Who sacked whom?
The Full Bench of the Australian Industrial Relations Commission on an appeal to it, handed down its decision on 28 July 2009 in relation to the vexed question as to whether the employment was terminated at the initiative of the employer, it being one of the jurisdictional requirements under s 643 of the Workplace Relations Act 1996 (Cth). The employer, Australian Hearing, had made an application before Commissioner Thatcher, that he dismiss an application on the basis that the worker had resigned and there was no termination of the relevant kind. The Commissioner rejected that application, which then led to the appeal to the Full Bench. Regard was had to s 642(4) of the Act which reads:
“(4) For the purpose of this Division, the resignation of an employee is taken to constitute the termination of the employment of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.”
Section 642(4) is of recent origin having come into effect with the rest of the WorkChoices legislation on 27 March 2006. Because it was the first time the Full Bench had considered the construction and application of s 642(4), it found there was sufficient importance in the public interest that leave should be granted to hear the appeal.
The circumstances in relation to this case involved staff at the Lismore office of Australian Hearing. As a result of various interpersonal and reporting difficulties, there was concern that the staff, including Mrs Peary, were not communicating properly. Mrs Peary took some sick leave citing depression, the reason for it being that she had been unsuccessful in obtaining a meeting to discuss her concerns. Mrs Peary’s medical condition deteriorated and personal relations among the staff in the region became difficult.
The employer had engaged an Employee Assistance Program provider and had also obtained an occupational health and safety adviser to contact Mrs Peary and offered her assistance. A number of complaints had been made against Mrs Peary which were found to have been correct in relation to her dealings with another employee. She was advised that it would be inappropriate for her to continue working with that employee and that she should conform to the recommendations of her rehabilitation consultant. It was further recommended that she take up a different assignment at either Tweed Heads or Ballina for a period of three months with salary maintenance. Prior to the date when she had to indicate her preference, Mrs Peary provided a medical certificate from her general practitioner indicating that she was unfit for work for a month and that she was suffering “major depression” (at [13]).
She lodged a workers’ compensation claim. She commenced working at the Ballina office a few days per week and at one stage Australian Hearing organised a hire car for Mrs Peary to travel to work herself. Consistent with her general practitioner’s advice, she returned to full time work in September at Ballina. In September 2008, her workers’ compensation claim was rejected (at [18]). While in Ballina, Mrs Peary sent an email to a technician at the Lismore office which was critical of the Lismore office’s environment. Her employer informed her that it regarded the email as quite disrespectful to and undermining of the Acting Office Manager’s authority. A disciplinary proceeding was activated and Mrs Peary was requested to provide a written response. Mrs Peary again went on sick leave. Mrs Peary sent a doctor’s certificate to her employer indicating that she was suffering from a medical condition and in a subsequent email she forwarded in a response to a request as to whether she had resigned, said she was resigning “due the high level of stress I am experiencing at work”.
After recounting the facts and dealing with the findings of the Commissioner below, the Full Bench dealt with various submissions made by the appellant employer. They found there was “no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign” (by its conduct or course of conduct) (at [30]). In dealing with the submission regarding course of conduct by placing Mrs Peary in isolation at Ballina, it found that she was “cut off from contact with staff at Lismore, of whom there were eight, working mainly alone on unstimulating tasks, travelling 32 kilometres twice a day.” She could not return to Lismore until she had attended mediation and could not attend mediation until she had undergone six sessions of psychological counselling at her own expense. There was also an implied threat to withdraw her transport to and from Ballina. The Full Bench found that there was no doubt that there was an adequate basis for finding that she was forced to resign (at [35]). As no error was evident, the appeal must fail, so said the Full Bench (at [38]). However, the Full Bench emphasised that there needs to be a distinction between whether termination is at the initiative of the employer and whether such termination of employment is an unfair one. Even if the employer’s conduct forces an employee to resign, it does not automatically follow that the termination was harsh, unjust or unreasonable. All circumstances must be taken into account in order to make such findings (at [39]). As Commissioner Thatcher had made a number of findings relevant to the question of termination and its harshness or otherwise, should conciliation be unsuccessful, the application should proceed before another member of the Commission (at [40]).
At the conclusion of their findings, the Full Bench referred to a matter of some significance being as follows: Even though an employer has a right to seek to have a claim brought to an end early on the basis of whether the resignation was at the employer’s initiative, that involves considerable overlap and in come cases a complete overlap on the question of unfairness or harshness (at [41]). In noting that, it said that significant duplication with added costs to both sides might result should arbitration be necessary. Although no criticism was made of Australian Hearing, it might, in an appropriate case, be a question which could sound in costs should such an application to summarily dismiss the matter under this section occur if the strike out application does not prove to be warranted.
