Fair Work Act 2009

s.394 - Unfair dismissal

Pathways Australia Pty Ltd T/A Pathways Australia

[1] Ms Sharon Hill was employed by Pathways Australia Pty Ltd T/A Pathways Australia (Pathways Australia) as a Relationships Manager from 29 October 2014 until 20 April 2017. Ms Hill has applied under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy seeking compensation in lieu of reinstatement.

[2] Pathways Australia has objected to Ms Hill's application on a question of jurisdiction. In its Form F3 - Employer Response to Unfair Dismissal Application (Form F3) filed on 16 May 2017, Pathways Australia claims there was no dismissal because Ms Hill voluntarily resigned on 23 March 2017, with an effective termination date of 20 April 2017.

[3] The matter was referred to conciliation on 16 June 2017 but did not resolve. Subsequently, the matter was listed for a Jurisdiction and Arbitration Conference/Hearing which occurred on 28 August 2017.

[4] Mr Peter Holdsworth, Director, represented Pathways Australia. Ms Hill had previously sought permission, under s.596 of the Act, to be represented by a lawyer. I considered oral submissions on this issue from the parties at a Mention and/directions hearing conducted via telephone on 17 August 2017. After weighing up the circumstances and the considerations in s.596 of the Act, I granted permission for Ms Hill to be represented by Mr Andrew Bell of Counsel.

[5] During the hearing, I raised with the parties my observation that the Outline of Argument of Pathways Australia[1] appeared to contain material that was in the nature of proposed evidence from Mr Holdsworth and that it was my intention to treat it as such. I indicated this because I was conscious Mr Holdsworth was not legally represented and may not have fully appreciated the distinction between an Outline of Argument and Statement of Evidence. I granted an adjournment to enable Ms Hill to consider whether there were any elements of the Outline of Argument about which she wished to cross-examine Mr Holdsworth, if they were taken to form part of his evidence. Following this adjournment, Mr Holdsworth's evidence was taken, together with cross-examination.

[6] Following the hearing, Directions for the filing of final written submissions were issued.

[7] There is no dispute between the parties, and I am satisfied, of the four matters referred to in ss.396(a)-(d) of the Act, as follows.

[8] First, Ms Hill's application was made within the 21 day period required by s.394(2) of the Act (s.396(a) of the Act).

[9] Secondly, Ms Hill is a person protected from unfair dismissal, as she had completed the minimum employment period and earned less than the high income threshold (s.396(b) of the Act).

[10] Thirdly, as Pathways Australia has not contended the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), this matter does not require my consideration.

[11] Fourthly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy (s.396(d) of the Act).

[12] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

A person has been unfairly dismissed if the FWC is satisfied that:

(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."

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 3

[13] A person has been unfairly dismissed if the termination of their employment comes within the definition of "dismissed" for the purposes of Part 3-2 of the Act. Section 386(1) of the Act provides:

(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."

[14] The provisions of s.386(2) and s.386(3) of the Act do not apply in this matter.

[15] If Ms Hill was not dismissed by Pathways Australia within the meaning of s.386(1) of the Act, there is no jurisdictional basis for her to pursue her unfair dismissal application. That is to say, if Ms Hill's employment was not terminated at the initiative of Pathways Australia (s.386(1)(a) of the Act), or if it is not found that she was forced to resign because of conduct or a course of conduct engaged in by Pathways Australia (s.386(1)(b) of the Act), there is no jurisdictional basis for her to pursue her unfair dismissal application.

Section 385(c) - Small Business Fair Dismissal Code

[16] As outlined in paragraph [10] above, s.385(c) of the Act does not apply.

[17] As outlined in paragraph [11] above, s.385(d) of the Act does not apply.

[18] The criteria I must take into account when required to assess whether a dismissal was harsh, unjust or unreasonable, within the meaning of s.385(b) of the Act, are set out in s.387 of the Act. It will only be necessary for me to consider this if I am satisfied Ms Hill was dismissed within the meaning of s. 386(1) of the Act. Accordingly, this is the first matter I will determine.

[19] Ms Hill worked on a part-time (0.8) basis. Her remuneration comprised a base salary and commission payments. The material and hearing in this case traversed the arrangements for the payment of commission to Ms Hill. As to how it was to be calculated, there was correspondence between Ms Hill and Mr Holdsworth in July 2015[2] that appeared to outline this. Ultimately, there did not appear to be any dispute that Ms Hill was paid 20 of 22 commission claims during the course of her employment and was partially paid one of the others. However, Ms Hill claimed that from July 2016, after a number of pieces of correspondence passing between the parties, she had reluctantly accepted Mr Holdsworth's interpretation as to how the payments were to be calculated. In this regard, Ms Hill tendered additional correspondence between her and Mr Holdsworth from November 2016 which related to commission claims and payments, in which she described their relationship as "broken" and feeling "demotivated by this situation".[3]

[20] For his part, Mr Holdsworth concluded his correspondence dated 14 July 2016 regarding commission by stating:

As I have said many times previously, I value your contribution and dedication very much. You work hard and you're competent. The fact is though that after 18 months of trying to market seminars it is time for both of us to face the reality and admit that the return on time and effort is just not adequate. Please understand that this is in no way a criticism of you. Rather I am saying that the evidence clearly points to the fact that the time and effort going into it is just not producing an adequate return.

It is for that reason that I am suggesting that we agree to re-focus your time, skills, energy and efforts into areas that will produce a much better return. Over the next few days I would like to consider what those areas may be and I ask that you do the same. I should also say that I'm not suggesting you completely turn your back on seminar promotion. Rather I am suggesting that we look at other areas that will produce a better return.

To conclude. I want to reiterate that I do value your contribution to this business. I want you to remain and to be increasingly successful. However focusing [sic] just on seminars as you have been will just not produce those outcomes and I think that is very clear now. So I do hope that we can move forward and accept what has to be accepted and find new and better ways to increase business."[4]

[21] There was no suggestion that Ms Hill's performance was in any way unsatisfactory and nor had there been issues as to her capacity or conduct or her behaviour and demeanour.

[22] Only Mr Holdsworth and Ms Hill were at the meeting which took place at approximately 4:30pm on Thursday 23 March 2017. Mr Holdsworth said the purpose of the meeting was to discuss the possible introduction of additional business opportunities in which Ms Hill would be involved. He had emailed Ms Hill that morning stating "When we last spoke, I asked you to put together some ideas about your future work. Can we talk about this at 3pm today please".[5]

[23] Ms Hill's evidence was consistent with this. She said that earlier in the week, Mr Holdsworth had requested that they meet to discuss her ideas for the development of new revenue streams. Ms Hill said Mr Holdsworth asked her at the commencement of the meeting to present ideas for generating new revenue streams. After she advised that she had previously presented a number of ideas and they had not gone any further, Ms Hill said Mr Holdsworth told her that this was "not good enough" and that their "working relationship [was] finished".[6] During cross-examination, Ms Hill gave the following evidence regarding her conversation with Mr Holdsworth:

"What was the nature of that conversation?---About my ideas for developing new revenue streams.

Did you put new ideas at that meeting?---No, I didn't, and I explained at the time that I felt given the fact that I'd presented a number of ideas, especially over the last three to four months - in fact, longer than that, and gone into a lot of detail, done a lot of research including costs and none of those had gone anywhere, we hadn't progressed in that regard, I really needed to understand what your business strategy was so that I could present something that was in line with the business strategy that might actually be implemented.

After you allegedly said that, it was then that I allegedly indicated to you that our business relationship was finished?---Absolutely"[7]

[24] Ms Hill said Mr Holdsworth had told her it just was not good enough that she had not presented anything at the meeting and that their working partnership was over. Ms Hill said she followed up by enquiring whether she would need to provide a handover[8] and Mr Holdsworth replied by stating they should meet again on Monday 27 March 2017 to "discuss the details".[9]

[25] Mr Holdsworth's version of the meeting differs. He said soon after their discussion commenced Ms Hill expressed her desire to reduce her working days from four to three but said her value to the company was such that she should also be permitted to be remunerated at the same (four-day) rate.[10] Mr Holdsworth said that when he told Ms Hill he was unable to meet her request, she reminded him that at the commencement of her employment she had told him that her desire had been to progressively reduce her working hours so she could spend more time at her holiday house. He also said that when he responded by telling Ms Hill that agreeing to her request would not be a good business decision, she responded by saying her inclination was to resign because she would easily obtain employment near her holiday house. Mr Holdsworth said the meeting concluded with him asking Ms Hill to reconsider her position over the weekend.[11] His evidence at the hearing was:

"All right now, Mr Holdsworth, I've got a couple of questions and this is about the meeting on the 23rd. How did the meeting finish? I mean what brought it to an end and what was your understanding of what was going to transpire following it?---Yes, the meeting concluded after Ms Hill indicated to me what her preferred future working arrangement was in relation to days worked and remuneration. My response to that was that I didn't think that the business could accommodate that and I asked her to consider that matter over the long weekend, the Friday, Saturday and Sunday and that we would meet again on the Monday to talk about it further.

So the question of resignation was not raised until the Monday. Is that your position?---She - when I expressed that the business would be unable to meet her request she indicated that if that was the case she was most likely to resign and seek work on the Mornington Peninsula near her holiday house.

So she said that on the 23rd?---On the 23rd, yes."[12]

[26] Both Ms Hill and Pathways Australia rely on conversations they say occurred following the meeting on Thursday 23 March 2017 to support their version of what was said at that meeting:

• Ms Hill said she called her partner, Mr Kerry Sawtell, immediately after her meeting with Mr Holdsworth, just after 5:00pm. She said she told him that Mr Holdsworth had said "our working relationship [was] finished".[13] Mr Sawtell said that Ms Hill told him that she had been dismissed by Mr Holdsworth and when her asked why, "she responded by stating he just 'blurted out' that he and Sharon 'can't continue on', or words to a similar effect";[14]

• Ms Hill said she telephoned Ms Susan Robertson at 6:00pm on Thursday 23 March 2017. Ms Robertson said Ms Hill said to her "Bombshell. I've just been sacked".[15] Ms Robertson said she didn't ask Ms Hill the reason why but stated that Ms Hill had told her on Monday 20 March 2017 that she was "pretty sure" she was being managed out of her employment;[16]

• Ms Celine Bowler said she had a telephone conversation with Mr Holdsworth on the evening of Thursday 23 March 2017 in which he mentioned that he had met with Ms Hill that day to discuss new business opportunities but that she had cut him off and instead wanted to talk about fewer days for the same money she was currently earning. Ms Bowler also said Mr Holdsworth told her that Ms Hill had suggested that if he could not agree to her request, she would probably resign and secure a role on the peninsula near her holiday house. She also said Mr Holdsworth told her that he had asked Ms Hill to reconsider the matter over the weekend and that he hoped she would be more reasonable then and that a solution could be found;[17]

• Ms Hill said she telephoned Ms Janice Morris on Friday 24 March 2017. Ms Morris said Ms Hill said "I've just been sacked".[18] While Ms Morris also asserted Mr Holdsworth wanted to get rid of Ms Hill, she did not ask Ms Hill why she had been sacked;

• Mr Ralph Long gave evidence that he received a text message from Ms Hill on Saturday 25 March 2017 in which she said "I was 'let go' from my job on Thursday".[19] In his reply text, Mr Long said he advised Ms Hill she "should seriously consider lodging a claim for unfair dismissal";[20] and

• Mr Wayne Holdsworth, the brother of Mr Holdsworth, said Mr Holdsworth telephoned him at approximately 7:00pm on Monday 27 March 2017 and mentioned that one of his staff had resigned earlier that day. He also said Mr Holdsworth said that the reason the employee had given for her resignation was that she wanted to cut her hours so she could spend more time at her holiday house but didn't want a drop in pay.[21]

[27] Ms Hill also said she telephoned Ms Dominique Hill, a co-worker at Pathways Australia but no relation, a number of times. However, while Ms Hill purported to give evidence of telephone records of these telephone calls, Ms Dominique Hill was not called to give evidence by either party.

[28] Further, Ms Hill tendered an email entitled "Remuneration proposal" that Mr Holdsworth sent to Mr Wayne Holdsworth at 10:07am on Friday 24 March 2017.[22] This email described a new line of work focussed on accreditation and recruitment and made reference to a "subsidy of $50K p.a" to be paid by Pathways Australia to Wayne Holdsworth.[23]

[29] At the hearing, Mr Holdsworth said that the two matters were different and unrelated, and with Mr Wayne Holdsworth's work being related to short term labour hire there was still a need for someone to do permanent recruitment work.[24] Mr Holdsworth gave evidence that he did not want Ms Hill to go, he still needed someone to do the work Ms Hill was doing and he wanted the work to continue.[25]

[30] Ms Hill said she began the meeting between her and Mr Holdsworth on Monday 27 March 2017 by asking Mr Holdsworth why she had been dismissed. She said Mr Holdsworth became very agitated and denied it.[26] Ms Hill said Mr Holdsworth then asked her whether she intended to work again and mentioned her need for a reference, before stating that it would be "best for both of us if you resigned".[27] Ms Hill said that she did not respond to either this or Mr Holdsworth's subsequent query as to whether she would "take this legal". Ms Hill said Mr Holdsworth told her he would provide her with a notice period, entitlements and a good reference if she tendered a letter of resignation by 5:00pm that day.[28]

[31] Mr Holdsworth said that he and Ms Hill met mid-morning on Monday 27 March 2017 and he asked her whether she had thought more about things and reconsidered. Mr Holdsworth said Ms Hill indicated what her preferred position was and said that if he wasn't able to accommodate it, she would resign and seek employment closer to her holiday house.

[32] Mr Holdsworth said they then discussed various matters regarding the finalisation of Ms Hill's employment, including that she be permitted to work out her notice period of four weeks because that would put her in an advantageous position to obtain alternative employment and allow some flexibility in relation to attending interviews with potential employers, both of which he agreed to.[29]

[33] Shortly after this meeting, Ms Hill said she received an email from Mr Holdsworth at 10:51am on Monday 27 March 2017 which contained "a list of things that [she] needed to comply with".[30] It stated:

As discussed earlier today I understand that you will provide written confirmation today of your resignation. We also agreed that:

Between now and your final day you will perform a set of tasks that I will prepare for you.

You will provide me with a list of contacts, including clients with whom you have established a relationship, seminar venues.

You will provide me with written details in relation to the status of pending in-house training possibilities and other work.

You will not proactively seek additional business however you will continue to be the company contact person should any of those people contact the office.

There will be flexibility in terms of you attending job interview appointments during the notice period.

I will act as referee should you wish to list me and I am happy to provide you with a written reference.

You will not make any disparaging remarks or take any legal action in relation to the company or me during and subsequent to your period of notice.

If I have missed something you believe should be added please let me know..."[31]

[34] Despite her evidence that she had called Mr Sawtell at 10:33am and his advice to her had been not to provide Mr Holdsworth with a letter of resignation, Ms Hill replied to Mr Holdsworth's email at 11:31am on the same day, stating she would provide him with confirmation of her resignation that day and that she agreed to the items on that list. She also requested written confirmation that her holiday pay and outstanding commissions would be paid. The email stated:

I will provide you with confirmation of my resignation today and am happy to agree with the below listed however would like you to confirm I will be receiving;

• 1 months salary
• Plus Outstanding Holiday pay as at 20/4/17
• Payment for commission of registrations I have been directly responsible for generating that have registered for all seminars.

[35] At 12:19am, Mr Holdsworth replied to this email in the affirmative and outlined some administrative arrangements relating to the timing of the payments.[33]

[36] Mr Holdsworth says Ms Hill handed him her letter of resignation later that day. Ms Hill appeared to suggest that Mr Holdsworth implied that if she did not submit a resignation, he would withhold a reference and unpaid remuneration but she could not recall the words Mr Holdsworth used that she claims implied this.[34] Ms Hill said she submitted the letter of resignation because she was concerned about her prospects of finding new work without one, being 61 years of age, and not being paid her entitlements and outstanding pay.[35]

[37] Ms Hill also asserted that Mr Holdsworth directed her to include in the letter as a reason for her resignation that she wished to work three, rather than four, days per week.[36]

[38] The resignation letter was dated 23 March 2017 and stated the following:

I hereby submit my resignation from Pathways Australia. The reason for my resignation is as a result of the business being unable to accommodate my desire to reduce my working days from 4 to 3 days per week. As agreed my final day of employment will be Thursday 20th April.

I thank you for the opportunity and wish you every success in the future.

[39] Mr Holdsworth sent Ms Hill an email at 9:33am on Tuesday 28 March 2017. He stated he wanted to gauge Ms Hill's interest in an idea that had the potential to keep her at Pathways Australia and explained work Mr Wayne Holdsworth had been doing for Pathways Australia. He stated this work could be applied to seminars, where "a person is given a licence to market and sell seminar tickets... [and] retain the full sales value, however pay a fee or commission to Pathways". He described it as "_the exact reverse of the arrangeme_nt" he and Ms Hill had in place but the incentive for Ms Hill would be "much higher than it currently is".[38]

[40] Mr Holdsworth's email conveyed that he would be happy to discuss the concept with Ms Hill if she was interested but he appreciated she may not be, in which case they would proceed on the basis they had discussed the previous day.

[41] Following an initial response at 9:51am on the same day stating she would like to think about it and give him an answer by Thursday 30 March 2017, Ms Hill sent a follow up email at 10:57am informing Mr Holdsworth that she appreciated him thinking about her but she was "probably going to pursue opportunities down on the Peninsula so wouldn't want to waste your time in regard to developing a proposal and model".[39]

[42] At the hearing, Ms Hill said that the proposal of Mr Holdsworth included an arrangement whereby she would do exactly the same work but have the "risk of the entire operation" shifted onto her_._[40] Mr Holdsworth said the following:

"The day after she resigned, because I wanted her to continue, I started to think about some kind of an arrangement that would enable her to work a smaller number of days in Melbourne, receive remuneration, and make - and arrange it in such a way that made sense for the business as well. And that email of the 28th of March at 9.33 was the beginning of what I hoped was - would be a discussion that would result in that."[41]

[43] On Wednesday 29 March 2017, Mr Holdsworth emailed other Pathways Australia staff announcing staffing changes.[42] He said that that he had accepted Ms Hill's resignation "with regret". He said Ms Hill had expressed the desire to reduce her working hours and while he understood and appreciated her motivation for wanting to do so, it did not align with the business. Mr Holdsworth also acknowledged what he described as Ms Hill's "substantial contribution to the business". In this email, Mr Holdsworth also advised Pathways Australia staff about the work Mr Wayne Holdsworth would be doing on a full time basis up until the end of June 2017.

[44] Ms Hill submits that the cause of the termination of her employment will be determined upon the factual finding made about the conversation on Thursday 23 March 2017 between her and Mr Holdsworth. Noting the direct evidence of Mr Holdsworth and herself is in conflict and irreconcilable, Ms Hill relies on the following circumstantial matters to lend support to her evidence:

• Mr Holdsworth's view that the return on time and effort for the marketing of seminars, a significant portion of her work, was inadequate. This view, it is submitted, makes it entirely unsurprising that Mr Holdsworth moved to terminate her employment;

• the implausibility of the excuse proffered for her resignation - that she would resign unless able to perform 25% less work for the same pay;

• the absence of prior documentary or testamentary evidence corroborating Mr Holdsworth's contention that she wanted to work three days instead of four days;

• her actions in calling and confiding in friends following the Thursday 23 March 2017 meeting, which she submits provides powerful corroboration of her direct evidence of that meeting; and

• the commencement of Mr Wayne Holdsworth's business activities with Pathways Australia at the same time, requiring cash flow which would be available as a result of her termination. This, it was submitted, provided an added convenience for Pathways Australia to terminate her employment.

[45] Pathways Australia submitted:

• Ms Hill was asked to meet with Mr Holdsworth on Thursday 23 March 2017 to discuss new business opportunities;

• at this meeting, Ms Hill indicated her intention to reduce her working days from four to three while retaining the same level of income;

• Mr Holdsworth responded by indicating the business could not accommodate her request;

• Ms Hill said she would resign if her request was not accommodated but Mr Holdsworth asked her to consider her position over the weekend;

• at the subsequent meeting on Monday 27 March 2017, Ms Hill confirmed her intention to resign and this was followed by a discussion about a transition ahead of her departure; and

• Ms Hill subsequently submitted a letter of resignation, which was reluctantly accepted.

[46] The jurisdictional objection of Pathways Australia is that Ms Hill was not dismissed within the meaning of s.386(1) of the Act. Its case rests on me concluding that:

• Ms Hill's employment was neither terminated on its initiative at the meeting on Thursday 23 March 2017 (s.386(1)(a) of the Act); and

• nor was she forced to resign at either the meeting on Thursday 23 March 2017 or Monday 27 March 2017 because of conduct or a course of conduct engaged in by Pathways Australia (s.386(1)(b) of the Act).

[47] As to whether an employer has repudiated a contract of employment, the test is whether the conduct of the employer, when viewed objectively, showed an intention to no longer be bound by the contract.[43] However, it is important to bear in mind, the test under the Act as to whether an employee has been "terminated on the employer's initiative" relates to the termination of the employment relationship, not the contract of employment.[44]

[48] It is uncontroversial to highlight the importance of considering all of the circumstances, including the conduct of both the employer and the employee in determining whether a person's employment has been "terminated on the employer's initiative".

[49] The Full Court of the Federal Court in Mohazab v Dick Smith Electronics (No.2)[45] articulated an important feature of what termination at the initiative of the employer is:

"that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship." [46]

[50] A forced resignation is when an employee feels he or she had no other option to resign[47] and an employee must prove the employer engaged in conduct, or a course of conduct, that forced their resignation.[48]

[51] That said, in Barkla v G4S Custodial Services Pty Ltd[49], a Full Bench of Fair Work Australia cited with approval the Full Bench of the Australian Industrial Relations Commission's conclusion in O'Meara v Stanley Works Pty Ltd[50] (O'Meara), that there must be action by the employer that either intends to bring the relationship to an end or has that probable result.[51] (my emphasis)

[52] The Full Bench in O'Meara also concluded that 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 employee had no effective or real choice but to resign.[52]

[53] As to s.386(1)(a) of the Act, the evidence does not persuade me that Mr Holdsworth terminated Ms Hill's employment at the meeting on Thursday 23 March 2017.

[54] I have firstly considered the context within which that meeting occurred. In his email of 14 June 2016, Mr Holdsworth had placed on the agenda a desire for both he and Ms Hill to "look at other areas that will produce a better return" and "find new and better ways to increase business".[53] He was otherwise supportive of Ms Hill in that email and complimentary about her efforts her efforts at work. While Ms Hill gave evidence of becoming disgruntled following that, I am not persuaded Mr Holdsworth's view of her changed over the ensuing months. That he considered Ms Hill a good worker did not change. This was known by Ms Bowler and Mr Wayne Holdsworth says that on Monday 27 March 2017, he was told by Mr Holdsworth that Ms Hill was a good operator and he would certainly miss her. There were no issues of poor performance or concerns about Ms Hill's capacity or conduct raised during the course of her employment.

[55] Mr Holdsworth did retain his desire to increase revenue and returns through new avenues and this was the motivating factor in him calling the meeting which took place on Thursday 23 March 2017. I do not accept the proposition advanced on behalf of Ms Hill that Mr Holdsworth intended to use the meeting as a way of securing Ms Hill's departure from the business and free up cash flow so that he could engage the services of his brother. I am satisfied Mr Holdsworth wanted to discuss Ms Hill's ideas about her future work at this meeting. He had conveyed this by email in advance. Further, Mr Holdsworth's evidence that the work his brother might perform was different to that performed by Ms Hill, that he wanted Ms Hill's work to continue and that neither had done the work of the other was not undermined in cross-examination.

[56] Mr Holdsworth was open about the dialogue and plans he had for his brother. If the engagement of his brother was contingent on removing Ms Hill and freeing up cash flow, I consider it unlikely that he would send an email to his brother on Friday 24 March 2017, the day after it is claimed he dismissed Ms Hill, to discuss his future work. In any event, there was no reference in that email to the events of the previous day. Further, Mr Holdsworth did not seek to conceal from Ms Hill the fact he was meeting his brother on Monday 27 March 2017 and, when announcing Ms Hill's resignation to staff, he announced the work his brother would soon be performing. I consider these actions weigh against a conclusion that Mr Holdsworth wanted Ms Hill out of the business so that he could engage the services of his brother.

[57] As to what transpired at the meeting, I prefer Mr Holdsworth's version of events. Both parties sought to rely on witness evidence from individuals who were not present. I have necessarily treated this with caution. With the exception of Mr Sawtell, none of the witnesses called by Ms Hill asked her why Mr Holdsworth had terminated her employment. Mr Sawtell said that Ms Hill had told him that Mr Holdsworth "just 'blurted out' that [they] could not 'continue on' or words to similar effect".[54] Ms Hill gave no evidence of having told her various other witnesses why she had been dismissed. Her evidence in large part is that she cannot recall the contents of her various conversations with them. She simply told Ms Robertson and Ms Morris that she had been "sacked", while she told Mr Long that she had been "let go". None of these individuals asked her the reason why.

[58] By contrast, Ms Bowler and Mr Wayne Holdsworth outlined what Mr Holdsworth told them about what had transpired during his meetings with Ms Hill. This provides a degree of corroboration that contributes to making Mr Holdsworth's version of events more persuasive. In particular, Ms Bowler said Mr Holdsworth told her that Ms Hill told him she wanted to talk about working fewer days for the same money. Mr Wayne Holdsworth said that when he asked Mr Holdsworth why Ms Hill had resigned, Mr Holdsworth told him that Ms Hill had said to him that she wanted to cut her hours at Pathways Australia so she could spend more time at her holiday house but she did not want to drop in pay. On this point, Mr Holdsworth gave evidence that when he had indicated to Ms Hill that he was unwilling to agree to her request for less hours at the same rate of remuneration, she had reminded him of a conversation they had had when she commenced at Pathways Australia in which she stated her desire to progressively reduce her working hours so she could spend more time at her holiday house.[55]

[59] Ms Hill purports to give evidence regarding her discussions with Ms Dominique Hill. She provided no witness statement from Ms Dominique Hill and nor did she call her to give evidence. However, on the basis that Pathways Australia did not call Ms Dominique Hill, I am invited by Ms Hill to infer her evidence, if given, would not have assisted it. The fact is there was no evidence from Ms Dominique Hill in the proceedings. What Ms Dominique Hill might have said plays no determinative role in my deliberations or reasoning.

[60] Not having received what she was after, I consider it understandable that Ms Hill may have felt she had no option but to resign and would tell friends she no longer had a job but I do not consider the outcome of the meeting on Thursday 23 March 2017 was a termination at the initiative of Pathways Australia. I have not been persuaded Pathways Australia took action intended to bring the employment relationship to an end.

[61] I am also not persuaded that there was a resignation on Monday 27 March 2017 that comes within the meaning of s.386(1)(b) of the Act. I do not consider that Ms Hill was forced to resign because of conduct or a course of conduct engaged in by Pathways Australia.

[62] Again, I have considered the context within which the meeting on Thursday 23 March 2017 was held. There was Mr Holdsworth's regard for Ms Hill as an employee together with his evidence that he did not want Ms Hill to go, that he still needed someone to do the work Ms Hill was doing and that he wanted the work to continue and also source new revenue streams. I also accept and have had regard to the fact that Mr Holdsworth suggested to Ms Hill that she reflect on her inclination to resign over her (long) weekend. I do not draw any adverse inferences from the dialogue the parties had in settling arrangements for the remainder of Ms Hill's employment or the fact that Mr Holdsworth required the resignation to be made in writing. The dialogue was cordial and business-like and there were matters agreed that were beneficial to both parties.

[63] I am not persuaded that Ms Hill submitted a letter of resignation because she was fearful of not being paid her commission or entitlements or being denied a reference. Ms Hill is an experienced professional with a history of work in the recruitment industry. She acknowledged that she was entitled to be paid for the work performed during her notice period or paid in lieu and the email correspondence confirmed payment arrangements and provision of a reference. It is also clear that she agreed to provide a letter of resignation after having had the opportunity to take advice from Mr Sawtell, notwithstanding the fact he had advised against doing so.

[64] Ms Hill claims Mr Holdsworth terminated her employment on Thursday 23 March 2017. She submits his suggestion that she had requested a reduction of her working days from four to three, while retaining the same level of income, defies belief and was simply not credible. On her version of the meeting on Thursday 23 March 2017, she says there was simply no discussion about her wanting to reduce her hours of work and yet, part of her case that Mr Holdsworth forced her into resigning when they met again on Monday 27 March 2017 is that he demanded, seemingly out of nowhere and with no prior context, that she put in her resignation letter the inability of the business to accommodate her desire to reduce her working days from four to three days per week. I do not find this persuasive and nor do I accept that the wording of the letter of resignation was forced upon Ms Hill by Mr Holdsworth. This wording was not requested by Mr Holdsworth in his email sent at 10:51am on Monday 27 March 2017 and there does not seem to be a reason why he would have required such particular wording in the resignation letter or why it was raised in the second meeting. There was no suggestion from Mr Sawtell that Ms Hill had advised him that this wording was a requirement of Pathways Australia. I am satisfied Ms Hill included in her resignation letter that which she wanted to include.

[65] Further, I am not persuaded, as is contended by Ms Hill, that the email Mr Holdsworth sent to her on Tuesday 28 March 2017 supports her position. I am satisfied this email was a genuine attempt by Mr Holdsworth to commence dialogue regarding a new concept and possible new role for Ms Hill. Furthermore, I am satisfied Ms Hill's email replies were genuine too. I consider it significant that she concluded them with the comment she was "probably going to pursue opportunities down on the Peninsula" as there was no evidence that she was compelled to write this or that it was necessary for her to do so. It is however consistent with the message Mr Holdsworth claims Ms Hill conveyed at their meeting on Thursday 23 March 2017, that she wanted to progressively reduce her working hours so that she could spend more time at her holiday house on the Mornington Peninsula. As was the case with the break between the meetings on 23 and 27 March 2017, the email of 28 March 2017 was an opportunity for Ms Hill to carefully consider the implications of leaving Pathways Australia. It mitigates against a conclusion that the intention of Pathways Australia was to bring the employment relationship to an end.

[66] Fundamentally, the decision rests on the findings I make about the contest between the evidence of Mr Holdsworth and Ms Hill. When I compare the testimony of Mr Holdsworth and Ms Hill, I consider Mr Holdsworth gave direct answers when questioned and his actions were transparent. He clearly outlined the purpose of the meeting on Thursday 23 March 2017, gave Ms Hill the opportunity to consider her position after it, was methodical in working out the arrangements for Ms Hill's departure from the business and explored an alternative to her leaving. He was also open and transparent in his dealings with his brother, announcing meetings with him and the nature of his intended work to Ms Hill and other staff. I have also noted Mr Holdsworth made no mention of Ms Hill's possible departure to his brother in the email of Friday 24 March 2017 and consider this weighs against the proposition that Ms Hill's departure was orchestrated as part of a broader strategy.

[67] Contrasted with this, I found some of Ms Hill's evidence vague and on the whole, less convincing. For instance, she:

• could not recall the contents of her conversation with Mr Sawtell on 23 March 2017 beyond telling him that Mr Holdsworth had said "our working relationship [was] finished";

• could not recall the contents of her conversation with Ms Robertson on 23 March 2017, beyond telling her that she had been sacked;

• could not recall much of the conversations she had with Ms Dominique Hill on 23 and 27 March 2017;

• could not recall the contents of her conversation with Ms Morris on 24 March 2017, beyond telling her that she had been sacked;

• could not recall the words she alleges Mr Holdsworth used to imply that he would not pay her the commission and other entitlements she was owed;[56]

• said thanking Mr Holdsworth in her resignation letter was a mistake;[57] and

• said she should not have said that she was going to pursue opportunities down on the Mornington Peninsula.[58]

[68] I have had regard to the evidence from Ms Hill and Mr Holdsworth concerning the meetings conducted on 23 and 27 March 2017 and events shortly thereafter, including the circumstances surrounding Ms Hill's letter of resignation. On what turned out to be a significant point of dispute, I prefer the evidence of Mr Holdsworth that Ms Hill's resignation was not in the heat of the moment but came at a time four days after she first indicated an intention that she would resign her employment with Pathways Australia on Thursday 23 March 2017.

[69] For Ms Hill to have succeeded, she needed to satisfy me that there was action by Pathways Australia that was either intended to bring the relationship to an end or had that probable result. My assessment of the evidence is that Mr Holdsworth neither intended to bring the employment relationship to an end and nor did any of his actions have that probable result. I do not consider that actions of Mr Holdsworth were of such a nature that Ms Hill's resignation was the probable result or that she had no effective or real choice but to resign.

[70] I am not persuaded Ms Hill's employment was either terminated on the initiative of Pathways Australia at the meeting on Thursday 23 March 2017 or that she was forced to resign at either the meeting on 23 March 2017 or 27 March 2017 because of conduct or a course of conduct engaged in by it. I am therefore satisfied that neither s.386(1)(a) nor s.386(1)(b) of the Act applies to Ms Hill and that she was not dismissed within the meaning of s.386 of the Act. As such, the requirement in s.385(a) of the Act is not satisfied.

[71] As I have found that Ms Hill was not dismissed from her employment with Pathways Australia within the meaning of s.386 of the Act, there is no jurisdictional basis for her to pursue her unfair dismissal application. It is therefore not necessary for me to otherwise deal with s.385(b) of the Act.

[72]

Ms Hill's unfair dismissal application is dismissed and an order to this effect will be issued along with this decision.

[9] Exhibit A1 at [14] - [16] and Transcript PN 284.

[26] Exhibit A1 at [18] - [19] and Transcript PN 284 - 288.

[36] Exhibit A1 at [29] and Transcript PN 316 - 320.

[37] Respondent's Document List - Attachment 1.

[43] Elgammal v BlackRange Wealth Management Pty Ltd [2011] FWAFB 4038 at [13].

[44] Searle v Moly Mines Limited (2008) 174 IR 21 at [22].

[45] (1995) 62 IR 200.

[47] Mohazab v Dick Smith Electronics (No.2) (1995) 62 IR 200 at 206.

[48] Australian Hearing v Peary (2009) 185 IR 359 at 367.

[49] [2011] FWAFB 3769.

[51] [2011] FWAFB 3769 at [24].

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