WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2012 WAIRC 00414 CORAM : ACTING SENIOR COMMISSIONER P E SCOTT HEARD : 7 MAY 2012, 8 MAY 2012, 10 MAY 2012 DELIVERED : TUESDAY, 3 JULY 2012 FILE NO. : U 156 OF 2011 BETWEEN : HEATHER JANE ELDRIDGE Applicant AND SWAN REAL ESTATE Respondent CatchWords : Unfair dismissal – entitlement to long service leave – whether a dismissal or voluntary resignation Legislation : Long Service Leave Act 1958 Result : Application dismissed Representation: Applicant : Mr K Trainer as agent Respondent : Mr D Jones as agent 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 915 Reasons for Decision 1 The applicant claims that she has been unfairly dismissed by the respondent. She says that reinstatement is not practicable and she seeks compensation. The respondent says there was no dismissal. 2 The Commission has heard evidence from the applicant, Ms Heather Eldridge; Mr Trevor Black, who trades as Swan Real Estate; Mrs Gabriella Black, Mr Black’s wife, who does some administrative work in the business; and the respondent’s senior property manager, Ms Pamela Robertson. Having observed the witnesses as they gave their evidence, and having considered that evidence, I find that each of the witnesses gave evidence honestly and to the best of their recollection. In particular, I found Ms Robertson to be a witness who strived to recall accurately what she had heard and observed, and Mrs Black to be a forthright witness. Having said that, it is clear that the events, the subject of this matter, occurred in circumstances of stress and, particularly on Ms Eldridge’s part, high emotions. They have been the cause of great anxiety for all involved. In particular, the last meeting at which the employment came to an end was full of emotion. 3 This matter revolves around what happened in the space of two brief conversations, the first on 15 August 2011 between Ms Eldridge and Mr Black, and the second on 18 August 2011 between Ms Eldridge, Mr Black and Mrs Black; a series of SMS messages and emails between Ms Eldridge and Mr Black between 15 and 18 August 2011, as well as a telephone call from Mrs Black to Ms Eldridge on 18 August 2011. Background 4 The respondent operates a real estate business and Ms Eldridge worked for the business as a real estate sales representative for nine years and eight months. She was remunerated solely by commissions and she received superannuation. Her contract of employment was oral. 5 Ms Eldridge and another sales representative, Ms Vanessa Tuttle, worked in a co-operative manner, sharing property listings and commissions. Their agreement was accepted and facilitated by the respondent. 6 Ms Eldridge and Mr Black had a very good, cordial and successful working relationship. Ms Eldridge and Mr and Mrs Black also described themselves as friends until the employment came to an end. In addition to the working relationship and friendship, they entered into some business arrangements over the purchase and sale of two properties. On this basis Ms Eldridge used Mr and Mrs Black’s accountant for tax purposes. Kent Street and Morrison Road 7 It is not my intention to detail all of the parties’ dealings regarding these two properties but to set out the effect of those dealings in general terms so as to provide some context to the dispute between the parties which became part of the circumstances under which the employment came to an end. 8 The evidence demonstrates that around four years ago Ms Eldridge and Mr and Mrs Black entered into a business arrangement regarding the purchase and sale of the two properties, at Kent Street and Morrison Road, and the sharing of the consequential profits and losses. This required them to exchange information regarding those matters, particularly for tax purposes. 9 On the sale of Morrison Road, the profit was to be split 50/50 between Ms Eldridge on one side and Mr and Mrs Black on the other. It appears that each party received approximately $100,000 in that process. On the sale of Kent Street, there were losses which Mr and Mrs Black believed they could claim for taxation purposes. 10 In respect of Morrison Road, Mr and Mrs Black say that they provided Ms Eldridge with her share of the profits from the sale but that they had been waiting for four years for her to meet her obligation to provide information to them in respect of the property at Kent Street. They needed this information to claim the tax benefit, which was anticipated to be about $7,000. Mrs Black says that she provided the necessary documents to Ms Eldridge on two occasions to enable Ms Eldridge to provide the necessary information for their tax return. They say Ms Eldridge did not provide the information and accordingly they had been unable to obtain the tax benefit. Ms Eldridge says the information was supplied and the matter was concluded some years ago. Until 15 August 2011 there had been no dispute about the arrangement, rather it formed part of the background to what followed. 15 August 2011 11 By August 2011, the real estate industry had been quiet for some time. Ms Eldridge was self-supporting and found the going tough. Ms Eldridge and Ms Tuttle both had taken on second jobs working for Armaguard to supplement their incomes. Ms Eldridge worked full-time as a real estate sales person which involved irregular hours, early and late and weekend work. Ms Eldridge’s Armaguard work involved three evening shifts of eight hours each per week. Mr Black was aware of the second job and had no objection to it, however, he was not fully aware of the shifts which Ms Eldridge worked. 12 By August 2011, Ms Eldridge was exhausted and was unwell with a sinus infection. Her daughter was soon to be married and Ms Eldridge wished, and also felt obliged, to contribute towards the cost of the wedding. 13 Approximately four years previously, Ms Eldridge had heard that she may be entitled to long service leave notwithstanding that her employment was commission based. She made enquiries of Wageline, which lead her to understand that she had an entitlement to paid leave after 10 years’ service, and that a pro-rata entitlement arose on termination of employment after seven years’ service. Ms Eldridge had not discussed the issue of long service leave with Mr Black prior to 15 August 2011. Ms Eldridge intended to ask Mr Black if he would be prepared to pay the long service leave early as a means of her obtaining the money she needed. Mr Black had no knowledge that there may be an entitlement to long service leave. 14 On the morning of 15 August 2011, Ms Eldridge asked to speak to Mr Black and they went into his office. Ms Eldridge explained to Mr Black that, as he knew, business was tough; she was exhausted and unwell; her daughter’s wedding was coming up, and she wished to contribute towards the cost of the wedding. She asked ‘is there any possibility of getting my long service leave early?’ 916 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. 15 There is no dispute that Mr Black was shocked by this request. He expressed his belief that Ms Eldridge’s remuneration was solely by way of commissions and superannuation and there was no entitlement to long service leave. He offered to loan Ms Eldridge some money and she declined the offer. He said the business did not have the money to pay what he quickly calculated would amount to approximately $12,000 for the long service leave. 16 At some stage in this meeting, Ms Eldridge explained that even if she left tomorrow she would be entitled to pro-rata long service leave after seven years upon termination of employment. Mr Black reiterated that he believed that there was no entitlement but said that he would ask Mrs Black to look into it. Ms Eldridge continued to work as usual and at 3:00 pm left to commence work at Armaguard at 4:00 pm where she remained until 1:00 am the next day. 17 In thinking about the discussion, Mr Black became concerned, both as to whether there was an obligation to pay long service leave and also whether Ms Eldridge was suggesting to him that if he did not agree to pay the long service leave early, she would leave thus triggering the obligation, if any, to a pro-rata payment immediately. 18 Mr Black discussed the matter with Mrs Black that evening. He asked her to investigate whether there was an entitlement to long service leave in the circumstances. He also discussed with her his concern that Ms Eldridge may be intending to leave. She asked him ‘well, is she leaving?’ He did not know the answer, he was puzzled and concerned so he prepared an SMS to Ms Eldridge, which he sent that evening at 8:37 pm, in the following terms: Hi, after our talk today I was a bit confused. Are you saying that if I don’t pay you your long service Leave now, which is due in November, you will leave and I will have to pay it early Anyway because you have left? 19 The next morning, 16 August 2011 at 8:41 am, Ms Eldridge replied: Morning Trev, just wanted to let you know that I am really not very well, seeing Dr this arvo. so won’t b in work today at all..have a good caravan..Ta 20 Mr Black was concerned that Ms Eldridge had not answered his question about her intentions and at 8:51 am he replied to her saying: You didn’t reply to my message I sent you last night 21 Ms Eldridge responded at 9:05 am: I worked till late last night Trevor with no phones allowed. Has gabby managed to make any Enquiries about theong [sic] service as yet? 22 Mr Black responded at 9:15 am: She is looking inyo [sic] it. I sent this to you last night Hi, after our talk today I was a bit confused. Are You saying that if I don’t pay you your long service leave now, which is due in November you will leave and I will have pay it early anyway because you have left? 23 Ms Eldridge responded at 9:39 am: Trevor what I was saying yesterday was that my interpretation of long service entitlement was that it is due at the 10yr mark but if the employee was to leave after 7 they are due it anyway 24 Mr Black responded at 11:07 am: And if you don’t get Novembers payment from me early, you would leave, so I would had to pay it to you early? He received no reply. 25 Mrs Black made a number of enquiries with Wageline about whether Ms Eldridge had an entitlement to long service leave and she says that she received conflicting advice. 26 Mr Black says that he made enquiries with his solicitor; it appeared that the Long Service Leave Act 1958 provided an exemption from long service leave where there was agreement in writing. He sought advice about the applicability of that exemption given that Ms Eldridge’s contract of employment was oral. He says that his solicitor’s verbal advice was that the oral contract may be able to meet the exemption. 27 Mr Black says that by 17 August 2011 he had asked Ms Eldridge about her intentions three times and had received no answer. He began to think that her lack of an answer indicated she may be holding the prospect of her leaving over his head to get him to give her something he did not believe she was due, so he carefully drafted an SMS to send to her. He says that he was concerned to ensure that it was not offensive, could not be misconstrued but was clear. He showed the draft to Mrs Black and she expressed her view that it was not offensive and that he should send it. He sent the following SMS to Ms Eldridge at 11:13 am on 17 August 2011: You still haven’t answered my question. If I don’t give it to you early are you going to leave so you get it in time for angies wedding? I’m disappointed even though you know your commission is all inclusive of everything, you have been told of a loophole that might allow you to get money out of me. You know as well as anyone that you get 50% commission that covers everything. Thats why you don’t get sick leave or holiday pay etc and why you are supposed to pay for letterbox drops and phone canvassing etc because that is the contract we have got. I didnt really think i would have to get you to sign a contract. But I trust people to do to me as I do to them. I only hope it is a lack of judgment due to you not being well. It would be like me not giving you the $100,000 nett profil [sic] on Morrison Rd because your name wasn’t on the title, and there was no written contract. (does that mean I get that money back from 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 917 you? Ha ha) it just wouldn’t be the right thing to do even though there wasn’t a written contract on [sic] place. If the law says I have to pay it then I will even though im disappointrd [sic] you would go down thatpath. The only things I have ever done for you have been financially beneficial to you. Yes you have been a good employee and friend but I havent looked after you because it suited me financially, in fact for every $100,000 profit you make working here, you make me about $10,000.And if you take into account the monies you owe for phone canvassing and letterbox dropping, I might make nothing from you.And thats not including the money i give away in respect to rent referrals etc So me doing the right thing by you hasn’t been financially motivated. I just wanted to help you. I dont think its right for you to pay me back by looking for a loophole over and above our employment contract. But disappointing as it is if the law says I have to pay then I will.but I will need all the money I’m owed cos the business doesn’t have any, so could you tell me how you want to pay the phone canvass and letterbox monies and in the meantime Can you finalize your taxes and Kent street because I know we should be getting back quite a bit from the tax man and if I have to pay you money I can use that money. (exhibit A2) Mr Black received no response. 28 As she had advised Mr Black in her SMS of that date Ms Eldridge did not attend the office on 16 August 2011. Nor did she attend on 17 August 2011, however, there is no indication that she had advised him that she would not be attending work that day. 18 August 2011 29 The culmination of the events which commenced on 15 August 2011 happened on 18 August 2011. There is a significant conflict between parties’ accounts of the sequence of events and the interpretations to be placed on them. However the following is clear. 30 Ms Eldridge arrived in the office around 8:00 am and was working at what is known as the ‘Rep’s desk’ or the ‘Duty desk’ adjacent to the reception area, just inside the front door of the premises, making telephone calls. Mr Black arrived around 9:30 am and Mrs Black arrived soon after. By this time the receptionist Ms Sarah Hepburn was at work as was Ms Robertson. 31 According to Ms Eldridge, she was on the telephone and neither Mr nor Mrs Black greeted or acknowledged her when they arrived and this was unusual. Both Mr Black and Mrs Black say they acknowledged her in different ways. 32 Approximately 20 minutes after Mr Black’s arrival in the office, he asked Ms Eldridge to come into his office. She did so. Mrs Black was already in Mr Black’s office, and when Mr Black and Ms Eldridge went into the office the door was closed. According to Ms Eldridge, Mr Black was angry and tense, sitting very upright behind his desk with pen and paper ready to make notes. She described Mr Black as usually being very softly spoken. Mr Black denies that he was angry but says that he was tense and does not like confrontation. Mrs Black also denies that Mr Black was angry. She says he was quite calm. 33 Having observed Mrs Black as she gave her evidence, and noting the evidence of Ms Eldridge, Mr Black, Mrs Black and Ms Robertson, it seems that Mrs Black was the most calm and objective in this difficult situation. 34 There is dispute about Mr Black’s opening words, however, there is no doubt that he was seeking a response from Ms Eldridge to his SMS messages and an answer to his questions. Ms Eldridge replied that when she came to see him on Monday she had done so in good faith, wanting to know where she stood regarding long service leave. 35 Mrs Black asked Ms Eldridge, what made her think that she was entitled to long service leave and she replied that it was the law. 36 There was then discussion about Kent Street. Ms Eldridge protested that this arrangement had been resolved years previously. However, Mrs Black said it had not been sorted out. Mr Black says alarm bells started ringing as to whether Ms Eldridge was going to claim the $7,000 tax benefit on Kent Street for herself, and was lying (ts 111). 37 Ms Eldridge says that she was devastated by Mr Black’s raising the issue of tax and the Kent Street property. She said she thought that had been concluded three to four years ago and that it was ridiculous for him to say some of the things he had done in his SMS. At this point she says she felt intimidated and wanted to leave the room, she was feeling confined, with no witness of her own. So she got out of her seat, opened Mr Black’s office door and speaking loudly, Ms Eldridge said that the SMS would take weeks to reply to, that it is 10 pages long, that it was ‘bullying and intimidating’ (ts 27) ‘awful, … absolutely disgusting’ ‘nastiness’ (ts 60), ‘bullying and nasty’ (ts 142, 82). Mr Black responded that it was not meant to be, that he had rewritten it a number of times and had referred it to Mrs Black. By this time Ms Eldridge was tearful. Ms Eldridge says she said words such as ‘I am not doing this anymore’ or ‘I’m not doing this’ (ts 27, 152), and that the text message was extremely ‘intimidating and bullying’ (ts 27). She says she deliberately stepped out of Mr Black’s office so that the rest of the office would know what was going on, because she says she felt extremely intimidated being in the room with just Mr and Mrs Black (ts 61). Mr Black says he believed Ms Eldridge had said she was leaving. He thought that this was so that she would not have to answer any questions about Kent Street (ts 123). 38 Ms Eldridge also said in evidence that she felt upset because she was not asked how she was after having been ill and away from work, and under stress about being challenged in Mr Black’s SMS about monies that he believed she owed to the business and about not having concluded the exchange of information to enable him to complete a tax return in respect of Kent Street. 39 Ms Eldridge walked to the reception area. Mrs Black immediately followed urging her to calm down and saying they could sort it out. Mr Black remained at his desk briefly, during which time Ms Robertson went in to see him. He says he was 918 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. reflecting on what had just happened. He says he was flabbergasted (ts 115). Ms Robertson described him as incredulous (ts 173), perplexed and confused (ts 177). Mr Black then went to the front of the office to the reception area where Ms Eldridge and Mrs Black were continuing the discussion. He says he did so after hearing Ms Eldridge make remarks he believed were untrue, calling him a liar (ts 118). Ms Eldridge denies calling him a liar. 40 By this time Ms Eldridge was very upset, in tears and speaking loudly. Ms Eldridge was sitting at the Rep’s desk with Mrs Black standing next to her. Mr Black came and sat at the reception desk opposite them. 41 The significant aspects of the dispute between the parties as to whether or not there was a dismissal are about what was said and the sequence of the discussion at the reception desk. The first issue is about whether Ms Eldridge conveyed by her words and actions that she was leaving, not just the office, but the employment. The second is when Mrs Black asked for the keys. 42 Ms Eldridge says Mr Black raised the issue of the business dealings over the two properties and Ms Eldridge says that she responded ‘what is this to do with long service leave?’, said that she had been off work unwell and not once had anyone enquired about her. She says she told Mr Black that if he wanted the tax returns he should speak to the accountant, Brent Clark (ts 62). It appears that Mr or Mrs Black said the accountant would not give them her information or words to that effect. Mr Black says that Ms Eldridge said words to the effect that this was what you get after 10 years of loyalty (ts 83) and that Mr Black was lying (ts 123). 43 It is agreed that at one point in the exchange, Ms Eldridge stood up and said words to the effect that she was leaving and started packing her files and laptop. However, Ms Eldridge agrees that she said words to the effect ‘I’m going, getting out of here, can’t work here anymore, I’ll send someone to pick up my filing cabinet’ (ts 66), but this was after Mrs Black asked her for the keys. Mrs Black says that Ms Eldridge said Mr Black was lying and she did not want to work there, and would get someone to collect her filing cabinet (ts 143). 44 Mr Black says her words, in response to Mrs Black trying to calm her, were ‘No, Gabby, I’m leaving, I can’t work here anymore’ to which he said to Mrs Black, as he went back to his office, ‘Gab, she’s made up her mind’ (ts 83). 45 Mrs Black says that when they were in the reception area, Mr Black did not participate in the conversation. After Ms Eldridge had said she was leaving, Mr Black said ‘she’s made up her mind, let her go’, and she, Mrs Black put up her hand to tell him ‘be quiet’ (ts 154). 46 Ms Eldridge says that she was asked by Mrs Black whether she intended to leave if she did not get the long service leave paid early, to which she responded ‘No’. At that point, she says, Mrs Black raised her hands in the air and said ‘well why are be discussing this?’ (ts 28). Ms Eldridge says, Mr Black said ‘I can’t work with her any more due to her attitude towards me’ (ts 29). Ms Eldridge says this constitutes the dismissal. Mr Black denies saying this. He says that after Ms Eldridge made clear that she was leaving, he said to Mrs Black ‘Gab, she has made up her mind’ (ts 83). By this time Ms Eldridge was extremely distressed, sobbing and almost hysterical. 47 Mrs Black says that they went back to discussing the long service leave and she said to Ms Eldridge ‘Were you gonna leave?’ And she said ‘No’. Mrs Black said ‘Well, why are we having this conversation?’ Ms Eldridge said ‘You’re bringing up Kent Street…Trevor’s bringing up Kent Street. That was sorted out years ago’ (ts 142, 158). 48 According to Mrs Black it was then that Ms Eldridge said Mr Black was lying and she was not going to work there, and she would get someone to collect her filing cabinet (ts 143, 158). Ms Eldridge says she was asked for her keys before she had said she would get someone to collect her filing cabinet. If so, then Ms Eldridge says this confirms the dismissal. If it was after she said she would get someone to collect her filing cabinet, then it appears that Ms Eldridge had resigned and the request for the keys was a consequence of her resignation not part of a dismissal. 49 At the end of the discussion at the reception area, Ms Eldridge handed over to Mr Black a file relating to an appointment she had scheduled for approximately 40 minutes’ time saying either she could not or would not be keeping the appointment and that someone else would have to do it. The dispute between the parties relates to whether she was saying that, due to her state of distress and consequential physical appearance, she could not do it, or whether she was indicating, as part of a demonstration of her leaving the employment, that she would not do it. Mr Black left the reception area and went back to his office. 50 Ms Eldridge says that she was in quite a daze. She left the reception area to walk to the back of the office to the room where her own desk and filing cabinet were, past Ms Robertson’s and Mr Black’s offices, extremely upset and sobbing (ts 65). Mrs Black followed her urging her to calm down, saying they could sort it out and saying ‘you can’t drive, you need to sit down until you calm down’. Ms Eldridge said ‘don’t tell me what to do’. Ms Eldridge says that when they were at Ms Eldridge’s desk at the back of the office, Mrs Black said ‘can I have your keys back please?’. Ms Eldridge says that she was shaking. She took the keys off her key ring and threw them on the desk saying ‘you can have the keys’ (ts 30, 71). 51 Ms Eldridge says she interpreted the request for the keys as being ‘my job has now come to an end’ because it was standard procedure when employees had left their employment, ‘things have not worked out’, they have been asked for their keys back and the locks on the front door were changed (ts 30). 52 However, Mrs Black’s evidence is that the request for the keys occurred in the reception area and followed Ms Eldridge saying she would get someone to collect her filing cabinet (ts 159, 160) (ts 171, 180). 53 Ms Eldridge says that she said to Mrs Black that Mr Black’s statement that for every $100,000 she earned, he earned $10,000 was ‘a lot of crap’. Ms Eldridge then says that Mr Black ‘came around the corner again like a charging bull’ (ts 66). Mrs Black made him take a step back and he was raising his voice again. Ms Eldridge says that at this point she said she would get her filing cabinet picked up later (ts 66). 54 Mr and Mrs Black deny that Mr Black came into the office where Ms Eldridge’s desk and filing cabinet were, and where Ms Eldridge and Mrs Black were standing while Ms Eldridge recovered her things from the desk. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 919 55 Ms Robertson described the sequence she heard. She says that during the conversation at the reception desk Ms Eldridge said she wasn’t staying, she was leaving; that Ms Eldridge confirmed that she would arrange for someone to collect her filing cabinet, that they had better give the file to someone else for the appraisal, because she was not doing it. Mrs Black asked what she meant, was she leaving? Ms Eldridge replied ‘yes, I am not staying here. I’ll get someone tomorrow to come and pick up my filing cabinet’. Ms Robertson says that it was at this point that Mrs Black said ‘then you’d better give me your keys’ (ts 171, 180). 56 Even after this point, Mrs Black was still urging Ms Eldridge to calm down, and that something could be sorted out. Ms Robertson says Mrs Black said words to the effect that Ms Eldridge did not have to leave (ts 180). 57 Ms Robertson described Ms Eldridge as having initially been ‘upset/angry’, at the rep’s desk, she was ‘adamant, angry and upset’ and at the back office as ‘a conclusion angry’ (ts 180). 58 Ms Eldridge went home and about an hour later Mrs Black rang her saying ‘don’t hang up, don’t hang up’. Mrs Black raised the issue of Ms Eldridge’s view that she was entitled to long service leave. Mrs Black asked why Ms Eldridge had not spoken to her about it. Ms Eldridge said she had spoken to Trevor because he was her boss. Mrs Black said they could still work it out (ts 144). She told Mrs Black that she was very upset that she was not coming back (ts 144), that ‘you’ve asked for my keys back’ and Mrs Black said that she had gone into insurance mode. Ms Eldridge told Mrs Black that ‘you’ve gone back with stuff that was 4 years old that had nothing, nothing to do with long service leave’. Ms Eldridge also said ‘the damage was done. I was so hurt and upset’ (ts 32). Ms Eldridge then asked Mrs Black to make sure her commissions were paid, and she confirmed that they would be paid. 59 On the afternoon of the termination of the employment at 2:39 pm, Mr Black sent an email to Ms Eldridge. It is not my intention to recite its terms in full, but to note that the opening paragraphs read: Heather, I didnt want it to get to the stage that it did. I thought that if ever you left it would be on good terms given the last 10 years. Im sorry you thought my sms was nasty etc. It wasnt meant to be, as I did 5 drafts and referred it to Gab before I sent it so there was no nastiness etc meant at all. Unfortunately my SMS was misconstrued. 60 He then went on to reiterate his argument against any entitlement to long service leave, to again note his disappointment, anger and upset that after 10 years he thought she was taking advantage of him, and to defend himself. 61 He concluded by saying: Please discuss your situation with Vanessa, and if you want, come up with a way that will ease the pressure on her whilst helping you both earn money. When you have calmed down if you feel you want to speak to me about anything then please call me because even though I was angry I still didnt want to argue with you Trevor (exhibit A3) 62 Ms Eldridge wrote a letter to Mr Black dated 7 September 2011. It is not my intention to recite the terms of this letter as, with Mr Black’s letter, it deals with the question of the disputed entitlements, and seeks payment of outstanding amounts. 63 Mr Black responded on 22 September 2011 at 8:12 pm. By this point, there was no prospect of resolution and the letter does not assist in the resolution of the issues before me. 64 Ms Eldridge says she has subsequently received confirmation in writing from the accountant that there was no further benefit due to Mr Black arising from the property transactions. She says she had told Mr Black that she had done her tax return involving Kent Street when the transaction was completed, a number of years previously. Ms Eldridge says that she does not recall the exact conversation with Mr Black, but that he knew that her taxes were complete. Mr Black denies this as noted earlier. Mrs Black says she twice gave Ms Eldridge the necessary documents to enable her to complete her tax returns so Mr and Mrs Black could then get that information from Ms Eldridge and do their own tax returns. However they did not receive her information. The Law 65 The issue in this matter is to whether there was a dismissal. In Swan Yacht Club (Inc) v Leanne Bramwell (1998) 78 WAIG 579 at 583, Sharkey P referred to MTT v Gersdorf (1981) 61WAIG 611 (IAC), in which Smith J defined “dismissal” by reference to Auckland Training Board v Nunes (1952) NZLK 412, as follows- “The word “dismissal” may be used in the sense of peremptory or arbitrary dismissal or a dismissal after due notice or payment under the terms of a contract of employment.” He went on to note: The word “dismissal” is perhaps a broader concept than that. In the absence of a definition of “dismissal” in the Act (and there is none), the concept of “dismissal” is broad and general in concept “and wide enough to cover a dispensing with services”. At p 584, His Honour said: In either version, it is clear that the respondent was being told to go; she was being told that her employment was terminated. If I am wrong about that, then it was open, on all of the evidence, to find that the respondent involuntarily resigned in circumstances where the employer’s request for a resignation was implicitly offered as an alternative to a 920 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. dismissal (see Attorney General of WA v WA Prison Officers’ Union of Workers 75 WAIG 3166 (IAC) and Blaikie v SA Superannuation Board (1996) 64 IR 145 at 163-165). Each case turns on its own facts. However, in my opinion, it is fair to say that, where the employee does not fairly consent to the termination of employment, then the termination is a dismissal (see Michaelis Bayley Trading Co and Another Re Dismissal [1979] AR (NSW) 392 at 393 and Smith v Director-General of School Education (1993) 31 NSWLR 349 at 366 (IRC NSW (FC)). This was such a case. … There is no doubt that a resignation by an employee involuntary may in reality be a dismissal by the employer (see Attorney General of WA v WA Prison Officers’ Union of Workers (IAC) (op cit) and Hiser v Hardex Co-Operative Ltd (unreported) (delivered 14 December 1994) (Supreme Court of NSW) per Santow J). Another way of putting it is that the employee is terminated if she/he is given no option but to leave. In this case, the act of the employer terminated the contract. 66 In the circumstances of this case, did Ms Eldridge resign and if so was it a voluntary resignation? Findings and Conclusions 67 I have carefully considered why either of the parties allowed the situation to deteriorate so quickly and whether there was any benefit for either of them in bringing the employment to an end. Ms Eldridge had nearly 10 years’ employment, where relationships had been cordial and productive. The industry was in a difficult state and she was not at that point earning a good income. However, she and Ms Tuttle between them had a significant number of listings, around 15 to 20. Had she chosen to leave and take up employment elsewhere in the industry, there would be a substantial lead time before receiving any income. In the meantime though, she could expect some income from her contribution to the listings and sales she had in conjunction with Ms Tuttle. She would also have any pro-rata long service leave money upon termination. Ms Eldridge was also exhausted and unwell. 68 On the other side, there was no incentive for the respondent to terminate the employment. Ms Eldridge was one of the best sales representatives Mr Black had had, and the sort of sales representative he would have liked to have kept (ts 75). There was a long history of a productive relationship and friendship. Even though Mr Black did not believe there was any entitlement to long service leave he offered Ms Eldridge a loan, to assist her in the short term, and had previously deferred billing her for certain costs. 69 I have considered the various accounts and recognise that some months after such an emotionally charged event, people will not always recall accurately the exact sequence and words used. This is far from unusual. However, in taking account of the conflicting accounts I note the following. Ms Eldridge had been ill, was exhausted and in need of money. She asked Mr Black if he would pay her long service leave in advance and noted an entitlement to pro rata long service leave on termination after seven years’ service. Mr Black became anxious because he asked Ms Eldridge three times about her intentions and received no response. He was facing the prospect of losing one of his best employees and having to find approximately $12,000 at short notice. 70 Having raised the issue of an entitlement to long service leave, Ms Eldridge, exhausted and unwell as she was, received an SMS from Mr Black in which he set out that, firstly, he did not believe that there was an entitlement. Secondly, he was disappointed that she would use what he described as a loophole to ‘get money out of me’ and he explained his rationale for the situation. He then said that whilst she has been a good employee he had also been, in effect, a good and generous employer to her. He pointed out that he did not have the money to make the payment she was seeking and would need all the money he was owed to do so. In that context he raised the issue of Ms Eldridge finalising her tax return and providing the Kent Street information so that he and Mrs Black could obtain a tax refund to help fund any amount that she might be owed. He pointed out those areas in the employment where he believed he had given her financial benefit. In the circumstances of her claiming money from him, which he believed was not due, and not being able to meet her claim, he sought that she repay to him amounts that he had not yet charged her, out of his consideration for her. 71 I find that this SMS was in fact challenging, and in some ways, accusatory. It suggested Ms Eldridge was illegitimately seeking to extract money from Mr Black with the implied threat of leaving the employment and that she was using a loophole to obtain money from him. In those circumstances Ms Eldridge felt under attack. 72 I find that by the time the meeting occurred on 18 August 2011, Mr Black had begun to lose trust and confidence in Ms Eldridge, because she had not answered his question about her intentions even though he had asked three times. I find that Mr Black was entitled to have reservations about her intentions, and to suspect that Ms Eldridge was using the prospect of her leaving the employment as a negotiating tool. 73 On the other hand, Ms Eldridge, being tired and ill, began to feel under pressure, when Mr Black raised the issues regarding the tax information associated with the Kent Street and Morrison Road properties, and the letter box drops and telephone canvassing costs in his SMS message of 17 August 2011. She felt that he had improperly linked those things to her long service leave entitlement. She saw Mr Black’s SMS as a counterclaim and thought Mr Black’s intention was to make her back away from her long service leave request. Ms Eldridge too, was feeling that the relationship of trust and confidence was breaking down due to the accusations contained in the last SMS. 74 This, I firmly believe, is the context in which the meeting on 18 August 2011 took place – both Ms Eldridge and Mr Black were anxious and the previously cordial and productive relationship was teetering on the brink of destruction. 75 Very soon after the meeting began on 18 August 2011, Ms Eldridge was not merely mildly upset; she was in tears, speaking loudly and on the verge of hysteria. I have considered why her reaction was so severe because, although there was tension between the parties, there was also a long history of cooperation and friendship. However, the only way I am able to account 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 921 for the severity of Ms Eldridge’s reaction and distress is to conclude that in addition to being tired and unwell, she was unsure of whether in fact she had finalised the financial dealing regarding Kent Street, felt anxious about it and could not cope with being challenged about it. She was also upset that no one had enquired after her health. 76 I also conclude that Mr Black was not angry when the meeting commenced, however, notwithstanding his assertion to the contrary, I find that Mr Black became angry during the course of the discussions. He acknowledged in an email to Ms Eldridge at 2:39 pm that day that he ‘was disappointed, angry and upset’ (exhibit A3). 77 Importantly, I have considered carefully the evidence about Mr Black’s role in this situation. I conclude that Mr Black is a softly spoken person who thinks about and analyses situations before he acts. This is evident from the way he thought about the request for the early payment, and what Ms Eldridge might have been implying. He asked her. On receiving no direct answer, before he sent off the lengthy SMS on 17 August 2011, he had re-drafted it a number of times. He also stayed at his desk after Ms Eldridge had walked out of his office, trying to come to terms with what had just happened. His evidence was of someone wanting to think about issues before reacting. I find it improbable that, in the circumstances and in the heat of the moment, he would have concluded he could no longer work with Ms Eldridge and then expressed such a thought. On the contrary, I conclude that Mr Black believed Ms Eldridge would be back when she had calmed down. He said so to Ms Robertson immediately after Ms Eldridge had left and confirmed this view by his email that afternoon (ts 182). 78 In those circumstances, I find that it was more probable than not, that Mr Black did not say he could no longer work with Ms Eldridge because of her attitude towards him. 79 When Mrs Black asked whether she had intended leaving if she was not paid in advance for long service leave, Ms Eldridge said no. However, significantly, she went on to say that Mr Black had raised the issue of Kent Street and she asserted that, in effect, it was unfair of him to do so. On this basis, she was leaving. In other words, she decided to leave because of the issue of Kent Street being raised and in the context of what had occurred and was unable to cope with it. She said ‘I’m leaving’. 80 I find too, that Mr Black did not participate much in the discussion between Ms Eldridge and Mrs Black at the Rep’s desk. I believe he attempted to do so, but it was at this point that he was silenced by Mrs Black putting up her hand, rather than in the back office as asserted by Ms Eldridge. Mrs Black did this because she was trying to calm the situation, and she did not want a debate between Ms Eldridge and Mr Black to further inflame what she was trying to settle down. She was trying to save this longstanding relationship. 81 Ms Eldridge’s response to Mrs Black’s attempts to calm her was to say she was leaving, she could not work here anymore. I find that Mr Black then said ‘let her go, she has made up her mind’. Mr Black’s comment ‘let her go, she’s made up her mind’ is the comment of a person perplexed and then resigned to the situation, but with a view that when things calm down Ms Eldridge would be back. 82 Ms Eldridge had a file in her hand which related to an appraisal that she had an appointment to undertake at 11:00 am, only half an hour or so away. It was quite clear that she was not in any condition to undertake that appraisal. Certainly her emotional state precluded it and her appearance would not have been to the professional standard expected. How one interprets her actions of handing over the file to Mr Black depends entirely upon the conclusion as to what had already occurred in respect of either her expression of intending to leave and that Mr Black had said he could not work with her and Mrs Black asking for the keys. 83 Ms Eldridge initially said that when she handed the file over to Mr Black she said ‘you need to get someone else to take this because I am not’ which she corrected to ‘I can’t’ (ts 30). I think her uncorrected statement is the true one – she was refusing to take the appointment because she had resigned, although she could not take the appointment in any event due to her emotional state and appearance. However, the main reason was the first one, that is, it was due to a refusal not to incapacity. 84 I find that Mrs Black stated a number of times to Ms Eldridge that they could work it out, but Ms Eldridge had, by this time, set her course – she was determined to leave, and she said so, and said she would get someone to collect her filing cabinet. I believe that it was at this point Mrs Black asked for the keys. She did so because Ms Eldridge’s words and actions reasonably lead her to believe that Ms Eldridge had said she was leaving the employment. 85 Ms Eldridge and Mrs Black then went to the back of the office where Ms Eldridge’s desk was located, along with her filing cabinet. Whilst Ms Eldridge alleges Mr Black also followed and was in her office with her and Mrs Black, there is no other evidence to substantiate this. I find that Mr Black did not come with them to the back of the office. 86 I also find that Ms Eldridge, in response to Mrs Black asking for the keys, started to take the keys off her key ring as they walked back to her office, by which time Mrs Black realised that she wanted the situation to be calmed down, that she did not the employment relationship to end and I find that it is probable that she said to Ms Eldridge ‘keep the keys, keep the keys’. Ms Eldridge took the keys off her key ring and threw them on the desk, saying ‘you can have the keys’. 87 I have no doubt that Mrs Black was very concerned about Ms Eldridge and did not want her to drive. Mrs Black did not want the employment relationship to end, although I am satisfied that it had ended by that time. Mrs Black was attempting to retrieve the situation, to calm Ms Eldridge and to put things back on as even a keel as possible. Mrs Black said to Ms Eldridge to calm down and that things could be sorted out. This is supported by the evidence of Ms Robertson. 88 Ms Eldridge gathered some of her things, walked out to the reception area, said goodbye to Ms Robertson and Ms Hepburn, saying as she went that she hoped that he would treat them better than he had treated her. Ms Robertson’s evidence, that she did not believe Ms Eldridge would really leave, is reflective of Mr Black’s own attitude. She thought that it was said in the heat of the moment and Ms Eldridge would come back. I find too that after Ms Eldridge had left the office Ms Robertson said to Mr Black ‘she won’t really leave, will she?’, to which he responded ‘no, she’ll calm down’. (ts 182) 89 Later that day, Mrs Black rang Ms Eldridge. I find that her purpose was twofold to see if Ms Eldridge was alright and to urge reconciliation. She commenced the phone conversation to Ms Eldridge by urging her not to hang up ‘don’t hang up, don’t hang up’. She said that she believed they could still work it out. Ms Eldridge said she was not coming back. Ms Eldridge said 922 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. to Mrs Black that Mr and Mrs Black were wrong about the Kent Street property and Mrs Black said that if they were wrong about it to show them. Ms Eldridge said Brent Clark, the accountant, would confirm that the information had been provided to them and Mrs Black responded to the effect the Mr Clark was not likely to give Ms Eldridge’s tax information to Mr and Mrs Black without her say so. The conversation ended on the basis that Ms Eldridge said to Mrs Black to do one thing for her and that was ‘to get me my commissions’. Mrs Black agreed to do so. 90 Later that day, too, Mr Black sent the email to Ms Eldridge which, amongst an apology that she thought his SMS was nasty and some self-serving comments, suggested that she discuss the situation with Vanessa [Tuttle] with a view to earning money. This suggested a renewal of the relationship. Ms Eldridge refused to reconsider Mrs Black’s attempt at reconciliation and Mr Black’s conditional olive branch. 91 In this context then, if I am wrong that Ms Eldridge’s actions brought about the end of the relationship, and it was a dismissal, then I find that the employer, both through Mrs Black and Mr Black himself sought to assist Ms Eldridge to mitigate her loss by attempting to reinstate the relationship. She refused. 92 Mr Trainer, in closing submissions, says that when someone asks if there is a possibility of an early payment of an entitlement, if the answer is ‘no’ then that is the end of the matter, the issue would have been resolved. However, this ignores that the discussion was no longer about long service leave. It had become about trust and who owed what to whom, including the exchange of financial information, in the context of shared profits and taxation benefits. 93 The context in which that comment was made and answered and the fact that notwithstanding that might have been the situation when Ms Eldridge first raised the issue on 15 August 2011, Ms Eldridge had become very agitated by the issue of Kent Street having been raised. Prior to either party saying words which would bring the employment relationship to an end, the trust and confidence in the relationship had broken down such that any further conversation tipped the balance. 94 The applicant says that Mr Black’s claim to have gone to the reception area twice weakens his creditability. I am inclined to the view that he may have gone to the reception area twice. Ms Eldridge said in her evidence in respect of her assertion that Mr Black came to the office at the back where her own desk was located, that she said to Mrs Black that: I said to her ‘For every $100,000 I earn, he earns $10,000. What a lot of crap’. He come [sic] rounding the corner again like a charging bull, Gabby was the one that made him take a step back, (ts 66). This suggests Mr Black was coming into the back office for a second time. It seems more likely that he came out of his office and into the reception area a second time or ‘again’, in response to Ms Eldridge’s comment, rather than that he went into the back office. It is also likely that, with the turmoil and anxiety in the reception area, where Ms Eldridge and Mrs Black were having a discussion, that Mr Black’s brief departure and quick return would not have been noted. 95 Mr Trainer also says that Mr Black did not give evidence regarding the file being handed over to him in examination in chief when he was initially asked a question about relaying his version of events, and this weakens his evidence. However, an examination of the transcript of his evidence in chief shows that Mr Black was asked a series of specific questions rather than being asked to generally relate his version of events. He was asked about the file in cross-examination. Therefore his failure to address the issue in this context does not undermine his credibility. 96 I infer from the whole background and what occurred that Ms Eldridge badly needed a break, and was also in need of money in the short term. The end of the employment would bring both. It would also avoid further discussion about the Kent Street property arrangement. 97 In conclusion, I find that the factors which lead to the employment terminating were Ms Eldridge’s health and financial situation, her failure or refusal to clarify her intentions when asked three times, and Mr Black’s SMS which challenged Ms Eldridge and made her anxious. In the context of the length and nature of the relationship, I am unable to find that it was improper or unreasonable of Mr Black to raise those matters, however his manner of doing so was inappropriate in the circumstances. The parties had what ought to have been a rational discussion. However, Ms Eldridge’s physical and emotional state quickly saw her react in a quite extreme and unpredictable way. She brought the relationship to an end by her words and actions. She did so in the face of being urged to calm down and they could work it out. She was adamant. She rejected approaches to resolve the issues. Her response was emphatic. 98 Therefore, while I find that Mr Black’s lengthy SMS played a significant part in the employment coming to an end, it was Ms Eldridge who started that process by her refusal to answer his question about her intentions, and she finished it by saying she was leaving and refusing to calm down and reconsider. 99 In those circumstances, I conclude that the employment relationship was ended by Ms Eldridge not by the respondent. It was voluntary and adamant even if not predictable. There was no dismissal. 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 923 2012 WAIRC 00413