[2020] FWC 5190 AUSTRALIA, FairWork DECISION Commission Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Julia Hoare V Lowlands Pastoral Company Pty Ltd T/A Midfield Meats (U2020/8536) COMMISSIONER HAMPTON ADELAIDE, 6 NOVEMBER 2020 Application for an unfair dismissal remedy - jurisdictional issue - applicant resigned employment whether resignation "rejected" or otherwise ignored and applicant subsequently dismissed at the initiative of the employer - impact of parties' conduct assessed - on balance, satisfied that resignation ignored by both parties and not the event that led to the conclusion of the employment - post surgery indication that no position was available represented the point of dismissal - relevant dismissal found - whether dismissal unfair - dismissal unfair in all of the circumstances - compensation awarded. What this decision is about [1] Ms Julia Hoare (the Applicant) has applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the FW Act) following her alleged unfair dismissal from Lowlands Pastoral Company Pty Ltd T/A Midfield Meats (Lowlands or the Respondent). [2] Lowlands conduct a meat fattening farm owned by Midfield Meats International Pty Ltd (Midfield) and is located near Mount Gambier in the South East of South Australia. The farm runs between 2,500 to 5,800 head of cattle at any one time. Cattle are sent to Lowlands from sale yards or farms for fattening up prior to being sent to abattoirs for slaughter with the majority going to overseas markets. Lowlands also grows and harvests grain that is sold to Midfield. 13] Ms Hoare's employment with the Respondent commenced on 12 June 2019 as a full- time Livestock Hand. Ms Hoare contends she attempted to resign her employment in December 2019 due to impending hand surgery and being aware that she may need up to 3 months off post-surgery. Ms Hoare contends that the resignation was rejected by Lowlands and that she continued to work until March 2020 at which time she took time off for the surgery, effectively on unpaid leave. It was the Applicant's intention to return to work once she had sufficiently recovered and Ms Hoare contends that this was also the Respondent's expectation. However, upon recovering from the surgery, Ms Hoare was advised that there[2020] FWC 5190 were no positions available and she contends that this was a dismissal at the initiative of the employer with effect from 29 May 2020. [4] Ms Hoare further contends that the dismissal was unfair and she seeks compensation under the terms of the FW Act. [5] Lowlands contends that the Commission does not have jurisdiction to determine the matter because there was no dismissal, rather the employment came to an end on 25 March 2020 as a result of Ms Hoare's resignation. It posits that the resignation was not forced within the meaning of s.386(1)(b) of the FW Act and the Applicant resigned of her own freewill and volition in order to undergo surgery. That is, the Respondent contends that the resignation was given and accepted but its effect was delayed by agreement until Ms Hoare left to have the surgery, which itself was delayed for some months. When Ms Hoare completed her employment, her outstanding leave was paid out and whilst it was the mutual hope that she might return to employment with Lowlands in some capacity and at some point in time (re- employment), there was no ongoing employment relationship and no commitments were made by the employer to do so. 16] Further, even if a dismissal is found to have occurred, Lowlands contends the claim is out of time and no extension of time should be granted. ' In the further alternative, Lowlands contends that any (later) dismissal would have been justified on the grounds of serious misconduct given what it contends was Ms Hoare's failure to disclose a pre-existing hand injury as part of declarations leading to her employment. This alleged misconduct and the later circumstances impacting upon the business as a result of the COVID-19 Pandemic (redundancies and/or reduced hours) are also relied upon in terms of remedy should that become relevant. 17] As a result, the Commission must initially consider whether there was a dismissal within the meaning of the FW Act. If so, when did this take place and whether there is a need for an extension of time for the Applicant to make this application. Depending upon these findings, the Commission may need to consider whether the dismissal was unfair and if so, what remedy, if any, should follow under the terms of the FW Act. 18] After conducting a directions conference with the parties on 28 July 2020 and considering the nature and extent of the evidence, I determined that a hearing would be the most effective and efficient way to resolve this matter. " I also determined, with the support of both parties, that given the particular circumstances of this matter, including the scope of the disputed evidence and the significance of that evidence and the jurisdictional issues for any merit or remedy considerations, the issues would all be heard together. 19] As a result, this decision deals with both the jurisdictional questions of whether Ms Hoare was dismissed within the meaning of the FW Act and if so, whether an extension of time is required and should be granted. Given the findings that follow, the decision also deals with the substantive application. Section 394(2) and (3) of the FW Act - on the presumption that a dismissal was found to have occurred in March 2020. Section 399(1) of the FW Act. 2[2020] FWC 5190 2. The cases presented by the parties on the jurisdictional issue 2.1 Ms Hoare [10] Ms Hoare contends that the dismissal took effect either on 1 June 2020 when the Respondent's manager told the applicant that "Warrnambool" (i.e. the Respondent's head office) had informed him there was no longer a position available for the Applicant and confirmed that position by text messages, or on 5 June 2020 when the respondent emailed the applicant an employment separation certificate backdated to 26 March 2020. This she contends was a dismissal at the initiative of the employer. [11] Ms Hoare contends that this is supported by the following: . Her evidence to the effect that the respondent's Farm Manager (Mr Beard) rejected her letter of resignation proffered in December 2019; The fact that the applicant continued at work until March 2020 (well beyond the stated resignation date) when she took time off to have surgery on her hand Her evidence as to the agreement with Mr Beard that she could have the necessary time off work (up to three months) to have the surgery; The numerous text messages from Mr Beard, as attached to her statement, confirming her position; The evidence regarding the conversation with Mr Beard after the applicant's return from Adelaide where she had her surgery, to the effect that the applicant's partner's buggy (farm vehicle) could stay on the respondent's farm until the applicant got back to work; and The subsequent text messages between the applicant and Mr Beard up to and including Ist June 2020. [12] Ms Hoare contends that the evidence makes it clear that both the Applicant and Respondent had an expectation that she would return to work once she had sufficiently recovered from her surgery. That is, her job was being left open for her and she was simply on unpaid sick leave. [13] Ms Hoare also contends that it was common ground that upon receipt of the resignation, the Respondent's Farm Manager indicated that he did not want the Applicant to leave and that there were discussions about the options that existed to retain her in employment. Further, it was clear that Ms Hoare did not conclude her employment on the date specified in the resignation and that this was not acted upon by either party. [14] Ms Hoare further contends that there was no evidence that the resignation was accepted by the Respondent despite what she posits was an onus to do so. On the contrary, the communications between Ms Hoare and Mr Beard and Mr Beard's communications to the other staff at the property were entirely consistent with the fact that Ms Hoare was not leaving the employment, but rather, going on leave. 3[2020] FWC 5190 [15] In relation to internal communications within the Respondent, Ms Hoare contends that the absence of any written communications after the resignation was provided, in the context of employment clearly continuing beyond that point, was not consistent with the resignation having been accepted and applied. Further, the leave paid out when Ms Hoare left to have surgery was the result of her seeking that this be done. [16] Ms Hoare gave written and sworn oral evidence and also relied upon a witness statement of her mother, Mrs Elizabeth Hoare, which was tendered by consent. In the case of Mrs Hoare, her evidence went mainly to a discussion between the Applicant and Mr Beard during the period of the Applicant's recovery from the surgery, which Mrs Hoare overheard. [17] Ms Hoare also provided documents including text messages between her and the Respondent and time and wages records. 2.2 Lowlands Pastoral Company Pty Ltd T/A Midfield Meats [18] Lowlands contends that there was no dismissal within the meaning of the Act and that the Commission lacks the jurisdiction to further deal with this application. It does so on that the basis that the evidence of Mr Beard is that he accepted Ms Hoare's resignation. After her resignation was accepted, and while she was working out her notice period, she subsequently raised with Mr Beard the question of taking unpaid leave, but this was neither possible from Lowlands point of view nor agreed. What was discussed was the prospect of Ms Hoare being re-employed if she ultimately had capacity to return, and Mr Beard was keen to do so if that could be facilitated. [19] Lowlands further contends that ultimately, because she was a valued employee, Ms Hoare's period of notice from her resignation was extended until her surgery date was confirmed; however, her employment terminated as a consequence of her resignation on or about 25 March 2020. The contemporaneous records of Lowlands support this evidence, namely: The acceptance and retention of Ms Hoare's letter of resignation; Mr Beard's email correspondence within the business in December 2019 and in March 2020 confirming the resignation and loss of Ms Hoare to the business; Ms Hoare was paid out her accrued entitlements in her final pay, as required by section 87 of the FW Act and clause 23.11 of the Pastoral Award 2010 (Award); and Ms Hoare was not qualified for any cashing out of accrued annual leave as she did not meet the requirements of clause 23.12 of the Award [20] As a result, Lowlands contends that the acceptance of the delayed resignation as being the operative factor ending the employment in March 2020 is consistent with the written records and the evidence of Mr Beard which should be accepted. [21] Lowlands further contends that the fact that Ms Hoare's leave was paid out when she left for the surgery was consistent with there being a conclusion to the employment at that[2020] FWC 5190 time, and in line with Mr Beard informing her that it was not approved for her to be on unpaid leave given the concerns held by head office about that taking place. [22] Whilst Lowlands accepts that there was an expectation held by both Ms Hoare and Mr Beard that the Applicant should be able to resume working for it if and when she recovered from her surgery, the Applicant has conflated this was being on unpaid leave. In that regard, it posits that taken at its highest, Ms Hoare did not claim that she had been given any approval to take unpaid leave. [23] Lowlands submits that the onus was upon the Applicant to convince the Commission that there was a relevant dismissal and that this assessment had to be made on an objective basis, rather that the subjective belief of the individuals involved. (24] Lowlands led written and sworn oral evidence from Mr Shaun Beard, the Farm Manager to whom Ms Hoare reported and the person with whom all of the relevant discussions between the parties occurred. Lowlands also relied upon various documents including the letter of resignation provided by Ms Hoare and various other business records and communications. 3. Observations on the evidence [25] Most of the evidence about the conduct of the parties leading to the Applicant leaving the workplace to have her surgery, and much of the evidence after that point, is equivocal in terms of the two versions of the status of the employment relationship at that time. The sense and outcome of the discussion during which the resignation letter was provided by Ms Hoare is in dispute, but this is largely as to the effect of the discussion. There are however more direct and potentially more decisive differences between the parties about subsequent discussions where Lowlands contends that Mr Beard expressly advised Ms Hoare that leave was not an option and that the return to the workplace was dependent upon both her recovery from the surgery and having a position available. [26] I found that each of the two witnesses were open with the Commission, but that each had a tendency to be influenced by their understanding as to the effect of the various discussions. Ms Hoare did not recall the detail of some key conversations but rather gave evidence about the overall effect or outcome of the discussions. This does not lead me to doubt the genuineness of her belief; however, I have treated that evidence with some caution. Notwithstanding that reservation, I accept that Ms Hoare genuinely understood that her resignation had, in effect, been "rejected" and that her employment was to continue. Of course, it is the objective facts and circumstances that must provide the foundation for the ultimate findings. [27] Mr Beard's recall of the detail of the conversations with Ms Hoare was clearer, including aspects of the timing and location that were convincing. His explanation about the reasons for the discussion about pay with the Applicant following her resignation were far less convincing; however Mr Beard did make some important concessions about aspects of the evidence that were not favourable to the Respondent's case and I formed the view that he was generally attempting to assist the Commission with the facts as he apprehended them. I did however also gain the strong impression that some of the asserted clarity and effect of the discussions about the inability to take unpaid leave was overstated and I did not find this 5[2020] FWC 5190 evidence convincing. The absence of any recollection of Ms Hoare's response to his alleged advice on that issue also leads me to approach this with considerable caution. [28] On balance, I am not satisfied that these conversations had the clarity or outcomes that Mr Beard now contends and that whilst the arrangements that might apply upon her return were discussed, there was no understanding reached that the resignation was to be delayed or that the employment would be concluding at the time of the surgery. I will return to this aspect shortly. 4. What is a dismissal for present purposes? [29] Section 386 of the FW Act provides as follows: 386 Meaning of dismissed (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. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or (b) the person was an employee: (i) to whom a training arrangement applied; and (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or (c) the person was demoted in employment but: (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and (ii) he or she remains employed with the employer that effected the demotion. (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part." Subsections (2) and (3) are not relevant to this matter and are included only for context. 6[2020] FWC 5190 [30] Although applied under the previous Act, " the following approach of the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd in my view remains generally apposite to the consideration of s.386(1) of the FW Act: "[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said: '[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i. e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous." [22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said: "Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing * Workplace Relations Act 1996 (Cth). $ [2006] AIRC 496 (PR973462). 7[2020] FWC 5190 factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary." [23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to 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 consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." (footnotes omitted) [31] A relatively recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Lid t/a Bupa Aged Care Mosman v Tavassoli in the following terms: "[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a "forced" resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the "termination at the initiative of the employer" formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows: "1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200). 1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct. or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12). [2017] FWCFB 3491. 8[2020] FWC 5190 1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations: . where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign." [34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Lid, that "The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Lid (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd" (footnotes omitted). The body of pre-FW Act decisions concerning "forced" resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust." (footnotes omitted) [32] There is no suggestion in this matter that Ms Hoare's resignation was given in the heat of the moment or was not expressly intended. 'Further, the Applicant does not contend that the resignation was forced by any conduct of the Respondent. Rather, the Applicant contends that the resignation was given freely but refused by the employer and that the employment continued thereafter until it was brought to an end by the decision of Lowlands not to offer any further work in May/June 2020. This is disputed. [33] The relevant legal principle is that a resignation from employment or office may be effected by the communication of proper notice." The length and content of the notice may be prescribed by the contract itself, by statute or where no express provision is made, by the provision of an implied term of 'reasonable notice'." Resignation is a unilateral act. It is not a legal requirement that a resignation be accepted by the other party despite this being common practice. The Court in Birrell v Australian National Airlines Commission" explained: "It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment to employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean 7 See Bupa at [35] to [46] and Davidson v The Commonwealth of Australia (represented by the Department of Climate Change and Energy Efficiency) [2011 ] FWAFB 6265 at [18] Transcript PN46. 'A resignation without proper notice may also be accepted by the other parties and be effective, however this aspect does not arise in this case. See Australian and International Pilots Association v Captain Michael Glynn [2011 ] FWA 1223 at [24] to [33]. " (1984) 9 IR 101. 9[2020] FWC 5190 against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. "12 [34] The general principle was restated by the NSW Court of Appeal in New South Wales v Paige: 13 "Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon acceptance by the person or body to whom the resignation is directed. This common law principle is a reflection of the significance the common law has always attached to personal autonomy. Where this principle applies, unilateral withdrawal of a resignation or notice of termination is not possible" 14 [35] Accordingly, the most relevant general legal principles to be applied in this case are well settled. Stated succinctly, they include: . The question as to whether there was a dismissal within the meaning of the FW Act is a jurisdictional fact that must be established by the Applicant; A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination; The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result; Conduct includes an omission; . Considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer's conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer's conduct is required; and An effective resignation once given, cannot be unilaterally withdrawn but it can be set aside or varied by agreement. 5. Was Ms Hoare dismissed within the meaning of the FW Act? 5.1 Findings about the broad context 12 (1984) 9 IR 101 at [1 10]. 13 [2002] NSWCA 235. 14 [2002] NSWCA 235 at [277]. 15 Section 12 of the FW Act. 10[2020] FWC 5190 [36] There following facts clearly arise from the evidence: Ms Hoare commenced employment on 12 June 2019 as a full-time livestock hand; . Ms Hoare had suffered a significant injury whilst working at a prior workplace, and subsequently during the period of her employment with Lowlands required hand (or wrist) surgery and two to three months off work. She learned about this in late November or early December 2019; Ms Hoare considered her position and prepared a letter of resignation which she provided to Shaun Beard, the Farm Manager during a meeting on or about 16 December 2019. The resignation provided 2 weeks' notice and stated as follows: "Dear Shaun Beard I will be resigning my livestock hand position at lowlands pastoral, effective 27/12/2019 Thanks Julia Hoare"16 . Ms Hoare advised Mr Beard that she expected to be away (unfit for work) for about 3 months as a result of the surgery; Ms Hoare was a valued employee, and disappointment at her resignation was expressed on behalf of Lowlands. Mr Beard also indicated that he would explore options to keep Ms Hoare employed including the notion of taking unpaid leave; Ms Hoare kept Mr Beard informed of developments with the impending surgery including appointments with surgeons and likely future dates; . The surgery was ultimately delayed until 16 March 2020; . Ms Hoare and Mr Beard had discussed the mutual prospect (hope) that she could return on light duties shortly after her surgery; Ms Hoare worked with Lowlands up until 12 March 2020, and thereafter took a short period of annual leave, including one day of leave in the pay period ending 25 March 2020; Ms Hoare was also paid out accrued but untaken annual leave on 26 March 2020 the dispute being whether this occurred as a result of the Applicant's request or simply as a (delayed) consequence of the cessation of employment; Ms Hoare expected that she would receive "WorkCover" payments for the period of time she was unfit for work after the surgery, however, she has not as yet received any income replacement payments and the associated claim is presently before the relevant Tribunal; As a result of the surgery, Ms Hoare was certified as unfit for work until 29 May 2020; . During that period, in April 2020, on one occasion Ms Hoare attended at the Lowlands property and picked up some items belonging to her partner (an ex- employee of the Respondent who had been dismissed in the intervening period) 16 Attachment SB2 to exhibit R1. 17 Under the Return to Work Act 2014 (SA) as a result of the earlier workplace injury. 11[2020] FWC 5190 and also had a discussion with Mr Beard about leaving a vehicle belonging to that partner on the property pending her return; and After the surgery, in May 2020, Ms Hoare advised Lowlands that she was fit and sought to return to work; however, she was advised by Mr Beard on behalf of the Respondent that there were no positions available for her. 5.2 Did Ms Hoare's employment with Lowlands end with the resignation? [37] Ms Hoare has not contended that she expressly withdrew the resignation, but rather, the resignation was in effect rejected on behalf of the Respondent. As a result of the positions contended, amongst other issues, the question about the status of the Applicant's employment at the relevant time also requires consideration of whether the December 2019 resignation was effective but delayed by agreement pending the actual surgery or whether the resignation was not acted upon by either party, and effectively lapsed. [38] It is clear on both accounts of the events surrounding this matter that despite the provision of the written resignation, both Ms Hoare and Lowlands (in the form of Mr Beard) had a genuine expectation that Ms Hoare would resume working with the Respondent when she had sufficiently recovered from her surgery. Indeed, but for the impact of the COVID-19 pandemic upon the business, this would probably have occurred and the status of the employment in the intervening period would have been largely irrelevant. However, the joint expectation was not met and the status of the employment at the time of leaving for the surgery has become pivotal in this matter. Accordingly, the difference is whether the employment remained on foot during the period of the absence or whether the employment had concluded and any return to the workplace would be in the nature of re-employment. The resolution of this issue requires consideration of the effect of the written resignation and the subsequent events, and what the parties said and did in connection with that document and the subsequent absence from work. This in turn requires an assessment of the competing evidence about these matters. [39] It is also reasonably apparent that if the employment remained on foot during Ms Hoare's absence, it came to a conclusion when Lowlands indicated in late May 2020 that there would be no position for her. This would be a dismissal for present purposes. [40] The resignation document was provided on 16 December 2019 and physically accepted and retained by Mr Beard. I do not consider that Mr Beard expressly accepted or rejected the resignation in those terms. However, it is clear that the reality of the intended resignation was acknowledged by Mr Beard who advised that he did not want her to leave and that options to keep her on (in employment) would be explored. It is also the case that associated with this discussion, Mr Beard advised Ms Hoare that he was, in effect, seeking to secure an increase in her wages. There may have been some uncertainty at the time about the precise timing of the surgery, but Ms Hoare anticipated that it would be undertaken in late January 2020 and this was the basis of the resignation timing at that point. The resignation letter was communicated to head office by Mr Beard as a resignation soon thereafter with confirmation that this meant the loss of the Applicant's services and the need to find a replacement. Mr Beard and others within Lowlands briefly explored some options for replacement employees at that time. 18 18 SB6 attached to exhibit R1. 12[2020] FWC 5190 [41] The written resignation as given was in my view clearly capable of being effective and ending the relationship at the expiration of the notice period. Its terms were communicated clearly with a period of (reasonable) stated notice. The resignation was not provided on a conditional basis and was not given in any context which could lead to a suggestion that it was not objectively intended. 142] However, I do allow for the prospect that the parties may have, by agreement, effectively chosen not to act on the resignation at all. If this finding was made, the resignation would not have been effective. [43] Ms Hoare and Mr Beard regularly communicated via text messages. Later in December 2019, the following exchange took place: "Tue, 24 Dec, 2:57pm Sean: Deans (the person to whom Mr Beard reported) of the same opinion as me Jules. We would like to work with u in some capacity to keep u. U have been great help to me and Uve proved u will be valuable. I need to get ur pay sorted out. Tue, 24 Dec, 3.59pm Julia: Thanks Shaun I appreciate that, will just have to work around it and hopefully I can give you fair warning when the surgery is happening, Yes the pay would be a good bonus Have a good Christmas. "19 [44] The text communications included the following relevant exchanges about the surgery and the related medical appointments: "Tue, 7 Jan 7:49 am Julia: Sorry I'm late here now Had a test yesterday that buggered My hand over. What do u need me to do? Sean: All good. It's going to be a process. .. . Julia My Surgery date got postponed which I thought may of happened. I gotta go back down in a couple of weeks for two more tests then they'll book it I think it's the 17" and 22" I'll confirm it for ya. Sean: (thumbs up emoji). . . . . . . Mon, 13 Jan 10:48am. Julia: Hey Just curious when if I'll be getting that payrise you mentioned before Xmas Sean: Yep on my to do list. Need to talk to Phil Beard face to face. 19 Court Book page 152. 20 "Julia" being the Applicant and Sean being Mr Beard. 13[2020] FWC 5190 . . . . . . Mon, 13 Jan 3:35pm Julia: Specialist just rang. Instead of having appointments on the 17th & 22 d they've had a few cancellations so they can now do the 15th and 16th instead so saves me going down and back Sorry for it been short notice again they seem to love doing that Sean: All good. We will work with u on this. . . . . ... [45] In the more immediate lead up to and following Ms Hoare's surgery (on 16 March 2020), the following text exchanges occurred: "Wed, 11 Mar, 6.38am Sean: Jules - can u please obviously give ur couple of tools to Sean Mac. Wed, 11 Mar, 7.24am Sean: What time are u off? Julia: Just have a few things to do in town then I'll be on my way Sean: Ok - bugger it. Just wanted to catch up with u before u left. All the best and hope it fixes yah problems with ya wrist. I do honestly hope u return. I haven't seen Phil Beard since December which is disappointing. Dan has been after a pay rise also and they won't do anything for me without Dean & Phil being here which is pissing me off. If u don't come back - wish u well. U have been great to have around and love ur attitude Thanks Jules. Thur, 12 Mar, 2.50pm Julia: Thanks I'll keep you posted I noticed I actually have 8 days annual leave and I put down 7 any chance you could just get them to pay out the 8? Thanks Sean: Yep I'll sort it out. Wed, 18 Mar, 11.00am Sean: I hear the news is good. Good luck with the recovery Wed, 18 Mar, 1.36pm Julia: Thanks>22 21 Court Book pages 86 to 88 22 Court Book pages 157 to 159. 14[2020] FWC 5190 [46] There is no suggestion in the evidence that there was any express discussion between Mr Beard and Ms Hoare to the effect that the Applicant's employment would conclude on a particular day, including 12 June 2020, or that the effective date of the resignation was being modified. "There may have been some discussion of when Ms Hoare would be "finishing up", but this was most likely in the context of the impending surgery and in the context of the resignation discussion, and not expressly about the end of employment. The fact that the success of Ms Hoare's surgery in fully addressing the medical issue was not guaranteed is also reflected in the nature of the above text exchanges. [47] According to the Respondent's internal records, Ms Hoare was also on annual leave for the period up until 19 March 2020, being the date of the actual surgery. [48] The major factual dispute is Ms Hoare's contention that Mr Beard advised her that she could have time off for the surgery- as opposed to Mr Beard's contention that he expressly advised the Applicant that unpaid leave was not possible and that the if she got through the surgery fine and another co-worker had a role change, the Respondent would be able to bring her back. 27 149] Given my findings on the witness evidence, it is not clear that Ms Hoare was ever advised that she would not be on unpaid leave and the objective view of the events and discussions is that the parties effectively ignored the resignation. It is also the case that there was no express agreement for Ms Hoare to take unpaid leave, but the effect of the arrangements made between the parties was more consistent with this taking place. Based upon their exchanges, both individuals intended that the employment relationship would continue after the surgery, and provided Ms Hoare's recovery was good, that her work would recommence as soon a she was able to do that. This was the understanding held by Ms Hoare and there was a reasonable objective basis for that view. [50] I have also considered the broader circumstantial context and the later conduct of the parties to the extent that it sheds any light on the status of the employment relationship at relevant times. [51] Ms Hoare was aware that her WorkCover claim was being disputed before she left for her surgery and this meant that the expenses were dealt with through her private health insurance. This would not explain a change in her position about the impact of the resignation as implied by the Respondent and Ms Hoare's explanation as to why she did not claim sick leave (WorkCover and the injury occurred at a previous workplace) was certainly plausible. As found earlier, it is the case that Mr Beard advised Ms Hoare as part of the discussion following the provision of the resignation document that he was attempting to 23 Evidence of Mr Beard - transcript PN581 and PN582. 24 Evidence of Mr Beard - transcript PN605 and PN606. 25 Applicant's Statement at para 29. 26 Mr Beard's statement at para 29 27 Transcript at PN745. 28 Ms Hoare accepted this during the course of her evidence. 29 Transcript PN159. 15[2020] FWC 5190 secure an increase in the Applicant's salary. This was later confirmed in the above text messages and appears to sit uncomfortably with the notion that the employment was about to conclude. In that regard, I find that the concept of the pay increase was intended, for the most part, as an inducement to Ms Hoare to continue to work with the Respondent, notwithstanding the impending surgery and the knowledge that Ms Hoare had earlier had significant surgery to reattach her thumb. It is also potentially significant that this desire was being communicated by Mr Beard to Ms Hoare even at the time that the Applicant had left the workplace to attend to the surgery. [53] In communications to staff in late January 2020, Mr Beard made reference to Ms Hoare starting "holidays" and being "about to take leave" in early February 2020." Mr Beard's explanation about why he used those terms rather than informing the staff that Ms Hoare was (on the Respondent's case) about to conclude her employment, was not entirely convincing. That is, he was attempting to mask Ms Hoare's departure to avoid disclosing that she was about to become unemployed and/ or to avoid one other employee becoming concerned that their share of the weekend work was about to increase (with the loss of the Applicant). [54] Mr Beard's written communications to head office were mostly consistent with him having been given a resignation by Ms Hoare and that she would be leaving the employment. However, there was no formal written communication that the effective date of the resignation had been extended and Ms Hoare continued to be paid until the time that she left to have the surgery apparently without any formal paperwork to that end that has been provided to the Commission. Mr Beard did advise head office on 18 March 2020 that Ms Hoare would be on annual leave between 12 March and 19 March 2020 and then "will cease employment". This was not communicated to Ms Hoare at any time prior to this application [55] Earlier on 12 March 2020, Ms Hoare expressly sought that her outstanding annual leave balance (to make a full 8 days) be paid out. Mr Beard indicated that he would sort this out." This is more consistent with the notion that Ms Hoare was not expecting that the payment would be occurring as a matter of course as would happen if it was clear that the employment itself would be ending. Mr Beard acknowledged the request and indicated that he would get it sorted. Although Mr Beard is not a human resources or payroll person, his evidence would suggest that he understands the consequences of a dismissal in this regard. As a result, the absence of any suggestion in this exchange that the annual leave would be paid out as matter of course is not irrelevant. The fact that the pay-out of annual leave perhaps should not have taken place, given the terms of the relevant modern award, does not undermine the significance of the Applicant's request for the pay-out and Mr Beard's response [56] For reasons previously set out, Ms Hoare did not at any point seek a payment of sick leave to cover the absence following the surgery, even after she did not immediately receive any WorkCover payments. Ms Hoare did not supply medical certificates to Lowlands 30 Court Book page 81. 31 Court Book page 82. $2 Attachments SB4, SB5, SB6 and SB8 to exhibit RI. 33 SB8 attached to exhibit R1. 34 Court Book page 84. 16[2020] FWC 5190 covering the period of absence, and none were sought by the Respondent. However, Ms Hoare did keep Mr Beard advised of her progress before and after the surgery. [57] The immediate lead up to the visit by Ms Hoare to the workplace following the surgery is provided by the following text exchange: "Thu, 2 April, 12.37pm Sean: Howdy Jules. Hope the hands coming along. Im going to be a pain and ask you to collect Sean Macs buggy. I can help u load it or u can come and I'll load it on our trailer and follow u home to unload it . I don't want the buggy here whilst ur not working due to running the risk of it being damaged or someone stealing it as it's not Midfield property. Hope u understand. Thanks Shaun. I don't want to be held responsible for someone else damaging it while ur not here that's all. Julia: Yea no worries I can come around later and grab it will just need a hand to hook that trailer up and what not that's all I'll be fine unloading it just need to borrow the ramps. " 35 [58] During the visit on 2 April 2020, Ms Hoare attended with her mother and went into the workplace to gather some items belonging to her (recently dismissed) partner. In discussions between Mr Beard and Ms Hoare about the buggy, Ms Hoare indicated words to the effect that she would "leave that here until I get back to work if that Okay". Mr Beard indicated that that would be okay and that "it gives me plenty of time to get the new tyres put on it"." [59] In my view the visit and discussions are important but not decisive because at this point it was the joint expectation that Ms Hoare would be returning to work with Respondent. That is, the suggestion made by Mr Beard during the conversation with Ms Hoare that the vehicle could be left until she returned to work sits much more comfortably with the Applicant's view but was not entirely inconsistent with either scenario given that it was the later COVID-19 consequences that meant that there would be no position for the Applicant. That is, at the time of the visit, there was a mutual expectation of further work, on either case. However, the fact that the return to work was still being assumed by both parties at that point tends to suggest that such was not merely a contingent possibility. [60] As either a current employee, or former employee who left on good terms and expected to be rehired, Ms Hoare's attendance at the workplace and freedom of access on the site would have been much the same. In my view, nothing turns on this particular aspect. 161] The text messages that led to Ms Hoare being advised, in effect, that there was no position for her were as follows: "Tue, 19 May, 8.56am Julia: Hey 35 Court Book page 161. 36 Applicant's statement at para 37. 17[2020] FWC 5190 Just an update and wondering about a start date back at work I'd be all good to come back from the second week of June it'll be a bit earlier then the 3 months if that's ok? I could start on the pay week of the 11" if this suits Thanks Sean: I'll talk to Phil Beard and Dean and see where we are at. We've put Gam off and things are getting tight. Mick still wants to leave so I'm hoping they will let me replace him with u coming back is my plan. Things have gone to shit with meat due to all the crap going on. Julia Ok just let me know when you know a date I can come back Thanks. Sean: (Ok emoji) Hand all good. Julia: Yea hands going well so I should be all good Sean: Great News How's Sean has he been able to get work? Fri, 29 May, 4:35pm text: (Missed Call text from 04xx xxx 753, provided by Telstra) "Yeah g'day Jules just Shaun. Catch you." Jules: Hey Tried calling back yesterday just realised my phones stuck on private for some silly reason, our wifi's down so not even sure if this will send, been trying since this morning otherwise I will try to call you Monday when I can get better reception in town Cheers Mon, 1 Jun, 1:47pm Jules: After that conversation I'm going to assume that I don't have a position there anymore? I'd rather just be told straight so I can find other work. Sean: That's the line to me yes but I want u back so I'm waiting on another call back. I don't want to loose u. I had to put a mill side worker off 3 weeks ago. Things are tightening up and I wanted u to come back on more money. Kelly hasn't worked for nearly 4-6 weeks now either. It's not good Jules: I'll take that as confirmation then, if I email a Centrelink separation certificate could you fill that out ASAP. I figured it out when I seen Mick and ... "37. [62] In all of the circumstances I am not satisfied that the provision of the resignation operated to end the relationship. Both parties acted in a manner that effectively ignored the resignation and I find that it lapsed by agreement. There was no discussion about the consequences of doing so but the parties carried on as if the relationship remained on foot, which is what occurred. As a result, the employment was not concluded with resignation, 37 Court book pages 95 to 97. 18[2020] FWC 5190 there is no suggestion (and none could be made) that Ms Hoare abandoned her employment, and the employment continued up to and beyond the surgery. 5.3 Conclusions on the dismissal [63] For reasons set out above, I find that the provision of the resignation did not bring about the conclusion of the relationship. The parties, in effect, ignored the resignation and there was no express agreed variation to extend the notice period. In reality, both parties operated on the expectation that the employment would be paused to permit the surgery and recovery, and to be resumed thereafter. [64] On that basis, the employment came to a conclusion when Lowlands indicated in late May 2020 that there was no position for the Applicant. This was a dismissal at the initiative of the employer within the meaning of s.386(1)(a) of the Act, and I am satisfied that Ms Hoare has demonstrated that this was the event that terminated the employment. [65] Given the timing of the dismissal and this application, the matter was lodged within the time period provided by s.394(2)(a) of the FW Act and no extension of time is required. 6. Whether the dismissal was unfair (harsh, unjust or unreasonable) - s.387 of the FW Act [66] Given the above findings, I need to consider whether the dismissal of Ms Hoare was unfair. [67] Section 385 of the FW Act provides as follows: "385 What is an unfair dismissal (1) A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and ( b ) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy." [68] Given that my findings satisfy s.385(1)(a) and items (c) and (d) are not relevant, Ms Hoare's dismissal will be unfair if it is found to be harsh, unjust or unreasonable. [69] Section 387 of the FW Act provides as follows: 387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: 19[2020] FWC 5190 (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 the FWC considers relevant." [70] Ms Hoare contends that: The respondent has not sought to justify the dismissal on the grounds of either misconduct or poor performance. There is no suggestion there were any warnings given to the applicant or any steps taken to address any problems with the applicant's work. Indeed, the text messages show the applicant was considered a valuable employee. There is no suggestion that the dismissal was a case of genuine redundancy. While the text messages indicate the respondent was having financial difficulties due to the pandemic and another employee had been put off, the employer didn't seek to use redundancy procedures to terminate the applicant's employment. The applicant's dismissal was also harsh, unjust or unreasonable because it "contravened" s.352 of the FW Act, which prohibits dismissing an employee because of the employee's temporary absence from work because of illness or injury or a kind prescribed by the regulations. This applied in this case and the Respondent has not proven to the contrary. [71] Lowlands contends that: . It has a separate, valid reason for the dismissal of Ms Hoare, namely her wilful or deliberate failure to frankly and honestly complete the pre-employment medical examination form which she completed on 1 1 June 2019. In any event, it is plain that Ms Hoare's role was redundant within the meaning of s.389 of the FW Act at the time that she sought to return to employment with Lowlands. She had been employed by Lowlands for less than one year, having 20[2020] FWC 5190 commenced on 12 June 2019. As a result, had Ms Hoare been made redundant, she would not have been entitled to any redundancy pay period under s. 119 of the Act and would have been entitled to one week notice period pursuant to s. 117 of the Act, clause 12.1 of the Award and the employment agreement. [72] I note that during oral submissions, the Respondent did not rely upon the redundancy issue as a jurisdictional barrier" to the application and emphasised that it was a factor going to merit and the extent of any remedy. $9 173] It is clear that s.387 of the FW Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be weighed up in totality. [74] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter. Section 387(a) - whether there was a valid reason for the dismissal related to Ms Hoare's capacity or conduct (including its effect on the safety and welfare of other employees [75] The evidence reveals that the reason that Ms Hoare was not provided with a position on her return by Lowlands was a combination of its misunderstanding about the employment relationship at the time and the impact of the COVID-19 pandemic in that particular context. This is not a reason associated with Ms Hoare's capacity or conduct. To the extent that Ms Hoare relies upon a claimed "breach" of s.352 of the FW Act, this is not a general protections application" and the reverse onus of proof does not apply." I would accept that a reason for dismissal that would otherwise be contrary to the General Protections could not be a valid reason for dismissal and might represent an additional consideration under s.387(h) of the FW Act. This is not present in this matter given what I have found to be the reason for the dismissal. 176] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason s valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly. 177] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a 38 Section 385(1)(d) of the FW Act. 39 Transcript PN40. 40 Part 3-1 of the FW Act. " Section 361 of the FW Act. 2 Selvachandran v Peteron Plastics Pty Lid (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36]. 21[2020] FWC 5190 valid reason. * Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal. " This would appear to extend to the claimed misconduct arising from the Applicant's failure to disclose her earlier hand injury as part of the pre- employment process. 178] The evidence reveals that as part of the pre-employment process, Ms Hoare did complete a medical information form that sought details of "any pre-existing injuries ... which could be affected by the nature of your proposed employment". Ms Hoare answered 'no" to questions about whether she had any other pre-existing injury she wished to disclosure, or whether she had any injury which may affect her "ability to fulfil the requirements above in a safe manner". * 179] Further, by clause 14 of the employment agreement between Ms Hoare and Lowlands, Ms Hoare confirmed that she had "informed the Company of all previous medical or hearing conditions concerning myself that are known to me". [80] It is clear that the nature of employment for which Ms Hoare was applying at the time "involves many varied tasks that may involve heavy manual work" and that Ms Hoare acknowledged at the time of employment that "false, misleading or undisclosed information could jeopardise my employment". 47 [81] Ms Hoare suffered a major hand injury during some employment that preceded her engagement by Lowlands. Given the nature of that injury and the work to be undertaken with the Respondent, that event should have been disclosed as part of the pre-employment process. It may have been that Ms Hoare considered that it did not affect her "ability to fulfil the requirements above in a safe manner" and the evidence about her work performance would certainly support that proposition. Indeed, Mr Beard denied any knowledge of the hand injury or any related concerns until the point of the resignation discussion. I observe that Ms Hoare was not asked about the reason for the non-disclosure, either prior to the dismissal or during the proceedings in this matter. [82] The non-disclosure was however not consistent with the declarations made at the time of employment (as a medical condition known to her) and this represents a form of misconduct. This is capable of forming a valid reason for dismissal. However, although Mr Beard is not the employer, he is the Farm Manager with a right of "hire and fire". Notwithstanding his knowledge of the non-disclosure and concerns about that aspect, during the hearing he again confirmed that he would still have the Applicant return to employment now. It is evident that whatever misconduct or loss of trust and confidence that might See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic)