Brendan Michael Bryant v Manhari Management Company Pty Ltd
[2025] FWC 449
•14 FEBRUARY 2025
| [2025] FWC 449 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brendan Michael Bryant
v
Manhari Management Company Pty Ltd
(U2024/8433)
| COMMISSIONER YILMAZ | MELBOURNE, 14 FEBRUARY 2025 |
Application for an unfair dismissal remedy – s.386(1)(b) – alleged constructive dismissal – jurisdictional objection that applicant was not dismissed – application dismissed
Mr Brendan Bryant (the Applicant) has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his termination of employment from Manhari Management Company Pty Ltd (Manhari). He claims to have been dismissed when he tendered his resignation giving one month notice on 27 May 2024. Mr Bryant commenced employment on 4 September 2023 and held the position of Compliance Manager.
Manhari oppose the application and submit that the Commission has no jurisdiction to hear the substantive application as Mr Bryant was not dismissed from his employment and therefore is not a person protected from unfair dismissal within the meaning of the Act.
In particular, Manhari submits that the resignation was voluntary and denies that Mr Bryant was left with no alternative other than to resign. It submits that Mr Bryant’s resignation is not a dismissal within the meaning of s.386(1) of the Act.
Mr Bryant submits that since January 2024, there were various issues which he had concerns about and had raised with the CEO. One issue was the appointment of a new consultant that he says bullied him, and that he worked under the threat of being dismissed by this person. He further states that in the third week of his notice period he was verbally attacked by this consultant which resulted in a WorkCover claim.[1] Mr Bryant’s WorkCover claim was accepted by the insurer and remained in place at the time of the hearing.
Mr Bryant seeks a remedy of compensation.
At the Hearing on 17 January 2025, the Respondent was granted leave to be represented, and Mr Bryant was self-represented.
Mr Bryant did not submit a witness statement. Instead, he relied on a statement from him taken by the WorkCover insurer’s investigator in relation to his WorkCover claim.[2] The Respondent objected to a number of paragraphs contained in the statement, mainly on the basis of irrelevance or speculation. Mr Bryant did not contest the objections.
Manhari tendered into evidence two witness statements prepared by:
· Mr Raj Nayak, OHS and Compliance Manager; and
· Ms Thuan Tang, Accounts Payable.
Mr Bryant gave oral evidence and Mr Nayak was called for cross examination. Ms Tang was not subject to cross-examination.
An earlier Directions Hearing on 15 January 2025, dealt with Mr Bryant’s applications (the order to attend applications) for two former employees to be ordered to attend to give evidence. At the conclusion of that Hearing, I was not satisfied that the two witnesses were relevant to the proceedings dealing with the question of whether the termination of employment was a dismissal or voluntary resignation. Consequently, the order to attend applications were denied.
The Facts
In the statement[3] relied on by Mr Bryant he states:
· He suffered ill health from 2020 until 2023 where he regularly underwent extensive medical assessments every six months. These medical conditions predated the commencement of his employment on 24 September 2023.[4]
· In January 2024 he took 3 weeks off on personal leave due to ill health.[5]
· He received in March 2024 a warning after a casual employee that he had hired injured himself using an oxy torch. Mr Bryant submits that he felt anxiety having received a warning.[6]
· In April 2024, new employment contracts were drafted, and he states that he was told to sign the document by the new HR Manager or face termination of employment. He states that this was followed by an apology from the HR Manager and OHS as there was no authority to suggest termination of employment.[7]
· In May 2024, a new Consultant commenced as an advisor to the Board. This person attended the sales meetings which Mr Bryant also attended. Mr Bryant described this person as aggressive, and it is alleged the consultant made statements that if staff did not perform they would be terminated. Mr Bryant states that he “saw where this was heading.”[8]
· Also in May 2024, Mr Bryant advised the CEO that he was resigning and that his last day would be 28 June 2024. He states that he offered the CEO his services to contract for the Company on an independent basis.[9]
· Mr Bryant described physical symptoms (e.g. vision impairment and nose bleeds) which he cannot explain. He further states that his body is unable to cope with the stresses of everyday work, noting the job is busy and high pace.[10]
Mr Bryant lodged his WorkCover claim in August 2024, two months after ceasing employment. He attributes his injury to the actions of the consultant.[11]
Mr Bryant asserts that he received an apology from management about the direction to sign the new contract or face dismissal. No evidence of this written letter of apology was tendered, although Mr Bryant submitted a statement from a former employee (in respect to Mr Bryant’s WorkCover claim) that alludes to the changed position of the Respondent on this issue. In any event, Mr Bryant was not required to sign a new contract nor was he dismissed in April 2024. This situation cannot reasonably support Mr Bryant’s allegation that he was forced to resign. Also tendered into evidence by Mr Bryant was a note dated 3 May 2024 left at his house by the HR Manager and the Ararat Yard Manager which states they came by to say “hello and resolve any issues.” This note refers to a non-disclosure form that was inadvertently sent to him. While Mr Bryant relies on this document as an apology, it makes no reference to an apology, further its relevance to a forced resignation is immaterial.[12]
On 15 January 2024, Mr Bryant submitted additional materials. Among these materials there was an email dated 2 May 2024 with an attachment, this was not a new contract, but rather a document titled ‘Non Solicitation Disclosure and Post Termination Restraint Agreement’. So, it seems Mr Bryant may have confused the nature of the request, but more confusing to the Commission is his response: “Good luck with that, all materials will be returned Monday morning and all agreements will be at end. Without prejudice, and beyond negotiation. No further correspondence will be entered into.” With Mr Bryant’s then absence from work, one can only assume the alleged letter of apology was not an apology but an attempt to resolve the issue in order to avert what appears to be an intention to resign. It is unclear from the evidence whether this document was signed, withdrawn or how it is relevant to an alleged forced resignation.
Both Mr Bryant and Mr Raj Nayak in their evidence referred to a circular issued to management on 26 March 2024. The circular was sent to all management advising that at Horsham and Ararat new employees were engaged without following proper process. It informs management of the proper process including the necessity to obtain approval. The circular makes it clear that it follows evidence of an employee hired without being provided with training in the use of an oxy cutter. The circular does state “Make sure not to repeat this mistake again.” Three employees were required to sign this memo acknowledging that they have read and understood the outlined process. The memo makes no reference to warnings and is not directed solely at Mr Bryant.[13]
Mr Nayak gave evidence that Mr Bryant often took time off work without prior notice and the Respondent was told of his ongoing health issues by Mr Bryant himself.[14] He further states that he himself knocked on Mr Bryant’s door to ask him to return to work after a number of absences from work. Also, he states that he is aware that the Managing Director, Sales Manager, and HR Manager visited Mr Bryant at his home.[15]
It was not contested that Mr Bryant tendered his resignation on 23 May 2024 to the CEO at the sales meeting. A further email was tendered into evidence dated 22 May 2024, received by the Respondent. That email states: “heads up, I will be tendering my resignation Monday morning for a number of reasons, furthermore I will be offered a position with a small medical company this week for MD including a package of 250k plus bonuses. I have been declining these offers for last few months. I will outline my reasoning for departure in writing for avoidance of doubt.”[16]
An email of 27 May 2024 confirms the resignation, it reads: “I will be finishing up 28th June. July and August I will be dealing with medical and financial/ taxation/ personal matters. After I’m back from Japan at start of September I will work out what I will do. The priority should be given to finding a site manager. Not office lady. So the projects I mentioned I will commit to them to be complete even if beyond 28 June.”[17]
In this instance, Mr Bryant relies on s.386(1)(b) of the Act, as the Respondent did not initiate the termination of employment. To satisfy the requirements of the s.386(1)(b) of the Act, Mr Bryant is required to demonstrate that his resignation was forced because of the conduct engaged in by his employer.
Section 386 of the Act and the legal principles
An unfair dismissal is defined in s.385 of the Act, which provides that a person is unfairly dismissed if the Commission is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable. This requires the Applicant firstly to satisfy the Commission that they were in fact[18] dismissed.
Therefore, I am required to determine whether Mr Bryant was a person protected from unfair dismissal within the meaning of s.386 of the Act. Section 386(1) of the Act defines dismissal as:
“Meaning of dismissed
(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.”
Therefore, pursuant to s.386(1)(b), to engage the unfair dismissal provisions, the applicant must show that the conduct of the employer is such that it caused the resignation. Further, the conduct of the employer must be such that the employer intends that the employment relationship comes to an end and therefore the resignation is not a voluntary termination of employment by the applicant.
The Full Court in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (‘Mohazab’) considered the action of the employer, resulting in the termination of employment:
“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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (‘David Graphics’), Industrial Relations Court of Australia. His Honour, at 3, referred to the situation of an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-
‘... a termination of employment at the instance [of] the employer rather than of the employee’.
and at 5:-
‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that Constituted a termination of the employment.’”[19]
Further the Full Bench found:
“On the finding of fact that the respondent directed the appellant to resign or have the police ‘called in’, it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee's initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee.”[20]
The question of whether the employee had no real choice but to resign is not a matter of whether the employee disagreed with the circumstances prompting the resignation, rather the action of the employer must be such that the employee did not have a real choice but to resign; had the action of the employer not occurred, the employee would not have resigned. It is important to consider the facts objectively, where an employee merely does not like the circumstances, is uncomfortable, or finds it difficult or distressing, such characterisations alone would not satisfy the principles in Mohazab.[21]
Other relevant authorities regarding constructive dismissal concern situations where an employer can treat the resignation as an unambiguous resignation. Where a resignation occurs in the heat of the moment or under extreme pressures or circumstances, it is advisable that employers take steps to confirm that the resignation was intended.[22]
The Evidence in this matter
In determining whether Mr Bryant had no real choice but to resign, I am required to take an objective view of the circumstances and the action of the employer. Specifically, did the actions of the employer intend to bring the employment relationship to an end?[23]
In this case, Mr Bryant took time off work due to ill health, and it was known that he had experienced quite a number of health concerns prior to commencing employment and this required the taking of personal leave.
Mr Bryant took objection to a circular that he characterised as a warning, when on any reasonable assessment this document is nothing more than advice reminding managers of their obligations when hiring staff – a reasonable management action, albeit the circular could have been better executed and better drafted. Further, neither a restraint of trade and non-disclosure document that managers were expected to consider and execute, or alternatively a review of the contract of employment are circumstances that can, on any reasonable assessment, be considered a threat to terminate or to cause a resignation. Mr Bryant submits that he was threatened with dismissal if these documents were not signed. There was no evidence to support any such threat. Nor was there any action demonstrating repudiation.
The cause of the alleged injury resulting in a WorkCover claim is the communication between the Consultant and Mr Bryant. The evidence shows an acceptance of the claim three months after the resignation. The evidence tendered reveals that neither the Consultant nor Mr Bryant behaved professionally in their email communication of June 2024. Both expressed their views forcibly and aggressively with inappropriate language at times. This form of behaviour in my view is not action by the employer to force a resignation, nor does the action of Mr Bryant demonstrate a forced resignation.
Mr Bryant took offence to incidences resulting in time off work and then members of the management team contacted him to smooth things over so that he returned to work. This is not action forcing a resignation by the employer. It may have been uncomfortable for Mr Bryant, and clearly a number of incidences aggravated him, but this is not sufficient for the demonstration of a forced resignation.
As I have already identified, the actions taken by the Respondent, such as the circular, were reasonable management action (while noting its execution had deficiencies), and not action to force a resignation.
The resignation was well considered, clearly not in the heat of the moment. Mr Bryant forewarned the CEO of the impending resignation to be given at the sales meeting. This communication was made on 22 May and the resignation reconfirmed well after the sales meeting on 27 May with one month of notice. Further, Mr Bryant’s offer to complete projects even after his termination date does not support his contention that his resignation was forced by the employer.
The onus to establish that the resignation was a forced resignation lies with Mr Bryant, and in my opinion this burden has not been met. There was no evidence of any action taken by the Respondent to cause the resignation or to repudiate the contract of employment, nor any circumstances that led to a resignation in the heat of the moment.
I accept Mr Bryant’s evidence that the pressure of the role (described as a busy and high pace job) and management processes, which were less than ideal or perfect[24], caused him occasional distress. However, management action is still reasonable management action even if it could have been “undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”[25] In his own evidence and confirmed by the evidence of Mr Nayak, he did not at any time lodge formal complaints. The email evidence and the evidence of both witnesses confirmed a positive and friendly relationship with the CEO where he could convey his views freely. In doing so, there is no evidence that the Applicant felt he had no choice but to resign and importantly there was no evidence that the Respondent acted to pressure a resignation or to bring the employment relationship to an end. Even with the evidence of an accepted WorkCover claim, it is not enough to support the contention that the action of the employer caused him no option but to resign.
The wording of the resignation strongly supports a voluntary resignation, there is nothing in the language to suggest force or lack of choice. These circumstances, on any objective analysis, do not support the argument that there was no choice but to resign, or that the decision was made while distressed or in the heat of the moment but rather the cessation of Mr Bryant’s employment was due to a voluntary and considered resignation. In any event, and importantly, there was no action by the Respondent to cause the resignation, and therefore it was entitled to treat the resignation as a resignation.
Conclusion
I am not satisfied that Mr Bryant has established that he was constructively dismissed pursuant to s.386(1)(b) of the Act and therefore he is not a person protected from the unfair dismissal provisions of the Act.
The application is therefore dismissed.
COMMISSIONER
Appearances:
Mr C. Bryant for himself
Mr J. Frances, Counsel for the Respondent
Mr O. El-Hissi, Solicitor for the Respondent
Hearing details:
2025.
Melbourne (via Microsoft Teams).
17 January.
[1] Applicant’s Outline of Argument at 5c, Digital Hearing Book 60–61.
[2] Exhibit A1 – Witness Statement of Brendan Bryant interviewed on 2 September and final version dated 10 September 2024 by Pinkerton Consulting & Investigations Pty Ltd for WorkCover claim, Digital Hearing Book, 33–40 (‘Applicant’s WorkCover Statement’).
[3] Ibid.
[4] Ibid [9]–[13].
[5] Ibid [24].
[6] Ibid [25].
[7] Ibid [26].
[8] Ibid [27], also tendered as attachment a series of emails between the Applicant and the Consultant on 18 and 19 June 2024 where they had a disagreement and communicate unprofessionally, Digital Hearing Book, 100–106.
[9] Applicant’s WorkCover Statement [28].
[10] Ibid [30], [43] and [52].
[11] Applicant’s Outline of Argument at 5d. Attached letter from EML dated 19 September 2024 notifying acceptance of claim for mental injury, Digital Hearing Book, 91.
[12] Attachment to Applicant’s Outline of Argument, Digital Hearing Book 41.
[13] Attachment to Applicant’s Outline of Argument, Digital Hearing Book, 42. Also referenced in Exhibit R1 Statement of Raj Nayak and attachment A, Digital Hearing Book, 164–166.
[14] Exhibit R1, First Statement [7].
[15] Exhibit R1 Second Statement, Digital Hearing Book, 166.
[16] Exhibit R1 Attachment B&C to Second Statement, Digital Hearing Book, 171.
[17] Ibid, Digital Hearing Book, 170.
[18] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].
[19] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (citations omitted) citing APESMA v David Graphics Pty Ltd (‘David Graphics’), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ at 3–5.
[20] Ibid.
[21] Ibid.
[22] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999).
[23] O’Meara v Stanley Works Pty Ltd (2006), PR973462 at [23].
[24] See Ms SB [2014] FWC 2104 at [51].
[25] Ibid citing Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [79].
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