Evans v Communications Electrical Plumbing Union - Plumbing Division (Queensland Branch) [2009] QIRC 47 (2009) 191 QGIG 371

[Extract from Queensland Government Industrial Gazette, dated 7 August, 2009, Vol. 191, No. 12, pages 371-380] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Janette Evans AND Communications Electrical Plumbing Union - Plumbing Division (Queensland Branch) (TD/2009/59) DEPUTY PRESIDENT BLOOMFIELD 29 July 2009 Unfair dismissal - alleged termination at the initiative of the employer - consideration of words used - consideration of context within which words were used - held no dismissal at the initiative of the employer - no jurisdiction to consider application - application dismissed. DECISION This decision relates to an application by Mrs Janette Evans, under s. 74 of the Industrial Relations Act 1999 (the Act) in which she seeks reinstatement to her former position of Office Manager/Personal Assistant with the Communications Electrical Plumbing Union - Plumbing Division (Queensland Branch) (the Union). Mrs Evans alleges she was unfairly dismissed by the Secretary of the Union, Mr Bradley O'Carroll, during the course of a conversation on the morning of Friday 13 March 2009. Although the events surrounding the alleged termination are relatively brief, the way the case was argued requires me to go into some depth about the events leading up to 13 March 2009 as well as the immediate aftermath. Background Mrs Evans commenced her employment with the Union in late November 2007 as a result of a fortuitous meeting with Mr O'Carroll earlier that month on the same day she was informed of her redundancy with her former employer. She told Mr O'Carroll, who was looking for an Office Administrator/Bookkeeper at the Union, about her redundancy and they arranged to have an interview a few days later. The interview, attended by Mrs Evans, Mr O'Carroll and another employee of the Union, was held on 10 November 2007 in a café in New Farm. Mr O'Carroll said Mrs Evans was well prepared for the interview in the form of copies of resumes, examples of her work and folders containing procedures she had implemented in previous organisations she had worked for. In the course of the interview she claimed she had operated a MYOB accounting system in other organisations where she handled many millions of dollars across a variety of projects. Mr O'Carroll said the nature of the proposed role at the Union was discussed with Mrs Evans and she indicated she had the capacity to handle all of the accounting functions then being performed by an external accountant for several hours each month, and that this would be a cost saving to the Union. Mrs Evans and Mr O'Carroll agreed during their evidence that he also discussed with her, during the interview, the state of the Union's office at that time which was in disarray. However, Mrs Evans said nothing prepared her for the chaotic state it was in when she arrived and she spent considerable time over the next few months getting things into proper order. This included writing, then introducing, position descriptions for each of the positions within the Union, including her own. The position description for "Office Manager/Personal Assistant", covering three pages, showed that one of the key objectives of the role was "preparation and maintenance of financial and budget records". The position description also showed that the Office Manager was responsible for:  Bookkeeping/office accounting, including payroll;  Updating staff leave schedules; and  Preparation of monthly financial reports. The role also required the occupant to have "sound knowledge" in MYOB accounting packages. Mrs Evans said she produced a budget for the financial year 07/08, which was presented to the Management Committee in April or May 2008, and was congratulated by the Committee because they had never been presented with a working budget document before. She also said she reduced the need to engage a professional accountant because she took on the work that the Union had previously outsourced, such as MYOB accounting. Mrs Evans said she experienced some resistance from other staff members to the new systems she was putting in place, although this work was supported by management. She was also uncomfortable with some of the behaviour and general conduct of employees around the office, including frequent swearing, which was not what she was used to. -- 1 of 9 -- 2 Mrs Evans said she worked extremely hard in performing her role and her performance exceeded the expectations of Mr O'Carroll and the Union's Management Committee, citing various references and file notes where her contribution to the Union and the excellent nature of her work was recognised. None of this evidence was challenged during cross- examination by Ms Butler, who appeared in the matter on behalf of the Union, nor by Mr O'Carroll. This was because, to all intents and purposes, Mrs Evans was performing her duties to an apparently high standard without any observable issues or difficulties. However, Mr O'Carroll said that towards the end of Mrs Evans' employment he noticed an apparent anomaly in the financial information she had provided to him which showed that while actual membership numbers within the Union were up, membership subscriptions were down by an amount of $80,000.00. This raised big concerns in his mind which were compounded when Mrs Evans came back the next day and said she had found the "missing" $80,000.00, being unaccounted compliance money the Union had claimed. Mr O'Carroll said "… even me, with my very basic knowledge of accounting, knew that wasn't what the problem was. The decrease or the lack of funds was in membership, not in grants and projects. So I knew that there was something … wrong.". He spoke to Mrs Evans and thought he had reached an agreement with her that they would get an external auditor, other than the auditor who had worked for the Union for the last 10-15 years, to come in and have a close look at the books and the accounts to make sure everything was all right. Monday 9 March 2009 As a result of the above discussion a meeting was arranged with the proposed external auditor on the afternoon of Monday 9 March 2009. Mr O'Carroll said Mrs Evans left this meeting quite rudely. This was disputed by Mrs Evans who said she asked at approximately 4.45 p.m. (her normal finishing time was 4.00 p.m.) if she could leave the meeting early because her husband was not expecting her to be home late and also because she had to drive another employee, Ms Bland, home from work. Mrs Evans said that around 6.00 p.m. that evening she received a phone call from Mr O'Carroll who asked her if she was "shitty". She told him that she was not and that she simply had to leave the meeting when she did because her husband - who had undergone coronary bypass surgery on 6 February 2009 - was not expecting her to be late home. She said Mr O'Carroll then began to discuss Ms Bland's work performance and attitude and stated, in words to the effect, that Ms Bland should be dismissed. Mrs Evans said she had had this discussion many times with Mr O'Carroll and, in her opinion, Ms Bland's work performance was acceptable and had improved greatly over the previous 12 months. She told Mr O'Carroll that because Ms Bland was 5 months pregnant she should be given a further chance to improve her performance. Mrs Evans also said she sensed that Ms Bland's performance was not the only issue Mr O'Carroll wished to discuss. She asked him if he wished her to leave employment because she felt that he was not happy with her decision regarding Ms Bland's continued employment. His alleged response was "if you are unhappy". She told Mr O'Carroll she was unhappy with some matters but had no intention of leaving. Mr O'Carroll then asked why she was unhappy and she indicated it was because there were insufficient staff numbers to handle the workload. Mr O'Carroll then allegedly told her to place an advertisement on "Seek" the next day for a part-time worker. Mr O'Carroll could not remember telephoning Mrs Evans on the evening in question. Nonetheless, he denied ever telling Mrs Evans that she should dismiss Ms Bland, stating that whenever Mrs Evans complained to him about Ms Bland's performance he always told her that as she was the Office Manager it was her job to manage the staff. He said the only occasion on which he could remember discussing Ms Bland's pregnancy was when Mrs Evans was complaining to him about Ms Bland's conduct. Mrs Evans raised Ms Bland's pregnancy and he reminded her that she would have to be careful in that regard. Mr O'Carroll also does not remember talking to Mrs Evans about placing an advertisement on "Seek" on that day. He said at some stage during his various discussions with Mrs Evans, about the possibility of having an additional position at the Union, it was mentioned that a part-time employee could be sourced through "Seek". Tuesday 10 March 2009 Mr O'Carroll said because Mrs Evans had left rudely the day before he telephoned her that morning to make sure she understood she had to provide the Union's books (by way of a disk) to the auditor that morning. Mrs Evans said she wanted to do something to the books before she sent them and he responded, in words to the effect, "Well, no, you just need to get them the books today.". Mrs Evans also told him she had prepared a job advertisement for "Seek" and he told her, in words to the effect, "No, not yet, we need to meet first.". He said this was a reference to their arrangement to meet, over a series of meetings over the next few weeks, to go through the existing positions and discuss whether an additional position was actually required. After the telephone conversation finished he assumed the disk had been sent to the auditors as he had instructed. -- 2 of 9 -- 3 Mrs Evans had a somewhat different recollection of the conversation. She said she was "taken aback" when Mr O'Carroll abruptly told her that he "didn't mean now" when she told him she had the advertisement ready to place in "Seek". This was because she distinctly remembered him telling her, the previous evening to place the advertisement the next day. She then said Mr O'Carroll asked for the position descriptions of all staff and inquired whether she had emailed the MYOB disk to the auditor. She advised that she would email the position descriptions to him and (allegedly) told him the MYOB disk would be ready to go to the auditors by Friday as she wanted to make sure the February accounts were fully balanced before submitting the disk. Wednesday 11 March 2009 Mrs Evans said Mr O'Carroll rang her in the morning and asked her to print out two copies of the position descriptions of all staff members so he might collect them later. Thursday 12 March 2009 Mr O'Carroll called into the office to collect the position descriptions Mrs Evans had printed out. She asked him "what was happening" and he responded by stating he was going to review them. During the course of the day Mrs Evans made a decision to work on her scheduled rostered day off (RDO) on the following day to complete the MYOB disk for the auditor and to bring herself up to date in her work because she was to undergo a medical procedure on the following Monday, her scheduled RDO. Friday 13 March 2009 Mr O'Carroll was waiting to attend an early morning medical procedure at a private hospital, on his RDO, when he received a telephone call from the external auditor he had engaged to audit the Union's books. The auditor told him that the MYOB files he needed to look at, prior to the next meeting with Mr O'Carroll at 3.00 p.m. on Monday 16 March 2009, had not been sent to him. Mr O'Carroll undertook to immediately contact Mrs Evans to find out where they were. He then rang Mrs Evans. Mr O'Carroll said that when Mrs Evans answered the phone he asked her why the auditor didn't have the MYOB disk. She responded by saying she didn't have the files prepared yet. He said "We spoke about it. He needed the information by first thing Tuesday morning.". Mrs Evans then said "We don't need an external audit, the books are fine. Why are you insisting on getting an audit?". Mr O'Carroll responded by saying "I made a decision to get an external auditor because it was smart business practice.". He then said, because he had to go in for his medical procedure, "Janette, I've got to go, you need to get the books to him now, as they are now.". Mrs Evans started to question him again and he said "Janette, just do it, I've got to go.". Mrs Evans' recollection of this conversation was that Mr O'Carroll phoned and asked for electronic copies of the position descriptions to be emailed to him so he could do some "cut and paste" work to them. She said "Alarm bells rang as this is one of the first things management does to eliminate staff without having to be penalised for dismissing them. I mentioned this to him but he said 'no just reviewing'. I thought more about it and decided to pack up my excess personal things (knick knacks etc.) leaving behind in the office essential items which I needed. I had accumulated a few things which I kept at work as I had moved house while working at the Union and instead of taking them home I kept them at work.". Ms MacMillan, an Industrial Officer with the Union, said she noticed Mrs Evans was packing her things. She then heard her say to Ms Bland, in words to the effect, "I am packing my stuff because I know when people are asking for position descriptions heads are going to roll and mine with be the first to go.". Ms MacMillan then spoke to Mr Knight, a Union Organiser, and said, in words to the effect, "What's Janette doing, I think she must be leaving because she is packing up all her stuff!". She then asked Mrs Evans what she was doing. Mrs Evans reply, announced to the whole office, was "I am packing because Brad has asked for position descriptions. Heads are going to roll, and mine will be the first to go.". After that exchange, Ms MacMillan returned to her desk and carried on with her work. Shortly afterwards she noticed that Mr Knight received a telephone call on his mobile phone and that he went outside. Mr Knight's telephone call was from Mr O'Carroll who had established he had a little time left before he was to undertake his medical procedure and had phoned Mr Knight to discuss Mrs Evans and her attitude to the audit. He told Mr Knight that he wished to meet with him to talk about Mrs Evans and Mr Knight replied by saying "You don't need to worry about Janette, I think your problems are solved.". Mr O'Carroll asked Mr Knight what he meant and Mr Knight replied "Well, she is (in) there packing her gear and she's told everyone that she's leaving.". Mr O'Carroll then asked Mr Knight "Do you mind if I ring her now and tell her that you've told me that she's packing her things and leaving?". Mr Knight agreed that this could happen. -- 3 of 9 -- 4 Mr O'Carroll immediately phoned the office and Mrs Evans answered. Mrs Evans said that Mr O'Carroll was "loud and aggressive". She said (paragraph 32(c) of her witness statement - Exhibit 1): "He told me Jeff Knight (Union Organiser) had phoned him to say I was packing up. I said I am not leaving, merely tidying up. I repeated that I wasn't leaving and he said 'yes you are' and 'keep packing' and that he would be in the office at 11.00am and 'to be there'. I said 'no I won't' and disconnected the call. I was terrified by his aggressive and irrational behaviour. As he had told me to leave I was not about to subject myself to his verbal abuse and threatening behaviour. It is very intimidating as he is a large man.". Mr O'Carroll gave the following account of the conversation (from his witness statement - Exhibit 15): "60. I said 'Janette, what's going on?' 61. She said 'What do you mean?' 62. I said 'Well, I've just been told by Jeff that you're packing up and you're leaving. Why are you doing that?' 63. She said 'Well, clearly you don't have faith in me.' 64. I said 'What do you mean?' 65. She said 'Anywhere that I have worked in the past where they've asked for position descriptions, heads will roll. You're getting an external audit so clearly you're not happy with the way I am doing the books.'. 66. I told her previously that I wouldn't approve an extra position until I knew everyone was doing what they're meant to do. Three meetings were booked with her after 13 March over the next week to discuss the office structure. 67. (not relevant) 68. I said 'Now that's not the case, we've got three meetings booked to discuss the office structure. The external audit is not only about the figures it's also about our statutory responsibility.' 69. She said 'Well in my opinion wherever I have worked before heads will roll.' 70. I said 'So what are you doing?' 71. She said 'Well I'm packing up my things. Clearly you are not happy with me.' 72. I said 'Well you can keep packing.' -- 4 of 9 -- 5 73. She said 'Are you sacking me?' 74. I said 'No, you just told me you were packing things up and leaving.' 75. She said 'No, I said I was packing in case you sacked me.' 76. I said 'Janette, that isn't what I've said. Wait there, I'll be back at eleven. I'm getting my stomach band done.' 77. She said 'I will be gone by the time you get there.' ". Mrs Evans' witness statement (Exhibit 1) records the following sequence of events are she disconnected Mr O'Carroll's call to her: "32(e) I then approached Jeff Knight and said 'why did you ring Brad. I wasn't leaving, just preparing for what could happen'. He said he didn't ring Brad, that Brad phoned him on his mobile and asked him to go outside the office to speak to him. Brad told him that he was going to 'put me off' and Jeff told him that wouldn't be the case as I was already packing my things up. I was quite upset at Jeff for doing this as I felt he had no right to comment. 32(f) I became very upset and in tears, as I believe you have (the) right to discuss problems and there was no discussion just accusations. When I told Neysha Bland that I was fired she broke down in tears. I then warned Neysha to be careful as Brad had mentioned that he wanted to cease her employment, as she had asked me a few days prior if he as (sic) going to 'fire' her. At the time I had told her that he had some issues with her work but I was not happy with his decision. Brad had told me this week that he was going to get advice on how to 'sack' her without being penalised. 32(g) The male staff members helped me to my car and even offered to drive me home as I was so upset. I said I was so hurt by his radical behaviour, that he was mad to do what he had and that he obviously needed psychiatric help after the treatment I had received from him over the phone.". After Ms MacMillan noticed Mr Knight receive the call on his mobile phone and walk outside she left the office for a brief period. When she returned she saw Mrs Evans on the telephone. She could tell from Mrs Evans' words and tone of voice that she was speaking to Mr O'Carroll. She heard Mrs Evans say to Mr O'Carroll words to the effect that she was leaving but could not recall the actual words used. Ms MacMillan said that despite her efforts not to, it was impossible to avoid hearing some of the conversation. She could also tell from Mrs Evans' tone that she was irate and remembered hearing her saying, in words to the effect, "I won't be here.". Mrs Evans then got off the phone and said to Ms Bland "I got sacked, Nasha, because I stood up for you because he wanted to sack you.". Mrs Bland started crying and Mrs Evans said to the whole office "I've just been sacked, he sacked me.". She then started saying things about Mr O'Carroll, including that he was a "horrible man" and that he "could not treat people like that". Shortly afterwards Mr Knight and another male employee helped Mrs Evans carry her boxes to her car. Mr Knight recalled that shortly after he finished speaking to Mr O'Carroll, Mrs Evans came outside of the building and said "I want to talk to you" and they went back into the foyer of the building. She then said in an angry tone "thanks very much for that" and he asked her what she meant. She responded by saying "thank you for ringing him" and he replied by saying he had not phoned Mr O'Carroll, Mr O'Carroll rang him. Mrs Evans then said words to the effect "that's different to what he told me", apologised and went back into the office. He went in shortly afterwards. Mr Knight said when he went into the office Mrs Evans and Ms Bland were in tears. Mrs Evans was saying, in words to the effect, "he asked for position descriptions. He wants to get rid of me.". -- 5 of 9 -- 6 Subsequent Events While still at the hospital Mr O'Carroll phoned the Union's Information Technology consultants and arranged for them to disconnect Mrs Evans' remote access to the Union's computer system. Ms MacMillan said that Mr O'Caroll came into the office about 11.00 a.m. with his wife. He asked where Mrs Evans was and she told him that Mrs Evans had left. He asked why and Ms MacMillan said she responded by saying "She told us you sacked her.". Mr O'Carroll responded by saying "I did not sack her. If she has gone, she has left of her own accord, because I said I was coming in to see her at 11.00 a.m.". Mr Knight said that when Mr O'Carroll came into the office Ms MacMillan and Ms Bland were upset and he was feeling a bit rattled. One or more of the staff asked Mr O'Carroll what was going on with Mrs Evans because she said she had been sacked. Mr Knight said Mr O'Carroll responded with words to the effect "I never sacked her - she quit.". Mr O'Carroll then asked what Mrs Evans had said and one or more of the staff said that even before Mrs Evans had spoken to him on the phone she had been saying he had asked for position descriptions and that meant he was going to sack her. At some stage during the morning Mr O'Carroll also apparently spoke to the proposed auditor and informed him that Mrs Evans had walked out. The auditor arranged for Mr Shenfield, a chartered accountant and chartered secretary, to attend at the Union office to go through the Union's books. Mr Shenfield said he attended at the Union office at around 11.30 a.m. and met with Mr O'Carroll. Mr O'Carroll informed him that he did not have any concerns about malfeasance but Mr Shenfield indicated it would still be prudent to check. Mr Shenfield said he generated a trial balance and went through that document after which he spent the balance of the day looking at bank statements, cash books and debtors and creditors. He did not see any evidence of malfeasance. Mr Shenfield said he also arranged for a temporary employee to attend at the Union's premises the following week. He subsequently worked with that employee in reviewing the books of the Union during which time he reached the conclusion that the accounting functions were not being performed competently, with a number of errors and omissions identified. These included:  no provision for leave, retirement benefits or RDOs entered into the profit and loss statements of the Union resulting in profit being overstated by approximately $100,000.00;  no provision for building depreciation, meaning that profit was overstated by just over $15,000.00;  no provision for depreciation to office equipment ($10,000.00) nor motor vehicles ($5,000.00), meaning that profit was overstated by comparable amounts;  recording certain capital purchases, such as the compactus (value $10,000.00) a GPS machine and a laptop, as normal expenditure whereas such items should have been capitalised. Mr Shenfield opined that by treating these items in the way she had Mrs Evans appeared to have had no appreciation of the difference between capital expenditure and such things as repairs and maintenance;  incorrect recording and treatment of GST, including recording GST on depreciation;  failing to administer the wages system correctly, resulting in staff being paid incorrect wage rates and allowances and superannuation not being made in accordance with the agreed Union/staff arrangements;  incorrectly recording PAYE deductions within the Union's MYOB accounting system such that the reports understated the amount of tax the Union had remitted to to the Australian Taxation Office;  the accounts receivable ledger showing uncollected accounts that ought to have been written off because they included debts, such as for advertising in a journal which had never been printed, that would not be paid. This had the effect of overstating the income of the Union over the relevant period;  failing to make BERT contributions in respect of certain employees;  regularly failing to pay income protection payments on behalf of one staff member which meant that this employee could have been without income protection had the error not be identified and rectified;  underpayment of a motor vehicle allowance to Ms MacMillan; and  several instances of double payments to suppliers. Documents attached to Mr Shenfield's statement also showed that a number of payments to creditors were wrongly allocated, which had the effect of overstating certain expenses whilst understating others. One such example was the incorrect allocation of payments totalling $3,900.00 as legal fees whereas such amount should (it appears) have been allocated to Committee expenses. A letter was also sent by Mr O'Carroll to Mrs Evans on Tuesday 17 March 2009. Irrelevant parts omitted, the letter was in the following terms: -- 6 of 9 -- 7 "Dear Janette, Re: your conduct on Friday I refer to your employment with the union. I can confirm that on Friday 13th March 2009 I requested by telephone, that you provide information to the union's external auditors. I was subsequently informed by another member of staff that you were packing your things. When I telephoned you to find out what was going on, you told me that you were leaving, because that, in light of my earlier requests for position descriptions for employees, and the current external audit, you apprehended that your employment would be terminated. I took what you said to me, in the context of your packing up your things, to be a resignation. The requests for information as to position descriptions, and the direction to provide assistance to the external auditor were entirely reasonable. After our telephone conversation on Friday, you announced to the entire office that I had terminated your employment. That was not correct. You also, without any basis for doing so, indicated that others would be next, causing at least one number (sic) of staff to be greatly upset and in tears. Further, you made a number of derogatory comments about me. You subsequently contacted a representative from the union's IT consultant, ITM, and advised him that I had terminated your employment. You apparently contacted him with a view to gaining access to the work computer to recover personal files. Janette, I was entitled to take your phone call as a resignation. Even if I am wrong in that (which of course I deny), your subsequent behaviour in making an announcement to the office and speaking with third parties constituted serious misconduct, destroying any trust and confidence the union could have in you, and making it impossible for the employment to continue. That is to say, even if you hadn't resigned, your serious misconduct gave rise to grounds for summary termination. In the circumstances, you have brought the employment to an end. Accordingly, the union will:  arrange for you to be paid any accrued but untaken annual leave, if any by EFT into your normal account;  courier any remaining personal effects to you at your home address;  post you a statement of service. … ". Was there a termination at the initiative of the employer? Mr D. Pratt, Counsel for the Applicant, submitted that the Applicant's employment was brought to an end by the remark "keep packing" spoken by a person representing the Union who had authority to terminate Mrs Evans' employment in the context of termination of employment being discussed at the time. Mr Pratt also said the absence of any particular words such as "you are dismissed" did not detract from the essential nature of the termination of employment which was brought about by Mr O'Carroll telling Mrs Evans to "keep packing". Mr Pratt also emphasised that those words were used by Mr O'Carroll shortly after he told Mrs Evans "Yes you are" after she told him she was not leaving her employment. In support of the submission that no particular words need be used to effect a termination Mr Pratt referred me to the decision of (as he was then) Chief Commissioner Hall in Stasiakowski v AAD Gloss Industries Pty Ltd (1997) 155 QGIG 432 at 433. However, in that case, the representative of the employer subjected Mr Stasiakowski to "temperate language and vulgar abuse" before telling him "Get off the premises. If you don't get off the premises I will get the lawyers to throw you off.". In respect of those words Chief Commissioner (now President) Hall said: "He says that he took those words to mean that he was dismissed. I consider that he is right in that. No particular form of words is required in order to effect a dismissal. The Applicant could not render services to the Respondent if he was not permitted to enter the premises. The statement, if made, was a refusal to accept the performance of work by the Applicant henceforth.". -- 7 of 9 -- 8 While I agree with Mr Pratt that no particular form of words is required to effect a dismissal, and also agree that the context within which words are used is critical in determining whether an actual dismissal has been effected, I (respectfully) differ with him on this occasion about his interpretation of the context within which the words "keep packing" were used. In particular, I do not agree that the words used, taken in context of the whole of the discussion and the lead up to it, demonstrated any intentions on the part of Mr O'Carroll to terminate Mrs Evans' employment. Rather, I have come to the conclusion that Mrs Evans seized on those words as confirmation of her belief that Mr O'Carroll, by asking for copies of position descriptions, was intending to take some action in respect of her continued employment at some stage in the near future. On her own admission, Mrs Evans was feeling extremely stressed on the day in question. Her husband had undergone coronary bypass surgery just over a month previously and she was caring for him whilst still working full-time at the Union office. In addition, she was attempting to run a Management Rights business at a town house complex which she and her husband had purchased in or around August 2008. Quite apart from these stressors, Mrs Evans was also feeling under stress because of the situation at work. Firstly, she believed the workload was too big and that Mr O'Carroll needed to employ another person to assist her in the office. Secondly, although she denies it, she was also obviously concerned about Mr O'Carroll's decision to bring in an external auditor to caste his eyes over the bookkeeping/accounting work she was performing. Other than stress, there is no logical explanation why Mrs Evans would have started to pack up her belongings after Mr O'Carroll phoned her on Friday morning and (again) instructed her to send the MYOB disk off to the auditor. There is also no other logical reason why "alarm bells" would have started ringing in her head when Mr O'Carroll asked for electronic copies of the position descriptions to be emailed to him. In addition, there is no other reason Mrs Evans would have "thought more about it" and decided to pack up her excess personal belongings when she had been instructed, just a few minutes before, to send the MYOB disk off to the auditor to allow him to undertake work for a meeting with Mr O'Carroll on the following Monday. Given all of the above, I have come to the conclusion that Mrs Evans, in somewhat of a stressed state, convinced herself that she was about to be dismissed and proceeded to prepare herself for that eventuality by starting to pack up all of her belongings. It was during the course of packing such belongings that Mrs Evans told the other staff that Mr O'Carroll was reviewing the position descriptions and she expected she would be the first person to be terminated, or words to that effect. It was while she was in that state of mind that Mr Evans then received a second phone call from Mr O'Carroll on 13 March 2009. The conversation with Mr O'Carroll was, undoubtedly, tense. Mr O'Carroll had instructed Mrs Evans to send the MYOB disk off to the auditor on Tuesday and again earlier that morning. Shortly after telling her for the second time to send the disk he was told by Mr Knight that she was packing her belongings and preparing to leave. It was against that background that Mr O'Carroll challenged Mrs Evans by saying "Yes you are" when she denied she was preparing to leave the office. In addition, the statement by Mr O'Carroll of "Keep packing" or "Well you can keep packing", in the context within which he says those words were used (which I accept), was confirmation to Mrs Evans that he was not happy with her. Further, the exchange which then followed makes it clear that Mr O'Carroll's use of those words was not intended to signify a termination of Mrs Evans employment. This is highlighted by his instruction to her to "wait there" because he would be back in the office at 11.00 a.m. and her response she would be gone by the time he got there - evidence on which the parties are ad idem. While Mrs Evans might have told other staff members immediately after the conversation with Mr O'Carroll that she had been dismissed I do not regard that point as significant. Mrs Evans had convinced herself that Mr O'Carroll was preparing to dismiss her and took certain words he used during the course of her conversation with him as confirmation of her belief. However, what she thought she heard him say, in her state of mind, and what he actually said, in the context in which it was said, were not the same thing. In respect of the words "Yes you are" Mr O'Carroll was clearly challenging what Mrs Evans was telling him about whether she was packing up her belongings and preparing to leave. The words "Keep packing" or "Well you can keep packing" were not an instruction but, rather, his way of sarcastically confirming that he was not happy with her. At the end of the day, it is up to an Applicant in a case such as this to establish to the satisfaction of the tribunal of fact, on the balance of probabilities, that a dismissal has been effected at the initiative of the employer. In that regard, the tribunal must feel "an actual persuasion" before an alleged set of facts can be found to exist (see decision of Blades C. in Johnston v Q-COMP (2007) 185 QGIG 86). In this case I am not persuaded, on the balance of probabilities, that Mr O'Carroll dismissed Mrs Evans. Rather, I have come to the conclusion that Mrs Evans simply left her employment of her own accord after convincing herself she was about to be dismissed and hearing certain words which she took to be confirmation of her belief. It follows that her application for relief must be dismissed and I so determine and order. -- 8 of 9 -- 9 Other Matters While the primary submission of Ms Butler, on behalf of the Union, was that there had been no dismissal at the initiative of the employer, she also argued, in the alternative, that Mrs Evans had simply abandoned her employment by refusing to stay in the Union office as directed by Mr O'Carroll. Instead, she left the office and visited a medical practitioner, where she received a medical certificate for that day only. Although she planned to have a day off on the following Monday (16 March 2009) she did not return to work, or make any contact, on the following day, Tuesday 17 March 2009. As a further alternative, Ms Butler argued that if the Commission found there had been a termination at the initiative of the employer it should find that the dismissal, in all of the circumstances, was not an unfair dismissal within the meaning of the Act. This was because Mrs Evans' conduct and performance, which the Union was not made aware of until the end of her employment, would have constituted a lawful and reasonable basis to terminate her employment. This submission was said to be supported by the after-acquired knowledge gained by the Union in respect of Mrs Evans' management of the Union's MYOB records, payroll information and other administrative tasks that evidenced either gross neglect or gross incompetence on her part. Finally, it was argued that if the Commission found against the Union on all of the above points reinstatement was impracticable. It was also agreed that Mrs Evans' failure to adequately mitigate her loss, coupled with her relatively short period of employment, meant that only minimal compensation should be awarded. Because of my finding (above) that there was no termination at the initiative of the employer I have not found it necessary to deal with these alternate arguments, which are simply recorded for purposes of the record. Summary of Conclusions Mrs Evans has failed to establish, on the balance of probabilities, that she was dismissed at the initiative of the employer. As such, she has no capacity to bring an application pursuant to s. 74 of the Act and I dismiss her application for want of jurisdiction. Costs Each of the parties generally reserved their positions in respect of costs, pending the outcome of the case. This was particularly so in the case of the Union. However, for the purpose of trying to avoid further costs being incurred, I think it appropriate for me to record it is my view, at this time, that this is not the type of case where costs are likely to be awarded. While the outcome ultimately arrived at is adverse to Mrs Evans I do not think it is a case "which was objectively recognisable as one which could not succeed at the time when the application was made" (see decision of Hall P in MIM Holdings Ltd v AMWU (2000) 164 QGIG 370). Nor does it appear that there as been some unreasonable act or omission connected with the conduct of the proceedings. Further, the way the whole case was argued is testimony to the possibility that the decision of the tribunal of fact about whether there had been a termination at the initiative of the employer could have gone either way, with the outcome depending on which way the evidence was ultimately viewed by the tribunal. Nonetheless, while I have expressed an initial view about this matter, the decision as to whether a costs application will be made is ultimately one for the Union to decide. If such application is to be made it should be made within 21 days of the date of release of this decision and will be determined on its merits. The Commission determines and orders accordingly. A.L. Bloomfield, Deputy President. Hearing Details: 2009 20 & 21 July Released: 29 July 2009 Appearances: Mr D. Pratt (Counsel) instructed by Ms K. Gamble of Clarke Kann Lawyers for the Applicant. Ms T. Butler and with her Ms S. Keating of Maurice Blackburn Lawyers for the Respondent. Government Printer, Queensland The State of Queensland 2009. -- 9 of 9 --