Bernard Martin v Commonwealth of Australia as represented by the Australian Tax Office
[2024] FWC 2622
•26 SEPTEMBER 2024
| [2024] FWC 2622 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Bernard Martin
v
Commonwealth of Australia as represented by the Australian Tax Office
(C2024/4691)
| DEPUTY PRESIDENT DEAN | CANBERRA, 26 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – whether applicant was dismissed or resigned.
Mr Bernard Martin (Applicant) has made an application pursuant to s.365 of the Fair Work Act 2009 alleging contravention of the general protections provisions associated with his employment with the Commonwealth of Australia as represented by the Australian Tax Office (Respondent).
It is not in dispute that on 23 May 2024 the Applicant advised the Respondent in writing of his resignation, effective from 4 July 2024.
The Applicant claims he was dismissed because the Respondent did not allow him to withdraw his resignation some 3 weeks after he resigned.
The Respondent objects to the application on the basis that the Applicant was not dismissed within the meaning of s.386 of the Act in that he resigned voluntarily.
The Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with the dispute about whether his dismissal was in contravention of the general protections provisions.[1]
A hearing took place on 24 September 2024. At the hearing, the Applicant appeared on his own behalf and Ms V Bulut of Counsel appeared with permission for the Respondent. Neither party cross examined the other witnesses, and other than the Respondent making oral submissions, both parties relied on the material filed.
For the reasons set out below, I find that the Applicant was not dismissed within the meaning of the Act and accordingly I will dismiss the application.
Background
The Applicant had been employed by the Respondent since February 2000.
On 7 May 2024 he commented on a LinkedIn post made by the Respondent (the Post), in which he was publicly identified as an employee of the Respondent. The Post said:
“The ATO has a privacy issues relating to Australian Principle 10, Section 14, Privacy Act 1988 in that it is not taking reasonable steps to ensure that the data it receives from taxpaying entities is correct, up-to-date and accurate. Their self assessment concept is basically taking taxpayers’ supply information on faith I believe does not satisfy this principle and may indeed make the ATO complicit in the frauds done against it.
The onus of correctness, completeness and up-to-dateness of a supplied data is on the ATO not the taxpayer like they want us to believe as Section 15 of the Act makes it the agency’s responsibility.
Any supplied data that is in error really needs to be refused by the ATO as unfit for purpose and returned to the taxpayer for correction – refer APP13.
I my opinion, the ATO is doing data pricy breaches to all taxpayers by allowing rubbish data to enter into taxation calculations and thus are diddling the government of important revenue.”
The Post was referred to the Respondent’s Conduct and Review team as a potential breach of its social media policy.
At around 11.30am on 22 May 2024, Ms Kotronis from the Respondent’s Conduct, Performance and Review team telephoned the Applicant (the Call). Also on the Call was the Applicant’s direct manager, Mr Coffison.
The evidence of Ms Kotronis and Mr Coffison was that Ms Kotronis attempted to explain to the Applicant that she had received a referral about the Post and would shortly be sending an email to him with further information for his response, however the Applicant spoke over the top of her and ended the telephone call.
The Applicant said he had no prior knowledge of the Call and was accused “of performing a misconduct”. He said Ms Kotronis refused to outline any details and he formed the opinion she was “making a clandestine call and sought to control the flow of information”. He said he requested that she outline the details of the complaint and when she refused to do so he ended the call. He said he subsequently blocked both Ms Kotronis and Mr Coffison from being able to call his mobile phone, as he was badly upset and considered he had been bullied.
At 2.37pm on that day, the Applicant provided written notice of his resignation by email to Mr Coffison and Ms Johnston, the IT Services Director, which included the following:
“I had discussed this with my wife Ann and considering our respective health issues that the decision has been made that I should advance my retirement plans by 12 month as that my heart is no longer with the ATO after yesterday’s bullying and harassment of me and take up opportunities with RMIT or The Anglican Church of Australia Diocese of Canberra and Goulburn in performing legal teaching or practising legal services to persons affected unreasonably by Commonwealth and State governments agencies’ decisions or practises and related torts. I feel I cannot work for a government agency that is willing to Breach the Privacy Act 1988 Commonwealth Sections 14 and 15 and in so doing is abusing many taxpayer entities and creating hardship and financial issues for many silly taxation lodgement mistakes already eluded by Jeremy Hirschhorn << The ATO is already on record with the Office of the Australian Information Commission for breaching the Privacy Act in allowing the use of ICP Production data to be used in test environments. I feel I can no longer be part of an agency that cannot respect the Privacy Act.
I’ll log in tomorrow to ATO Connect and provide my retirement notice and to be effected from the first payday in July this year. In the meantime, I will take leave and spent what time I have left with Ann.”
At 3pm on 23 May Mr Coffison replied to the Applicant’s email in the following terms:
“Hi Bernard
Thank you for letting me know you are OK. I was truly worried about your wellbeing.
Just FYI, we did have a work meeting for 11:30 re Insight DB2 – but I cancelled it much earlier when we had the phone catch up at 9:45 and we got on the same page regarding your progress.
The timing of [Ms Kotronis’] call was purely and simply coincidental.
If you wish to proceed as mentioned, I will approve annual/LSL leave pending retirement.
Just submit them as normal.
Please resubmit the sick leave certificate for yesterday – thank you very much.
Kind regards”
Shortly thereafter, the Applicant submitted a retirement application through the Respondent’s HR database which included the comment: “I wish to retire from the ATO. Last payday is to be 4 July 2024. I will use up leave in the meantime”. He then submitted a leave request to cover the period to 5 July 2024.
The Applicant’s evidence was that he made the application to retire as he no longer wanted to work in a workplace environment where bullying seemed commonplace. He included the following in his witness statement:
“The supposed courtesy call by Respondent’s Natalie Kotronis does not fit with APS Guide in Handling Misconduct < human-resource-managers-guide> Her reporting of the social misconduct does not follow the guide in the following areas:
9.1 Failure to detail correctly the nature of the complainant and who had made it.
9.2 How the complaint relates to social media post.9.3 Did not provide a copy of the full post that shows active comment buttons set thereby inviting comments.
9.4 Failed to check the validity of the complaint against established legal instruments the UN Covenant of Civil and Political Rights agreed by the Australian Government by Treaty in 1966 that gives protections of Freedom of expression under Article 18 and General Protection of the Fair Work Act 2009 in regards to my comment is providing my legal issue of a subject of the post.
9.5 Failed to check if the complaint was not vexatious.
9.6 Performed a clandestine meeting at 11:30 and 22 May 2024 without advance knowledge and been given no time to prepare for the meeting. No warning of the meeting was provided and no agenda or details provided beforehand.
9.7 The courtesy call was a sham as it was designed to control the flow of information and to cause upset and anger of the Applicant that if the call was not terminated may have led to abuse given out by means of precaution.
9.8 The Guide does make provision for a misconduct investigator to send an email with the details. I had no opportunity to assess the details and thus was not in a position to determine if I done misconduct or not.
9.9 Given the above, I now form the opinion that the Respondent’s Natalie Kotronis was working beyond her capacity to conduct a misconduct inquiry. Couple with the Respondent’s Ben Coffison phone contact at 09:42 wanting me to have a database product member now seems a lie giving that he made a point that this meeting was really required to be 11:30 hiding the real issue from me. Hence a bullying complaint was lodge with the Respondent’s Narelle Johnston being Ben’s and mine Direction of the ATO’s Mainframe Delivery Centre Team on 6 June 2024.
9.10 An email was to the Respondent Natalie Kotronis in response to her email of 22 May 2024 which is a lie as none of what was written never happened as I had terminated the call within 5 minutes.”
On 30 May 2024 the Applicant sent an email to Mr Coffison and Ms Johnston providing a medical certificate covering the period 29 May to 29 June and requested that his leave be reorganised to utilise his personal leave. The Applicant said he did this after consulting his doctor to discuss his feelings and how the episode had upset him and his wife.
On 5 June 2024 the Applicant sent an email to Ms Johnson to request that his final date of employment be extended to 5 July to utilise his accrued flex hours. In that email he also stated that his decision to resign was “due to mental duress done both Natalie and Ben …” (sic), and that his email be taken as a formal complaint.
On 12 June 2024, Ms Hamilton, Director of Conduct, Performance and Reviews emailed the Applicant indicating her team would be looking into his complaint. He responded by saying that his resignation was given under duress and that he wished to withdraw his resignation. Ms Hamilton replied saying it was a matter for Ms Johnston to determine as his resignation had already been accepted.
On 18 June 2024 Ms Johnston emailed the Applicant to inform him that she would not approve the withdrawal of his resignation. She stated it appeared to her that he had made a considered decision to resign and noted that it had been 3 weeks between his resignation and his request to withdraw it, and that he had advised the Respondent that:
a.he had discussed his decision with his wife;
b.his heart was no longer with the ATO;
c.he would not continue to work for the ATO given his view about breaches of the Privacy Act; and
d.he had requested to use leave and had extended his separation date to utilise his remaining flex time.
The Applicant contended that the decision by the Respondent in not allowing him to withdraw his resignation was made because he made a bullying complaint and for making him have to deal with alleged misconduct for the Post, which he said was an exercise of his right of freedom of expression in offering his legal opinion on the subject matter of the Post.
When is a person dismissed?
The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states:
(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.
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[2] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes ‘dismissed’ under s.386(1) which included the following:
(1)There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2)A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here 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 probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.
In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[3] Deputy President Sams noted the following when considering whether the applicant was dismissed:
a.Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. ‘Initiative’ is relevantly defined in the New Shorter Oxford Dictionary as: “the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.”
b.This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, ‘… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.’
c.In Mohazab, the Full Court also said:
‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’
d.A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said, ‘… to constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...’[Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].
Finally, it is the case that “considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign”.[4]
Consideration
The only matter the Commission is required to determine is whether the Applicant was dismissed within the meaning of s.386. The onus is on the Applicant to prove that he had no real or effective choice in the circumstances but to resign because of the Respondent’s conduct.
Having considered the evidence and submissions, I find that the Applicant was not dismissed within the meaning set out in s386(1) of the Act, in that he was not dismissed at the initiative of the Respondent, nor was he forced to resign because of conduct engaged in by the Respondent.
The Applicant’s resignation was not, in my view, given ‘in the heat of the moment’. His resignation was given in writing the day after the Call with Ms Kotronis and Mr Coffison. I accept the email in which the Applicant advised of his resignation was a considered one.
The email from Mr Coffison sent just after receiving the Applicant’s resignation in essence asked him to reconsider or confirm his decision to resign. The Applicant did so by applying for leave and confirming his resignation by making a formal application to retire through the Respondent’s HR database.
I accept the Respondent’s evidence that the purpose of the Call was to advise the Applicant of the allegation around the Post. There is no evidence that supports a finding that the Applicant was threatened or given no choice but to resign. The email which followed the Call makes it clear that the Applicant had the opportunity to provide a response prior to any decision being made about what if any action would be taken in response to the Post.
Importantly, it was not until three weeks later that the Applicant sought to withdraw his resignation, having sought and had approved various forms of leave to take him through to his last date of employment. Had the Applicant genuinely given his resignation in the heat of the moment, it would not have taken him three weeks to seek to withdraw it.
I am also not satisfied that the Respondent engaged in any conduct with the intention of bringing the employment to an end or with the probable result that the Applicant had no real or effective choice but to resign.
In summary, there is no doubt the Applicant resigned of his own accord. This was not a termination at the initiative of the Respondent.
The Applicant has not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that he was dismissed within the meaning of the Act.
This application is dismissed.
DEPUTY PRESIDENT
Appearances:
B Martin on his own behalf.
V Bulut of Counsel for Australian Taxation Office.
Hearing details:
2024.
By Telephone:
September 24.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
[2] [2017] FWCFB 3941.
[3] [2012] FWA 2473.
[4] Sathananthan v BT Financial Group Pty Ltd[2019] FWC 5583.
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