Fair Work Commission|2024-06-12

The Applicant, Ms Gillian Hetherington, appeared for herself.

Mr Dan Kynaston, Partner, King & Wood Mallesons, appeared with permission for the Respondent.

[1] See ss.394 of the Fair Work Act 2009 (Act).

[2] See Respondent's Form F53 (filed 14 May 2024), and written submissions on permission to appear (dated 14 May 2024).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901.

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, at [39]-[40].

[12] Shaw v ANZ Bank [2015] FWCFB 287, at [12].

[13] See also Transcript, PN28-PN37, and PN42-PN51.

[15] Respondent's written submissions, 14 May 2024, at [9]-[12]. See also Transcript, PN54-PN57.

[16] [2021] FWC 3903, at [19]-[25].

[17] See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy's Crane Hire Pty Ltd (t/as Crossy's Crane Hire) [2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy [2012] FWA 7744.

[18] Respondent's written submissions, 14 May 2024, at [12].

[19] Note Applicant's concession at Transcript, PN39-PN40. See also Transcript, PN64-PN65.

[23] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, at [38]).

[27] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

[30] Byron Stephen Gill v IFM Services Pty Ltd [2021] FWC 5962, at [33].

[33] Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37]; Perry v Rio Tinto Shipping [2016] FWCFB 6963, at [41].

[34] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.

[35] Noting the definition of "exceptional circumstances" set out in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13].

Printed by authority of the Commonwealth Government Printer

Gillian Hetherington v The Anglican School Googong [2024] FWC 1517 (12 June 2024)

"Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] YR 632, at 634."[7] (my emphasis)

[29] The Applicant's written resignation in this case gave four weeks' notice. At no time prior to it taking effect on 27 February 2024 did the Applicant seek to withdraw her resignation. The Applicant has not attended the workplace since around February 2023. She filed a bullying complaint with the Commission in April 2023, but discontinued it on 10 July 2023. The events referred to by the Applicant in her resignation letter are not contemporaneous with the date of her resignation letter, being 30 January 2024. Further, the contents of, or details contained within, the resignation letter highlight that the Applicant has thought long and hard about her decision to resign. It was not a spur of the moment, or heat of the moment, decision (resignation). None of the facts support the Applicant's contention that she was dismissed because she was forced, at the time she wrote and submitted her resignation, to do so. The purported course of conduct said to have been engaged in by the Respondent does not, on the evidence before me, meet the requirements of s.386(1)(b) of the Act, noting the Full Bench decision in Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli [2017] FWCFB 3941, at [47]. As at 30 January 2024, if the Applicant did not resign, she would simply have stayed on leave like she had been doing for almost a year already. Her choice to resign on 30 January 2024, on the current state of the evidence before me, was hers, and hers alone.

Gillian Hetherington v The Anglican School Googong [2024] FWC 1517

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Gillian Hetherington v The Anglican School Googong [2024] FWC 1517 (12 June 2024)