| [2018] FWCFB 2607 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Bupa Aged Care Australia Pty Ltd T/A BUPA
v
Shahin Tavassoli
(C2018/1404)
VICE PRESIDENT CATANZARITI |
BRISBANE, 9 MAY 2018 |
Appeal against decision [2018] FWC 1074 of Commissioner Cambridge at Sydney on 9 March 2018 in matter number C2017/4000 - no public interest – permission to appeal refused.
[1] On 10 October 2017, a Full Bench of the Fair Work Commission (Commission) upheld an appeal 1 against a decision2 of Commissioner Riordan. The Full Bench determined that the Commissioner had erred by finding that Mrs Tavasssoli had been “constructively dismissed” under s.386(1)(b) of the Fair Work Act 2009 (Cth) (Act). In making that finding, the Full Bench concluded that the Commissioner had decided a case “that was not argued” and therefore, as a matter of procedural fairness, the question of whether Mrs Tavassoli had been dismissed under s.386(1)(a) of the Act was referred to a single Member of the Commission for rehearing.3
[2] On 18 January 2018, Commissioner Cambridge reheard the matter and on 9 March 2018 the Commissioner issued a Decision 4 in which he found that Mrs Tavassoli had been dismissed on the employer’s initiative within the meaning of “dismissed” provided by s.386(1)(a) of the Act. That Decision is the subject of this appeal.
[3] On 3 April 2018, we heard the parties on whether permission to appeal is to be granted. Mr Jamie Darams, of Counsel, sought permission to appear for Bupa Aged Care (Appellant), and Mr Chris McArdle sought permission to appear for Ms Shahin Tavassoli (Respondent). In accordance with s.596(2)(a) of the Act, we granted permission to appear for both parties.
[4] For the reasons set out below, we have decided to refuse permission to appeal. We are not satisfied that the Appellant has raised any matters before the Commission which enliven the public interest under s.400(1) of the Act.
[5] At the rehearing, Commissioner Cambridge noted that the parties did not seek to introduce further evidence and instead sought to rely upon evidence that was adduced before Commissioner Riordan at first instance. As such, the factual circumstances of the Respondent’s termination were not a contested issue at the rehearing. Accordingly, the relevant facts were outlined as follows:
“[10] In this case, the applicant provided a written resignation on Wednesday, 16 November 2016. A copy of the resignation was Attachment “DB-11”1 to the witness statement of Daniel Brice. The applicant wrote the initial version of the resignation letter while she was waiting to be called into a disciplinary meeting with Mr Brice. The resignation letter was later amended during the meeting with Mr Brice. The resignation letter was amended from providing one month’s notice to having immediate effect.
[11] The meeting on 16 November 2016, during which the applicant resubmitted and then subsequently amended her resignation letter, was attended by three people; the applicant, Mr Bryce, and Ms Miriam Lyman. The applicant was upset and emotional to the point of crying during the meeting on 16 November which Ms Lyman described as “a confronting meeting.”
[12] On the following day, Thursday, 17 November 2016, Mr Brice sent the applicant a letter that was incorrectly dated 17 October 2016, which relevantly advised of the confirmation of the resignation provided by the applicant on the previous day, and which was said to have been effective from that day, 16 November 2016.
[13] At approximately 9 am on the following day, Friday, 18 November 2016, the applicant attended the employer’s premises for the purposes of seeking to withdraw her resignation. Mr Brice rejected the applicants attempted withdrawal of her resignation. Mr Brice advised the applicant that he had accepted her resignation provided by her on 16 November, and that she was no longer an employee of Bupa.”
[6] Before proceeding to examine the circumstances of the termination, the Commissioner had regard to the guidance provided by the Full Bench in determining whether s.386(1)(a) has been satisfied:
“There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.” 5
[7] On that basis, the Commissioner considered if the “written resignation [provided] on 16 November 2016, and the subsequent attempt to withdraw that resignation, on 18 November,” was “legally effective” so that it had validly operated to terminate the employment. 6 Alternatively, the Commissioner considered if “special circumstances and other factors” operated so that it was “unreasonable for [the Appellant] to have assumed the resignation was genuinely intended, and by accepting it, and further acting upon it, [the Appellant] terminated the [Respondent’s] employment on its initiative.”7
[8] In considering those matters, the Commissioner made the following findings:
• The Respondent provided the initial version of her resignation to Mr Brice about an hour before the disciplinary meeting was anticipated to commence on 16 November 2016. The Respondent had written the words “Time 3.pm” on the top of the resignation letter which was addressed, “To whom this may cocern. [sic]” Mr Brice scanned the letter, and then he handed it back to the Respondent, and told her that he was not accepting the resignation. 8
• In the meeting with Mr Brice on 16 November 2016, the Respondent became “visibly and understandably upset by the allegations” that had been put against her. 9 The Respondent “was crying although not hysterical”, however, “strangely Mr Brice said that; [a]t no stage during the meeting was Ms Tavassoli tearful or upset.”10
• “Mr Brice had a very different recollection to Ms Lyman of the emotional state of the [Respondent] during the meeting. It is difficult to comprehend how Mr Brice could have failed to notice that the [Respondent] was crying during the meeting. Mr Brice clearly failed to appreciate the level of emotional distress that the applicant was experiencing during the meeting on 16 November 2016.” 11
• “…when the [Respondent] persisted with her apparent intention to resign, Mr Brice significantly misjudged the mental state of the [Respondent] and he failed to recognise that the [Respondent] was acting irrationally as a result of her disturbed state of mind. In the circumstances, the resignation that was amended and resubmitted by the applicant was not given freely, deliberately and as a result of any reasoned deliberation.” 12
• “The level of confusion of the [Respondent] was reflected by her writing the wrong day of the week on the resignation letter. Further, the irrationality of the [Respondent’s] behaviour was reflected in her impulsive preparedness to resign with immediate effect, and that decision was conveyed by her scribbling out that part of the resignation letter which contained words indicating that she was providing one month’s notice. Frankly, when all of the circumstances of the meeting of 16 November are carefully examined there would seem to have been every prospect that if Mr Brice had suggested that the [Respondent] pay to Bupa some amount of money in respect to a notice period, she probably would have agreed to do so. Such was the level of her irrational behaviour at that time.” 13
• “…the [Respondent] was exhibiting irrational behaviour and that irrational behaviour was not appreciated or considered by Mr Brice when he immediately accepted the [Respondent’s] resignation as being effective today.” 14
• “…the irrational behaviour of the applicant can, in part, be attributed to ethnic and cultural factors, associated with the shame that allegations which she thought involved theft would bring upon her.” 15
[9] Having made those findings, the Commissioner determined that the resignation of the Respondent “should not have been accepted… [p]articularly when one has regard for the [Respondent’s] lack of English language skills and certain ethnic and cultural factors.” 16 As a result, the Commissioner concluded that “special circumstances existed such that the resignation of the applicant was legally ineffective”, and therefore, the dismissal was effected on the employer’s initiative in satisfaction of s.386(1)(a) of the Act.
[10] At the heart of the appeal is whether the Commissioner, in finding that special circumstances existed such that the resignation of the applicant was legally ineffective, correctly determined that the Respondent had been dismissed pursuant to s.386(1)(a) of the Act.
[11] The Appellant submitted that the Commissioner did not carry out, or properly carry out, the task that was referred by the Full Bench. The Appellant advanced that the salient question before the Commissioner was whether the Respondent was dismissed on the employer’s initiative under s.386(1)(a). For the purposes of that determination, the Full Bench had identified that a dismissal of that kind may be found, in circumstances where an employee’s resignation was not legally effective because the employee could not be reasonably understood to be conveying a real intention to resign. 17 The Appellant submitted that the 16 November 2016 resignation letter, had to be objectively determined as to whether the Respondent was conveying a real intention to resign.18 The Appellant asserted that the Commissioner did not fulfil that task. The Commissioner had applied an “alternative test” which considered whether it was reasonable for the Appellant to assume the resignation was genuinely intended.
[12] Alternatively, the Appellant submitted that even if the proper test was applied, the finding that the Respondent was dismissed was an unreasonable one. The Appellant submitted that, objectively viewed, the Respondent did intend to resign for the following reasons:
• the letter of resignation which used the words resignation is clear and unequivocal;
• the Respondent was actively thinking about her position of employment at the time of preparing the resignation letter;
• the Respondent said she understood the allegations that had been put against her, and that she had not asked for further clarification;
• the Respondent, despite being told that she would have a chance to defend the allegations, persisted with her desire to resign.
• the Respondent wanted to leave the employment immediately so that she did not have to attend the investigation meeting on 21 November 2016; and
• the Respondent acknowledged that she had in fact resigned on 16 November 2016, because she had advised the Appellant that she wanted to withdraw her resignation when she attended the Appellant’s premises on 18 November 2016.
[13] Moreover, the Appellant submitted that it was “simply not open on the evidence” for the Commissioner to find that the Respondent’s decision to resign was irrational. The Appellant contended that “[a]ll of the evidence demonstrates, objectively viewed, rational and deliberate thought processes being undertaken by the Respondent on 16 November 2016”. The correct and proper decision is that the Respondent was not dismissed and that that resignation be treated as valid and effective.
[14] The Appellant further submitted, the Decision of Commissioner Cambridge “manifests an obvious injustice” to the Appellant, because there was no evidence before the Commissioner to find that the Respondent was acting irrationality as a result of a “disturbed state of mind”. The only evidence capable of supporting that finding was the fact that the Respondent had started to cry during the meeting on 16 November 2016. The Appellant asserted that this falls “well short” of demonstrating that someone had a “disturbed mind” and was “not capable of thinking and acting rationally”.
[15] In respect of the public interest, the Appellant submitted that the Decision of Commissioner Cambridge “creates significant doubt about the right of an employer to accept an employee’s freely given resignation”, and that it would place “an unfair onus upon managers to assess an employee’s state of mind before accepting (or refusing to accept) an employee’s resignation.” The Decision is inconsistent with the relevant legal principles, and raises issues of important and general application for employers.
[16] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is an error on the part of the primary decision maker. 19 There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) of the Act states:
“Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).”
[17] Section 400 of the Act provides as follows:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[18] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 20 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.21 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 22
[19] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 23 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.24
[20] In considering whether this appeal attracts the public interest, we have considered the matters raised by the Appellant above 25 and we are not satisfied that:
• there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
• the appeal raises issues of importance and/or general application;
• the decision at first instance manifests an injustice, or the result is counter intuitive; or
• the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[21] It appears to us that the basis on which the Commissioner reached his Decision was consistent with the line of authority that was examined and ultimately set out by the Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli. 26 The Commissioner considered if the Respondent’s resignation was “legally effective” in the circumstances, that is, whether the Respondent had resigned or if she had been dismissed within the meaning provided under s.386(1)(a) of the Act. In determining that question, the Commissioner followed the Full Bench’s approach by taking into account whether the circumstances of the case was such that the resignation was provided in the “heat of the moment or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign.”27
[22] The Commissioner found on the evidence before him, that the Respondent was emotionally distressed, irrational and confused and therefore special circumstances existed in this case. In those circumstances the Commissioner concluded that:
[52] The resignation of the [Respondent] should not have been accepted in these circumstances. Particularly when one has regard for the [Respondent’s] lack of English language skills and certain ethnic and cultural factors, I am compelled to conclude that special circumstances existed such that the resignation of the [Respondent] was legally ineffective. (Emphasis added).
[23] This conclusion, in our view, was not a subjective determination of whether the Respondent was conveying a real intention to resign, but rather an objective assessment of that question. In that regard, the Commissioner’s determination that the Respondent was dismissed on the employer’s initiative and in satisfaction of the meaning of dismissed provided by s. 386(1)(a) of the Act was not a result which was counter intuitive or one in which manifests in injustice.
[24] Further, we are not satisfied that there is an arguable case of error in relation to any other aspect of the Decision.
[25] For the reasons set out above, we are not persuaded that the Appellant has put anything before the Commission that could be said to enliven the public interest. As such, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
[26] The application for permission to appeal is refused.
[27] Pursuant to Order (4) and (5) of the Full Bench decision in ([2017] FWCFB 3941), matter no. (C2017/4000) is returned to the Full Bench and the stay order of Vice President Hatcher made on made 25 July 2017 will remain in effect until the further order of the Full Bench in (C2017/4000) is issued.
[28] The questions for consideration before the Full Bench are whether the decision below discloses an arguable case of appealable error, and whether granting permission to appeal is in the public interest.
[29] Section 386(1)(a) of the Fair Work Act 2009 (Act) states that a person has been dismissed, for the purposes of the unfair dismissal provisions in Part 3-2 of the Act, if the person’s employment has been terminated ‘on the employer’s initiative.’ The Commissioner’s decision addressed the question of whether Ms Tavassoli was dismissed by Bupa Aged Care Australia Pty Ltd (Bupa).
[30] The Full Bench that referred this question to the Commissioner for determination considered the authorities in relation to resignation in the context of s.386(1)(a) and concluded:
“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.” 28 (Emphasis added)
[31] Whether a person has resigned is not assessed by reference to the parties’ subjective intentions or understandings. It depends on what a reasonable person would have understood to be the objective position, taking into account what was said, and the surrounding circumstances. 29
[32] The Commissioner makes factual findings that underpin his conclusion that Ms Tavassoli was dismissed. These are set out in paragraph [8] of the majority decision and need not be repeated.
[33] Bupa’s notice of appeal challenges various factual findings. In this regard, an appeal against a decision under Part 3-2 on a question of fact can only be brought if the alleged error is ‘significant’ (see s.400(2)). More generally, the mere fact that an appeal bench might have reached a different conclusion in relation to the evidence is not a basis to apprehend any error on the part of the primary decision-maker. The notice of appeal also contends that the Commissioner did not properly apply the reasoning of the Full Bench, and did not determine whether Ms Tavassoli intended to resign.
[34] At paragraph 48 of his decision, the Commissioner states:
‘Consequently, when the applicant persisted with her apparent intention to resign, Mr Brice significantly misjudged the mental state of the applicant and he failed to recognise that the applicant was acting irrationally as a result of her disturbed state of mind. In the circumstances, the resignation that was amended and resubmitted by the applicant was not given freely, deliberately and as a result of any reasoned deliberation.’
[35] I make some brief observations. Firstly, the basis for concluding that Ms Tavassoli’s resignation was not given ‘freely’ is not apparent to me. There was no contention that she was forced to resign.
[36] Secondly, if Ms Tavassoli was acting ‘irrationally’ in a clinical sense, it might have meant that she had no capacity to form an intention to resign. But there was no suggestion that this was the case in the present matter. If however Ms Tavassoli was acting irrationally in a non-clinical sense, it is not clear to me how this was relevant to the question of whether she intended to resign. At least arguably, it would appear to relate to a different question, namely whether she was acting sensibly or in her own best interests. Similarly, whether her resignation was the result of any ‘reasoned deliberation’ appears to go to the question of whether Ms Tavassoli made a good decision, rather than whether she intended to resign. But there is no statutory ‘cooling off’ period.
[37] Thirdly, whether a resignation was rational (sensible) or reasoned are matters substantially within the province of an individual’s personal circumstances and preferences. The assessment of such matters is highly subjective. A person might rather resign than undergo an investigation into very serious allegations. This may or may not be a sensible or good decision. The employer is not in a position to evaluate these matters. An objective analysis of the situation is required.
[38] At [52], the Commissioner concludes:
‘The resignation of the applicant should not have been accepted in these circumstances. Particularly when one has regard for the applicant’s lack of English language skills and certain ethnic and cultural factors, I am compelled to conclude that special circumstances existed such that the resignation of the applicant was legally ineffective.’
[39] The presence of special circumstances may provide an evidentiary basis for a conclusion that, objectively considered, there was no real intention to resign. However, special circumstances are not a sufficient condition for a conclusion that a resignation was legally ineffective. The dispositive passage above does not contain a finding that Ms Tavassoli did not intend to resign, objectively considered. Nor was Ms Tavassoli’s counsel able to identify during the hearing before us where in the decision such a finding was made. Perhaps on a fair reading of the decision as a whole it should be understood as reflecting such a finding. That is a matter that could be the subject of argument and consideration in the appeal.
[40] In my view there is at least an arguable case that the Commissioner did not make any such finding and instead relied on subjective considerations for concluding that Ms Tavassoli’s resignation was legally ineffective. This would constitute appealable error.
[41] I consider that the application for permission to appeal attracts the public interest, as the arguable error goes to jurisdiction and arises in a commonly occurring factual setting.
[42] I would grant permission to appeal.
VICE PRESIDENT
Appearances:
Mr J. Darams, of Counsel, appeared for the Appellant.
Mr C. McArdle, appeared for the Respondent.
Hearing details:
2018.
Melbourne with video link to Sydney:
April 3.
Printed by authority of the Commonwealth Government Printer
<PR606947>
3 [2017] FWCFB 3941 at [54]-[57].
5 Decision at [9], citing [2017] FWCFB 3941 at [47].
6 Decision at [44].
7 Ibid.
8 Decision at [45].
9 Decision at [46].
10 Ibid.
11 Decision at [47].
12 Decision at [48].
13 Decision at [49].
14 Decision at [51].
15 Decision at [50].
16 Decision at [52].
17 (2017) 271 IR 245, at 268.
18 (2017) 271 IR 245, at 270-271; Decision at [44].
19 Coal and Allied Operations Pty Limited Australian Industrial Relations Commission and others (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
20 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
21 O’Sullivan v Farrer and another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].
22 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at [27], [(2010) 197 IR 266].
23 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
24 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28].
25 See paragraph [11]-[15] of this decision.
26 [2017] FWCFB 3941 at [37]-[47].
27 [2017] FWCFB 3941 at [47].
28 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47]
29 Koutalis v Pollett [2015] FCA 1165; 235 FCR 370, at [43]