[1] The Commission has been called upon to decide whether Ms Annette Megna ("the Applicant") was able to make an application under s.643(1) of the Workplace Relations Act 1996 ("the Act") for relief in respect of termination of employment.

[2] In response to a claim for relief made by the Applicant on [date], No 1 Riverside Quay (SEQ) Pty Ltd ("the Respondent") stated that the Applicant did not have her employment terminated at the initiative of the Respondent, but rather, the Applicant resigned her employment. Consequently, the Respondent submits that the precondition to making an application under s.643(1) of the Act that that the employee's employment must be terminated has not been met.

[3] The Respondent employed the Applicant as 'Caf� Captain' at the BP Connect Palms Corner Service Station. The Commission understands that the Respondent operates food outlets at various BP Connect Service Stations.

[4] On Saturday 15 April 2006, the Applicant's motor vehicle broke down and she was unable to have it repaired for an extended duration of some six to eight weeks. Consequently, she was unable to make her way to work (at the BP Connect at Palms Corner) as she would have normally done, and no other avenues of travel were practicable (so it would appear).

[5] Shortly thereafter, on 17 April 2006, the Applicant approached Mr Kelvin Kroh, the Manager at BP Connect at Caboolture North (which was only some minutes distance from where she lived), and inquired as to positions that might be available at that location. The Applicant was of the view that Mr Kroh had indicated there were vacancies at Caboolture North. [1]

[6] The following day Ms Megna contacted Mr Kevin McGreevy, the Area Manager of the Respondent. It was the Applicant's evidence that Mr McGreevy had indicated in this conversation that she could be transferred to the Caboolture North location if she resigned her employment from Palms Corner and gave her reasons for so doing. It was claimed that this conversation was overheard by the Applicant's friend, Ms Rachael Skinner (who also gave evidence in this matter). On that same day, the Applicant wrote an email to Mr McGreevy stating: [2]

""At present I am unable to get to work […]. Knowing this I feel that I cannot fulfil my obligations to Palms Corner […]. Hopefully after this time I can resume my position at Palms Corner, but for the moment if possible I need tom work closer to home […]." 2

[7] On 20 April 2006, the Applicant wrote again to Mr McGreevy and stated as follows: [3]

"[…] am writing to inform you that due to circumstances beyond my control I have to resign from my position […] at Palms Corner. I have enclosed a copy of the paperwork which states that my engine […] has blown and is undrivable. [I] do wish to continue of working for BP and as per phone conversation today and yesterday and have been advised about CSR positions at Caboolture North […]. Once again I am sorry for this but this issue is beyond my control. Can you please notify me ASAP regarding any chance of other positions at Caboolture North. […]." (sic).

[8] There is no dispute between the parties that employees may transfer between BP sites subject to appropriate procedures.

[9] What is at issue elementally is the contention that Mr McGreevy offered or undertook to obtain for the Applicant employment at Caboolture North, and did so on the premise that she provide her resignation from Palms Corner and evidence of the reasons for her resignation. Once having been in receipt of the Applicant's resignation, the Applicant alleges that the Respondent failed to make good on the arrangement and no further work was offered to the Applicant at Caboolture North. This, the Applicant claims, was a constructive dismissal because the Respondent by its conduct intended to achieve a certain objective and that was realised upon inducing the Applicant to resign her position at Palms Corner, which was subsequently construed to be a resignation from the Respondent.

[10] On 11 August 2006, the Full Bench in Re: O'Meara v Stanley Works Pty Ltd [4] surveyed the authorities in relation to the principles that are to apply in respect of claims as to whether or not an employer's conduct resulted in the termination of an employee's employment. This was in respect of an application made pursuant to the Act as it stood before 27 March 2006. The Full Bench concluded as follows:

[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. [Emphasis added]

[11] Although it appears to continue to be followed, this is now a superseded analysis in relation to the Act for reason it is an analysis of the Act's provisions as they stood before 27 March 2006. In this respect, the Act now reads at s.642(4) as follows:

"For the purposes of this Division, the resignation of an employee is taken to constitute the termination of the employment of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer."

[12] The now relevant statutorily stipulated test in relation to whether a resignation of an employee's employment that led to the termination of an employee's employment, in effect, was at the initiative of an employer for purposes of s.642(4) of the Act comprises the following elements:

• the onus is on an employee or Applicant to demonstrate certain facts on the balance of probabilities; and

• the facts that the Applicant must demonstrate are that:

a) the employee did not resign his or her employment voluntarily, but;

c) because of the employer's conduct, or course of conduct.

[13] Consequently, the requirements of the Act are now directly expressed.

[14] It seems that the term "forced" is the past tense of the verb form "to force", and as such, an understanding of the plain meaning of the term "force" is relevant to applying s.642(4).

[15] Relevantly, the Macquarie Dictionary defines "force" as:

"….strength or power exerted upon an object; physical coercions; violence….power to influence, affect, or control; power to convince….to compel; constrain or oblige (oneself or someone) to do something….to bring about or effect by force; bring about of necessity or as a necessary result….to put or impose (something) forcibly on or upon a person….to press, urge or exert to violent effort or to the utmost…."

[16] The term "force" appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purposes. In either case, there is an important element of compulsion present.

[17] In the contextual circumstances now before the Commission, the issue is whether the Applicant herself is able to demonstrate:

• That she did not voluntarily resign her position or employment;

• But that her employer, because of its actual conduct, forced her to do so, such that there was an element of compulsion present.

[18] At first instance, there is nothing in the evidence that suggests the Respondent acted to initiate any circumstances or actions that led the Applicant to the course she eventually took. That is, the initiating circumstances (that is, the circumstances making for the unavailability for work for an extended duration) were unrelated to the Respondent, and the Respondent's role was therefore only responsive or reactive.

[19] Whilst not conclusive, this weighs against a finding that the Respondent acted with intent to "force" the termination of the Applicant's employment. Indeed, the Respondent's motives were not subject to any claim or conjecture by the Applicant in these proceedings in relation to having conspired to bring her employment to an end for any particular reason or purpose.

[20] That said, on the face of either of the communications directed to the Respondent by the Applicant as cited above, there is no evidence of an undertaking or arrangement in relation to effective re-deployment or re-employment such that it is demonstrated that the Respondent "forced" the Applicant to resign her position or employment. It appears on the Applicant's evidence that she resigned her employment on the assumption that she might be re-employed at a more convenient location.

[21] Indeed, on its express terms, the letter of resignation is couched in hopeful or prospective rather than anticipatory terms: [5]

"Can you please notify me ASAP regarding any chance of other positions at Caboolture North." [Emphasis added]

[22] The reasons for the resignation are set in clear terms in the Applicant's email to her employer on 19 April 2006: [6]

"I feel that I cannot fulfil my obligations to Palms Corner."

[23] Despite the Applicant's claims to an unfulfilled promise made by her employer, it is difficult to understand, if that were the case, why the Applicant's communications made at the time of the decision to resign did not include reference to any such promises.

[24] The Applicant's own evidence was that having resigned she was under no misapprehension as to her employment status: [7]

"Yes. But you've said, "I do wish to continue working for BP." You haven't actually confirmed that you still are working for them have you? --- No."

[25] Does the Applicant's evidence suggest the Respondent's intended conduct was the cause of her resignation?

[26] Under cross-examination, the Applicant gave the following evidence:

"But it just seems, Ms�Megna, that you have tendered your resignation based on this expectation that Mr�McGreevy in saying he'll help you or he's going to look into it, actually translates to you're going to get a job there and straightaway. And that's not right is it? It just doesn't mean the same thing as what you think it does, does it?---Well, in my eyes I do think that, yes, otherwise you wouldn't offer to help someone.

THE SENIOR DEPUTY PRESIDENT: Sorry, am I to take what the witness just said, that the offer to help, you construed the - you understood the offer to help to be an offer of a position?---Yes." Transcript PNS 430-431 [Emphasis added]

[27] Again, it appears on the evidence that the Applicant believed she had an offer of an alternative position at a more convenient location, when at most, all that was before her was an offer to help her find such employment.

[28] This construction of the conversation with Mr McGreevy is corroborated by the evidence of Ms Campbell, who claimed to have overheard the telephone conversation between the Applicant and Mr McGreevy: [8]

"Okay, yes, this is on the 20th?---Yes. She rang him to let him know that she'd got the letter from the mechanic and that she was about to write out the letter what wording did she have to put in there and he told her just that she had to resign from her position at Palms Corner and send that off with the statement from her mechanic and the same thing, then, and only then could he help her by putting her somewhere else.

I'd suggest to you that Mr�McGreevy never made any firm arrangement, or any arrangement at all about putting her in another position?---He did. He told her that he would do his best to place her in another BP site.

See, that's very different to what you just said to us before. Do his best to place her at another BP site is actually not the same thing as, "I'll place you in a BP site", is it?---Well, he - well, the first one was, he would place her somewhere, and then the second conversation was he would place her to the best - well, what he could do.

Do his best, okay. And you'd agree, though, wouldn't you, that when someone says, "I'll do my best to place you elsewhere" doesn't necessarily guarantee that that elsewhere is going to come about, does it?---No, but it doesn't mean they're going to sack them either." [Emphasis added]

[29] It appears on the evidence that Ms Campbell, like the Applicant, laboured under a mistaken belief, subjectively derived, that the Applicant had been offered a position, or else was to be re-employed at an alternate location.

[30] On the Applicant's own evidence alone it cannot be concluded that the Respondent used its position to mislead the Applicant intentionally with the intention of bringing the Applicant's employment to an end. Indeed the Applicant's employer sought to continue the employment at BP Palms Corner. [9]

[31] Nor could it be made out on the Applicant's evidence alone that the Respondent's conduct is of the nature that made the resignation an unavoidable course of action such that it could be concluded that Respondent "forced" the Applicant to tender her resignation. The Applicant has not adduced evidence of the necessary element of compulsion to sustain her claim.

[32] The Applicant claimed that the Respondent's request for demonstration of the condition of her vehicle before accepting her resignation was indicative of a wider contextual arrangement. But Mr McGreevy's evidence, to the extent recourse needs to be made to the Respondent's evidence, by way of explanation in this regard was creditable in respect of the explanation for his request for further information. [10]

[33] Beyond this, the fact that the Applicant did not receive her Certificate of Separation until some time after the resignation had been accepted does not assist the Applicant's case. [11]

[34] The Applicant's representative contended that the Commission should give consideration as to whether it could be said that the Applicant was na�ve as to the course she was taken, and the consequences of her resignation were unexpected or unknown to her. This submission was made on the basis of comments by Wilcox CJ in Re: Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd ("Re: Mohazab"): [12]

"I accept that, if a person signs a letter of resignation or offers an oral resignation under a misunderstanding of what he or she was doing or as a result of misleading or deceptive conduct, that resignation ought to be treated as having been given."

[35] There are two matters making for mitigation in relation to His Honour's reasoning: whether the Applicant acts out of a misunderstanding; or else was deceived by the employer.

[36] The latter element has been disposed of by way of the above consideration in that the Respondent's conduct was not demonstrated by the Applicant to have forced her resignation.

[37] However, in respect of the former matter, the statutory test at s.642(4) of the Act does not necessarily embrace all the wider contextual consideration as proposed by Wilcox CJ in Re: Mohazab. That is, absent any causative conduct by an employer that amounts to "force", a resignation made voluntarily by an employee must be taken as resulting in the termination of the employee's employment.

[38] Notwithstanding this, having heard the Applicant under cross-examination and having examined the documentation that comprises her email of 19 April 2006 and her letter of resignation of 20 April 2006, it cannot be made out that the Respondent lacked all knowledge of the consequences of her actions, including that she resigned her employment from the Respondent. It would appear, rather, that the Applicant, having resigned her employment with the Respondent, now claims to have been misled about the prospect of re-employment at a single, alternate location of her preferred choice.

[39] For the reasons given above, the Motion to Dismiss is upheld as the Applicant did not have her employment terminated at the initiative of the employer for purposes of s.642 of the Act. The application for relief is therefore dismissed.

Printed by authority of the Commonwealth Government Printer

[1] Witness Statement of Annette Megna, 7 July, PN 2

[2] Respondent's Submissions, Attachment 2

[3] Respondent's Submissions, Attachment 3

[4] Giudice J, Watson VP and Cribb C [PR973462]

[5] Respondent's Submissions, Attachment 3

[6] Respondent's Submissions, Attachment 2

[7] Transcript, 18 August 2006, PN 358

[8] Transcript, 18 August 2006, PNS 571-574

[9] Transcript, 18 August 2006, PN 81

[10] Transcript, 18 August 2006, PNS 70-71

[11] See for example Transcript, 18 August 2006, PNS 78-79

[12] (1995) 62 IR 195