Benjamin White v Shamrock Joinery & Associates Pty Ltd

[2020] FWC 3973

[2020] FWC 3973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin White
v
Shamrock Joinery & Associates Pty Ltd
(U2020/4067)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 29 JULY 2020

Unfair dismissal – whether applicant was forced to resign because of conduct, or a course of conduct, engage in by his employer – applicant not dismissed – application dismissed.

Introduction

[1] Mr Benjamin White was employed by Shamrock Joinery & Associates Pty Ltd (Shamrock) as Joiner from 18 July 2019 until his resignation on 27 March 2020. Mr White contends that he was dismissed on the basis that he was forced to resign because of conduct, or a course of conduct, engaged in by Shamrock, and that his dismissal was unfair. Shamrock denies those allegations and contends that Mr White chose to resign of his own free will.

[2] I decided that it was appropriate to hold a determinative conference rather than a hearing in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a determinative conference would be the most effective and efficient way to resolve this matter. The determinative conference was conducted, by telephone, on 23 July 2020. Mr White gave evidence in support of his case, as did Mr Samuel Fleetwood of Employers Mutual Limited (EML). Shamrock adduced evidence from Ms Clare Sadler, director of Shamrock, Mr Mark McInerney, General Manager of Shamrock, Mr Glenn Coleman, Salesman/Joiner employed by Shamrock, Mr Scott Sonter, Section Manager employed by Shamrock, Ms Frances Brien, Pay Clerk/Administration employed by Shamrock, Ms Jessica Sadler, Marketing Manager/Personal Assistant employed by Shamrock and daughter of Ms Clare Saddler, Mr Lachlan Duignan, Joiner employed by Shamrock, Mr Tobi Drengenberg, Operations Manager employed by Shamrock, and Mr Brian Purvis, Wood Machinist employed by Shamrock.

Dismissal

[3] The question of when a person has been dismissed is governed by s 386 of the Fair Work Act 2009 (Cth) (Act):

“(1) 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.”

[4] There is no suggestion in this case that Mr White was dismissed within the meaning of s 386(1)(a) of the Act. Mr White accepts that he resigned from his employment with Shamrock, but says he was forced to do so because of conduct, or a course of conduct, engaged in by his employer.

[5] The test to be applied in a case concerning an alleged forced resignation under s 386(1)(b) of the Act is “whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in [s 386(1)(a)], the requisite employer conduct is the essential element.” 1

[6] The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. 2 The line, however, must be “closely drawn and rigorously observed”.3

Summary of relevant facts

[7] At about 3pm on 2 December 2019, Mr White says that he was injured while helping other employees to move a frame at work. Mr White remained at work until his usual finish time of 4pm. He did not record the injury in Shamrock’s first aid book until 3 December 2019. On that day Mr White informed Mr Sonter that he was going home because he had a sore shoulder.

[8] Mr White was asked why he did not comply with Shamrock’s signs around the workplace telling workers to report any injuries immediately to management. Mr White responded by saying that although his injury happened on 2 December 2019, it did not “kick in” until he cooled down at home at about 6pm. This evidence was inconsistent with his first witness statement, where he stated that he “went home in extreme pain and very bad headaches I took some pain killers and went to bed …” When this inconsistency was put to Mr White, he said that there was an error in his witness statement. This did not reflect well on Mr White’s credibility or reliability as a witness.

[9] Mr White was absent from work on workers’ compensation from 3 December 2019 until 20 January 2020, at which time he returned to work on light duties for about 4 weeks (5 hours a day). He was then absent again on workers’ compensation until his resignation on 27 March 2020.

[10] Mr White’s medical certificate dated 3 December 2019 stated that he had no ability to drive and no capacity for any work in the period from 3 to 9 December 2019.

[11] At about 6am on Saturday, 7 December 2019, Mr McInerney says that he was filling up his car with petrol at a petrol station when he saw Mr White driving his car. Mr McInerney produced a receipt from the petrol station to substantiate his claim that he was filling up with petrol at the time. Mr McInerney wears glasses, but only for reading. He says his long distance vision is good and he was less than 100m away from Mr White when he saw him driving his car on 7 December 2019.

[12] When it was put to Mr White in January 2020 by Mr McInerney that he had witnessed Mr White driving his car on the morning of 7 December 2019, I accept the consistent evidence given by Ms Brien, Ms Jessica Sadler and Mr McInerney that Mr White responded by saying it might have been his daughter driving the car. In his reply witness statement, Mr White stated that his daughter and a family member were driving his car on the morning of 7 December 2019. During cross examination, Mr White said, for the first time, that his twin brother drove his daughter to work on the morning of 7 December 2019 in Mr White’s car. This was the first occasion on which Mr White had suggested he had a twin brother or that his twin brother was driving his car on the morning of 7 December 2019. The changing nature of Mr White’s evidence in relation to this issue does not reflect well on his credit. If Mr White truly does have a twin brother and he was driving his daughter to work on the morning of 7 December 2019, it beggars belief that he did not mention that when asked about it in January 2020 or in his witness statement filed in the Commission. I prefer Mr McInerney’s evidence over Mr White’s evidence in relation to this issue and find that Mr McInerney did witness Mr White driving his vehicle on the morning of 7 December 2019.

[13] Mr White attended Shamrock’s workplace on 19 December 2019 for the purpose of collecting and taking away his tools.

[14] Shamrock’s workplace was closed for the Christmas break from about 20 December 2019 until 13 January 2020.

[15] Mr White commenced light duties on 20 January 2020, primarily fitting screens to windows.

[16] In late January 2020, Ms Jessica Sadler contends she had a conversation with Mr White in which he told her that he and his family were planning to move to Townsville, where they had lived a few years ago and enjoyed living. Mr White denies that he had such a conversation with Ms Jessica Sadler and contends that Ms Jessica Sadler is lying about it. In fact, Mr White accused every one of Shamrock’s witnesses of lying. I prefer Ms Jessica Sadler’s evidence in relation to this issue over the evidence given by Mr White. Ms Jessica Sadler had a good recollection of her conversation with Mr White about Townsville and was able to explain that she had been speaking to Mr White on the day in question because she was checking to see if Mr White had completed some flyscreens for a particular customer. Ms Jessica Sadler also answered the questions asked of her in a direct and responsive manner. I found her to be a credible and reliable witness.

[17] Mr White’s medical certificate dated 6 March 2020 contains the following relevant information:

“…Diagnosis of work related injury/disease or motor accident related injury(ies):

Neck soft tissue injury. Anxiety related to workplace

…

How is the injury related to work or the motor vehicle accident?

Work – lifting heavy objects, since injury feels he is being bullied at work and has no support from management

…

Management plan for this period
Treatment and duration: Medication type and duration:

To avoid stressors at work, to engage Painkillers with rehab provider to assist with workplace anxiety, feels harassed and bullied at workplace since starting workcover, is now suffering with severe anxiety and not able to return to current work place as a result

…

Capacity for activities

…

No capacity for work at Shamrock Joinery…”

[18] On 9 March 2020, Mr White spoke to Mr McInerney by telephone. Mr McInerney contends that Mr White told him he was resigning. Mr White denies that contention and says he did not formally resign on 9 March 2020, rather he rang on that day to enquire about his annual leave and to talk to Ms Clare Sadler as to how to go about resigning. I do not need to resolve this controversy in the evidence, for there is no dispute that on 17 March 2020 Mr White gave notice, in an email, of his resignation with effect from 27 March 2020. The content of that email is in the following terms:

“I Ben White am giving my formal resignation as of the 27th of March 2020 and will no longer work for Shamrock joinery due to the psychological injury that u have caused. I would like u to pay my annual leave that is owed to me up till that date.”

[19] Mr White accepts that he was never threatened with dismissal during his employment with Shamrock.

[20] On about 20 March 2020, Mr White commenced driving from the Central Coast towards Queensland. He arrived in Queensland on about 23 March 2020 and participated in a job interview. Mr White commenced work in Townsville on 30 March 2020, where he remains employed on a casual basis but working full time hours. In his new job, Mr White is earning very similar remuneration to the remuneration he was paid by Shamrock, but he does not have access to entitlements such as annual leave and sick leave as a casual employee. Mr White gave evidence that he recovered from his feelings of anxiety about a week or so after starting in his new job.

Alleged conduct which Mr White says forced him to resign

[21] Mr White contends that he was forced to resign because he was subjected to bullying and harassment from Mr McInerney and Ms Brien during the period he was on workers’ compensation. In particular, Mr White contends that: 4

•  Mr McInerney made out that Mr White was faking his injury, accused Mr White of stealing from the workplace, accused Mr White of being a liar, accused Mr White of resigning at an earlier time than he did resign, stood over and yelled at Mr White, and never asked Mr White how his injury was going; and

•  he always had to chase up his pay with Ms Brien because she continually stated that Mr White was not to be paid, notwithstanding that Mr Fleetwood had told Ms Brien that she was to pay Mr White as per instructions from Mr Fleetwood, which Mr White contends that Ms Brien did not follow. Mr White also contends that Ms Brien harassed him about being back to work when he was not able to lift anything, and that Ms Brien made false allegations of bullying against Mr White.

[22] I accept that Mr White spoke to Mr Fleetwood on three separate occasions to explain that he was feeling bullied and harassed. This evidence supports Mr White’s evidence that he truly believed he was being bullied and harassed.

[23] Mr Fleetwood spoke to Ms Brien about Mr White’s allegations of bullying and harassment. Ms Brien denied the allegations of bullying and harassment and informed Mr Fleetwood that it was Mr White who was the bully. Mr Fleetwood did not speak to any other person from Shamrock about Mr White’s complaints of bullying and harassment.

Bullying and harassment allegations against Mr McInerney

[24] Mr McInerney had four interactions with Mr White in the period from 3 December 2019 until his resignation on 27 March 2020. The first interaction was on 19 December 2019 when Mr White came to the workplace to collect his tools. Mr McInerney was told that Mr White was in the workplace collecting his tools. Mr McInerney then went to the part of the workplace where Mr White usually worked and spoke to him. Mr McInerney told Mr White that he should, as a matter of respect, advise someone before he begins packing up his belongings. Mr McInerney checked the tools Mr White was collecting and the other tools in the workbench. I accept Mr McInerney’s evidence that he did so because there had been other people working at that workbench during Mr White’s absence from the workplace since 3 December 2019. Mr White initially contended in his oral evidence that Mr McInerney stood there and watched him pack his tools. Mr White then said that Mr McInerney walked about 10 metres away and did something else, but continued to watch him. Mr McInerney said that he walked away from Mr White after checking the tools and did not continue to watch Mr White. Mr McInerney denies that he raised his voice at Mr White or accused Mr White of stealing. Mr McInerney also said that he would have stayed next to Mr White while he collected and packed his tools if he thought Mr White may have been stealing tools from the workplace. I prefer Mr McInerney’s evidence over Mr White’s evidence in relation to this issue. Mr McInerney’s evidence was consistent, whereas Mr White’s was not. It does not ring true that Mr McInerney would walk about 10 metres away and start doing something else while also watching Mr White if he believed that Mr White was about to steal tools from the workplace. Further, I accept Mr Duignan’s evidence that he was in close proximity to Mr McInerney and Mr White during their discussion at the workplace on 19 December 2019. Mr Duignan does not recall Mr McInerney raising his voice or accusing Mr White of stealing. I am satisfied on the evidence that Mr McInerney did not engage in any bullying or harassing behaviour towards Mr White on 19 December 2019.

[25] The second interaction between Mr McInerney and Mr White took place on 24 January 2020. On the previous day, Ms Brien had complained to Mr McInerney that Mr White had again become heated and behaved aggressively in a conversation with her. When Mr White attended the workplace on 24 January 2020, Mr McInerney met with Mr White, together with Ms Jessica Sadler and Ms Brien. I accept the consistent evidence given by Ms Jessica Sadler, Ms Brien and Mr McInerney that Mr McInerney did not yell at Mr White or otherwise bully him at this meeting. Mr McInerney did tell Mr White that he had witnessed Mr White driving on the 7^th of December 2019 when his medical certificate stated that he could not drive at that time. Because I have found that this did in fact occur, it was appropriate for Mr McInerney to put this to Mr White in the meeting on 24 January 2020.

[26] Mr White emphasised during the determinative conference what he perceived to be an inconsistency in the evidence given by Mr McInerney compared to that given by Ms Brien and Ms Jessica Sadler. In particular, Mr McInerney accepted in his evidence that he did not speak to Mr White about bullying Ms Brien. Ms Jessica Sadler and Ms Brien both gave evidence that at the meeting on 24 January 2020 Mr McInerney said to Mr White that he could not take out his frustrations with work colleagues and that if he had any issues with his pay or anything to do with work he should speak to Mr McInerney. Mr McInerney gave similar evidence in his statement 5 and did not contradict that in his oral evidence. It is true that Mr McInerney did not put allegations of bullying to Mr White and require a response from him. Instead, Mr McInerney told Mr White that it was inappropriate to take out his frustrations on work colleagues and to speak to him if he had any issues. Mr McInerney explained in his oral evidence that he took this softer approach with Mr White because he understood that Mr White was under a lot of stress at the time. In all the circumstances, I am satisfied on the evidence that Mr McInerney did not engage in any bullying or harassing behaviour towards Mr White on 24 January 2020.

[27] Mr McInerney’s third interaction with Mr White took place on 28 February 2020. On that day Mr McInerney spoke to Mr White about his absence from work on the previous Monday, 24 February 2020. Shamrock has a policy whereby absences of work on account of sickness on a Monday or Friday must be supported by a medical certificate. Mr White was made aware of that policy in Shamrock’s Employee Handbook on the commencement of his employment with Shamrock. Ms Brien was reluctant to provide Mr White with his payslip for the week commencing 24 February 2020 because she thought Mr White might become upset when he realised that he had not been paid in respect of his absence from work on Monday, 24 February 2020. As a result, Mr McInerney offered to provide Mr White with his payslip on 28 February 2020. When Mr McInerney did so, Mr White asked whether he had been paid for Monday, 24 February 2020. Mr McInerney told Mr White that he had not been paid because he did not provide a medical certificate. Mr White then said that Mr Drengenberg had told him it would be alright, he would not need a medical certificate. Mr McInerney then went and got Mr Drengenberg and took him to his discussion with Mr White. Mr Drengenberg denied telling Mr White that he would not need a medical certificate. Mr Drengenberg says that, as a relatively new employee, he was unaware of the procedure at the time, so he told Mr White that he would he would see if he could let the absence of a medical certificate slide on this occasion, but after he went to speak to Mr Brien he became aware of the procedure in the Employee Handbook and then informed Mr White that he was not entitled to be paid because he had not provided a medical certificate. I accept Mr Drengenberg’s evidence in relation to these matters. Mr Drengenberg seemed to me to be genuinely trying to assist Mr White, but when he became aware of the written procedure he informed Mr White of the outcome. If Mr Drengenberg had told Mr White that he would let the absence of a medical certificate slide, I am confident he would have taken steps to ensure that Mr White was paid for his absence on 24 February 2020. In all the circumstances, I am satisfied on the evidence that Mr McInerney did not engage in any bullying or harassing behaviour towards Mr White on 28 February 2020.

[28] Mr McInerney’s fourth interaction with Mr White took place, by telephone, on 9 March 2020. Mr White claims that he did not resign during this discussion and Mr McInerney falsely claimed that he did. Mr White also contends that Mr McInerney raised his voice during this discussion. I accept Mr McInerney’s evidence that the topic of Mr White’s resignation was discussed during their telephone conversation on 9 March 2020. Mr McInerney’s evidence in this regard is supported by his email to Mr White of 12 March 2020 and Mr White’s response, in the following terms, on 13 March 2020:

“I have not formally resigned yet and I am currently talking with fair work about this matter I rang on Monday inquiring about my annual leave and to talk to clare the owner of the business as to how I go about resigning.”

[29] I also accept Mr McInerney’s evidence that he believed Mr White had given oral notice of his resignation on 9 March 2020. Whether or not what Mr White said in that regard on 9 March 2020 constituted effective notice of his resignation is not something I need to decide, given the clear written resignation communicated by Mr White to Mr McInerney on 17 March 2020.

[30] Mr Drengenberg was in the vicinity of where Mr McInerney was speaking to Mr White by telephone on 9 March 2020. Mr Drengenberg gave evidence, which I accept, that he did not hear any raised voices and following the discussion Mr McInerney told Mr Drengenberg that Mr White had asked him how to resign. In all the circumstances, I am satisfied on the evidence that Mr McInerney did not engage in any bullying or harassing behaviour towards Mr White on 9 March 2020.

Bullying allegations against Ms Brien

[31] As is expected to be the case when a worker is in receipt of workers’ compensation, Mr White had a number of discussions with Ms Brien in her capacity as the Payroll Manager of Shamrock in relation to the payments to be made to Mr White while he was on workers’ compensation.

[32] Mr White accepts that he was paid what he was entitled to while he was on workers’ compensation, both from Shamrock and EML, the workers’ compensation insurer. He further accepts that Shamrock made all payments owing to him during his period of workers’ compensation on time. Mr White says that EML was a couple of days late with some of their payments, but that was not within the control of Ms Brien or Shamrock.

[33] Although Mr White was only entitled to 95% of his usual earnings while he was absent from work on workers’ compensation, Ms Clare Sadler made a decision to make top-up payments to Mr White so that he would receive 100% of his usual remuneration while he was on workers’ compensation. This was a compassionate step taken by Shamrock towards Mr White in acknowledgement of the difficulties he was facing while on workers’ compensation.

[34] One of the discussions Ms Brien had with Mr White during his workers’ compensation period concerned his return to work on light duties. Mr White had provided medical certificates which stated that he had capacity for light duties from 19 December 2019, but he did not commence work on light duties until 20 January 2020. Ms Brien told Mr White that it was his responsibility to come into work when he was cleared for light duties and see what work was available. Mr White said he had spoken to various managers in Shamrock’s business and was told there was no work for him to do. Mr White also gave evidence that Mr Fleetwood had informed him to not to return to work until light duties were available for him and to contact the workplace, which he did. Mr White also told Ms Brien that he had provided medical certificates which stated that he was fit for light duties.

[35] Another topic of discussion between Mr White and Ms Brien concerned entitlements and payments to Mr White in respect of public holidays and annual leave during the period Shamrock’s business was closed over Christmas. Mr White accused Ms Brien of not paying him properly during the shutdown period. Ms Brien spoke to Mr Fleetwood to work out the correct position in relation to payments to Mr White in respect of this period.

[36] Ms Brien and Mr White also had a discussion on 18 March 2020 concerning the payment of Mr White’s entitlements to accrued annual leave up to and including his resignation date of 27 March 2020. Ms Brien explained to Mr White that she had not been advised by Mr Fleetwood whether his last medical certificate had been accepted by the workers’ compensation insurer and accrual of his annual leave in respect of this period depended on the medical certificate being accepted. Mr White became frustrated and spoke in a loud voice towards Ms Brien. The evidence given by Ms Brien of Mr White speaking in a loud voice towards her on 18 March 2020 is supported by Mr Drengenberg, who was sitting near Ms Brien at the time and heard a person yelling on the phone and Ms Brien asking the person to stop yelling. After the telephone call, Ms Brien told Mr Drengenberg that it was Mr White who had called her and he was insisting on a payment to which he was not entitled at that time. In the result, the medical certificate was accepted and Mr White was paid his full annual leave entitlements.

[37] The conversation between Ms Brien and Mr White concerning his annual leave entitlements took place on 18 March 2020. That was the day after Mr White gave written notice of his resignation. The conversation with Ms Brien on 18 March 2020 could not, therefore, have been part of the conduct which allegedly forced Mr White to resign. In any event, I am satisfied that Ms Brien did not bully Mr White or act inappropriately towards him on 18 March 2020.

[38] I am satisfied that Ms Brien did not make any false allegations of bullying against Mr White. I am satisfied on the evidence that Mr White did speak loudly and aggressively towards Ms Brien at times, most likely as a consequence of the stress, anxiety and frustration he was feeling at the time.

[39] It is commonly the case that issues can arise with respect to entitlements and payments while an employee is on workers’ compensation. That happened in Mr White’s case. It is clear that Mr White became frustrated in relation to these issues. Although Ms Brien asked a lot of questions of Mr White and raised a number of relevant issues in relation to Mr White’s workers’ compensation entitlements and payments, I am satisfied on the evidence that she did so in a reasonable manner and for appropriate reasons. In all the circumstances, I am satisfied on the evidence that Ms Brien did not engage in any bullying or harassing behaviour towards Mr White.

Was Mr White dismissed?

[40] I accept that Mr White was anxious and stressed in the period from the commencement of his workers’ compensation on 3 December 2019 until at least his resignation on 27 March 2020. There were a number of contributors to Mr White’s stress and feelings of anxiety during that period, including that he says he was under “severe financial hardship” 6 arising out of the fact that he had financial commitments but was not able to undertake overtime while he was absent from work on workers’ compensation, he was dealing with and seeking to recover from an injury, and his wife was potentially going to be involved in court proceedings. On that score, I accept Mr Drengenberg’s evidence, which is supported by a contemporaneous diary note, that on 5 February 2020 Mr White left work early due to personal issues and told Mr Drengenberg that his wife might have to go through a court case.

[41] However, I do not accept, for the reasons provided, that Shamrock, or any of its employees or officers, bullied or harassed Mr White, nor do I accept that Shamrock engaged in any conduct with an intention to bring its employment relationship with Mr White to end or that termination of the employment relationship was the probable result of any conduct on the part of Shamrock.

[42] I find that Mr White was not forced to resign because of conduct, or a course of conduct, engaged in by Shamrock. Mr White made his own decision to resign in late January 2020 in order to move back to Townsville with his family. That was a decision of Mr White’s own free will, albeit he no doubt made that decision as a consequence of the stress and anxiety he was feeling at the time.

Conclusion

[43] For the reasons given, Mr White was not dismissed by Shamrock within the meaning of s 386 of the Act. His unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr B White on behalf of himself

Ms C Sadler on behalf of the respondent

Hearing details:

2020.
Newcastle (by telephone):
23 July.

Printed by authority of the Commonwealth Government Printer

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 1   Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47]

 2   Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996)

 3   Ibid

 4   Ex A1

 5   Ex R3

 6   Ex A1