2. After about an hour the applicant returned to Mr Brice's office and the meeting commenced. The allegations of misconduct made against the applicant were read to her and the applicant became "visibly and understandably upset by the allegations."[11] The applicant was crying although not hysterical.[12] However, strangely, Mr Brice said that; "At no stage during the meeting was Ms Tavassoli tearful or upset."[13]

[47] Mr Brice had a very different recollection to Ms Lyman of the emotional state of the applicant during the meeting. It is difficult to comprehend how Mr Brice could have failed to notice that the applicant was crying during the meeting. Mr Brice clearly failed to appreciate the level of emotional distress that the applicant was experiencing during the meeting on 16 November 2016.

[48] Consequently, when the applicant persisted with her apparent intention to resign, Mr Brice significantly misjudged the mental state of the applicant and he failed to recognise that the applicant was acting irrationally as a result of her disturbed state of mind. In the circumstances, the resignation that was amended and resubmitted by the applicant was not given freely, deliberately and as a result of any reasoned deliberation.

[49] The level of confusion of the applicant was reflected by her writing the wrong day of the week on the resignation letter. Further, the irrationality of the applicant's behaviour was reflected in her impulsive preparedness to resign with immediate effect, and that decision was conveyed by her scribbling out that part of the resignation letter which contained words indicating that she was providing one month's notice. Frankly, when all of the circumstances of the meeting of 16 November are carefully examined there would seem to have been every prospect that if Mr Brice had suggested that the applicant pay to Bupa some amount of money in respect to a notice period, she probably would have agreed to do so. Such was the level of her irrational behaviour at that time.

1. It is also relevant to note that the irrational behaviour of the applicant can, in part, be attributed to ethnic and cultural factors, associated with the shame that allegations which she thought involved theft would bring upon her. The applicant said that she did not want the humiliation of being dismissed for stealing beer,[14] although she was never accused of stealing beer. During cross-examination the applicant provided some seemingly contradictory and confused evidence[15] about the question of being accused of stealing beer. However, she did seem to ultimately verify the level of anxiety that she felt regarding any suggestion that she was a thief when she stated that she was "out of my mind"[16] and "in panic mode"[17] and that she "just wanted to go and be underground."[18]

2. The resubmitted resignation that was amended by way of the notice period having been scribbled over, was provided by the applicant when she was in a state of emotional distress. The level of the applicant's emotional distress was not recognised by Mr Brice. Further, the applicant was exhibiting irrational behaviour and that irrational behaviour was not appreciated or considered by Mr Brice when he immediately accepted the applicant's resignation as being "effective today."[19]

[52] The resignation of the applicant should not have been accepted in these circumstances. Particularly when one has regard for the applicant's lack of English language skills and certain ethnic and cultural factors, I am compelled to conclude that special circumstances existed such that the resignation of the applicant was legally ineffective.

[53] Consequently, I find that the applicant was dismissed on the employer's initiative and in satisfaction of the meaning of dismissed provided by s. 386 (1) (a) of the Act. Therefore, the file shall be returned to the Full Bench, so that it can determine what further Orders should be made in accordance with Order number (4) of the Full Bench Decision issued on 10 October 2017.

Mr J Darams of Counsel with Ms A Malon from Bupa Aged Care Australia appeared for the Appellant.

Mr C McArdle, Solicitor appeared for the Respondent, Shahin Tavassoli.

1. [1] Appeal book - page 447.
2. [2] Appeal book - page 235.
3. [3] Transcript of Re-Hearing proceedings (18 January 2018) @ PN173.
4. [4] Full Bench Decision [2017] FWCFB 3941 @ [56].
5. [5] Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162, see in particular, paragraph [75].
6. [6] Full Bench Decision [2017] FWCFB 3941 @ [47].
7. [7] Macken's Law of Employment , [Sappideen et al,] Eighth edition, Lawbook Co. 2016.
8. [8] Ibid @ [13.110] page 525.
9. [9] Ibid @ paragraphs [49] and [50].
10. [10] Appeal book - page 440.
11. [11] Appeal book - page 495.
12. [12] Transcript of Re-Hearing proceedings (18 January 2018) @ PN170.
13. [13] Appeal book - page 327, paragraph 49.
14. [14] Appeal book - page 554, paragraph 25.
15. [15] See for example Appeal book - page 59, PN420 to PN424.
16. [16] Appeal book - page 61 @ PN447.
17. [17] Appeal book - page 65 @ PN501.
18. [18] Appeal book - page 70 @ PN567.
19. [19] Appeal book - page 326 @ paragraph 46..

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