[2016] FWC 2596 [Note: An appeal pursuant to s.604 (C2016/1146) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 3 August 2016 [[2016] FWCFB 5256] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rosalinda Cozaris
v
Emirates
(U2015/16913)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 28 APRIL 2016

Application for relief from unfair dismissal.

[1] Ms Rosalinda Cozaris alleged that the termination of her employment by Emirates was unfair. Emirates objected to Ms Cozaris’ application on the basis that it did not terminate her employment rather she resigned. Further, Emirates submitted that the dismissal of Ms Cozaris was not unfair.

[2] Ms Cozaris did not dispute that she resigned her employment but contended that she was forced to do so because of conduct or a course of conduct by Emirates.

[3] At the conclusion of the hearing, I advised the parties that I had decided to dismiss Ms Cozaris’ application because it had no reasonable prospects of success because Ms Cozaris was not forced to resign because of any conduct or course of conduct engaged in by Emirates. These are my reasons.

[4] The application was set down to hear the objection raised by Emirates and the merits of Ms Cozaris’ application. At the conclusion of the evidence for Ms Cozaris, Mr Harrington of Counsel, on behalf of Emirates, made an application under section 587(1)(c) of the Fair Work Act 2009 that the application be dismissed because it had no reasonable prospects of success. In the alternative Mr Harrington made a “no case” submission in relation to the objection and sought to make that application without being required to be put to the normal election.

[5] In Micheletto v Kowowa Anglican Girl’s School 1 the Full Bench held that it was possible for a party to make a no case submission and that is usually done at the end of the applicant’s case.2 It said that such a decision should be made only where the application is manifestly untenable or groundless.3 The Full Bench further held that there was only a narrow class of cases where the defendant would not be required to elect between making a no-case submission and calling evidence.4

[6] The Full Bench in Townsley v State of Victoria 5 noted that the power to entertain a no case to answer submission is confirmed by s. 587(1)(c)6 of the Act. The Full Bench found that it would usually be the case that the respondent is put to the election not to call evidence. However this is not mandatory.

[7] Mr Harrington submitted that this was one of the exceptions because if a decision to dismiss was overturned on appeal, there would be no need for a new trial on the objection as the Full Bench would itself determine the issue. Further, there was no issue of credit that arose in this matter. 7

[8] Mr Terry O’Loughlin, on behalf of Ms Cozaris, made no submissions in opposition to Mr Harrington’s submissions that he should not be put to the election.

[9] I determined to hear the application to dismiss and I did not require Emirates to elect not to call evidence. I did so because there is nothing in section 587(1)(c) that imposes such an obligation on a party making such an application. Further I accepted that this was one of the rare cases where such an election was not required as the matters to be determined go to a preliminary issue which is narrow in compass.

The background

[10] Ms Cozaris had been employed by Emirates on a permanent basis since June 2001. On 5 February 2015, she sustained a non-work related injury and had not worked for Emirates again. Her employment was terminated on 30 November 2015.

[11] While Ms Cozaris was engaged as a full time employee, at the time she was injured she was employed on a Flexible Work Arrangement which provided that she worked two fixed shifts per week. That Flexible Work Arrangement expired on 21 April 2015. 8

[12] On 23 October 2015, Emirates sent Ms Cozaris correspondence advising her that up to that date her “role had been kept open for when you returned to work, however, based on the Report and other medical information you have provided during your absence, there is great uncertainty as to when this might occur, let alone when you will be able to perform your role safely having regard to the inherent requirements and the nature of your condition. As such, Emirates is now considering terminating your employment.” 9

[13] Ms Cozaris was invited to provide a response and she was advised that Emirates would meet with her to discuss her response if she wished and she could have a support person present. On the same day, Ms Cozaris spoke do Ms Carly Jones and Mr Matthew Loughnan from Emirates who advised her that Emirates was considering terminating her employment. On 8 November 2015, Ms Cozaris responded and she advised that she expected to be able to return to work in the coming months. 10

[14] On 10 November 2015, Emirates replied and provided Ms Cozaris with more time to respond and provide any further medical reports. 11 Ms Cozaris then provided further reports from her treating practitioners.

[15] On 30 November 2015, a conference call was held with Ms Cozaris and her ASU representative Ms Imogen Sturni and Ms Jones and Mr Loughnan. The outcome of the telephone conference was that Ms Cozaris was advised that Emirates had decided to terminate her employment. Ms Jones then sent Ms Cozaris a letter of termination by email. 12 That email advised that she would shortly be provided with further information about her end of service. That occurred and relevantly advised Ms Cozaris that she would be able to use her unutilised Concession Service Related Tickets (SRC tickets) within a certain period. Ms Cozaris gave evidence that she did not open that email.

[16] Ms Cozaris said that after the conference call ended Ms Sturni called her. 13 This was confirmed by Ms Sturni who said she called Ms Cozaris directly after the conference call as it was apparent she was upset.14 In that phone call Ms Cozaris “expressed her concern that having termination outlined on her employment record may not be favourable when applying for jobs in the future.”15 As a result “on Rosalinda’s advice” she called Ms Jones and asked if Emirates would accept Ms Cozaris’ resignation as “she was concerned that the termination would affect future job prospects.”16 Ms Jones sent Ms Sturni an email advising that Emirates would agree to this proposal but it was on the condition that Ms Cozaris would not be paid five weeks’ pay in lieu of notice and that Ms Cozaris put her resignation in writing.17 Ms Cozaris was given until close of business to respond. This email was forwarded to Ms Cozaris. It was Ms Sturni’s evidence that after she forwarded the email to Ms Cozaris she rang her to discuss the matter further and then approximately one hour later Ms Cozaris sent an email resigning her employment, and in which she said “I wish to formally resign from the company rather than have the company terminate my employment”.18 The next day Ms Jones advised that the resignation had been accepted.

[17] Ms Cozaris also give evidence that she phoned Ms Sherein Sawis, in staff travel, who advised her that if she was terminated she would lose all her SRC tickets but told her that if she resigned she would still have these tickets. 19 It was not clear if this phone call occurred prior to or after Ms Sturni’s call to Ms Cozaris.

[18] Ms Cozaris initially said that Ms Sturni called her at the end of the phone call with Emirates. She said she had told Ms Sturni that she understood that if you were terminated by Emirates you immediately lost your benefits like private health insurance and concession tickets. She thought that in addition to the SRC tickets she was entitled to LSC. She said that Ms Sturni was going to call Ms Jones and she was going to call staff travel. She agreed that she discussed resignation with Ms Sturni in that phone call.

[19] She subsequently said that she had spoken to Ms Sawis about her concessions prior to her call with Ms Sturni. She said she asked Ms Sturni to clarify these points with Emirates.

[20] Ms Cozaris then said that she told Ms Sturni that she wanted to clarify her entitlements with staff travel and called Ms Sawis after the phone call with Ms Sturni. She then said she spoke to Ms Sturni again and told her what Ms Sawis had told her namely that she would lose her concessions if she was terminated but not if she resigned.

[21] There is no evidence that, when Ms Sturni rang her back after speaking to Emirates about her resigning, Ms Cozaris asked Ms Sturni what Emirates’ response to her question about her entitlement to SRC was. Ms Sturni did not give evidence that she raised this issue in her call to Ms Jones nor did Ms Cozaris mention this in her resignation letter.

[22] Ms Cozaris submitted that the actions of Emirates in dismissing her “was the critical imitative that led to the termination of the employment and had she not resigned, her employment would have been terminated. It was submitted that “the actions of the employer must be such that the employee had no other option than to resign such that their refusal to do so would have only resulted in their employment being terminated by the employer” then the termination was at the initiative of the employer. 20

[23] Ms Cozaris submitted that her decision to resign, whilst having some perceived benefits, was made on the basis that she had no alternative as she would have had her employment terminated anyway.” 21

[24] Under cross examination, Ms Cozaris accepted she was not forced to resign and that neither Ms Jones nor Mr Loughnan had raised resignation with her. Ms Sturni confirmed that no one, during any of the calls she was involved in, proposed that Ms Cozaris resign. It was Ms Sturni’s evidence that she raised resignation with Ms Cozaris. She did not give any evidence about any discussion with Ms Jones about Ms Cozaris’ entitlements to SRC. Nor did she give evidence that Ms Cozaris raised this with her in any phone call.

[25] Emirates accepted that Ms Cozaris was upset at the decision to terminate her employment. However it submitted that this was not a heat of the moment decision. It was submitted that she resigned her employment after discussion with her union. It submitted that there was no evidence that Emirates wanted Ms Cozaris to resign or intended her to resign as a result of its decision to terminate Ms Cozaris’ employment. It was submitted that Ms Cozaris did not have to resign. She could have allowed the dismissal to occur and exercised all her rights in relation to that dismissal.

[26] Ms Cozaris relied upon the decision of the Full Bench in O’Meara v Stanley Works Pty Ltd. 22

[27] In that decision the Full Bench considered the authorities and concluded that there must be “some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or indirectly or consequentially in the termination of the employment.” 23

[28] The Full Bench in Bruce v Fingal Glen Pty Ltd (in liq) 24 said “although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequently in the termination of the employment and the employment relationship is not voluntarily left by the employee.” There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result.”25

[29] Ms Cozaris submitted that the conduct of terminating her employment was of such a nature that resignation was the probable result.

[30] In this matter there is no evidence that Emirates had any intention to force Ms Cozaris to resign. The proposal to resign was put by Ms Cozaris’ representative on Ms Cozaris’ initiative. Ms Cozaris was clear in her evidence that she was not forced to resign.

[31] Emirates relied on a number of authorities to support its contention that this was not a forced resignation.

[32] In Knight v Wattyl Australia Pty Ltd 26 Commissioner Deegan considered whether a resignation was a dismissal under the Workplace Relations Act 1996. It provided that a resignation of an employee is taken to constitute the termination of employment at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employer did not resign voluntarily but was forced to do so because of conduct or a course of conduct engaged in by the employer.

[33] Mr Knight was informed that a decision had been made to terminate his employment at which point Mr Knight’s representative asked if it were possible to negotiate a demotion or some other outcome, which was rejected. His representative then asked about resignation and Wattyl’s representative said it was totally up to Mr Knight. There was then a private conversation between Mr Knight and his representative and Mr Knight resigned. 27 The next day Mr Knight sent Wattyl an email advising that he wished to retract his resignation and that was not accepted.28

[34] Mr Knight, in that matter, accepted that he was not forced to resign by any action of the employer. Commissioner Deegan found that while “the evidence shows the applicant decided to resign as a direct consequence of the decision taken by the employer to terminate his employment, his decision was not “forced” upon him by the employer. The applicant chose to resign, on the advice of his union representative, in order not to have the “stigma” of having been terminated by his employer for sending and receiving and storing inappropriate emails. He took his decision after a private discussion with his union representative. The matter of resignation was not raised, let alone proposed by the employer. Their interest was in the investigation and the decision to terminate his employment that had resulted from that investigation. They clearly informed the applicant that any decision that he wished to make concerning a resignation was entirely a matter for him and they had no wish to even be a party to any discussion.” 29 Commissioner Deegan concluded that he had not been forced to resign.

[35] In Karandinas v Monash Health 30 Mr Karandinas participated in a disciplinary meeting where Monash advised him, at the conclusion of the meeting that the only course open to it was to terminate his employment. Mr Karandinas had a private discussion with his union representative and the representative proposed to Mr Karandinas that he resign his employment. His representative said that he had to persuade him to resign and he did so because he saw resignation as a way of saving Mr Karandinas from the difficulties associated with trying to find employment if he had been dismissed from his employment. As a result, Mr Karandinas orally resigned at the meeting. No representative of Monash had told Mr Karandinas that he needed to resign and if he didn’t he would be fired. In fact no-one from Monash raised resignation.31 Commissioner Ryan found Mr Karandinas was not forced to resign as he had freely decided on the advice of his union organiser to resign.32

[36] In Ivos v Queensland Property Investments Pty Ltd 33 Mr Ivos participated in a disciplinary process and was advised that the company had decided to terminate his employment and that it would be a summary dismissal.34 Mr Ivos then met privately with his union representative who asked him if he would prefer to resign as she thought it would assist on his resume when he looked for future employment. Having obtained his agreement, the representative then approached the company and asked if he could resign and get paid in lieu of notice. The company agreed. The resignation letter was prepared by the union but Mr Ivos read it and signed it. Mr Ivos accepted that he was not forced to resign by anyone.35 Mr Ivos reconsidered his decision that night and said that he had wasn’t in his right state of mind when he signed the documents.36

[37] Commissioner Jones accepted that the company had decided to terminate the employment but before that decision could be implemented the organiser intervened. As a result, the company agreed not to give effect to its decision to terminate Mr Ivos and he resigned. Commissioner Jones said this was a “novus actus interveniens.” She found that there was no action by the employer intended or which would have the probable result of ending the employment relationship. She found that there was no termination at the initiative of the employer. She was satisfied that Mr Ivos was not forced to resign. His decision had been made freely and in private with his representative. 37

Consideration

[38] In this matter Emirates had terminated Ms Cozaris’ employment, and without more, that termination was at Emirates’ initiative. However, with the agreement of Ms Cozaris, that termination was revoked to enable Ms Cozaris to resign her employment. While I accept that the word revocation was not uttered, what in effect happened was Ms Cozaris asked Emirates to, with her agreement, revoke the termination to enable her to resign and Emirates agreed.

[39] I accept that Ms Cozaris did so under the misunderstanding that if her employment was terminated she would lose her SRC benefits. She gave evidence that that information was conveyed to her by Ms Sawis. Unfortunately she did not read the email sent to her that day by Emirates before she tendered her resignation which advised her that she would still be entitled to her SRC benefits. However I do not consider that this is sufficient to alter the fact that Ms Cozaris was not forced to resign and so much is clear from her own evidence.

[40] Further, it is clear from her resignation letter that she elected to resign rather than have Emirates terminate her employment. There was no conduct by Emirates that caused that to occur. No one from Emirates advised her to resign her employment. At most, Ms Sawis told her about the consequences of resigning rather than dismissal. However the decision to resign was taken by Ms Cozaris after she took counsel from her representative. I do not consider the fact that the dismissal had taken effect prior to her making the decision to resign is material to my consideration.

[41] I am therefore satisfied that Ms Cozaris was not forced to resign by any conduct or course of conduct by Emirates. Her application for an unfair dismissal remedy must therefore be dismissed.

Permission to appear

[42] Emirates submitted that permission to appear should be granted because:

(a) It would enable the matter to be dealt with more efficiently given the complexity of the matter.

Emirates submitted that fact of the resignation did not raise any particular complexity because it was a simple factual matter however it submitted that this objection involved some complexity as it required a consideration of the impact of an intervention by an employee’s representative to change a dismissal into a resignation. It submitted that there was conflicting authority and it would assist the Commission if Emirates were permitted representation.

(b) It would be unfair not to permit Emirates to be represented because it could not represent itself effectively.

Emirates submitted that if it were not permitted to be represented then its HR Manager would be required to be both advocate and key witness. It further submitted that the HR Manager was neither a lawyer nor an experienced advocate. Further Emirates did not engage an in house lawyer who could represent it.

(c) It would be unfair not to permit Emirates to be represented taking into account fairness between the person and the other person in the same matter.

Emirates submitted that Ms Cozaris was not representing herself and she was represented by her union. Her union representative was trained or experienced in Commission proceedings and her advocate is not a witness in the proceedings.

[43] Ms Cozaris opposed Emirates being given permission. She submitted that it was unfair as Emirates was seeking to have a barrister represent it in circumstances where it already had the assistance of two solicitors.

[44] She further submitted that Emirates had another HR Manager who was not a witness in the proceedings who could represent them effectively.

[45] Ms Cozaris said the matter did not involve real factual dispute. She submitted that therefore the objection did not give rise to any particular complexity.

[46] In reply, Emirates submitted that the other HR Manager referred to by Ms Cozaris did not have experience in the Commission and was not a trained advocate.

[47] I decided to grant permission to appear. While I accept this case did not involve any particular factual complexity, I accept that the legal question of whether a resignation is a dismissal does involve some complexity and it would enable the matter to be dealt with more efficiently if I granted permission. While I noted the objection of Ms Cozaris to the size of Emirates’ legal team, that is not a matter I can have regard to. The Commission does not have a role in limiting the resources one party can call in aid of its case. I also accept that in circumstances where the issues are legal rather than factual that Emirates would not be able to represent itself effectively and it would be unfair not to permit it to be represented.

[48] As the necessary prerequisites for granting permission are present, I exercised my discretion to grant permission. I did so having regard to the fact that Ms Cozaris was not representing herself and was represented by an experienced union official.