Unfair dismissal; forced resignation

“Here is an extract from a rare Fair Work Commission case in which the Commission has accepted that the applicant employee was forced to resign and that in all the circumstances for the purposes of unfair dismissal she was dismissed.

“Consideration

Has Mrs Trail been dismissed?

[345] Although applied under the previous Act, 81 the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd82 in my view remains generally apposite to the consideration of s.386(1) of the 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 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)

[346] A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli, 83 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).

  1. 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).
  2. 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 Ltd, 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 Ltd (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)

[347] Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:

  • the question as to whether the resignation was forced within the meaning of the 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. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
  • 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; and
  • 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.

Was Mrs Trail forced to resign?

[348] In light of the terms of the Act and the authorities, it is necessary to consider whether Mrs Trail was forced to resign. In making that assessment, it is appropriate to make an objective analysis of the Respondent’s conduct to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. The line, however, must be “closely drawn and rigorously observed”.

[349] The onus is on Mrs Trail to establish that she did not resign voluntarily, proving that the Respondent forced her resignation. 84 For Mrs Trail to succeed I must find that the Respondent took action with the intent or probable result to bring the employment relationship between Mrs Trail and the Respondent to an end.85

Respondent’s failure to afford procedural fairness

[350] I have never been so astounded to learn from a large organisation, the size of the Respondent, that it considers that it can issue written warnings to employees without a proper investigation and without affording to an employee procedural fairness.

[351] Mr Sim was issued a written warning on account of Ms O’Brien’s declaration that she considered he had been drinking at work. Ms O’Brien flip-flopped like a fish out of water when she recounted her version of the events of 30 August 2020. At various times she referred to Mr Sim as a “drunk chef”, a person with an alcohol problem, and only when I raised with her the clear dereliction of her duty of care to Mr Sim to allow him to continue working while in that alleged condition, or not make inquiries as to how he would get home did she give evidence that she didn’t think he was intoxicated.

[352] Ms O’Brien’s evidence was entirely unsatisfactory. Where Ms O’Brien at various times painted her and the Respondent as being a caring, sensitive and sympathetic employer, there was a shocking demonstration of callousness in the way it dealt with Mr Sim. The Commission learned during the hearing that Mr Camp and Mr O’Brien held suspicions for many years, at least as early as 2017 that Mr Sim had a drinking problem. Numerous instances of suspicions of Mr Sim smelling of alcohol at work were reported to Mr Camp.

[353] It seems, then, that Mr Camp alerted Mr O’Brien to these repeated concerns. As a result, Mr O’Brien and Mr Smith had conversations with Mr Sim, at times. On the evidence before the Commission, Mr Camp only informed Ms O’Brien of the most recent concern occurring a short time prior to 30 August 2020, being the stocktake at Metricon Stadium attended by Mr Campbell in February 2020. Mr Camp did not inform Ms O’Brien, it seems, that it had been reported to him from various different chefs since 2017.

[354] Not one iota of these allegations was put to Mr Sim when he was issued with a written warning. The Respondent has taken it as a fact that all of these reported instances occurred. This included that he was reportedly under the influence when working during the tennis tournament some years ago. Curiously, Ms Bailey gave evidence that she did not know that Mr Sim was reportedly drinking while working at the tennis. Yet Mr Kidson reported it to Mr Camp, who failed to report the concern to Ms Bailey. Mr Camp gave evidence Mrs Trail should know if her colleague was drinking at work, but it seems Ms Bailey was left in the dark by Mr Camp relevant to the period of time where Mr Sim was working at the tennis tournament under Ms Bailey. The highest Ms Bailey’s purported knowledge of Mr Sim’s drinking at work was back during the Commonwealth Games period.

[355] During the months where Mr O’Brien had his “sixth sense” relevant to Mr Sim’s alleged drinking at work, or drinking after work, Mr Sim had no idea that Mr O’Brien, Ms O’Brien and Mr Camp as the senior leaders were now going to be keeping a close eye on him. Mrs Trail certainly didn’t know the plan of the senior leaders. Nobody bothered to tell her. The evidence before the Commission is that it was deliberately withheld from Mrs Trail on account of her relationship with Mr Sim and not wanting to put a hunch or rumour to Mrs Trail and to protect Mr Sim’s privacy.

[356] The most incredulous evidence put before the Commission by Mr O’Brien and Mr Camp is that Mrs Trail ought to have known; yet they were not prepared to discuss their suspicions with her, which the Commission now understands were based on years’ worth of reports of suspected conduct. On one hand, Mr O’Brien’s evidence to the Commission is that he didn’t think to tell Mrs Trail as he didn’t think it was appropriate and he wanted to protect Mr Sim. He stated that he didn’t think it right to telephone Mrs Trail, and he kept his concerns to Ms O’Brien and Mr Sim. He said he didn’t want to broadcast it. On the other hand, his evidence to the Commission is that he considers it “unbelievable” and “staggering” that she did not know. The evidence given contradicts itself. What is certain is that neither Mr O’Brien, Ms O’Brien or Mr Camp decided it suitable to discuss their knowledge with Mrs Trail when they ought to have.

[357] It was Ms O’Brien’s self-proclaimed hyper-sensitive nose that led her to conclude that on 30 August 2020, Mr Sim either smelt of alcohol, had taken a swig of alcohol because she considered his aroma to be “fresh”, or when her evidence suited her, he was a drunk chef.

[358] None of the usual or expected events occurred when a prudent employer investigates an employee over an alleged serious issue. Mr Sim certainly was not stood aside on the night. Ms O’Brien’s evidence was that she considered he wasn’t affected enough to cause her to stand him aside. Yet Mr O’Brien sought to suggest that he had been told that Mr Sim was somewhat side-lined, with other chefs providing greater assistance. In oral evidence it was demonstrated that Mr O’Brien’s understanding on this issue was simply not correct. In fact, Mr Sim was across numerous kitchens across the relevant evening, with Ms O’Brien in attendance at all times.

[359] Mr Sim was not informed that an investigation was underway. He was, astonishingly, issued with a written warning. The Respondent finds some satisfaction in its actions suggesting that Mr Sim did not dispute the written warning. If he had, it stated, it would have been reviewed. I heard enough evidence of the Respondent, including Mr O’Brien that he trusted his daughter implicitly, and if his daughter said Mr Sim smelt of alcohol that night, he certainly smelt like alcohol.

[360] Any suggestion that Mr Sim could have had the written warning issued to him reviewed is a complete nonsense. This business does what it wants to do, without regard for procedural fairness obligations it owes to its employees. Mr Camp made it clear to Mrs Trail that Mr Sim ought not to challenge the warning issued to him as Mr O’Brien would not take too kindly to his daughter being called a liar. Mr Camp said such a thing to Mr Sim when he wanted to challenge the warning. 86 He then went on to declare to Mrs Trail the incredible untruth about Ms O’Brien’s qualifications – Mr Camp’s error, not Ms O’Brien’s.

[361] Mrs Trail was unfortunately involved in the issuing of the written warning to Mr Sim. She felt extremely uncomfortable with the process and the facts. She knew that it was not appropriate to simply declare that Mr Sim had been drinking at work. She knew that an investigation should occur, including putting the allegation to him and allowing him an opportunity to respond before any finding is made. Instead, findings were made and a disciplinary process implemented before a full investigation could occur and accusations put.

[362] Mr Sim wasn’t only just warned about a matter he denied, he was sanctioned. He was told that he would then need to travel north to work out of Suncorp Stadium so his work could be supervised. If the Respondent had any concerns about its employee drinking on the job, it did a fine job of then requiring that employee to drive at least 40 minutes home after long shifts. If the Respondent had any concerns that Mr Sim was an alcoholic, and prone to drinking either at work or after work, it made no attempts to satisfy itself that Mr Sim wouldn’t finish a shift at Suncorp and sit in his car, drinking alcohol before he then travelled on the freeway. Understandably, Mr Sim resigned, appalled and disappointed at the warning having been issued to him and the sanctions imposed upon him.

[363] Mrs Trail felt terribly sorry for Mr Sim. She was next to fall victim of the Respondent’s failure to follow its own policy and procedure and in fact, simple decency to put an allegation to an employee before a finding is made.

[364] During the telephone call with Mrs Trail on 2 September 2020, Mr Camp kept very quiet as to what he had learned since 2017. He didn’t share this with Mrs Trail. He didn’t think to say to her that if it had been such common knowledge among visiting chefs that Mr Sim had a drinking problem, why wouldn’t she know of this. Mrs Trail’s account was accepted. She acknowledged that she knew it was an issue during the Commonwealth Games, but she wasn’t, at the time, Venue Manager. Other people were looking after the issue.

[365] She even acknowledged that in recent times when she had concerns, Mr Sim had reported that he was taking medication. It sounded a plausible explanation as to why Mr Sim might not be in full control, being on pain killers. Mrs Trail’s account was, it seems, accepted. Yet in written closing submissions it was put that Mrs Trail was clearly aware that Mr Sim had been at work and under the influence of alcohol and failed to truthfully report this during the investigation. The Respondent’s submissions are not accepted. Mrs Trail’s evidence is accepted.

[366] What Mrs Trail wasn’t told was that implicitly, there had been examples reported to Mr Camp for many years, which were then forwarded to Mr O’Brien to attend to. No explanation was provided to Mrs Trail during this phone call to say that she had been kept out of the loop on this information on account of Mr Sim’s right to privacy.

[367] Ms O’Brien’s next steps of discussing the matter with Ms Bailey then set a course for Mrs Trail. Ms O’Brien was convinced, having read the text messages exchanged between Ms Bailey and Mrs Trail that Mrs Trail knew that Mr Sim had a drinking problem and had been drinking at work. Nothing at all would sway Ms O’Brien from her view as to what the text messages describe. She gave no weight at all to the fact that Ms Bailey had, when she referred to Mrs Trail knowing that Mr Sim drinks at work, referred to the period of the Commonwealth Games and not any more recent period of time. On Ms Bailey’s evidence, she only had suspicions, but had not observed Mr Sim drinking at work and the relevant period was many years prior. Ms Bailey’s evidence given during the hearing is that she had no concerns while overseeing Mr Sim’s work during the tennis tournament period.

[368] Further, it came to light in cross-examination of Ms Bailey that she thought during the Commonwealth game period she had informed Mrs Trail and Mr Trevers-Grace of matters involving Mr Sim’s drinking, and she understood Mr Trevers-Grace had raised the issue with Mr Smith. She is correct about that issue; Mr Trevers-Grace did. However, Mr Trevers-Grace gave evidence, which I prefer over Ms Bailey’s, that at no time did he discuss the matter with Mrs Trail. Mrs Trail’s evidence on this issue is also accepted. Accordingly, where Ms Bailey considered that Mrs Trail did know about this specific issue, I find that she did not, and it was left with Mr Trevers-Grace to bring to Mr Smith’s attention. This, of course, affected Ms Bailey’s adverse statement to Ms O’Brien relevant to Mrs Trail’s purported knowledge that it was “bullshit” that Mrs Trail did not know of Mr Sim’s alleged drinking at work issue.

[369] Ms O’Brien gave no weight to the fact that Mr Sim attended the golf club out of hours, and if on prescribed medication, might be more readily affected by alcohol in a short period, albeit drinking outside of work.

[370] Ms O’Brien assumed that because Mrs Trail said that she had seen him slurry at work she must have observed him under the influence at work. As is clear from Ms Bailey’s oral evidence, she did not know that Mr Sim was taking prescription medication at this time which may have affected his tolerance to the drinks he consumed at the golf club.

[371] Throughout the course of the hearing, Ms O’Brien repeatedly stated that Mrs Trail had lied over her assertion that she had not known of Mr Sim’s alleged drinking issue and the ticket issue. 87 Her demeanour was savage, calculated and unforgiving. She felt slighted and deceived. She never once, however, informed Mrs Trail that she was secretly recording the conversation of 2 September 2020, nor during that meeting did she disclose that all senior managers already knew about specific alleged incidents prior to 30 August 2020, including the matter involving Mr Campbell.

[372] Ms O’Brien discussed the matter with Mr O’Brien and together they determined that Mrs Trail must receive a written warning. As simple as that, Mrs Trail must receive a written warning. It would be issued to her, and it was.

[373] Mrs Trail earnestly asked for the warning to be reviewed, raising very valid points that she had since learned that Mr Camp and Mr Smith had apparently been working with Mr Sim relevant to his alleged drinking issue. She inquired why it is that she had not been included in this corporate knowledge, because if she had, she might not have accepted Mr Sim’s response on one occasion that he was on medication and that is why he appeared groggy. Mrs Trail was never given an answer to this question. No effort was made to inform her why the senior leaders’ knowledge, known to Mr O’Brien, Ms O’Brien, Mr Smith and Mr Camp wasn’t shared with her.

[374] Instead, within two hours of her disputing the written warning, she was informed that the warning was supported, and apparently three unnamed people supported the conclusion that Mr Sim had been drinking at work on 30 August 2020. As is clear from Ms O’Brien’s evidence to the Commission, she was incorrect with her references to Mr Dakai and Mr Scott not having seen Mr Sim and being in a position to declare if he smelled of alcohol. Mr Dakai and Mr Scott’s evidence is accepted; they had worked with Mr Sim for a substantial period on 30 August 2020, and Ms O’Brien’s earlier evidence that they had not is incorrect. It is a material fact that failed to form part of any investigation of the Respondent.

[375] The conduct of the Respondent is astonishing, but neither Ms O’Brien nor Mr Camp can make any concessions that this course of conduct is not appropriate. It seems to me that they don’t know how to make appropriate concessions. Mr O’Brien made a gentle attempt to acknowledge the way the Respondent conducted itself is not appropriate, but curiously, is prepared to let the decision of the Commission serve as an educational lesson. Ms O’Brien then doubled-down, declaring the Respondent will weaken the procedural fairness within its policies, clearly to the detriment of employees.

[376] Mrs Trail was, on her accounts, which I accept, unable to sleep. She had worked for the business for a long time. She had been feeling excluded by Mr Camp for some time, which I’ll address later. She was issued with a written warning which she did not consider was validly issued and shot down a short time later when she disputed it. She was not given answers to her very valid questions within the letter requesting a review. As we have learned, any review was pointless. Mr O’Brien, the decision maker, gave evidence that if Mrs Trail had attempted to dispute the first written warning directly with him the warning would have stood.

Second written warning

[377] On account of Mrs Trail’s admission that she had provided tickets to Ms Bailey – such admission made on the run while she was being informed that she’d be issued with a first written warning – the Respondent then went ahead and issued to Mrs Trail a second written warning.

[378] No investigation was conducted relevant to Mrs Trail’s knowledge of the Respondent’s Gifts, Hospitality and Benefits Policy and Procedure. No investigation was conducted into the corporate knowledge of relevant employees and their adherence to the above policy. The Commission learned in evidence that many employees either had no knowledge of the policy or could not recall what it said. Mr Trevers-Grace had not read it for around four years, and Ms Bailey clearly has been in breach of it time and time again. Mr Scott has received free tickets.

[379] Ms O’Brien said she was disappointed that Ms Bailey was in breach of the policy, but knowing that Ms Bailey had received tickets from Mrs Trail, still saw fit, it seems, to re-employ Ms Bailey prior to the hearing of this application on an eight week contract to assist with a particular need. At the time of the hearing, Ms Bailey still did not have any knowledge of the policy.

Discussions with Mr Smith

[380] In the days between Mrs Trail learning that her first warning letter would not be withdrawn, and being issued with a second written warning, Mrs Trail was consulting with Mr Smith. She was shaking, crying and according to Mr Smith, very upset. He told her, “This is the O’Brien way” and asked her not to take it personally. This was said after Mrs Trail had received her first written warning.

[381] I accept Mrs Trail’s evidence that Mr Smith said that being “the O’Brien way” is not a justification for the company’s behaviour, but this is just “how they work.”

[382] Where it could be expected that Mr Smith, the manager responsible for HR might have been responsible for ensuring that Mrs Trail received a “fair go”, he was the last to learn that Mrs Trail was issued with a second written warning on 16 September 2020. Clearly, neither Mr Camp, Mr O’Brien or Ms O’Brien consulted him to obtain his views as to whether a warning should be issued, or even better, an investigation commenced.

[383] Mrs Trail spoke with Mr Smith after receiving the second warning and told him that she was being bullied and she couldn’t take it anymore. She told him she considered she was being unfairly performance managed out of the business. Mr Smith informed her he would follow it up with Mr Camp.

[384] Mr Camp contacted Mrs Trail the same day and apologised for leaving her off emails and he didn’t deliberately intend to, except for the Unilever email. He said he didn’t consider she needed to be on that email and she was the only person removed, which was not true. I do not suggest that Mr Camp deliberately lied to Mrs Trail in this telephone call, however he was mistaken. I consider that Mr Camp’s telephone call to Mrs Trail was not sincere.

[385] Mrs Trail then received the email from Ms O’Brien, copying in Mr O’Brien, reminding her that she must not leave Ms O’Brien off financial emails and this has been repeatedly done. Mrs Trail’s evidence is that it was the straw that broke the camel’s back, and she considered she was being readied to be dismissed. Accordingly, she resigned. Her resignation letter speaks for itself.

[386] Regarding Mr Smith’s evidence, when the Commission suggested to Mr Smith that if a manager smelt alcohol on Mr Sim in the performance of his duties, he said that he would have taken action to remove him from that situation. I consider Mr Smith’s evidence in answering this question to have been mistakenly given as to what he considered Mrs Trail ought to have done and did not do. Not surprisingly, when the Commission informed him that this was, in fact, Ms O’Brien who had not stood Mr Sim aside given her suspicions of smelling of alcohol, Mr Smith then said perhaps a chef might smell of alcohol because he used alcohol for cooking. Indeed!

[387] I consider that Mr Smith was unable to understand the biased evidence he had given to the Commission. He was prepared to condemn Mrs Trail for presumably not meeting her duty of care to stand aside a chef who smelled of alcohol, but when he learned it was Ms O’Brien who had failed to stand aside a chef who she considered smelt of alcohol, he provided an explanation that a chef might smell of alcohol because they may use alcohol in the meals they serve.

[388] The hypocrisy of then issuing to Mr Sim a written warning, and Mrs Trail a written warning for these matters is not lost on the Commission.

Exclusion from emails and walk-arounds

[389] I accept Mrs Trail’s evidence that she was being undeservedly removed from relevant emails that she should, at large, have been included in on. I am satisfied that Mr Camp did deliberately seek to ostracise Mrs Trail from important emails. He preferred to deal with other employees including Mr Scott, Mr Dakai and Mr Trevers-Grace. Disappointingly, Mr Carey noticed the ostracization. Impartially, he considered it confusing and unnecessary. He included Mrs Trail in on relevant emails where he considered it important she know about certain matters.

[390] Mr Trevers-Grace was also of the view that she was being left out of relevant emails. His evidence to the Commission is that he had noticed a pattern of behaviour and it didn’t surprise him given the individuals who were leaving Mrs Trail off the emails.

[391] In cross-examination, Ms Bailey agreed that the type of emails Mrs Trail was being excluded from are ones that she expects a Venue Manager would be included on.

[392] The relevant time Mrs Trail complains of having been left out of emails is important – July, August and September 2020. It was a not a longer period, but it was largely on the return of events to the stadium and at an extraordinarily busy period of time for the employees and the Respondent on account of the many games of football being held at Metricon Stadium.

[393] I also accept Mrs Trail’s evidence that she was generally ignored by Ms O’Brien during relevant walk-arounds Metricon Stadium. I accept Ms O’Brien’s evidence that she need not walk-around with Mrs Trail on all or even many occasions she attends the stadium; the O’Brien family may walk around at-will. However, I do accept that Ms O’Brien made very little attempt to speak with Mrs Trail throughout the latter part of 2020, other than to exchange simple greetings and conduct bare-bones business talk.

[394] It is evident that Ms O’Brien was not interested in continuing the relationship with Mrs Trail, the Venue Manager. I am satisfied that Ms O’Brien had her eye on the future – Mr Scott and Mr Dakai – she had told them as much. I accept Mr Dakai’s evidence that he and Mr Scott were informed that they were the future of the stadium because of their age and “look”. I accept Mr Dakai’s evidence that this very sentiment was repeated to him when he lunched with Ms O’Brien and Mrs O’Brien following Mrs Trail’s departure.

[395] I would find it hard to believe that Ms O’Brien would scarcely speak with other Venue Managers in the way she scarcely spoke with Mrs Trail throughout the latter part of 2020. I accept Mr Dakai’s evidence that one day after Mrs Trail resigned, in a telephone call with Ms O’Brien, she said, “We can now focus on making the venue better, and it will be better without her”, referring to Mrs Trail.

[396] Interestingly, Ms O’Brien even offered to retain Mr Dakai following his resignation by finding him a role at the Gabba stadium, naming an incumbent, saying “if you want, [name] will be gone tomorrow!”. I accept Mr Dakai’s evidence over Ms O’Brien’s on this issue, particularly so as she saw fit to text Mr Dakai later that day to ensure the conversation was kept confidential on account of her not wanting word to spread. If she was simply prepared to find Mr Dakai a role without removing an incumbent there would appear to me to be no reason for Ms O’Brien to send the particular text message she sent to Mr Dakai.

Evidence given relevant to Taylor Swift concert

[397] It is not a factor of consideration relevant to whether there was a dismissal. However, the Respondent, and in particular, Mr O’Brien sought to make an extraordinarily big deal over Mrs Trail’s attendance at the Taylor Swift concert at the Gabba while she was recovering from cancer.

[398] I accept and prefer Mrs Trail’s evidence and Ms Bailey’s evidence over Mr O’Brien’s. For whatever reason, Mr O’Brien considers Mrs Trail asked for a corporate box and indeed had 12 people in attendance during the concert, I do not accept Mr O’Brien’s evidence.

[399] Ms Bailey’s evidence is clear; the request for tickets was made by her. She emailed Mr O’Brien and requested four tickets. She explained that Mrs Trail is a huge fan and it would mean a great deal to her and her daughter if she could attend. It was, in fact a surprise for Mrs Trail. I accept Mrs Trail’s evidence that her party was of five people only (four became five). It may be usual for Mr O’Brien, in his position, to mix well with all people within a corporate box. Mrs Trail was, at the time, recovering from cancer and in attendance with her daughter and three others. I do not consider it beyond comprehension that she might not have mixed with the other people in the corporate box; people she cannot identify. Mr O’Brien was not able to say who the other people were, simply asserting they must have been guests of Mrs Trail. I accept that they were not.

Conclusion on dismissal

[400] Mrs Trail had been held in high regard by the Respondent until she was not; the relationship began to deteriorate at the Respondent’s initiative throughout 2020. Mr Camp’s increased involvement at Metricon Stadium commenced the creep of the beginning of the end.

[401] Ms O’Brien also began to turn off; she began to imagine a future with Mr Scott and Mr Dakai running the venue, without Mrs Trail.

[402] Mr Smith reflected on the conduct of the family, described as “the O’Brien way”. It was evident throughout the hearing that with no independence, the O’Brien family makes decisions as it sees fit, without regard to its own written policies, procedural fairness or a fair go. This is evident in the way Mr Sim and Mrs Trail were treated. Declarations are made relevant to employees’ conduct; investigations are not properly conducted.

[403] Mr Camp, with no experience in following the Respondent’s disciplinary policy and procedure and with no understanding of how to properly conduct an investigation was the manager tasked with executing the written warnings. Mr Smith and the HR team were not consulted. I am not certain they would have any impact if they were consulted; Mr Smith’s HR knowledge is, in my view, unsatisfactory, and sadly, impotent against the family’s determination to do things their way.

[404] Mrs Trail was, in a relatively short period of time, faced with a situation where she had, I accept, been ostracised and unfairly issued with two written warnings. I accept her evidence that she was not aware of the anti-bullying provisions within the Act. Certainly, in her pleadings with Mr Smith, alleging she had been bullied, he did not inform her of the avenues available to her, including bringing an anti-bullying application before the Commission. He did not encourage her to take a substantial break from work; he encouraged her to look after her immediate mental health, however he did not inform her that if she considered she was suffering a workplace injury she could make a workers’ compensation claim.

[405] Understanding how distraught Mrs Trail was given the receipt of two written warnings in such quick succession, the unsatisfactory handling by Mr Smith of the issue before him, the further phone call from Mr Camp on 16 September 2020 and to a lesser extent, Ms O’Brien’s email which Mrs Trail considered to be chastising, I accept that Mrs Trail considered that if she did not resign, giving the required notice, she would likely be dismissed. I accept her concerns were real and termination of her employment would likely be realised given the manner in which she had been treated in the prior months, weeks and days.

[406] I am satisfied that the conduct engaged in by the Respondent was the principal constituting factor leading to the termination. I am satisfied there was sufficient causal connection between the Respondent’s conduct to Mrs Trail and the resignation such that it forced the resignation.

[407] On the evidence before me, I am satisfied that the Respondent engaged in the conduct that it did with an intention to bring the employment relationship to an end, or that it would have that probable result.

[408] I do not consider the conduct of the Respondent to be ambiguous. I accept that Mrs Trail had no effective or real choice but to resign her employment.

[409] In coming to my conclusion, I have objectively analysed the Respondent’s conduct.

[410] I am satisfied, having regard to all of the evidence and submissions before me that Mrs Trail resigned having been forced to do so because of a course of conduct engaged in by the Respondent.

[411] Having determined that Mrs Trail was dismissed pursuant to s.386(1)(b) of the Act, I must now determine if Mrs Trail has been unfairly dismissed having regard to the criteria in s.387 of the Act.”

Trail v O’Brien Group Australia (2021) FWC 4098 delivered 14 July 2021 per Hunt C