Adrian Praljak v Services Australia
[2022] FWC 442
| [2022] FWC 442 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Adrian Praljak
v
Services Australia
(C2021/7902)
| DEPUTY PRESIDENT LAKE | BRISBANE, 28 FEBRUARY 2022 |
Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether Applicant was dismissed – jurisdictional objection upheld – application dismissed
Adrian Praljak (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute in relation to the termination of his employment by Services Australia (the Respondent).
Directions were set for the filing of material and the matter was dealt with by way of hearing on 15 February 2022, which took place using Microsoft Teams.
The Respondent sought to be represented at the hearing, which was not opposed by the Applicant. Still, I was required to consider whether to granting permission pursuant to s.596 of the Act.[1] The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3] Given the complexity of the matter and in the interests of dealing with it as effectively and efficiently as possible, I am satisfied that it was appropriate to grant the Respondent permission to be represented. Accordingly, Peter McNulty from Ashurst represented the Respondent at the hearing.
The Applicant appeared and gave evidence on his own behalf. The Respondent called Stephanie Tamm, Assistant Director in the Conduct and Reviews Team, to give evidence on its behalf.
Chronology
The Applicant commenced employment with the Respondent on 20 September 2021. As part of his onboarding documentation, the Applicant was asked to disclose any relevant medical or criminal history.
When the Applicant first got the job offer, he was very excited because working for the Commonwealth Government was his dream job. He wanted to make sure he did everything correctly, so he drove to his disability employment officer, Deborah Foley, to help him scan everything. He says he discussed with her what to write down about the medical and legal matters. He says she told him that he did not need to disclose the medical information because it was not relevant to his job. In respect of the criminal history, the Applicant said he did not need to disclose it because he believes he was wrongfully convicted and is currently trying to get the conviction quashed. Further, he says that at his sentence, the Judge told him he did not have to disclose it when applying for jobs. It is worth noting, however, that there was no evidence to support this assertion other than the Applicant’s testimony. On that basis, he says that Ms Foley agreed that he need not disclose it.
In October 2021, the Respondent became aware that the Applicant may have provided information that was false and/or misleading information in the documents that he provided as part of the engagement of his employment with the Respondent. It was alleged that the Applicant had failed to declare that he was suffering from a number of medical conditions and that he had been convicted in May 2018 for stalking.
On 1 November 2021, Ms Tamm and Michael Shaw, the Applicant's Site Manager, attended a meeting with the Applicant. Ms Tamm appeared remotely by Microsoft Teams. The Applicant says that Mr Shaw had summoned him to the meeting in front of everyone, causing him deep embarrassment. He also said that Ms Tamm’s tone during the meeting was accusing, and he felt that he was treated worse than a criminal. He says there was no compassion in the Respondent’s approach. The Respondent denies that there was anything inappropriate about their conduct.
The purpose of that meeting was to inform him of the allegations of misconduct against him, that an investigation would take place in relation to those allegations, that Ms Tamm proposed to suspend him from duties with pay during the investigation and that he would have an opportunity to respond to the proposal to suspend him from duties with pay before Ms Tamm made her decision about the proposed suspension.
The Applicant told Ms Tamm that he did not need time to respond to the allegations and that he could answer them now. He says he told her that he did not have to disclose the medical matter because it was not relevant to his employment, and that he had not disclosed the conviction because the Judge had told him that he did not have to and, in any event, he had been wrongfully convicted and was taking steps to get that conviction was quashed.
Ms Tamm’s evidence was that explained to him that she was not deciding those matters now, she was simply deciding whether to suspend him on full pay. She says that after she outlined the proposed decision to suspend him on fully pay, the Applicant asked if he could resign, indicated that he wanted to resign with immediate effect and stated that was what he would do. He repeated that he wanted to resign several times during the course of that meeting. The Applicant accepts that he said he would resign in that meeting.
Ms Tamm told the Applicant that she would not accept his verbal resignation. Ms Tamm asked Mr Shaw to hand the Applicant a letter during that meeting which set out the above matters. Ms Tamm indicated that he was under no obligation to resign and that he should go home, read the letter and consider his position. She told him that he had an opportunity to respond to her proposal to suspend him ahead of the investigation and that he did not have to make the decision to resign immediately. Rather, if he decided that he wanted to resign he could do so later in the process.
The meeting ended and Mr Shaw walked the Applicant back to his desk, allowed him to collect his things and escorted him off the premises. The Applicant says this was again deeply embarrassing because other employees saw it unfold.
Later that day, Ms Tamm sent the Applicant an email indicating that his verbal resignation had not been accepted and that if he wished to resign, he would have to confirm that intention in writing.
The Applicant did so on 2 November 2021, in an email stating that he resigned from his employment effective 1 November 2021.
Ms Tamm responded by email (also on 2 November 2021) thanking the Applicant for his resignation and confirming that it would be accepted.
Was the Applicant dismissed?
Section 386(1) of the Act relevantly provides that a person has been dismissed if:
(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.
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s employment to be terminated at the initiative of the employer.[4] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[5] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[6] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[7] Put another way, did the employer’s conduct have the probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?[8]
It is necessary to conduct an objective analysis of the employer’s conduct to determine if 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.[9] All the circumstances – including the conduct of both the employer and employee – must be examined.[10] In other words, it must be shown 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.”[11]
The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred.[12] Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”[13]
In Megna v No 1 Riverside Quay (SEQ) Pty Ltd, Senior Deputy President Richards considered the meaning of “forced” in the following terms:
“[14] It seems that the term “forced” is the past tense of the verb form “to force”, and as such, an understanding of the plain meaning of the term “force” is relevant to applying s.642(4).
[15] Relevantly, the Macquarie Dictionary defines “force” as:
… strength or power exerted upon an object; physical coercions; violence … power to influence, affect or control; power to convince … to compel; constrain or oblige (oneself or someone) to do something … to bring about or effect by force; bring about of necessity or as a necessary result … to put or impose (something) forcibly on or upon a person … to press, urge or exert to violent effort or to the utmost …
[16] The term “force” appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purpose. In either case, there is an important element of compulsion present.
[17] In the contextual circumstances now before the Commission, the issue is whether the Applicant herself is able to demonstrate:
· That she did not voluntarily resign her position or employment;
· But that her employer, because of its actual conduct, forced her to do so, such that there was an element of compulsion present.” [14]
While in that case Richards SDP was considering an unfair dismissal, his observations remain relevant.
It is well established that subjecting an employee to disciplinary procedures is not itself sufficient to demonstrate that a resignation was forced by actions of the employer.[15] In Pacific National (NSW) Ltd v Bell, Mr Bell resigned prior to the conclusion of a formal determination regarding his false signing of timesheets. In his resignation letter, he wrote that his resignation was “due to circumstances beyond his control”. Further, there was reliable evidence that the employer stated that, “it’s serious business and [Mr Bell’s] employment may be terminated.” The Full Bench concluded that “this was no more than mere fact, acknowledged by Mr Bell on his own appreciation of the position.” [16] A statement that an employee may be terminated because of an investigative process does not, on its own, demonstrate that a constructive dismissal has occurred.
In the context of an investigation, consideration should be given to the actions and motives of the Respondent during the investigation process.[17] If the employer properly receives a complaint and decides to investigate them in a measured and methodical manner having regard not only to the complaints that were made, but also the principles of natural justice and procedural fairness, the undertaking of that process is unlikely to be characterised as conduct engaged in to bring about the end of the employee’s employment. It would be a perverse outcome to consider an objectively fair investigation and show cause process as imposing forcibly upon the Applicant that they must resign. One must consider whether and what other options were available to them apart from resignation. [18]
Applicant’s material
The Applicant submit that during his employment with the Respondent he was subject to shocking treatment, gaslighting, harassment and micromanaging, which was engaged in with the intention of causing him to resign. No particulars were provided in respect of these allegations.
As to the meeting on 1 November 2021, the Applicant admits that he was offered a support person but says that given his family do not live in Queensland, there was no one he could usefully call. He says he was made to feel like a criminal and embarrassed by the way he had been summoned in front of other colleagues.
The Applicant says that when the allegations were put to him in the meeting on 1 November 2021, he responded immediately. He told Ms Tamm that Ms Foley had instructed him that it was not necessary for him to disclose his anxiety, acrophobia or claustrophobia as it was not relevant to his job. He also explained that he was challenging his conviction and that he had been told by the Judge who sentenced him that he did not have to disclose it anyway. Despite these explanations, the Applicant says it became clear to him that his response was not good enough for Ms Tamm. She did not drop the subject and maintained that she was considering whether to stand him down on full pay ahead of an investigation. This deeply offended and insulted him. He felt his character had been “assassinated” and he could not continue in his employment. Consequently, he thought he had to resign and said so many times during that meeting.
He asserts that nothing in the Respondent’s subsequent letter changed his mind. Consequently, on 2 November 2021, he wrote to the Respondent confirming that he wished to resign from his employment.
In light of all the evidence and submissions outlined above, the Applicant submits that I should be satisfied that he was dismissed by the Respondent within the meaning of the Act.
Respondent’s material
The Respondent submits that the Applicant was not dismissed within the meaning of s.386(1) of the Act. The authorities make it clear that an employer that raises allegations of misconduct against an employee and gives notice of an investigation is not, without more, forcing the employee to resign.[19] The Respondent asserts that this is not such a case.
On the contrary, the Respondent asserts that its conduct was consistent with the continuing relationship with the Applicant in that when the Applicant was informed of the allegations and the potential investigation, it was abundantly clear that no findings had been made and he was only being asked to respond to the proposal that he be stood down on full pay whilst the investigation took place. He was invited to provide a response to that proposal alone – and not the substantive allegations – the next day. No decision had even been made regarding the suspension. The Applicant was also told that he would be given an opportunity to respond to the specific allegations during any potential investigation. Finally, it was never suggested by the Respondent that the Applicant should resign, nor was his resignation accepted at that meeting. In fact, Ms Tamm advised him verbally and in writing that he was under no obligation to resign and that if he wished to do so at a later time, that would remain open to him.
On an objective analysis, the Respondent submits that its conduct, or course of conduct, did not bring about the resignation and the Applicant was not forced to resign. Accordingly, the Respondent submits there was no dismissal for the purposes of s.386 of the Act and on that basis, the Applicant’s application should be dismissed.
Consideration
I have had regard to the submissions and evidence made by both parties. It is undisputed between the parties that the Applicant resigned from his employment. The question before me really is whether he was forced to do so by the conduct of the Respondent, and therefore, was dismissed within the meaning of s.386(1)(b).
The Applicant made some very serious allegations of being poorly treated, gaslighted, harassed and micromanaged, for which he produced little evidence in support. I was therefore not satisfied that these claims were substantiated. I am thus not satisfied that the Respondent acted in a way that left the Applicant with no choice to resign prior to the meeting on 1 November 2021.
As to what occurred on 1 November 2021, I have no doubt that the Applicant was embarrassed, confronted and upset when he was called to the meeting and presented with the allegations by Ms Tamm. However, I am also satisfied that the purpose of the meeting, as was conveyed to the Applicant, was to put the allegations to him and let him know that a decision was currently being made about whether Ms Tamm would suspend the Applicant on full pay while an investigation was undertaken. No decision had been made in respect of that question, let alone regarding the allegations. Ms Tamm would not even be the investigator or decision-maker into those matters.
There is no evidence before me that the Respondent’s conduct was anything other than reasonable management action following very serious allegations being made about the Applicant's potential breaches of the Code of Conduct in his onboarding documentation. While I accept that he was upset and offended that Ms Tamm did not simply take him at his word with respect to the allegations, her action was appropriate in the circumstances. Particularly given that the alleged conduct, if substantiated, would likely demonstrate a level of dishonesty in circumstances where the Applicant’s role meant he was privy to the personal information of many people. Based on the evidence before her, it was entirely reasonable to consider standing him down while an investigation was undertaken. In other words, the Respondent was simply taking appropriate action to mitigate any risk to the public. In any event, Ms Tamm made it clear task before her at that time was simply to determine whether to suspend him on full way pending an investigation.
The Applicant's immediate response was to resign. Quiet thoughtfully (and cautiously), Ms Tamm did not accept the Applicant’s resignation during the meeting. Had she done so it would likely have been characterised as a resignation in the heat of the moment. Instead, she expressly told him that she would not accept his resignation at that meeting and that he should go away and consider his position. If, once he had done so, he still wished to resign he could do so in writing. This ensured that the Applicant had an opportunity to consider his options in a calmer state.
After the meeting on 1 November 2021, the Applicant could have continued in his employment, explained his reasons for not disclosing the information and waited for the findings of the investigation. He could have remained stood down on full pay while that occurred. On that basis, I am satisfied that the Applicant was not forced to resign by the Respondent’s conduct or course of conduct. There was at least one other avenue open to him, apart from immediately tendering his resignation.
Therefore, based on the evidence and reasons set out above, I am not satisfied that the Applicant was dismissed within the meaning of the Act. Rather, he resigned voluntarily after allegations were put to him. Accordingly, I find that the Respondent's jurisdictional objection is upheld.
I order that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
<PR738866>
[1] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.
[3] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268 [48].
[4] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
[5] Ibid.
[6] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496; Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[7] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].
[8] O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 [23].
[9] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[10] Whirisky v DivaT Home Care [2021] FWC 650 at [77].
[11] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].
[12] Australian Hearing v Peary [2009] AIRCFB 680 [30]; Cottaghe v South Pacific Restaurant Unit Trust T/A House of Brews[2019] FWC 1539 [109].
[13] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[14] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.
[15] Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.
[16] Ibid [38].
[17] Sherman v Sunrise Health Service Aboriginal Corporation[2016] FWC 8903 [35] - [39].
[18] Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera[2013] FWC 3941 [28].
[19] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941; Davidson v Commonwealth[2011] FWA 3610 [97].
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