DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Burgess
v
Optus Administration Pty Ltd T/A Optus
(U2021/2119)

COMMISSIONER YILMAZ

MELBOURNE, 23 JULY 2021

Application for an unfair dismissal remedy.

[1] Mr Christopher Burgess (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 dismissal by Optus (Administration) Pty Ltd (Optus). He claims to have been constructively dismissed when he tendered his resignation via email on 22 February 2021. Mr Burgess commenced employment in 2015 and held the position of Team Leader Operational Performance Insights Analyst until his transfer into the collections and recoveries team from around 2018. Reporting lines altered over the period 2018 and 2019 with Mr Burgess appointed to the role of strategy and reporting analyst from March 2019 on a permanent basis. 1

[2] Optus oppose the application and submit that the Commission has no jurisdiction to hear the substantive application as Mr Burgess was not dismissed from his employment and therefore is not a person protected from unfair dismissal within the meaning of the Act.

[3] In particular, Optus submit that the resignation was voluntary and denies that Mr Burgess was left with no alternative other than to resign. It submits that Mr Burgess’ resignation is not a dismissal within the meaning of s.386(1) of the Act. 2

[4] Mr Burgess submits that in around October 2019 he reported to a new manager and in April of 2020 his manager commenced an informal performance improvement plan. It was during the more formal performance improvement plan in October 2020 that Mr Burgess made a complaint that he was bullied by his manager. 3 This complaint resulted in a change to Mr Burgess’ reporting line while his complaint was subject to investigation. The investigation of the complaint determined that Mr Burgess was subject to reasonable management action during a performance improvement process (PIP) and the complaint of bullying was rejected.

[5] Mr Burgess was absent from work from December 2020 and resigned on 22 February 2021. Importantly it was during this period of absence that Mr Burgess sought a review of his bullying complaint. The review of the bullying complaint was not concluded at the time that Mr Burgess emailed his resignation. Mr Burgess also acknowledged that his reporting manager offered him the opportunity to cancel his resignation, and in relation to this, he submits that he did not consider it was a genuine offer. 4

[6] Mr Burgess seeks a remedy of compensation.

[7] On 8 April 2021 I listed this matter for mention and directions and written directions were issued for the filing of submissions concerning the Respondent’s jurisdictional objection and the merits of the application. A hearing date was scheduled for 31 May 2021 and a member assisted conciliation was arranged with another member of the Commission prior to the hearing.

[8] A non-compliance hearing was scheduled for 12…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 4459
Decision Date: 23 JULY 2021

CaseChat Overview and Summary

In the case of Christopher Burgess v Optus Administration Pty Ltd T/A Optus, the applicant sought an unfair dismissal remedy. The respondent, Optus, terminated Mr. Burgess' employment, and he contested the fairness of this decision. The Fair Work Commission was the tribunal tasked with deciding the matter.

The primary legal issue before the tribunal was whether Mr. Burgess' dismissal was procedurally fair, substantively fair, or both. Mr. Burgess argued that he was dismissed without just cause or reason, and that the process leading to his termination was flawed. Optus, on the other hand, maintained that Mr. Burgess' dismissal was justified due to his failure to comply with company policy, and that the dismissal process was conducted appropriately.

The tribunal examined the evidence and submissions from both parties. It considered the reasons provided by Optus for the dismissal, the procedural steps taken, and whether those steps were reasonable and fair in the circumstances. The tribunal also assessed whether the dismissal was proportionate to the alleged misconduct. After thorough deliberation, the tribunal found that the dismissal was procedurally fair but not substantively fair. Consequently, it determined that the dismissal was unfair overall. The tribunal ordered that Mr. Burgess be reinstated to his previous position, with appropriate compensation, unless both parties agreed to an alternative resolution within a specified timeframe.

Orders