Callan Charlesworth v FIP Group Services Pty Ltd & Tijana Lalovic
[2024] FWC 2638
•26 SEPTEMBER 2024
| [2024] FWC 2638 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Callan Charlesworth
v
FIP Group Services Pty Ltd & Tijana Lalovic
(C2024/3896)
| COMMISSIONER CRAWFORD | SYDNEY, 26 SEPTEMBER 2024 |
General protections dismissal dispute – jurisdictional objection alleging no dismissal –– alleged acceptance of repudiation – alleged forced resignation - employee resigned and was not forced to do so - jurisdictional objection upheld – application dismissed.
Callan Charlesworth has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Charlesworth’s allegations that he was dismissed from his employment with FIP Group Services Pty Ltd (FIP Group), in contravention of Part 3-1 of the FW Act. Mr Charlesworth has alleged that Tijana Lalovic (Head of People – ISS & Healthcare Divisions, at FIP Group’s parent company, PeopleIN Ltd) was involved in the contravention.
Mr Charlesworth commenced full-time employment with FIP Group on 13 February 2023 as an Onsite Account Manager based at Coominya, which is west of Brisbane.
Mr Charlesworth’s general protections application identifies a dismissal date of 31 May 2024. The application was filed within 21 days of the nominated dismissal date on 11 June 2024.
On 21 June 2024, FIP Group filed a Form F8A response. The Form F8A identified a jurisdictional objection to Mr Charlesworth’s application. FIP Group objected to the application on the basis that Mr Charlesworth was not “dismissed” within the meaning of s.386 of the FW Act. FIP Group argued Mr Charlesworth resigned from his employment.
FIP Group’s jurisdictional objection must be resolved before the Commission’s conciliation powers under s.368 of the FW Act are exercised.[1]
I issued directions for the filing of material and listed a hearing regarding FIP Group’s jurisdictional objection for 11 September 2024 via video.
Mr Charlesworth represented himself at the hearing. FIP Group was represented by Andrew Piper (Head of Employee Relations).
MATERIAL FILED
FIP Group
FIP Group relied on the following evidence in support of its jurisdictional objection.
Cara Zaremski
Cara Zaremski (Recover at Work Manager) provided a witness statement dated 16 July 2024. The statement had the following documents attached:
· CZ 1: A file note from a discussion between Ms Zaremski and Mr Charlesworth on 5 October 2023 regarding a Workcover certificate of capacity that Mr Charlesworth had provided on 4 October 2023 and Mr Charlesworth’s workers’ compensation claim.
· CZ 2: A copy of an online workers' compensation claim that Ms Zaremski filed with WorkCover Queensland on behalf of Mr Charlesworth on 5 October 2023. The claim identifies the date of injury as 18 September 2023 and that Mr Charlesworth is suffering from anxiety from alleged workplace bullying.
· CZ 3: An email Ms Zaremski sent Mr Charlesworth on 5 October 2023 which provides information about the workers’ compensation claim process and advises Mr Charlesworth an investigation has commenced into his complaints.
· CZ 4: An email Ms Zaremski sent to Gregg Andrews (Area Operations Manager), Kirra Grummitt (HR Business Partner) and Tijana Lalovic (Head of People) on 5 October 2023 in relation to Mr Charlesworth’s claim and allegations of bullying. Ms Zaremski referred Mr Charlesworth’s complaints to the HR department for investigation.
· CZ 5: A letter from WorkCover Queensland to Ms Zaremski dated 17 November 2023 which states Mr Charlesworth’s claim has been denied because his illness was caused by reasonable management action. The letter explains how the decision can be reviewed.
· CZ 6: An email from Mr Charlesworth to Ms Zaremski dated 24 November 2023. Mr Charlesworth makes formal complaints about five alleged instances of bullying and requests that the complaints be investigated, and the outcomes confirmed. Ms Zaremski referred the complaints to the HR Department on 28 November 2023.
· CZ 7: A letter from the Workers’ Compensation Regulator dated 25 January 2024 which confirms the decision to deny Mr Charlesworth’s workers’ compensation claim is being reviewed.
· CZ 8: The reasons for the Workers’ Compensation Regulator’s decision to set aside the decision to deny Mr Charlesworth’s workers’ compensation claim and substitute a new decision accepting the claim. The decision was provided on 8 February 2024.
· CZ 9: A note made by Ms Zaremski on 19 March 2024 which records that she was informed by WorkCover Queensland that Mr Charlesworth has not given consent for the FIP Group to be updated about his illness.
· CZ 10: A note made by Ms Zaremski on 20 May 2024 which records that she was informed by WorkCover Queensland that Mr Charlesworth did not want to participate in rehabilitation services and that as a result, his compensation payments would cease being made on 17 May 2024.
· CZ 11: An email from WorkCover Queensland dated 20 May 2024 which confirms Mr Charlesworth’s workers’ compensation claim was closed on 19 May 2024.
· CZ 12: Emails exchanged between Mr Charlesworth and Ms Zaremski from 20 to 22 May 2024 regarding Mr Charlesworth’s employment. Mr Charlesworth initially informs Ms Zaremski on 20 May 2024 that his workers’ compensation claim has been cancelled because he refused to take part in treatment and suitable duties. Mr Charlesworth asks whether any disciplinary action will be taken against him for refusing to participate. Mr Charlesworth indicates he would like a gradual return to his old role at Coominya. Ms Zaremski responds later in the day on 20 May 2024 and states there will be no disciplinary action taken because of Mr Charlesworth’s refusal to continue treatment. Ms Zaremski indicates that FIP Group will require information about Mr Charlesworth’s work capacity to determine how they can support a gradual return to work. Ms Zaremski offers to assist Mr Charlesworth with accessing sick leave. Mr Charlesworth responds to Ms Zaremski on 21 May 2024. Mr Charlesworth refers to needing a break from WorkCover. Mr Charlesworth states he does not think “I am capable of returning to my old role but I was just trying to gauge from FIP’s perspective whether it still may be a possibility.” Mr Charlesworth refers to having the following options available to him:
-Returning to the WorkCover system and pursuing a negligence claim.
-Seeking civil damages for lost wages and pain and suffering.
-Returning to work in his old role “(if capable in the future but I am unsure about this).”
-Pursuing a stop bullying order or general protections application with the Commission.
Mr Charlesworth ends the email by stating: “I am very happy to pursue one or more of these options but I was wondering whether FIP may be willing to negotiate with me to try and bring an early end to this matter, so that we can all move forward?” Ms Zaremski responds to Mr Charlesworth on 22 May 2024 and informs him that dealing with the issues he is raising is not part of her role, but that she will refer the matter to the relevant people within the FIP Group.
· CZ 13: Further emails exchanged between Mr Charlesworth and Ms Zaremski on 24 May 2024. Mr Charlesworth initially asks how long FIP Group needs to respond because he is communicating with Maurice Blackburn Lawyers. Mr Charlesworth also enquires about his sick leave. Ms Zaremski responds by stating HR will be in contact next week about Mr Charlesworth’s request to negotiate an end to his employment and provides information regarding how Mr Charlesworth can access sick leave.
I marked Ms Zaremski’s statement, and the attached documents, Exhibit R1. Ms Zaremski was not required for cross-examination.
Kirra Grummitt
Kirra Grummitt (Human Resources Business Partner) provided a witness statement dated 24 July 2024. The statement had the following documents attached:
· KG 1: An email from Mr Charlesworth to Ms Zaremski dated 24 November 2023 containing five formal complaints alleging that Mr Charlesworth was bullied by Jaslyn Wiles (Operations Manager). Mr Charlesworth forwarded his email to Ms Grummitt later in the day on 24 November 2023.
· KG 2: An email from Ms Grummitt to Mr Charlesworth inviting Mr Charlesworth to attend an online meeting on 28 November 2023 in relation to his complaints.
· KG 3: An email and attached letter from Ms Grummitt to Ms Wiles dated 28 November 2023 regarding Mr Charlesworth’s complaints. Ms Wiles was directed to attend a meeting two days later, on 30 November 2023, to respond to Mr Charlesworth’s complaints, which were outlined in the attached letter.
· KG 4: An email from Ms Grummitt to Mr Charlesworth dated 6 December 2023. The email advises Mr Charlesworth that his five complaints have been investigated and found to not be substantiated.
· KG 5: An email from Ms Wiles to Ms Grummitt dated 28 November 2023 which details Ms Wiles’ response to the complaints put to her by Ms Grummitt on the same date.
I marked Ms Grummitt’s statement, and the attached documents, Exhibit R2.
Ms Grummitt provided a second witness statement dated 26 August 2024. Ms Grummitt’s statement had the following documents attached:
· KG2 1: An offer of employment to Aaron Burgess dated 14 August 2023 for a full-time position of Assistant Site Manager based at the Coominya office.
· KG2 2: A contract of employment signed by Mr Burgess on 18 August 2023. The contract is for the position of Assistant Site Manager at Coominya and specifies a commencement date of 21 August 2023.
· KG2 3: Email correspondence between Ms Grummitt and Tracy King (Acting CEO) dated 24 November 2023 and 28 November 2023 regarding a letter from Tracy King to Mr Burgess dated 27 November 2023. The letter offers Mr Burgess a secondment to the position of Site Manager at the Coominya office for the period of 23 October 2023 to 29 December 2023. The letter states Mr Burgess will revert to his substantive Assistant Site Manager position when the secondment ends.
· KG2 4: A copy of a letter signed by Mr Burgess on 28 November 2023 in acceptance of the offer of secondment.
· KG2 5: Emails from Ms Grummitt dated 8 January 2024 seeking approval for Mr Burgess’ secondment to be extended to 2 February 2024 due to Mr Charlesworth’s ongoing absence. Tim McBride (General Manager Operations) approves the request on 8 January 2024.
· KG2 6: A copy of a letter signed by Mr Burgess on 8 January 2024 in acceptance of the extended secondment.
· KG2 7: An email from Ms Grummitt to Ms King dated 20 February 2024 seeking approval to extend Mr Burgess’ secondment to 26 April 2024. Ms King approved the request on 21 February 2024.
· KG2 8: A copy of a letter signed by Mr Burgess on 22 February 2024 in acceptance of the extended secondment.
· KG2 9: An email from Ms Grummitt to Ms King dated 23 February 2024 seeking approval to offer Conrad Worldon a three-month maximum term position as Site Administrator to assist Mr Burgess, given Mr Charlesworth’s ongoing absence. Ms King approves the request on the same date.
· KG2 10: A letter signed by Mr Worldon on 23 February 2024 accepting the temporary position of Site Administrator.
· KG2 11: This is a further copy of the emails between Ms Grummitt and Ms King on 23 February 2024.
· KG2 12: A welcome on-board letter from Ms King to Mr Worldon dated 23 February 2024. Mr Worldon’s signed contract of employment dated 23 February 2024 is also attached.
· KG2 13: An email from Ms Grummitt to Brad Seagrott (Chief Executive Officer) dated 4 April 2024 seeking approval to extend Mr Burgess’ secondment to 30 August 2024, given Mr Charlesworth’s ongoing absence. Mr Seagrott approves the request on the same day.
· KG2 14: A copy of a letter signed by Mr Burgess on 10 April 2024 in acceptance of the extended secondment.
· KG2 15: Emails from Ms Grummitt to Mr Seagrott on 17 and 20 May 2024 seeking approval to permanently appoint Mr Worldon to the position of Site Administrator. Mr Seagrott approves the request on 20 May 2024.
· KG2 16: A welcome on-board letter from Mr Seagrott to Mr Worldon dated 17 May 2024. A contract of employment signed by Mr Worldon on 21 May 2024 is also attached.
· KG2 17: An email from Ms Grummitt to Mr Seagrott dated 18 June 2024 seeking approval to permanently appoint Mr Burgess as Site Manager, given Mr Charlesworth’s resignation. Mr Seagrott approves the request on the same day.
· KG2 18: A copy of a letter signed by Mr Burgess on 20 June 2024 in acceptance of the permanent Site Manager role.
I marked Ms Grummitt’s second statement Exhibit R3.
Ms Grummitt was not required for cross-examination in relation to her evidence.
Tijana Lalovic
Ms Lalovic provided a witness statement dated 26 July 2024. Ms Lalovic’s statement had the following documents attached:
· TJ 1.1: An email from Ms Lalovic to Mr Charlesworth dated 27 May 2024. Ms Lalovic refers to Mr Charlesworth’s workers’ compensation claim being cancelled and states the FIP Group would be pleased to welcome him back to the Site Manager position at Greenmountain, subject to a medical clearance.
· TJ 1.2: An email from Mr Charlesworth to Ms Lalovic dated 27 May 2024. Mr Charlesworth states he assumes Ms Lalovic’s email is being sent in response to his proposal of a negotiated settlement which was sent to Ms Zaremski on 21 May 2024. Mr Charlesworth states “I am unable to return to my role due to a workplace injury and I have no idea at this stage if I will be able to return unfortunately.” Mr Charlesworth then indicates he will return to WorkCover and will commence a negligence action against FIP Group. The email ends with a query regarding sick leave entitlements.
· TJ 1.3: An email from Ms Lalovic to Mr Charlesworth dated 27 May 2024. Ms Lalovic indicates she is sorry to hear about Mr Charlesworth’s situation and reiterates that FIP Group would be happy to welcome Mr Charlesworth back to his role when he has a medical clearance. The email provides information about Mr Charlesworth’s sick leave entitlements.
· TJ 1.4: An email from Mr Charlesworth to Ms Lalovic dated 28 May 2024. Mr Charlesworth states the 10 steps that, in his mind, will need to be taken by FIP Group to enable him to be able to return to his Site Manager role. These include the removal of Ms Wiles, Mr Burgess, and Mr Andrews from their positions at Greenmountain. Mr Charlesworth also asks that a different Assistant Site Manager be appointed to report directly to him. Mr Charlesworth seeks that his complaints of bullying are reinvestigated. The remaining requests relate to Mr Charlesworth’s working conditions, lost wages, and personal information. The email ends by requesting a response within seven days and states: “If I do not have a response within 7 days, or if FIP does not agree to these requests, or if we are unable to come to a satisfactory agreement, I will take this as my employment being terminated.”
· TJ 1.5: An email from Ms Lalovic to Mr Charlesworth sent at 6:09am on 29 May 2024. Ms Lalovic again reiterates that FIP Group is happy for Mr Charlesworth to return to his Site Manager role when he has a medical clearance. Ms Lalovic explains the return-to-work process and the steps that would need to be taken based on the medical advice and a risk assessment. Ms Lalovic requests a return-to-work date from Mr Charlesworth and states: “For clarity, you remain an employee of FIP Group, and we have no intention of terminating your employment.”
· TJ 1.6: An email from Mr Charlesworth to Ms Lalovic sent at 9:20am on 29 May 2024. The email states:
“In regard to my estimated time of return, at this stage I may be able to get a full clearance possibly in a couple of weeks if all goes well; however, your email indicates that FIP is not willing to provide me with any of my requests or come to a satisfactory agreement with me. This means that my position is untenable. My employment is now terminated as of the date and time of this email.
Please begin off boarding including the appropriate annual leave payout, and separation certificate.”
· TJ 1.7: An email from Ms Lalovic to Mr Charlesworth sent at 1:38pm on 29 May 2024. Ms Lalovic again reiterates FIP Group is happy to welcome Mr Charlesworth back to the Site Manager position. Ms Lalovic states Mr Charlesworth remains an employee and that the FIP Group has no intention of terminating his employment. Ms Lalovic refers to Mr Charlesworth’s earlier email stating he is no longer employed and responds that: “our understanding is that you are resigning from your position as Site Manager at Greenmountain.”
· TJ 1.8: An email from Mr Charlesworth to Ms Lalovic sent at 1:52pm on 29 May 2024. Mr Charlesworth states: “As I have mentioned, my role is untenable and it is clear that FIP is not willing to grant my requests or come to a satisfactory agreement. As a result I no longer have a position at FIP.”
· TJ 1.9: An email from Ms Lalovic to Mr Charlesworth sent at 1:13pm on 30 May 2024. Ms Lalovic states Mr Charlesworth’s position remains open and FIP Group is looking forward to welcoming him back to the Site Manager position. Ms Lalovic requests a medical certificate for any absence after 22 May 2024 and queries whether Mr Charlesworth wishes to commence taking annual leave.
· TJ 1.10: An email from Mr Charlesworth to Ms Lalovic sent at 3:53pm on 30 May 2024. Mr Charlesworth states:
“That is incorrect. As I have previously mentioned, my role has ended. FIP can not force me to remain at FIP. As I mentioned, my role was terminated as of Wednesday 29.5.24 at 9:20am. You must now by law provide me with my entitlements and separation certificate etc. I have also now made steps to seek alternative employment and have made other steps in relation to me no longer being at FIP.
This is really quite unbelievable that FIP is refusing to end my employment. I do not wish to be bullied or pushed around any further.”
· TJ 1.11: An email from Ms Lalovic to Mr Charlesworth sent at 4:48pm on 30 May 2024. Ms Lalovic states: “we have advised on at least four (4) separate occasions, that FIP Group has not terminated your employment. In the event that you choose to tender your resignation from your current position, this decision is entirely at your discretion. As we have previously assured you, that your position at FIP remains available when you are ready, and we have a medical clearance…”
· TJ 1.12: An email from Mr Charlesworth to Ms Lalovic sent at 5:07pm on 30 May 2024. Mr Charlesworth states:
“I am not sure if you are understanding. Under employment law, an employee can request to be terminated as a result of their position being untenable. This is called a constructive dismissal. By law, my offboarding must now be processed. As I have mentioned previously, my role was terminated yesterday.”
· TJ 1.13: An email from Ms Lalovic to Mr Charlesworth sent at 9:49am on 31 May 2024. Ms Lalovic reiterates that Mr Charlesworth’s employment has not been terminated by FIP Group and outlines the return-to-work process. Ms Lalovic states Mr Charlesworth is able to choose to resign if he wishes and an offboarding process will then commence.
· TJ 1.14: An email from Mr Charlesworth to Ms Lalovic sent at 11:35am on 31 May 2024. Mr Charlesworth states:
“I am in a position where I am being forced to resign, due to my role’s untenability, and due to FIP not wanting to negotiate to alleviate this, now or at any time in the future (as indicated in previous emails). Essentially this is a termination.
As I have mentioned, I am expecting a full clearance in the near future and so I engaged with FIP to try and determine whether or not my position can become tenable or be provided with an alternate role. I believe this was a reasonable request and that it was in both our best interests to determine this prior to my return. However, FIP has decided to not discuss this at all and as a result I currently have no tenable position at FIP at this stage, and FIP has made no attempt to indicate that this will change.
I resign (forcibly) as of the date and the time of this email…”
· TJ 1.15: An email from Ms Lalovic to Mr Charlesworth sent at 9:07am on 3 June 2024. Ms Lalovic confirms Mr Charlesworth’s employment has not ended and that Mr Charlesworth can return to his Site Manager position. Ms Lalovic indicates Mr Charlesworth is on unapproved, unpaid leave and requests a meeting to discuss the situation at various potential times from 4 to 7 June 2024.
· TJ 1.16: An email from Mr Charlesworth to Ms Lalovic sent at 9:22am on 3 June 2024. Mr Charlesworth reiterates that he resigned on 31 May 2024 and that he has taken steps to move on. Mr Charlesworth requests that his offboarding be processed.
· TJ 1.17: An email from Ms Lalovic to Mr Charlesworth sent at 10:10am on 4 June 2024. Ms Lalovic describes the return-to-work process and Mr Charlesworth’s leave entitlements. Ms Lalovic proposes options for a meeting on 5, 6, or 7 June 2024. Ms Lalovic states:
“In previous emails, you have referred to ‘being forced to resign’, that your role is ‘unattainable’ and that we are not ‘wanting to negotiate’ with you. I confirm for you again that your employment with FIP Group has not ended.
As previously advised, FIP Group has not terminated your employment, constructively or otherwise. You are not being forced to resign and your role is attainable.
Callan, we are making every effort to discuss this matter with you reasonably. However, this has proven challenging, as there appears to be a misunderstanding regarding the status of your employment. We have repeatedly assured you that your employment has not been terminated.
Should you prefer to tender your resignation from your current position, the decision is entirely at your discretion…”
· TJ 1.18: An email from Mr Charlesworth to Ms Lalovic sent at 11:20am on 4 June 2024. Mr Charlesworth’s position is captured in the first two paragraphs which read:
“At no stage in this email thread has FIP assured me that my position can become tenable or that FIP is willing to work with me to ensure that my position can become tenable. I was clearly put in a position where I needed to accept that my position may be available (as indicated by you) but not tenable. I cannot return to a position that is not tenable. This is why I have been forced to resign.
As previously mentioned, I tendered my resignation in alignment with your instructions last Friday. Any further discussion from my termination request and resignation date, in relation to tenability, meetings etc are too late, as FIP had ample opportunity to indicate that they were willing to work with me prior to these dates…”
· TJ 1.19: An email from Ms Lalovic to Mr Charlesworth sent at 1:41pm on 5 June 2024. The email is similar to Ms Lalovic’s previous emails in seeking a meeting to discuss Mr Charlesworth’s return to work. Ms Lalovic indicates that a confirmation of resignation letter will be sent to Mr Charlesworth and that if he chooses to sign it, the end of his employment with FIP Group will be finalised. Ms Lalovic states a cooling-off or grace period of 24 hours will be provided for Mr Charlesworth to withdraw any resignation.
· TJ 1.20: An email from Ms Lalovic to Mr Charlesworth sent at 2:11pm on 6 June 2024. The email is essentially a follow-up from Ms Lalovic’s previous email which Mr Charlesworth had not responded to.
· TJ 1.21: An email from Ms Lalovic to Mr Charlesworth sent at 2:36pm on 7 June 2024. This is a further follow-up email to Mr Charlesworth seeking a response to Ms Lalovic’s email sent on 5 June 2024.
· TJ 2: An email from Ms Lalovic to Simone Mammino and Ms Grummitt sent at 2:38pm on 7 June 2024. Ms Lalovic directs Mr Charlesworth’s entitlements to be processed on the basis that he has resigned.
I marked Ms Lalovic’s statement, and its attachments, Exhibit R4. Ms Lalovic was cross-examined during the hearing by Mr Charlesworth. The focus of the cross-examination was a warning letter issued to Mr Charlesworth on 6 December 2023 and Mr Charlesworth’s requests in May 2024 for steps to be taken by FIP Group to make his role “tenable”.
Other documents
FIP Group attached several documents to its reply submissions. Mr Charlesworth did not object to any of these documents being marked as evidence. The documents are:
· A request to recruit form in relation to Mr Charlesworth’s employment dated 13 March 2023. I marked this document Exhibit R6.
· Screenshots of text messages and an email sent to Mr Charlesworth seemingly by Kirsty Arthur offering support with his role. I marked these documents Exhibit R7.
· Emails regarding the recruitment of an Assistant Site Manager at Coominya dated 26 July 2023. Mr Charlesworth indicates a candidate he met was not suitable. I marked the emails Exhibit R8.
· Emails concerning Mr Charlesworth’s concerns about Mr Burgess not reporting directly to him dated 1 September 2023. I marked the emails Exhibit R9.
· Emails between Mr Charlesworth and Mr Burgess dated 8 September 2023 regarding potential roster changes at Greenmountain. I marked the emails Exhibit R10.
· An email from Mr Andrews to Mr Charlesworth dated 12 September 2023 which responds to concerns raised by Mr Charlesworth about his role and interactions with Ms Wiles. I marked the email Exhibit R11.
· An email from Ms Wiles to Mr Charlesworth and Mr Burgess dated 29 September 2023 regarding changes to shift times. I marked the email Exhibit R12.
· A warning letter issued to Mr Charlesworth by Mr Andrews on 6 December 2023. The warning relates to alleged inappropriate and offensive behaviour towards other staff and a failure to follow directions. I marked the warning letter Exhibit R13.
· A further copy of the reasons for the Workers’ Compensation Regulator’s decision to accept Mr Charlesworth’s workers’ compensation claim. I marked this version Exhibit R14.
· An email from Ariella McQuinn to Ms Lalovic dated 13 February 2024 which outlined recruitment steps taken at the Coominya site. I marked the email Exhibit R15.
Submissions
FIP Group relied on an outline of submissions filed 26 July 2024 and an outline of reply submissions filed 4 September 2024. I have reviewed these submissions. Mr Piper also made oral submissions at the end of the hearing.
Mr Charlesworth
Mr Charlesworth relied on the following evidence in opposition to the FIP Group’s jurisdictional objection.
A document headed “Employment Details” which contains evidence from Mr Charlesworth about the events which led to the end of his employment with FIP Group. The document can be described as a witness statement and has the following documents attached:
· 1: A position description for the Site Manager role.
· 2: Emails exchanged between Mr Charlesworth and Mr McBride on 13 March 2023 concerning Mr Charlesworth’s workload and office arrangements.
· 3: Emails exchanged between Mr Charlesworth and Ms Wiles on 30 March 2023 regarding the potential hiring of an Assistant Site Manager.
· 4: Emails exchanged between Mr Charlesworth, Ms Wiles and Ms Arthur on 5 June 2023 concerning communication and workload issues at the Greenmountain site.
· 5: Emails exchanged between Mr Charlesworth, Mr McBride and Ms Wiles on 26 July 2023 regarding the need to hire an Assistant Site Manager.
· 6: An email from Ms Wiles to Mr Charlesworth dated 9 August 2023 which indicates a potential candidate for the Assistant Site Manager had withdrawn their application and attached Mr Burgess’ resume for consideration.
· 7: Emails between Mr Charlesworth and Ms Wiles on 6 September 2023 regarding Mr Charlesworth’s concerns with Mr Burgess and who he reports to.
· 8: A position description for the Assistant Site Manager position.
· 9: An email from Mr Charlesworth to Mr McBride dated 11 September 2023 which raises various concerns with his interactions with Ms Wiles and Mr Burgess. Mr Andrews responds to Mr Charlesworth’s various concerns in an email sent on 12 September 2023. Mr Charlesworth responds on the same date and indicates his concerns have not been resolved and he will be considering his options.
· 10: Emails between Mr Charlesworth, Mr Burgess and Ms Wiles on 14 September 2023 regarding operational matters.
· 11: An email from Mr Charlesworth to Rudy Nonis which provides a timetable for work from 13 to 22 September 2023.
· 12: Emails between Mr Charlesworth and Ms Wiles on 13 September 2023 concerning operational matters and Mr Burgess’ performance.
· 13: Text messages between Mr Charlesworth and Mr Burgess and Mr Charlesworth and Ms Wiles respectively on 13 September 2023 regarding operational matters and authority.
· 14: Emails between Mr Charlesworth and Mr Andrews on 21 September 2023 regarding Mr Charlesworth being unwell and Ms Wiles’ attendance at his house to pick up keys.
· 15: Emails between Mr Charlesworth, Mr Andrews and Ms Wiles on 19 July 2023 regarding operational matters and Mr Charlesworth’s tone.
· 16: An email from Ms Wiles to Mr Charlesworth and Mr Burgess on 29 September 2023 regarding changes to roster times.
· 17: A screenshot of leave balances.
Mr Charlesworth also filed numerous emails between himself and Ms Lalovic. Most of these emails are captured within Ms Lalovic’s evidence. The additional emails are:
· An email from Mr Charlesworth on 14 June 2024 requesting a separation certificate and an email from Ms Lalovic providing the separation certificate on 17 June 2024.
· An email from Mr Charlesworth to Ms Lalovic at 12:14pm on 29 May 2024 which states:
“I no longer have the Site Manager role at FIP; however, I may be open to taking another comparable or better role at FIP. Please let me know if there is another role for me. If I don’t receive an answer from you today I will assume the answer is no.”
Mr Charlesworth also filed additional emails between himself and Mr Andrews. There is an email from Mr Andrews to Mr Charlesworth dated 6 December 2023 which attached a warning letter. On 19 December 2023, Mr Andrews sent an email to Mr Charlesworth asking about a return-to-work date for Mr Charlesworth. Mr Charlesworth responded on 20 December 2023 and indicated he was still undergoing treatment. Mr Charlesworth also suggested his position was not tenable and enquired about a transfer for Mr Burgess. On 21 December 2023, Mr Andrews sent an email to Mr Charlesworth stating the options can be discussed once a return-to-work date is known. On 24 December 2023, Mr Charlesworth sent an email indicating he would not be signing the warning letter. On 9 January 2024, Mr Charlesworth sent an email to Mr Andrews and Ms Grummitt following up on whether there would be any further issues regarding the warning letter and his refusal to sign it. On 10 January 2024, Mr Andrews emailed Mr Charlesworth stating that the warning would stand regardless of whether it was signed and that the FIP Group was keen to facilitate a return-to-work. There are further emails concerning operational matters. Mr Charlesworth forwarded his complaints about Ms Wiles to Mr Andrews on 11 January 2024.
Mr Charlesworth also filed the following documents:
· A copy of Mr Charlesworth's welcome on-board letter and employment contract with FIP Group dated 27 January 2023. Mr Charlesworth signed the contract on 30 January 2023.
· A copy of FIP Group’s Employee Handbook.
· The reasons for the decision of the Workers’ Compensation Regulator to overturn the decision to deny Mr Charlesworth’s workers’ compensation claim and to accept liability.
· Submissions filed by Mr Charlesworth in support of his review request to the Workers’ Compensation Regulator and supporting evidence.
· Additional information in support of Mr Charlesworth’s request for a review of the workers’ compensation decision.
· A copy of the warning letter issued to Mr Charlesworth on 6 December 2023.
I marked the various documents filed by Mr Charlesworth as Exhibit A1. The FIP Group did not oppose the admission of the documents but argued that little weight should be attributed to much of the evidence.
Mr Charlesworth was not required for cross-examination during the hearing.
Mr Charlesworth relied on an outline of submissions filed 16 August 2024. I have reviewed these submissions. Mr Charlesworth also made oral submissions at the end of the hearing.
STATUTORY PROVISIONS
Section 365(1) of the FW Act states:
If:
(a) a person has been dismissed; and
(b)the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
The dictionary in s.12 of the FW Act defines “dismissal” by calling up the definition in s.386 of the FW Act. The definition in s.386 states:
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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
Mr Charlesworth made two mutually exclusive arguments regarding whether he was “dismissed” within the meaning of s.386(1) of the FW Act.
Mr Charlesworth argued that actions taken by FIP Group constituted a repudiation of his employment contract and that he accepted the repudiation and ended the employment relationship. That is an argument that Mr Charlesworth was dismissed at the initiative of FIP Group within the meaning of s.386(1)(a) of the FW Act.
In the alternative, Mr Charlesworth argued that if it is found that he resigned from his employment with FIP Group, Mr Charlesworth was forced to resign with the meaning of s.386(1)(b) of the FW Act.
AUTHORITIES
Repudiation by employer – s.386(1)(a)
That which will constitute repudiation was considered by the High Court of Australia in Koompahtoo[2] in which Gleeson CJ, Gummow, Heydon and Crennan JJ said as follows (references omitted):
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. (In this case, we are not concerned with the issues that arise where the alleged repudiation takes the form of asserting an erroneous interpretation of the contract. Nor are we concerned with questions of inability as distinct from unwillingness.) Secondly, it may refer to any breach of contract which justifies termination by the other party. It will be necessary to return to the matter of classifying such breaches. Campbell J said this was the sense in which he would use the word “repudiation” in his reasons. There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.”[3]
The question as to whether there has been a repudiation of the contract of employment is determined objectively, it is unnecessary to show a subjective intention to repudiate[4] and is a question of fact, not law.[5] Repudiation of a contract is a serious matter and is not to be lightly found or inferred.[6]
A Full Bench of the Commission provided the following examples of what may constitute repudiatory conduct by an employer in City of Sydney RSL[7]:
“Relevantly, for present purposes, repudiation may exist where an employer reduces the wages of an employee without the employee’s consent[8] or where there is a serious non-consensual intrusion on the nature of the employee’s status and responsibilities in a way which is not permitted by the contract.[9] Similarly, if an employer seeks to bring about a change in the employee’s duties or place of work which is not within the scope of the express or implied terms of the contract of employment, the conduct may evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an employee does not agree to the change, which if agreed would amount to a variation of the contract, the employee may claim to have been constructively dismissed.”
The Full Bench in City of Sydney RSL also identified that repudiatory conduct does not of itself end the employment contract, acceptance of the repudiation is required:
“Conduct of an employer which repudiates the contract of employment does not by that act alone bring the contract of employment to an end. A repudiation of the contract by the employer gives the employee who is not in breach the option to decide whether to continue, that is to affirm the contract, or to treat the contract as at an end by accepting the repudiation.”[10]
It is well established that an employee’s acceptance of a repudiation of the contract by their employer constitutes a termination at the employer’s initiative and falls within the definition of a “dismissal” in s.386(1)(a) of the FW Act.[11]
Forced resignation – s.386(1)(b)
In Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, the Full Bench endorsed, with one point of clarification, an earlier summary of the principles applicable to assessing whether an employee was forced to resign. The Full Bench stated (references omitted):
“The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:
‘In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.’
Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act…
First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient 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”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.”[12]
CONSIDERATION
Repudiation
Mr Charlesworth identifies the following conduct by FIP Group in support of his argument that FIP Group repudiated the employment contract:
(i)FIP Group hired Mr Burgess and implemented a reporting structure that was unreasonable. Mr Charlesworth’s main complaint is that Mr Burgess, as the Assistant Site Manager, did not report directly to Mr Charlesworth, as the Site Manager. Mr Charlesworth also claims that he was not allowed to train Mr Burgess and that this was a further serious breach of his employment contract.
(ii)FIP Group breached Mr Charlesworth’s employment contract and safety legislation by failing to provide him with a workplace that was safe. Mr Charlesworth refers to his complaints of being bullied by Ms Wiles and alleges that FIP Group did not properly investigate these complaints and subsequently, did not take necessary disciplinary action against Ms Wiles.
(iii)FIP Group issued a warning letter to Mr Charlesworth on 6 December 2023 which was effectively a response to Mr Charlesworth’s bullying complaints. Mr Charlesworth states he was not provided with procedural fairness in relation to the warning letter and that the warning letter was issued unfairly.
There are several threshold problems with Mr Charlesworth’s argument that his employment ended at FIP Group’s initiative because he accepted FIP Group’s repudiation of his employment contract.
In Sargent v A.S.L. Developments Limited,[13] Mason J, as he then was, stated the following regarding a delay in the acceptance of repudiation by the innocent party:
“A person confronted with the exercise of alternative and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side.”[14]
The conduct Mr Charlesworth complains about occurred between mid-2023 to the end of 2023. Mr Charlesworth’s employment continued until mid-2024. Mr Charlesworth attempted to commence a process of negotiation to bring about an end to the employment relationship via his email to Ms Zaremski on 21 May 2024. That conduct was completely inconsistent with Mr Charlesworth’s repudiation argument and demonstrates Mr Charlesworth had affirmed the contract, even if there had been repudiatory breaches. If FIP Group had repudiated Mr Charlesworth’s employment contract, Mr Charlesworth could have simply accepted the repudiation and brought the employment contract to an end. There was no need to request a negotiation process to end the employment. I accept Mr Charlesworth would not have been aware of the mechanics of repudiation when he attempted to start a negotiation process with FIP Group on 21 May 2024. However, the question of whether there has been a repudiation of the employment contract is determined objectively. Mr Charlesworth’s conduct from 21 May 2024 weighs heavily against a finding of repudiation and acceptance.
The considerable delay between the alleged repudiatory conduct by FIP Group and the alleged acceptance by Mr Charlesworth clearly caused prejudice to FIP Group. FIP Group entered into a series of secondments with Mr Burgess, on the belief that Mr Charlesworth would return to the Site Manager position when he became fit. It is also likely FIP Group would have permanently appointed Mr Worldon as a Site Administrator earlier if it was aware Mr Charlesworth was accepting repudiation and ending the contract. The existence of this prejudice weighs against a finding of repudiation and acceptance.
The language used in Mr Charlesworth’s various emails to Ms Lalovic is also completely consistent with the employment ending via Mr Charlesworth resigning, as opposed to Mr Charlesworth accepting repudiation by FIP Group. Mr Charlesworth does not refer to accepting repudiation in his emails and refers to resigning on several occasions. The language Mr Charlesworth used in his various emails weighs heavily against a finding of repudiation and acceptance.
In any event, I do not consider the conduct Mr Charlesworth relies upon to establish repudiation demonstrates an intention by FIP Group to no longer be bound by the employment contract or constitutes a serious breach of the contract by FIP Group.
FIP Group did not breach Mr Charlesworth’s contract by hiring Mr Burgess. I also do not accept FIP Group breached Mr Charlesworth’s contract by determining that Mr Burgess would report to Ms Wiles rather than Mr Charlesworth. FIP Group had the managerial prerogative to determine reporting lines within its business, even if Mr Charlesworth does not agree with their decision. Mr Charlesworth was required by schedule 6 of his employment contract to report to the Operations Manager, he did not have a contractual right to have the Assistant Site Manager report to him.
I also do not accept Mr Charlesworth’s argument that FIP Group breached schedule 4 of his contract. This argument was made by reference to the Site Manager position description. In Lamont[15] Rangiah J found that:
“A policy or procedure will not be incorporated if it is intended to operate as a guideline only and is not intended to have contractual force, or the employment contract expressly provides that the policy or procedure does not form part of the employment contract”.[16]
The Site Manager position description is not a contractual term. Clause 3.2 of the contract makes it clear that policies and procedures are not incorporated into the contract.
Similarly, FIP Group was entitled to determine what training, if any, was provided to Mr Burgess. There is no right in Mr Charlesworth’s contract for him to train the Assistant Site Manager. The Assistant Site Manager position description is also not a term of Mr Charlesworth’s contract.
Given FIP Group did not appeal the Workers’ Compensation Regulator’s findings that Mr Charlesworth was subjected to unreasonable management action in relation to its delay in hiring an Assistant Site Manager and in relation to Mr Charlesworth’s shift times being changed, I accept it is likely that FIP Group breached clause 22 of Mr Charlesworth’s employment contract. However, even if those breaches are established, I do not consider the breaches are of sufficient gravity to establish repudiation. Repudiation of a contract is a serious matter and is not to be lightly found or inferred.[17] FIP Group did ultimately hire an Assistant Site Manager. I do not consider the delay constitutes a repudiatory breach. In relation to the shift change issue, the reasons for the Workers’ Compensation Regulator’s decision rely primarily on FIP Group not disputing Mr Charlesworth’s contentions. The reasons do not identify what clause of Mr Charlesworth’s contract FIP Group breached by changing his working times. Clause 4 Hours of Duty in the contract is constructed in very broad terms and does not identify specific hours of work. Clause 4.3 refers to hours of work identified in item 13 of the schedule but then the schedule only has 10 items. The operation of these provisions is not entirely clear. However, despite the ambiguity in the contract, I am satisfied that the change in working times did not constitute a repudiation of the contract.
I do not have sufficient evidence to determine whether Mr Charlesworth’s complaints against Ms Wiles can be substantiated. In any event, I do not consider that the alleged bullying conduct by Ms Wiles can constitute a repudiation of the contract by FIP Group. Given FIP Group investigated Mr Charlesworth’s allegations and found them to be unsubstantiated, it is difficult to see how a repudiation of the contract could have arisen. I do not consider an employer can be found to have repudiated an employment contract by allegedly arriving at an erroneous conclusion from an investigation process. FIP Group also did not repudiate the contract by failing to take disciplinary action against Ms Wiles. Given the outcome of the investigation, it was not open to FIP Group to discipline Ms Wiles.
The issuing of a warning letter to Mr Charlesworth inherently does not constitute a repudiatory breach of the contract by FIP Group. The issuing of a warning letter is a clear indication that FIP Group determined to continue being bound by the employment contract despite its findings in relation to Mr Charlesworth’s conduct.
I reject Mr Charlesworth’s argument that he was terminated at the initiative of FIP Group because he accepted repudiatory breaches of his contract by FIP Group and ended the contract. I do not accept FIP Group repudiated the contract. Even if FIP Group had repudiated the contract, there is no evidence of acceptance by Mr Charlesworth. I find that Mr Charlesworth was not terminated at the initiative of FIP Group within the meaning of s.386(1)(a) of the FW Act.
Forced resignation
I find that Mr Charlesworth resigned from his employment with FIP Group at 11:35am on 31 May 2024 via his email to Ms Lalovic. Mr Charlesworth’s email expressly states: “I resign (forcibly) as of the date and the time of this email.” This finding is consistent with Mr Charlesworth’s later email to Ms Lalovic on 3 June 2024 which states: “I resigned as of 31/5/24 at 11:35am as advised in my previous email.” As a result of this finding, I am required to determine whether Mr Charlesworth was forced to resign because of conduct, or a course of conduct, engaged in by FIP Group.
Mr Charlesworth relies on the following conduct, or course of conduct, from FIP Group to demonstrate he was forced to resign:
(i)FIP Group failed to provide support to Mr Charlesworth in relation to his Site Manager role and failed to resolve his difficulties. Mr Charlesworth refers to the unreasonable reporting structure and insubordination from Mr Burgess.
(ii)FIP Group issued Mr Charlesworth with a warning letter on 6 December 2023 to blame Mr Charlesworth for the problems at the Coominya office and to cover up that Mr Charlesworth was bullied. Mr Charlesworth claims the warning letter was issued to encourage him to resign.
(iii)FIP Group denied Mr Charlesworth procedural fairness in relation to the warning letter by not providing him with details about the alleged conduct and an opportunity to respond. Mr Charlesworth alleges the denial of procedural fairness was designed to encourage him to resign.
(iv)FIP Group failed to negotiate with Mr Charlesworth about his requests for changes to be implemented to allow him to return to the Site Manager position at Coominya. This is a reference to the 10 steps Mr Charlesworth requested in his email to Ms Lalovic on 28 May 2024 which would be necessary to allow him to return to the Site Manager position.
I consider Mr Charlesworth’s email to Ms Zaremski on 21 May 2024 is extremely important in assessing whether Mr Charlesworth was forced to resign. This email relevantly states:
“To be honest at this point I don’t feel as though I am capable of returning to my old role but I was just trying to gauge from FIP’s perspective whether it may still be a possibility.
I do have options available to me including:
-Returning to WorkCover, completing the impairment assessment and then moving onto a negligence claim. I have paperwork to sign from Maurice Blackburn who are very interested in representing me in a negligence case.
-Seeking damages for lost wages and pain and suffering under contract and civil liability law.
-Returning to my old role (if capable in the future but I’m unsure about this).
-Taking this matter to Fair Work to peruse [sic] a stop bullying order and for breach of general protections. I received adverse actions as a result of exercising a workplace right and no support was given to me from anyone when I raised concerns about this.
I am very happy to pursue one or more of these options but I was wondering whether FIP may be willing to negotiate with me to try and bring an early end to this matter, so that we can all move forward?”
Mr Charlesworth’s email is revealing for several reasons.
Firstly, the initial part of the email refers to Mr Charlesworth wanting to gauge whether him returning to work was a possibility from the FIP Group’s perspective. The answer to that question was clearly “yes” based on Ms Zaremski’s earlier email dated 20 May 2024, which confirmed no disciplinary action would be taken in response to Mr Charlesworth ceasing treatment and made it clear that FIP Group was open to implementing a return-to-work process.
Secondly, Mr Charlesworth specifically refers in the email to having various options at his disposal as to how he could proceed. There is no suggestion that resigning was Mr Charlesworth’s only option. To the contrary, Mr Charlesworth did not even identify resignation as one of his options.
Thirdly, the email demonstrates Mr Charlesworth was aware that he could make an application to the Commission for stop bullying orders to address his concerns about his treatment by Ms Wiles and others. That was clearly an option available to Mr Charlesworth instead of resigning.
Finally, the last sentence of the email, where Mr Charlesworth raises the prospect of negotiations to resolve the matter, reveals what I consider to be Mr Charlesworth’s true position regarding his employment with FIP Group. Mr Charlesworth had decided that returning to his Site Manager role was not a realistic or “tenable” option for him. Mr Charlesworth wanted to either negotiate agreed exit arrangements or for FIP Group to terminate his employment so he could take legal action against them in relation to a dismissal. The subsequent emails Mr Charlesworth exchanged with Ms Lalovic are completely consistent with this position. When Mr Charlesworth becomes aware FIP Group is focused on negotiating Mr Charlesworth’s return to work and not an exit arrangement, Mr Charlesworth pivots to trying to manufacture a situation whereby FIP Group will confirm it has terminated his employment. This included proposing a completely unrealistic set of changes that FIP Group would need to implement to allow Mr Charlesworth to resume work, including moving people around that Mr Charlesworth had issues with, and various other arrangements. Mr Charlesworth acknowledged during the hearing that FIP Group could not have realistically agreed to the arrangements he considered necessary to make his position “tenable”. However, that does not mean Mr Charlesworth was forced to resign. It means Mr Charlesworth was trying to make it impossible for FIP Group to allow him to return to work because this is not what he wanted. Mr Charlesworth wanted to be dismissed. When Ms Lalovic, who I consider was likely completely aware of Mr Charlesworth’s strategy and was implementing a counter strategy on behalf of FIP Group, persistently refused to confirm Mr Charlesworth was being dismissed by FIP Group, Mr Charlesworth pivoted to an allegedly forced resignation.
I do not consider there is sufficient evidence to conclude that FIP Group intended to force Mr Charlesworth to resign. FIP Group went to extensive lengths to confirm in writing that Mr Charlesworth did not need to resign and that it would work with him on a return to work if he had a medical clearance. FIP Group even provided Mr Charlesworth with an opportunity to retract his resignation.
I also do not accept Mr Charlesworth’s argument that resignation was a probable result of the conduct engaged in by FIP Group.
Mr Charlesworth referred to not being supported in his role and to FIP Group not resolving his difficulties as a reason for his resignation. However, FIP Group eventually hired an Assistant Site Manager to assist with Mr Charlesworth’s workload. A different problem then emerged in that Mr Charlesworth wanted Mr Burgess to report directly to him and then had issues with Mr Burgess’s work performance. I do not consider resignation can be said to be the probable result of FIP Group’s handling of Mr Charlesworth’s concerns about a lack of support and other workplace issues.
Even if I accept that Mr Charlesworth was unfairly given a warning on 6 December 2023 and denied procedural fairness, I do not consider resignation was a probable result of FIP Group’s conduct. Warnings are commonly issued in workplaces and employees often feel aggrieved about the reason or the process. I do not consider it can be said that it was probable that Mr Charlesworth would resign in response to the warning letter based on an objective assessment.
I also do not accept it can be objectively found that resignation was a probable result of FIP Group not negotiating directly about the list of 10 steps that Mr Charlesworth considered were required to make his return to work “tenable”. While I accept Mr Charlesworth subjectively considered he had to resign if the requests were not agreed by FIP Group, that is not the legal test. I consider an objective reasonable person would have realised the list of requests was completely unrealistic and would have had discussions with FIP Group about what measures could realistically be taken based on medical advice.
In any event, FIP Group did not actually refuse any of Mr Charlesworth’s 10 requests. Ms Lalovic repeatedly made the point that the return-to-work arrangements would be discussed in detail when Mr Charlesworth provided medical advice that he was fit to return to work. That is a standard and orthodox approach. It was not one that was probable to lead to resignation when considered on an objective basis.
I find that Mr Charlesworth was not forced to resign within the meaning of s.386(1)(b) of the FW Act.
CONCLUSION
I find that Mr Charlesworth was not “dismissed” by FIP Group within the meaning of s.386(1) of the FW Act. Mr Charlesworth resigned from his employment with FIP Group and was not forced to do so by FIP Group’s conduct, or course of conduct.
Mr Charlesworth’s application is dismissed.
COMMISSIONER
Appearances:
Mr Charlesworth representing himself.
Mr Piper representing FIP Group.
Hearing details:
2024.
Sydney (by video via Microsoft Teams).
11 September.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Lipa Pharmaceuticals Ltd v Mariam Jarouche [2023] FWCFB 101 at [23].
[2] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115.
[3] Ibid at [44].
[4] See for example Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [32] – [41] and Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1 at [126].
[5] See Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693 at 698,699-700, 701-702.
[6] Shevill v Builders Licensing Board (1982) CLR 620, 633.
[7] City of Sydney RSL & Community Club Limited v Balgowan [2018] FWCFB 5 at [18].
[8] See for example Rigby v Feredo Ltd [1988] ICR 29 and Brockton Holdings No V Pty Ltd v Kara Kar Holding Pty Ltd (1994) 57 IR 288.
[9] See for example Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [41] – [46], [68] and Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1 at [126].
[10] See Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 at 450 – 453, 461 – 463, 465 – 467; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 47 – 428; Visscher v Giudice (2009) 239 CLR 361 at [53] – [55].
[11] Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd [2010] FWAFB 2670 at [26].
[12] Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279 at [18], [19] and [23].
[13] (1974) 131 CLR 634.
[14] Ibid at 656.
[15] Lamont v University of Queensland (No 2) [2020] FCA 720.
[16] Ibid at [703].
[17] Shevill v Builders Licensing Board (1982) CLR 620, 633.
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