would be greatly appreciated if all future communication were in writing.
Regards,
Anthony J Marks’ 14
[27] It appears that the Applicant’s employment with the Respondent terminated with effect from 14 January 2011.
[28] It is stated on behalf of the Respondent that the Respondent wrote to the Applicant on 21 January 2011 ‘confirming his termination by reason of resignation on 14 January 2011.’ 15 That letter, if it exists, does not appear to have been put before the Tribunal.
Jurisdiction
[29] It is submitted on behalf of the Respondent that the Applicant resigned his employment of his own volition and that, as a consequence, his application pursuant to s.394 of the Act must fail for want of jurisdiction.
[30] In making this submission the Respondent relies upon the emails (quoted above) sent by the Applicant to Messrs Dolby and McCambridge on 24 and 25 October 2010. In final submissions on behalf of the Respondent, Counsel for the Respondent states:
‘Well, in my submission, the email of 24 October, the employer was entitled to regard that as a resignation. It is sufficiently ambiguous [sic]. The only ambiguity is to a precise day. Everything else about that email and some other circumstances I’ll come to in a moment, point to the fact that Mr Marks had resigned and had resigned consciously, and had resigned of sound mind at the time...’ 16
[31] Subsection 386(1) of the Act provides as follows:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.’
[32] The Applicant does not press any claim that he was forced to resign pursuant to ss386(1)(b) of the Act. 17
[33] I do not agree with the Respondent that the emails of 24 and 25 October 2010, considered separately or together, can properly be considered as a resignation or notice of resignation capable of being relief upon as such by the Respondent.
[34] Taken at its highest the email of 24 October 2010 is an expression of future intent to resign at an indeterminate date in early 2011, considered at the time the email was written as likely to be 14 January 2011.
[35] Neither does the email forwarded to Messrs Dolby and McCambridge on 25 October 2011 add any support for the Respondent’s view that the Applicant had effectively resigned.
[36] Given that I do not consider the Applicant’s emails as a resignation or notice of resignation of his employment it is not strictly necessary, in this context, to allude to the Applicant’s mental illness. However, for the sake of completeness, it should be noted that at least from on or about 10 November 2010 Messrs Dolby and McCambridge were aware from Ms Gorman that the Applicant was mentally ill, that he was under medical treatment for this illness and had been since soon after sending the emails, and that his professed and probable intention in the emails should not be relied upon. The Applicant confirmed much of this in his letter (quoted above) of 6 January 2011 and received by Mr McCambridge on 12 January 2011.
[37] The Respondent could sensibly have factored the above circumstances into its assessment of the Applicant’s intentions and its decision making processes surrounding the termination of the Applicant’s employment. It apparently failed to do so.
[38] Despite the Respondent being in possession of medical certificates covering the Applicant’s absence and despite the information it had been given regarding the Applicant’s illness, Mr McCambridge, by means of what can only be regarded as an ill-judged letter (quoted above) ‘required’ the Applicant to attend a meeting ‘in relation to your email of 24 October 2010 in which you advised us of your resignation which is to be effective 14 January 2011.’ 18
[39] The quoted passage from Mr McCambridge’s letter seriously misrepresents the content of the Applicant’s email of 24 October 2010. The imperative that the Applicant attend the meeting to, in Mr McCambridge’s words ‘close the employment out’ 19 indicates to me an employer perhaps overly anxious to act in accordance with something upon which it knows it has placed a flawed construction. It is noteworthy that the letter dated 5 January 2011 (quoted above) from Ms Sally Campbell to the Applicant also seriously misrepresents the content of the Applicant’s email.
[40] It is necessary that I briefly address the Respondent’s argument that the basis upon which the Applicant left his work mobile phone in his office on 24 October 2010 is further support for its contention that he had resigned.
[41] In already quoted evidence the Applicant claims to have been ‘mixed up’, ‘very distressed’ and ‘upset’ at the time. If, as the Respondent claims, the action does support a finding of resignation then the content of the Applicant’s email of 24 October 2010 makes little sense. I do not agree that the leaving of his work mobile phone in his office provides any support for the finding that the Applicant had resigned.
[42] I find that the termination of the Applicant’s employment with effect from 14 January 2011 was at the initiative of the Respondent. Having found the requisite jurisdiction I turn now to consider whether the termination of the Applicant’s employment was unfair within the meaning of the Act.
Was the Termination Unfair?
[43] In considering whether a dismissal was harsh, unjust or unreasonable, hence unfair I am required to take into account the factors provided for in s.387 of the Act. Those factors are:
‘387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.’
[44] In an alternative submission the Respondent states as follows:
‘If the Tribunal does not dismiss the application for want of jurisdiction, it is submitted, in the alternative, that the termination of the Applicant’s employment, constituted by his resignation, was not harsh unjust or unreasonable.
Melbourne Health refers to the submissions set out above.
If it is found that Mr Marks did not resign, Melbourne Health was nevertheless entitled to terminate his employment with effect from 14 January 2011 on the basis that it was Mr Marks’ intention to terminate his employment on or about that date and, having given Mr Marks every opportunity to do so, Mr Marks failed to disabuse Melbourne Health of that genuinely held belief.
Further, prior to 14 January 2011, Mr Marks by letter dated 6 January 2011 stated once again that he wished to terminate his employment with Melbourne Health, albeit on 17 June 2011.
The letter of 6 January cannot displace the resignation of 24 October 2010. However, if the Tribunal is of the view that 6 January resignation is effective (and the earlier one was not), it was therefore open to the employer to terminate the employment at any time thereafter as the employee’s disengagement was evident.’ 20
[45] I reject this submission.
[46] In the light of the Respondent’s knowledge, as advised to it by Ms Gorman, of the Applicant’s medical condition and in the light of the continued coverage at all relevant times, of the Applicant by medical certificates relating to his absence from work, 21 I am unable to find any valid reason for the termination of the Applicant’s employment on 14 January 2011.
[47] The Respondent could have engaged itself in a proper inquiry into the Applicant’s absence from work and ultimate intentions, if not directly with the Applicant, then at least with his parents or perhaps, subject to consent, with his treating physician. The Respondent failed to do so. Instead it engaged the services of Ms Gorman as a somewhat reluctant courier of correspondence but paid little apparent heed to advice and information she provided to it regarding the Applicant’s state of mind and circumstances regarding both his condition and his intentions in respect of ongoing employment.
[48] The Applicant was aware at least from 9 January 2011, the date he claims to have read the letter (exhibit R3) from the Respondent dated 5 January 2011, of the basis upon which the Respondent intended to terminate his employment.
[49] To a large extent he responded to this by his own letter to Mr McCambridge dated 6 January 2011 which Mr McCambridge claimed to have received on 12 January 2011. For all intents and purposes the Respondent ignored his response.
[50] I have taken into account the remaining factors provided for in s.387 of the Act and to the extent that any of them is relevant, there is nothing in respect of any of those factors that would cause me to alter in any way the view that I have come to that the termination of the Applicant’s employment by the Respondent was harsh, unjust or unreasonable, hence unfair within the meaning of the Act.
[51] I find accordingly.
Remedy
[52] The Applicant’s letter to Mr McCambridge of 6 January 2011 contains notice of resignation to be effective on 17 June 2011. The Applicant confirmed that circumstance in his oral evidence. 22 Under those circumstances it is self-evidently inappropriate to reinstate the Applicant. Neither did the Applicant seek reinstatement.
[53] I intend to make an order for compensation pursuant to s.392 of the Act. In doing so I am statutorily required to take into account the following:
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.’
[54] The Applicant was a relatively long serving employee.
[55] There is nothing before me to suggest that any order for compensation I might make would affect the viability of the Respondent’s enterprise.
[56] I am advised by the Respondent that at the time of the termination of his employment the Applicant had a credit of 289.45 hours of sick leave. 23 That represents a period of a little over seven weeks.
[57] The Applicant stated that he commenced looking for employment, at the behest of his psychologist, in early to mid-April 2011. 24 His last medical certificate expired on 14 February 2011 however he continued treatment with his psychologist and as he, at that stage, was unemployed he had no need of further medical certificates. The Applicant seeks compensation for the period from his termination of employment until he commenced new employment on 2 May 2011.25
[58] If the Applicant had remained in employment it is likely he would have continued to receive paid sick leave from 14 January 2011 for approximately a further seven weeks. Given that it was not until early to mid April that his psychologist encouraged a return to work it is likely he would have had a further period of unpaid sick leave of three to four weeks from early March 2011. He would then likely have returned to work and received payment until May 2011 at which time his new employment began and which is the end of the period for which he seeks, and for which I concur, that compensation should apply.
[59] The question of payment in lieu of notice does not arise in my view as the Applicant’s intention to resign is not in contest and his notice period is subsumed within the period from his letter to Mr McCambridge of 6 January 2011 and 2 May 2011.
[60] Taking into account the period of approximately seven weeks of sick leave and a further paid period of approximately three weeks between early April 2011 and 2 May 2011 and, further, taking account, insofar as they are relevant, the remaining factors provided for in ss.392(2) of the Act, I consider appropriate compensation to be an amount of 10 weeks pay.
[61] I am advised by Counsel on behalf of the Respondent that the Applicant was paid $1273.22 gross per week. 26 Therefore I will make an order that the Respondent pays compensation to the Applicant, in the gross amount of twelve thousand seven hundred and thirty two dollars, subject to the taxation laws of the Commonwealth. The amount is to be paid within fourteen days of the date of the order.
[62] An order giving effect to this decision will issue as PR510873.
DEPUTY PRESIDENT
Appearances:
A Marks for himself
J Forbes of Counsel for the Respondent
Hearing details:
2011.
Melbourne:
June 6, 7.
1 Transcript, PN 654-669
2 Transcript, PN 166
3 Exhibit A1, PN 2a
4 Transcript, PN 166
5 Exhibit R5, Attachment 1
6 Exhibit R5, Attachment 4
7 Transcript, PN 262
8 Transcript, PN 322-323
9 Exhibit A2, third last para
10 Exhibit R2
11 Exhibit A2, second last para
12 Exhibit R3
13 Transcript, PN 407-409
14 Exhibit R5, Attachment 3
15 Respondent’s outline of submissions, PN 17
16 Transcript, PN1240; see also Respondent’s outline of submissions, PN 27-30
17 Transcript, PN 567-578
18 Exhibit R2
19 Transcript, PN 999
20 Respondent’s outline of submissions, PN 60-64
21 Exhibit R1
22 Transcript, PN 441
23 Transcript, PN 1160
24 Transcript, PN 1073
25 Transcript, PN 1089
26 Transcript, PN 1144
Printed by authority of the Commonwealth Government Printer
<Price code C, PR510872>