David Bevis v Dust Collection Services Pty Ltd

[2021] FWC 2813

[2021] FWC 2813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Bevis
v
Dust Collection Services Pty Ltd
(U2020/12080)

COMMISSIONER SIMPSON BRISBANE, 20 MAY 2021

Application for unfair dismissal remedy – Jurisdiction objection that applicant not dismissed – Applicant resigned voluntarily – No dismissal – Application dismissed.

[1] On 8 September 2020, Mr David Bevis (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Dust Collection Services Pty Ltd (the Respondent). The Applicant was initially represented by Mr Steven Gaffney of Unfair Dismissals Experts Pty Ltd, however Mr Gaffney subsequently filed a Form F54 notice ceasing to act for Mr Bevis on 28 September 2020.

[2] On 16 September 2020, the Respondent filed a Form F3 Employer’s response objecting to the application on the jurisdictional grounds that Mr Bevis had not been dismissed and in the alternative that if there was a dismissal it was in accordance with the Small Business Fair Dismissal Code.

[3] The matter was unable to be resolved at conciliation on 25 September 2020 and was allocated to me for consideration of both the jurisdictional issues and the substantive merits of the application if required. I issued directions for filing of material, with the Small Business Fair Dismissal Code attached. The hearing was listed for Hearing via Microsoft Teams on 17 and 18 February 2021.

[4] During the Microsoft Teams Hearing, the parties as well as the Commission experienced significant technical difficulties that hindered the ability for the Hearing to proceed. I ultimately adjourned the Hearing and relisted the Hearing to proceed in person on 25 February 2021 in Brisbane.

[5] On the morning of 25 February 2021, before the Hearing, my Associate was advised by Mr Bevis that had not been aware of the hearing date and would be unable to attend.

s.399A Application by Respondent

[6] The matter was again relisted for hearing in person on 10 March. Mr Bevis was self-represented, and Mr Matthew Guteridge of NB Lawyers was granted leave to appear on behalf of the Respondent.

[7] Prior to 10 March, a section 399A application was filed by the Respondent seeking that the application be dismissed. At the commencement of the Hearing, I heard submissions from the parties in relation to the s.399A application and the strike out application was dismissed for reasons given in transcript.

[8] Mr Bevis did not seek a remedy of reinstatement and instead sought compensation.

BACKGROUND

[9] Mr Bevis began working for the Respondent on 4 July 2019. Throughout the course of his employment, Mr Bevis raised several complaints regarding health and safety matters with the Respondent. Mr Bevis in his material also alleged bullying and harassment from Mr Ryan Forbes, the Production Manager for the Respondent.

[10] On 31 July 2020, Mr Bevis was issued with a first and final warning letter. On 4 August 2020, Mr Bevis met with Mr Forbes and Mr Frank Kraak the owner of the Respondent, to discuss the warning. At that meeting, Mr Bevis resigned, giving four weeks’ notice. Seventeen days later, on 21 August Mr Bevis sent an SMS message to Mr Forbes stating he no longer wished to resign, and Mr Forbes responded the same day advising the retraction was not accepted.

LEGISLATION

[11] For a person to be protected from unfair dismissal under the legislation, they must have been dismissed. Section 385 provides the basis for considering whether a person has been dismissed:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[12] On the meaning of ‘dismissed,’ s.386 of the Act further provides:

386 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.

[13] While the Respondent denied that Mr Bevis had been dismissed, it submitted in the alternative if the Commission was satisfied that the Applicant had been dismissed, the dismissal was in accordance with the Small Business Fair Dismissal Code.

[14] The Small Business Fair Dismissal Code is set out under s 388 of the Act, which provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[15] There is no dispute that, in accordance with s.23 of the Act, the Respondent is a small business employer, employing less than 15 employees at the time of the Applicant’s dismissal.

[16] The Code provides:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

SUMMARY OF EVIDENCE AND SUBMISSIONS

[17] Mr Bevis alleged that he was forced to resign on 4 August 2020 as a result of the Respondent’s failure to address workplace health and safety (WH&S) complaints he had made, and that he was bullied and harassed into resigning as a result of his complaints.

[18] The Respondent submitted that from the commencement of the Applicant’s employment, the Respondent had raised several concerns with Mr Bevis with respect to his behaviour and treatment of other staff members. The Respondent submitted that this culminated in a formal written warning being issued on 31 July 2020, and a meeting taking place on 4 August 2020 setting out the difficulties workshop employees experienced; and abusive and threatening language used by Mr Bevis against Mr Forbes.

[19] The Respondent submitted that neither Mr Bevis nor the Respondent had alleged that Mr Bevis was terminated at the initiative of the Respondent. The Respondent submitted Mr Bevis relied solely on ss.386(1)(b) of the Act in alleging he was forced to resign by the Respondent’s conduct. Mr Bevis does not dispute that he resigned at the meeting on 4 August 2020, however Mr Bevis maintained in his application that he was forced to do so.

[20] The Respondent argued that while Mr Bevis had alleged that he was forced to resign from his employment due to the conduct of the Respondent, and provided a lengthy statement setting out the concerns he had raised with respect to the Respondent’s operations, the statement was not sufficient to discharge the onus of demonstrating his employment was terminated.

[21] The Respondent argued that there is ahigh threshold attached to establishing a constructive dismissal has taken place. The Respondent cited Doumit v ABB Engineering Construction Pty Ltd 1where it was held:

“Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[22] The Respondent also referred to the following passage from the decision in O'Meara v Stanley Works Pty Ltd 2:

“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 Powel and ABB Engineering require that there to 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.”

[23] The Respondent submitted Mr Bevis must demonstrate that the Respondent's behaviour was intended to bring the employment to an end or had the probable result of bringing the employment to an end. The Respondent argued it would not be sufficient for Mr Bevis to simply claim that the working environment was unsatisfactory or that he experienced difficulties with other employees during his employment.

[24] Mr Bevis filed a document of 15 October 2020 3 that he was content to be treated as his written evidence, however also sought to rely on material he filed the day before the hearing on 9 March 2020. Mr Bevis raised a number of issues in the document filed the day before the hearing in pages 7 through to 11 that had not been raised before. The Respondent objected to the new material. I indicated to the parties I would allow parts of the material to be admitted into evidence that had been the subject of earlier consideration in earlier material filed, however did not intend to afford significant weight to the new issues. Mr Bevis agreed to proceed on that basis and the statement of 9 March 2021 was also admitted into evidence.4

[25] Mr Bevis also relied on video evidence taken by himself at one of the Respondent’s clients Toowoomba Pacific Seeds and this material was also admitted into evidence. 5

[26] Mr Kraak, Project Manager Director for the Respondent provided a witness statement. 6 Mr Kraak said that throughout Mr Bevis’ employment the Respondent raised a number of concerns with him regarding his performance including misplacing company property; bullying and harassing behaviour towards other staff members, particularly workshop staff; failure to use Purchase Orders; consistent refusals to take lunch breaks, despite being directed to do so; and the failure to complete time sheets.

[27] Mr Kraak claimed between December 2019 and July 2020 he spoke with Mr Bevis on numerous occasions regarding his use of aggressive and inappropriate language towards other staff members. Mr Kraak said that whilst Mr Bevis would often acknowledge that his behaviour was inappropriate, Mr Kraak did not observe improvements to his behaviour during his employment.

November 2019 - Ridleys High Performance Animal Nutrition Solutions, Clifton

[28] Mr Bevis said that one of the first large jobs he did with the Respondent was at Ridleys at Clifton, near Toowoomba. Mr Bevis said he worked alongside Mr Kraak, and that when he started working he felt Mr Kraak was very approachable, however over a period of time he found Mr Kraak worked at full speed with no consideration for any workplace health and safety rules.

[29] Mr Bevis said he thought he could educate Mr Kraak and change his attitude about safety and the need to comply with safety laws. Mr Bevis said there were many incidents that he was concerned about, such as pulling a 2.5-ton motor and frame up a three-story shed foyer with a three-ton block and tackle.  Mr Bevis said that while he and Mr Kraak were pulling this equipment, approximately six people walked below them in an area which should have been cordoned off.

[30] Mr Bevis said he and Mr Kraak were working fast, and the equipment kept jamming because there was a lot of steel structures in the way. Mr Bevis said Mr Kraak was trying to free the equipment byphysically pulling on the equipment even harder and went in between the handrail while still on the third story, trying to push the motor with his leg and hanging off the handrail.

[31] Mr Bevis said he asked if Mr Kraak wanted him to cordon-off the area below as he could see customers and staff walking underneath unaware of the danger above and was told no as the WH&S officer from ‘Ridley’s’ was away that day and they had to get the job finished before they returned. Mr Bevis said that if the lug on the motor had broken or the chain Mr Kraak was pulling on broke, which he said they had done in the past, someone would have died, and that this was the type of work ethic that Mr Kraak taught him when he was new to the business.

[32] Mr Bevis said he started most days at 4am and continually worked through his breaks as Mr Kraak only paused to have a smoke and didn’t take food breaks. Mr Bevis said Mr Kraak usually started at a later time than him and didn’t want to stop work. Mr Bevis said he sometimes spoke up, but mostly due to the conditions and the fact that they were late to site most times and the client pushed him to get the job done, he had to keep working on many days.

[33] The Respondent submitted that the decision not to take a break was made by Mr Bevis and at no time did the Respondent direct Mr Bevis to work through his break or not take a break and Mr Bevis was free to take a break at any time. The Respondent submitted that Mr Bevis was directed to not work through lunch breaks where it was not necessary to do so.

[34] Mr Kraak gave evidence that during his time supervising Mr Bevis, he noted that Mr Bevis would often fail to take a break. Mr Kraak claimed he informed Mr Bevis that for safety reasons, he should take breaks however despite being given the opportunity to take breaks during the working day, Mr Bevis refused to do so and continued working.

[35] Mr Bevis said that he constantly worked long days, and after 12 hours of work on the second day he was required to drive home to the Sunshine Coast which was an additional three hours on the road. Mr Bevis said that conditions on the job site were wet and slippery due to the manufacturing of animal food products and water on site, and he was tired from constantly walking to the third story as Mr Kraak could not handle the stairs.

[36] The Respondent submitted that Mr Bevis’s claim that he was required to travel to Clifton from the Sunshine Coast for work each day is not correct and employees were given the option to stay in Clifton, and Mr Bevis did not accept this and elected to drive back to the Sunshine Coast.

[37] Mr Bevis said the animal food products and water was piled up on the equipment and Mr Kraak did not remove the wet food which caused Mr Bevis and Mr Kraak to slip many times. Mr Bevis said he started to clean the mess up as he couldn’t work but was told that the safety officer was back the next day and that they had to keep working. Mr Bevis said he fell over at least four times and was lucky not to hurt himself but was covered in the “revolting smelly wet food products.”

[38] Mr Bevis said he was also concerned about the work required on site as he didn’t have a ‘Working at Height’ license but presumed that Mr Kraak would have covered all the requirements, as this was Mr Bevis’ first major job for the Respondent. Mr Bevis said he worked on the roof at ‘Ridley’ and it was over 12 meters to the concrete below.

[39] From the evidence the events described at Ridleys occurred approximately eight or nine months before 4 August 2020.

21 January 2020 – Battery Charger

[40] Mr Kraak made a general claim that numerous pieces of company equipment went missing during Mr Bevis’ employment. Mr Kraak made reference to a specific instance where he said around 21 January 2020 a battery charger was left on a client site, and this charger had to be replaced at the expense of the Respondent.

February 2020 - Alleged Failure to Order Work Uniforms

[41] Mr Bevis claimed Mr Forbes did things like not ordering uniforms for him when all other staff received uniforms. The Respondent submitted that the decision to order for new uniforms was made around February 2020, and this was less than eight months after Mr Bevis had commenced employment with the Respondent. The Respondent submitted that it did not consider it necessary to provide new uniforms for Mr Bevis on the basis that he had recently been provided with new uniforms on commencement of employment. The Respondent further notes that new uniforms were provided to longer serving employees on an as required basis. The Respondent also submitted that new uniforms were not provided to all employees as alleged by Mr Bevis.

[42] It was put to Mr Bevis he received shirts when he was employed, and he said he received one shirt.

[43] The Respondent has provided a plausible explanation for why some employees were ordered new uniforms when Mr Bevis was not.

26 February 2020 - Toowoomba Pacific Seeds

[44] Mr Bevis said his stress reached its highest level at a job at Pacific Seeds on the 26 February 2020 at 2.26pm. It is notable that this is approximately 5 months before he resigned. Mr Bevis said he had been repeatedly required to perform unsafe work by installing ductwork and heavy equipment at sites which caused so many near misses that he decided to video record himself working at Pacific Seeds, where he said he was required to install ductwork on a roof with only the gutters stopping him from falling at a height of 10m.

[45] He said he was working under the instructions of Mr Tom Foley, Site Supervisor, for the Respondent. Mr Bevis said however that Mr Foley left him on site alone for four hours, and Mr Bevis said he did not see anyone else until he left. Mr Bevis said this was the start of his nightmares and the start of the Respondent’s staff constantly bullying and harassing him after he showed the video he took to Mr Kraak, on 2 March 2020. 

[46] Mr Bevis claimed Mr Kraak was aware of the unsafe work practices he was required to perform by his supervisor Mr Foley. Mr Bevis claimed Mr Kraak said to him that he would advise Workplace Health and Safety Queensland (WHSQ) about this incident however Mr Bevis said he knew Mr Kraak had not as he had spoken to WHSQ about this incident himself.

[47] Mr Bevis said he should have been wearing a double harness at Pacific Seeds and should not have been on the roof at the premises. He said Mr Foley showed him what he wanted done on the roof, and Mr Bevis said after a few minutes he formed the view it was ridiculous. Mr Bevis said Mr Foley had left the site, and there should have been two workers on site.

[48] Mr Kraak said on 2 September 2020, he was sent a letter from Mr Foley regarding what Mr Foley said was an incident that occurred with Mr Bevis at the Pacific Seeds site on or around 26 February 2020. Mr Kraak provided a copy of this correspondence between Mr Foley and Mr Bevis with his evidence, and also a copy of a picture of the worksite, showing the mezzanine walkway referred to in Mr Foley’s letter. The letter reads as follows:

“Dear Mr. Bevis,

RE: Written accusations against me

I am writing regarding accusations made against me in the email titled: Keys and Phone and your harassment towards me. Don't we have the right to safe working conditions.!!!!! Dated 27/08/2020.

In your email you allege that I “wanted” you to install duct in an unsafe manner at Pacific Seeds - Toowoomba. My recollection of events I assume you are referring to is as follows:

We were both wearing fall arrest PPE as mandated on site signage. We were bolting together two sections of ducting working from a fixed mezzanine walkway. The ducting was approximately 300mm from platform and you could not reach around the duct to put bolts in the other side of the flange. I was able to reach these bolts with ease and tighten them. I did not ask you to do anything dangerous.

In your email you allege that I am not “up-to-date” with Workplace Health & Safety “rules” pertaining to working safely at heights. I have a Statement of Attainment issued by a registered training organisation: Working safely at heights (RIIWHS204D)

In your email you allege that I was the “site supervisor” at some point during the install at Cruise Craft (Job# CCT9130) I do not believe I was your supervisor on this job. I was asked to help you (full-time site worker) and the other workers get this job done and was only on site for 4 days (of 13). You were liaising directly with the client and making unprompted decisions to work outside of your normal hours. If I was the supervisor on this job, I would have prepared a JSEA/SWMS to cover any high-risk tasks.

In your email you allege that I instructed you to - “Perform work in an unsafe manner eg. work on the side of buildings, over a roof with only a gutter to hold me from falling 10m.”

I do not recall giving you any instruction. I was not your supervisor. You were wearing fall restraint PPE. In your email you allege – “and then he (Tom) left me on site alone for the next 4 hours.” Following the aforementioned accusation.

I recall a day I left site before you because I had other work to do. You advised me you were going to put flanges on the duct in the car park and then head directly home. As I am not your supervisor, I acknowledged your decision. I was unaware you spent 4 hours doing this. If you felt unsafe working alone you should not have stayed. You were outside of your working hours and there was no reason for you to stay.

Yours Sincerely,

Thomas Foley

Service Technician (DCS)”

[49] Mr Bevis was asked whether anyone assisted him to take the video at the Pacific Seeds site and he said no. Mr Bevis said he set up a phone camera to give the video to the Respondent. Mr Bevis was asked if he was aware of his duty under s.28 of the Work Health and Safety Act 2011(Qld) (WHS Act) to take reasonable care of his own safety. He said he was. Mr Bevis agreed the video was an example of him undertaking dangerous work and accepted it showed him breaching WH&S laws.

[50] Mr Bevis agreed he had a phone with him at the time and he could have made a phone call to the Respondent at the time if he was uncomfortable performing the duty. It was put to Mr Bevis he raised workplace health and safety issues on other occasions and his job was not taken off him. Mr Bevis said the Respondent expected him to get the job done. Mr Bevis said he tried to be diplomatic and bring these issues up with Mr Kraak however his evidence was to the effect that he was not getting anywhere.

[51] The Respondent submitted that Mr Bevis raised several concerns he had with respect to the installation of ductwork at Pacific Seeds. The Respondent submitted that Mr Foley instructed Mr Bevis to not install bolts if the flange was out of reach. The Respondent submitted that these bolts were installed by Mr Foley from a stable fixed mezzanine walkway.

[52] The Respondent further submitted that both Mr Foley and Mr Bevis were wearing fall arrest personal protective equipment as required. The Respondent submitted that there was absolutely no reason why Mr Bevis was required to reach over the edge as demonstrated in the video. The Respondent submitted that the image and footage provided were taken after the installation had already taken place and in fact display Mr Bevis disobeying a direction to not reach for the flanges that were out of his reach.

[53] The Respondent also submitted that it is unclear why Mr Bevis felt comfortable filming this behaviour if the risk was as serious as Mr Bevis claims. The Respondent submitted that it does not accept that Mr Bevis was placed in any danger when required to work from the roof. It said Mr Bevis did not raise any concern with the work being performed on site at the time of the alleged incident or after the alleged incident.

March 2020 - Cleanaway, Narangba

[54] Mr Bevis said in early March 2020, he and a colleague, ‘Nev’, attended the Cleanaway site at Narangba to install ductwork in the chemical room. Mr Bevis said that on the first day, he and ‘Nev’ did not have any masks and the smell from the chemical room gave Mr Bevis and his co-worker instant headaches. Mr Bevis said the safety officer on site said that Mr Kraak forgot the masks the previous time the Respondent performed work there and he complained to Mr Bevis about Mr Kraak not complying with WH&S rules, and asked Mr Bevis to keep Mr Kraak off site.

[55] Mr Bevis said Mr Forbes did not discuss any safety procedures with him about the chemicals and only told him about the ductwork installation. Mr Bevis said that he was told the chemicals inside the room would be removed prior to the job starting and they were, but there was still a very strong odour coming from the room.

[56] Mr Bevis said that the Cleanaway staff in the workshop were working without masks, and as such he thought it was safe to do so. Mr Bevis said that he asked one of the Cleanaway staff about the smell as it was overpowering and was told that “you get used to it.” Mr Bevis said that while on site he heard one of the workers complain about the smell and how unsafe it was in the workshop due to the chemical, and that worker went home after lunch unwell.

[57] Mr Bevis said he complained to Mr Kraak that afternoon about the smell and was told the Respondent’s staff had worked there before with no side effects. Mr Bevis said he spent three weeks on this job and was mostly required to work by himself, which he said was very risky.

April 2020 –Issue of condition of tyres on work vehicle

[58] Mr Bevis claimed that Mr Forbes had forced him to drive his work vehicle with bald tyres. The Respondent submitted that it accepted that the tyres of the vehicle needed to be replaced. It submitted that as this vehicle was regularly used by Mr Bevis, Mr Bevis ought to have raised this concern prior to the tyres reaching this condition. The Respondent submitted that by allowing the tyres to become unroadworthy Mr Bevis failed to take reasonable steps to protect his own health and safety as required under Section 28 of the WHS Act.

[59] The Respondent further submitted that the tyres on the vehicle were replaced by the Respondent as soon as reasonably practicable. The Respondent submitted that Mr Bevis first identified this concern whilst on a worksite in Toowoomba, and did not raise the issue prior to travelling to this location. The Respondent submitted that it was unable to have the tyres replaced until the vehicle was returned, and once the vehicle was returned, the Respondent had the tyres replaced and the vehicle serviced.

[60] Mr Kraak said that during his employment Mr Bevis was required to operate a work ute in order to attend various jobsites and the maintenance of this vehicle was the responsibility of the Respondent, however Mr Bevis was told to “keep an eye” on the vehicle (for example lights, tyres and servicing) and report any defects or maintenance required. Mr Kraak said that between January and April 2020 Mr Bevis was required to travel to Toowoomba and surrounding areas for a number of jobs and during one of these jobs, Mr Bevis raised that the tyres on the work vehicle were defective. Mr Kraak said the Respondent acknowledged this and, upon the return of the vehicle, the Respondent had the tyres replaced and the vehicle serviced.

[61] It was put to Mr Bevis that the Respondent replaced the tyres after he requested they be changed. Mr Bevis said it took months for this to occur. Mr Bevis later agreed it took approximately 3 weeks to a month to be replaced from when he first asked for them to be replaced. Mr Bevis agreed he could have made the request before the tyres got to the state they were in. Mr Forbes said he could only recall one time when Mr Bevis spoke to him about replacing the tyres on the ute.

Missing equipment and allegation that Mr Bevis was falsely accused of stealing equipment

[62] Mr Kraak said on 2 May 2020 a cordless grinder went missing whilst it was in the possession of Mr Bevis, and he claimed this was later found in Mr Bevis’ work vehicle on or around 16 May 2020. Mr Bevis put it to Mr Forbes that he gave a grinder to Mr Forbes to get fixed and Mr Forbes said this was not correct, and the grinder was found at the bottom of Mr Bevis tool kit missing a guard along with other equipment of the Respondent’s that it did not know Mr Bevis had. Mr Bevis emphasised that the Respondent did not have a system for signing tools in and out.

[63] Mr Bevis said that Mr Forbes accused him of stealing items and then Mr Forbes would find them, searching his vehicle for lost equipment that Mr Bevis believed Mr Forbes placed in his work ute. Mr Forbes accepted that the Respondent did not have a system for signing tools in and out. Mr Bevis asked Mr Forbes how he knew Mr Bevis had the tools. Mr Forbes said earlier employees who had used the vehicle Mr Bevis was driving had those tools. Mr Forbes also said other employees saw Mr Bevis with the tools that were missing.

[64] The Respondent submitted that at no time did it accuse Mr Bevis of stealing. The Respondent submitted that given Mr Bevis possessed these items before they went missing, the Respondent did question Mr Bevis regarding whether he knew where the items were, however this is standard practice in a workplace and cannot be considered bullying or harassment, and it is also not uncommon for a vehicle to be searched in order to find items.

[65] The Respondent further submitted that the loss of company equipment, through negligence or theft is a serious matter, and if the Respondent was of the view the items had been stolen, it would have given rise to a right to summarily dismiss Mr Bevis, however this did not occur. The Respondent said it did raise the loss of company equipment in the warning letter given that some of the items were lost by Mr Bevis and required to be replaced whilst others were found in Mr Bevis’ possession.

[66] Mr Kraak said on a number of occasions, including 30 July 2020, Mr Bevis was asked whether he had batteries in his possession, and despite Mr Bevis stating that he did not possess these batteries, they were located in his toolbox.

[67] Mr Forbes said before Mr Bevis’ employment the Respondent bought new batteries and the word ‘site’ was written on them and they were placed in the toolbox Mr Bevis was given responsibility for, and the older batteries were taken out of the vehicle and had ‘workshop’ written on them so the best batteries would be on site.

[68] Mr Forbes said employees approached him saying when they went to a site, they would find batteries with ‘workshop’ written on them and they were unable to find tools in the workshop. Mr Forbes said the only reason he was addressing the issue with Mr Bevis was because it was requested by other employees. Mr Forbes said multiple employees were frustrated by this. Mr Forbes accepted that other employees could have taken tools and left them in the vehicle.

Personal Protective Equipment (PPE)

[69] Mr Bevis said that at no time was he ever given the correct personal protective equipment (PPE) for the jobs he said he was required to complete. The Respondent submitted that Mr Bevis gave only one example of a failure to provide the correct PPE where on page 5 of his statement, Mr Bevis set out that only paper filter masks were provided. The Respondent submitted this is not correct, all correct PPE was provided, including appropriate masks.

[70] Mr Kraak gave evidence that the Respondent has always provided appropriate PPE to staff members, including but not limited to the appropriate harness to perform work from heights as well as appropriate masks when working with dust.

First and Final Written Warning letter

[71] Mr Kraak said throughout Mr Bevis’ employment he received several complaints with respect to Mr Bevis’ behaviour and treatment of other staff members. Mr Kraak said this included a complaint received on 30 July 2020 from Mr Forbes that Mr Bevis had verbally abused him and used inappropriate language towards him. Mr Kraak said a decision was made for a formal written warning to be issued to Mr Bevis. The reasons for this warning being the difficulties workshop employees experienced with his behaviour and abusive and threatening language used by Mr Bevis against Mr Forbes.

[72] On 31 July 2020, Mr Bevis was issued with the first and final warning letter. The letter was signed by Mr Forbes and Mr Kraak, as well as Mr Bevis. The letter reads as follows:

“Dear David Bevis,

First and final warning letter

I am writing to you about your conduct during your employment with Dust Collection Services PTY LTD it not meeting expectations and is contrary to a safe and cohesive workplace. The issues needing to be addressed are summarized below.

The difficulty getting workshop coworkers willing to go on site with you due to personality clashes and differences

Your Abusive and threating language and name calling directed at myself when asked about damage to company property.

The first issue listed was currently being handled by management by minimizing interactions between yourself and workshop employees and utilizing office staff to fill in the gaps when required. This is becoming increasing difficult as time goes on.

Your current relationship with your workshop colleagues must change for you to fulfill your position within the business. You will be given until 13/08/20 to rectify the situation or we will be left with no choice but to cease your employment with DCS.

The second issue noted which arose at 6:45am on 30 July 2020 which you approached myself (Ryan Forbes) in relation to maintenance required to a work vehicle. I asked about damage that had been reported to myself by another employee after equipment returning from site needing repair. Your abusive, name calling, and threating behavior (sic) in response is well out of line and unacceptable, especially considering you were not being accused of anything but merely asked if you knew anything about it? During your rant, among other things you said, and I quote " I've just about had enough of you c**t" threatening. In conclusion you said "You can f**king sack me if you want, I don 't care " highlights the fact you understand your actions and words were unacceptable.

The language and threating behavior (sic) exhibited by yourself this morning must not be repeated either directed at myself or any other Dust Collection Services employee for the continuation of your employment. I hope you understand the gravity of situation

and do whatever is in your power to return to a more productive team member. If you wish to respond to this formal warning letter, please do so by contacting the office or by replying in writing.”

[73] The written warning was accompanied by a list of issues set out below identified by the Respondent as needing to be addressed:

“Have not seen eye to eye on

•  Asked "do you know anything about it" before abusing me

•  Keep track of company tools

•  and charger left on site (replaced 21 January)

•  grinder missing currently utilizing Toms since working at ALS in January

•  which during stock take on 2/5 knew nothing about denied seeing it yet 2 weeks later shows up behind your car seat

•  of having more batteries in toolbox and yet I located one in with little effort

•  working with you stating you have batteries with workshop engraved on them

•  to return to site to pick up batteries 30/7

•  Not using purchase orders (asked multiple times 11/3 & 1/5 & 23/6) (8/5 Broom)

•  Asked not to work thought lunch breaks unnecessarily, asked multiple times not to for safety reasons and yet still doing so with no explanation why, as late as the beginning of the month July Terilogica & Exel lockers

•  Complete and review time sheets (asked multiple times every fortnight)

•  Storing tools loose in the back of vehicle unsecured behind a tarp when supplied toolboxes discussion arose after requesting a net for truck and Ute

•  Asked multiple time to take your tools home as you should be using company electrical gear not your own as we will not replace it. Yet you still bring in your own and are now wanting a replacement for broken gear”

[74] In his witness statement, Mr Bevis provided a response to the warning letter.

[75] Mr Bevis said that the difficulty getting workshop co-workers willing to go to site with him due to personality clashes and differences had been addressed in an email to Mr Kraak. Mr Bevis said that when he started employment with the Respondent, he could not get any co-workers to go with him to site, and Mr Forbes had to direct someone to go with him every time a new job started. Mr Bevis said that he was told by his co-workers about how dangerous the jobs were and the hazards on the jobs before he started working for the Respondent, and how dangerous Mr Forbes was to work with.

[76] Mr Bevis alleged the previous unsafe practices were the real reason that other workers did not want to do site work. Mr Bevis said that Mr Forbes got co-workers to sit in different areas at the workshop to him to make him feel unwanted and that this was another attempt to make him quit as he had spoken to other co-workers about this problem and they denied it was a problem to them.

[77] The Respondent referred to Mr Bevis’ statement where he said he believed Mr Forbes had asked staff to make Mr Bevis feel unwanted and told them to not sit with him at smoko or lunch.

[78] The Respondent submitted that this statement was based purely on inference and cannot be accepted as cogent evidence of bullying. It was also submitted that Mr Bevis by his own admission, stated "some staff told me this was not the case before I went on stress leave." The Respondent submitted that indicates there was no targeted bullying or victimisation of Mr Bevis, and that several staff had expressed complaints regarding Mr Bevis, and this was likely the reason Mr Bevis had difficulties working with other staff.

[79] In reference to this it was put to Mr Bevis that he said in his statement that he believed Mr Forbes told staff not to eat with him, however some staff said this was not the case. Mr Bevis initially thought this was incorrect but when taken to the specific words in the statement appeared to accept this is what he had said.

[80] Mr Bevis said most jobs he would do by himself as the workshop was extremely busy and Mr Forbes was very unorganised and other staff complained about how slow jobs were coming from his area. 

[81] Regarding the allegation that Mr Bevis used abusive and threating language and name calling directed at Mr Forbes when asked about damage to company property, Mr Bevis said he was ‘already stressed to the max’ and Mr Forbes ‘raved on’ about the grinders and a battery which he knew would upset Mr Bevis as Mr Forbes knew Mr Bevis didn’t have them. Mr Bevis said they both knew that Mr Bevis had given them to Mr Forbes some months before. Mr Bevis claimed Mr Forbes knew this would push him past the point of exploding as Mr Forbes had done this many times before in the carpark where no one could hear what was said. Mr Bevis claimed Mr Forbes found the grinders and battery six days after Mr Bevis went on stress leave.

[82] Mr Bevis said Mr Forbes accused him with no witnesses and harassed him over and over again. Mr Bevis said every time he was going into Mr Forbes office it was something new and in his defence he said he was asking about a service and tyres on a vehicle for the third time and how dangerous they were.

[83] Mr Bevis accepted that most equipment he used belonged to the Respondent. It was put to Mr Bevis it was not unreasonable for the Respondent to ask about where this equipment was if it went missing. Mr Bevis accepted it was reasonable to search a vehicle that belongs to the Respondent if there was a reasonable basis for it.

[84] Mr Bevis said Mr Forbes continually harassed him about damaging a stop button which he said was a $10 item and Mr Bevis said he believed it was Mr Foley, and Mr Forbes admitted Mr Foley could have done it. Mr Bevis said he stormed out of the office and Mr Forbes followed him to his ute some 40m away and Mr Bevis claimed Mr Forbes started again to harass him about the “Grinder and battery” which Mr Bevis said started him off again. Mr Bevis said one person can only take so much and Mr Forbes knew ‘his lies’ would make Mr Bevis get angrier. Mr Bevis said Mr Forbes constantly aggravated him, to the point that he lost his temper due to false allegations.

Alleged previous Bullying and Harassment

[85] Mr Bevis claims ever since he spoke up about poor safety measures, Mr Forbes focused his bullying on him. Mr Bevis claimed he was forced to resign due to Mr Forbes bullying and harassing him in the carpark and the stress caused by the unsafe work practices he claimed to be subjected to that made him fear for his safety. 

[86] The Respondent submitted that Mr Bevis failed to provide any cogent evidence that bullying behaviour took place on site. Whilst the Respondent admitted it did hold concerns regarding bullying within the workplace, the Respondent said that Mr Bevis was responsible for the bullying behaviour which gave rise to a need to issue the formal warning.

[87] The Respondent submitted that many of the bullying and harassment claims arose from

subjective inferences drawn by Mr Bevis, who the Respondent argued held a negative view of the Respondent's workplace and employees and as such viewed what would otherwise be considered normal behaviour as targeted bullying.

[88] The Respondent said it had significant difficulties dealing with Mr Bevis due to anger management concerns and had received numerous complaints regarding his behaviour. The Respondent said Mr Bevis admitted that he “exploded with frustration” and that he “stormed out of the office” during discussions regarding his aggressive behaviour. The Respondent said this aggressive and threatening attitude meant the Respondent was required to take action to address this behaviour before the Respondent became the subject of a bullying complaint.

[89] The Respondent said that prior to resigning on 4 August 2020, Mr Bevis raised that he was the victim of bullying behaviour. When Mr Bevis was asked to name an example of bullying behaviour that took place on the worksite, the Respondent said Mr Bevis was unable to do so.

[90] Mr Bevis was asked about two of the main allegations of harassment, one being allegedly by Mr Forbes on 4 August after the meeting where he resigned, and another on 12 August in regard to his claim that his car keys were hidden. He accepted that could not have contributed to his reason for resigning on 4 August. Mr Bevis said in his evidence that the bullying got worse after he resigned. It was put to him that despite that he still decided to seek to withdraw his resignation and he said it was for financial reasons.

Alleged practices concerning SWIM’s, JSA’s and Working from Heights and Safety Harnesses

[91] Mr Bevis listed other jobs where he said he worked where he should have had a working at height ticket, the right safety equipment, Safe Work Methods Statements (SWMS) and Job Safety Analysis (JSA). Mr Bevis in his statement listed sites where the Respondent worked that were being investigated by WHSQ. It was put to him that the mere fact of an investigation into a complaint made is not indicative of a safety breach having occurred. He accepted that an investigation taking place does not mean a breach has occurred.

[92] Mr Kraak said in his statement that all work vehicles contain SWMS and JSA forms which are required to be completed when performing tasks on site. Mr Forbes said he rarely went out on site so he had limited knowledge of who completed SWMS however he said it should be the person overseeing the job. Mr Forbes said Mr Bevis, Mr Foley and others oversaw different jobs and there were multiple times Mr Bevis would have been the supervisor of a job. Mr Bevis submitted he did not complete SWMS and the forms should record who the supervisor is.

[93] Mr Bevis was asked about his claim that five former clients of the Respondent would confirm unsafe practices by the Respondent. Mr Bevis said the name of Mr Foley would have been on the SWMS at these jobs. Mr Bevis was asked if WHSQ reviewed any of these and Mr Bevis said they had not and that was why he had gone to the review board which he said has requested the SWMS. Mr Bevis accepted there had been no finding about these complaints at this stage.

[94] Mr Bevis agreed he had contacted all of the businesses about his complaints. Mr Bevis accepted none of these businesses had advised him at this stage that there had been a finding of a breach against the Respondent.

[95] It was put to Mr Bevis that none of the sites had actioned his complaints to them and that this suggests his complaints were not regarded as serious. Mr Bevis said that the companies would not want this information in the community knowing about these things, including that he was working on these sites unlicensed. It was put to Mr Bevis that there was no evidence from any of the five companies and he accepted that.

[96] Mr Bevis said Mr Forbes never directed him to do JSAs or SWIMs for any of the site work completed. Mr Bevis said Mr Kraak gave out letters of competency to his staff for working at height equipment, instead of putting staff through the required license for the industry, being ‘Working at Heights’(WAH).

[97] Mr Bevis said on another occasion Mr Kraak asked him to disconnect a three-phase motor at Sunstate Timber which he refused to do as he is not an electrician. Mr Bevis said Mr Foley was fined earlier that year for doing just that and he is also not an electrician.

[98] Mr Bevis claimed that other employees, Mr Tony Gibson and Mr Doug Derrick told him that Mr Foley had them sign false statements saying that they were having monthly safety meetings. Mr Bevis was referred to statements included in his material from Mr Gibson and Mr Derrick and that they do not make any reference to safety issues. Mr Bevis said he had wanted Mr Gibson and Mr Derrick and others to give evidence however was unable to do this for reasons including that his health.

[99] Mr Bevis said the work he was required to do was mostly working at heights which requires a ‘Working at Height’ license which he told both Mr Forbes and Mr Kraak that he did not have, and Mr Bevis claimed they said they would put him through the training courses required however this never happened.

[100] Mr Bevis said when he queried Mr Kraak about working at heights and the site licenses required, he claimed Mr Kraak told him that he ‘had it covered’ and all Mr Bevis said he could assume is that Mr Kraak has completed false paperwork or misled the customers to believe that the Respondent complied with the rules. Mr Bevis said that staff that have worked with him at heights, are only now being put through a WAH Ticket because WHSQ have done an audit.

[101] The Respondent submitted that all staff were provided with the requisite harness to ensure they could undertake work from heights in a safe manner, and these harnesses were clearly visible in all of the evidence provided by Mr Bevis.

[102] Mr Bevis said when he worked alongside Mr Foley or Mr Kraak on different sites, they refused to wear safety harnesses, or if they had their harness on it was not connected to the main static line. Mr Bevis said working within 2m of the edge of the building you are supposed to wear a harness or safety barrier.

[103] Mr Bevis provided a number of photos of what he said were staff working without a harness, and photos demonstrating a failure to provide edge protection, safety rails or barrier tape. It was put to Mr Forbes safety rails should have been installed. Mr Forbes said it depends on whether there was another way used to manage the risk. Mr Bevis asked Mr Forbes if employees had a harness on and Mr Forbes said he did not recall the photo.

[104] Mr Bevis asked Mr Forbes if he remembered him asking for a double harness and he said yes, and it was provided to him. Mr Bevis asked Mr Forbes if he was aware ‘Nev’ did not have a WAH license, and Mr Forbes said he was not. Mr Forbes said it was possible he may not be required to work at height. It was put to Mr Forbes that the majority of the work was at heights, and Mr Forbes said it was possible for one person to operate at height, for example in a scissor lift, and for the other person not to be working at height. Mr Forbes’ evidence was to the effect that if Mr Bevis felt unsafe at any time he should have stopped what he was doing and raised the issue.

4 August 2020 – Resignation at meeting

[105] On 4 August 2020, Mr Bevis met with Mr Forbes and Mr Kraak to discuss the warning of 31 July. At that meeting, Mr Bevis resigned, giving four weeks’ notice. Mr Bevis said in his oral evidence when he was told he was stealing, and things were being said to him that were lies or did not happen the thoughts that go through your mind are horrendous. It was put to Mr Bevis that he claimed to be forced to resign, however this did not add up with asking for his job back 17 days later. Mr Bevis referred to his financial position as the reason for the later seeking to withdraw his resignation.

[106] Mr Kraak said on 4 August 2020, he along with Mr Forbes and Mr Bevis had a meeting to discuss the written warning. Mr Kraak said Mr Bevis did not request a support person be present for this meeting, nor did he raise any concerns regarding health and safety during this meeting. Mr Kraak said that during the meeting Mr Bevis raised concerns regarding bullying and harassment during his employment, however Mr Bevis was unable to provide any detail around the nature of those complaints or any example of bullying and harassment that took place. Mr Kraak said Mr Bevis then became agitated and announced his resignation of employment, providing four weeks’ notice. Mr Kraak said he accepted this resignation, and he began making the appropriate arrangements to end Mr Bevis’ employment.

12 August 2020 Cruise Craft Boats

[107] Mr Bevis said that on 12 August at Cruise Craft Boats, his keys, tools and jacket were left on a panel which was being used for the installation. Mr Bevis said that when he needed to access his ute, he couldn’t find his keys, and when he queried Mr Kraak and two coworkers about his keys, nobody could find them. Mr Bevis said that he continued to work on the roof and was told that Mr Fowler and Mr Hagelaar would look for his keys.

[108] Mr Bevis said that at approximately 3pm, he began to finish up on the roof, but unbeknownst to him, his colleagues had already left the site without advising him. Mr Bevis said he tried to access the scissor lift to come down from the roof, but it was connected to the power to recharge and would not activate. Mr Bevis said the scissor lift was continually having faults and problems and wasn’t maintained properly.

[109] Mr Bevis said he called Mr Hagelaar numerous times, all with no answer, and then called Mr Kraak who said that the others were still on site. Mr Bevis said he tried to contact his coworkers with no answer, and then saw a salesman from Cruise Craft and called out for assistance. Mr Bevis said he instructed the salesman how to remove the cord of the scissor lift to allow him to operate it. Mr Bevis said he spoke to the owner of Cruise Craft Boats the next day about what had happened.

[110] Mr Bevis said that a work colleague Mr Derrick, was waiting for him at the workshop to load the truck to drive to Toowoomba. Mr Bevis said he made many phone calls to Mr Derrick explaining what his co-workers had done to him and that he would be late to load the truck. Mr Bevis said he eventually arrived home at 8pm.

[111] The Respondent submitted it is unclear from the evidence how Mr Bevis reached a conclusion that his co-workers had hidden his ute keys. The Respondent submitted that Mr Bevis had left these keys in a pile of waste. The Respondent submitted Mr Bevis was assisted in locating the keys and the Respondent directed other employees to assist.

[112] Mr Kraak said that on 12 August 2020 a number of employees attended the jobsite of Cruise Craft Boats and whilst on site, Mr Bevis raised with him that the keys to his work ute were missing. Mr Kraak said that he directed employees to assist Mr Bevis to search for the keys, and these keys were later discovered in the rubbish after it was determined that Mr Bevis left the keys on top of a pile of refuse which was discarded.

[113] The Respondent submitted that the alleged incidents of 12 August at Cruise Craft Boats occurred after Mr Bevis resigned his employment on 4 August 2020 and it cannot be said that these incidents contributed to Mr Bevis’ decision to resign as they took place after the resignation occurred.

Other alleged incidents and incident of 19 August 2020 Cruise Craft Boats

[114] Mr Bevis said that there were numerous issues at the Cruise Craft job, including:

• a failure by the Respondent to supply safety guard railings for installing ductwork on the edge of a 3.5 meter roof;

• failing to restrict the area from pedestrian access such that people walked under the duct;

• Mr Forbes not supplying danger tape to close down the area and Mr Kraak not supplying the required safety barriers;

• the scissor lift was inadequate as it did not reach the appropriate height and was not maintained;

• Harness lines were not sufficient in length and were not properly utilised;

• Mr Kraak did not inspect the site adequately and did not provide a safe work methods statement.

[115] Mr Bevis said in another incident Mr Kraak lifted a 300kg ductwork over a young electrician sitting on the same roof. Mr Bevis said that when he signaled to the electrician to move out of the way, Mr Kraak said to her that she was “expendable” and continued to move the duct over the top of her. Mr Bevis said he didn’t find the remark funny and that nobody was laughing, and the electrician looked shocked at the joke. Mr Bevis said that a very dangerous accident could have happened and if proper safety procedures were in place the risk would have been avoided.

[116] Mr Bevis said he was questioned by the owner of Cruise Craft Boats regarding the use of safety rails and why the overhead crane was not shut down before passing over it in a boom lift. Mr Bevis said that he did not have a license to operate the boom lift on site and had only a letter of competency that Mr Kraak had written himself.

[117] Mr Bevis said he was told to lean over the edge of the Cruise Craft shed, which was a 10-meter-high building, and pull a 35kg cowl over the roof. Mr Bevis said Mr Kraak struggled to lift the cowl out of the scissor and Mr Bevis was expected to lift it onto the roof as the scissor lift was 500mm under the roof height. Mr Bevis said he thought the weight was going to pull him over the edge at one stage.

[118] Mr Bevis said he complained to Mr Kraak about the main ropes for the harnesses to attach being too short, and that there weren’t enough main ropes. Mr Bevis said he was told that he didn’t need the ropes where they were working. Mr Bevis said he had to remove the anchor point for the ropes and that he didn’t have enough anchor points to do the job safely.

[119] The Respondent notes that the evidence provided by Mr Bevis regarding the incidents at Cruise Craft boats account for 5 pages of Mr Bevis’ statement, and all of this cannot be considered relevant evidence by the Commission as the resignation took place before these alleged incidents.

[120] It was put to Mr Bevis that these incidents that took place at Cruise Craft Boats was one of the major issues that lead to his resignation and he agreed. Mr Bevis accepted that the incidents referred to took place after he claimed he was made to resign on 4 August.

[121] It was put to Mr Bevis that as the incident took place after the time when he said he felt forced to resign, that it could not have contributed to his decision and he appeared to accept that.

[122] The Respondent submitted that two days after the alleged incident on 19 August 2020, Mr Bevis attempted to withdraw his resignation on 21 August, and this further indicates that the safety risks complained of by Mr Bevis were not the real reason for resignation on 4 August.

Friday 21 August 2020 - Attempt to withdraw resignation

[123] At 2:59pm on 21 August 2020, Mr Bevis sent an SMS message to Mr Forbes stating that he no longer wanted to resign:

“Ryan

I believe you have bullied and harassed me into resigning. I believe due to my constant complaints about workplace health and safety breaches by DCS. I will not be resigning after speaking to fair work.”

[124] Mr Forbes replied at 3:39pm that same day stating that the Applicant’s retraction was not accepted and that the role had been filled:

“David, Frank and I accepted your resignation on the 4/8 which you suggested and was not coerced in any way. After you giving 4 weeks (sic) notice we have been searching for a suitable candidate and have someone scheduled to fill your roll. You cannot just retract decisions like that 3 weeks later. You know as a business owner yourself, we cannot leave such positions vacant for long otherwise the business will suffer. I'm sorry you have changed your mine (sic) but we will have acknowledged you (sic) initial decision. You will be paid all your entitlements as per your original determination. Best of luck in your future endeavours.”

[125] Mr Bevis said Mr Derrick rang him to see how far away he was from work as he wanted Mr Bevis to do a job. Mr Bevis said he was sitting in the doctor’s surgery and he sent Mr Derrick a message.

[126] Mr Bevis said after returning to the Respondent’s premises at Narangba from the doctor at Caloundra he confronted Mr Forbes and Mr Kraak. Mr Bevis said he asked whether Mr Foley had told them about ‘Kevin’ nearly killing them on Wednesday 19 August 2020.

[127] Mr Bevis said Mr Forbes sat smiling and said no. Mr Bevis said this again enraged him, that the Respondent’s WH&S was non-existent and they sent a new site installer, ‘Kevin’ who had little experience to site. Mr Bevis said ‘Kevin’ hadn’t even signed onto safety procedures before doing any installation work on site.

[128] Mr Bevis said Mr Foley never turned the power off the crane before ‘Kevin’ started work before going onto the roof. Mr Bevis said he went on to tell how Kevin was lifting over the top of a ‘live’ overhead crane in the boom lift and attaching the block and tackle inches from the 1000 volt power source. Mr Bevis said he was yelling at Kevin from the roof ‘do you know that crane is live’. Mr Bevis said Kevin made a joke and kept going. Mr Bevis said Mr Foley asked him what he was yelling at while rolling another cigarette.

[129] Mr Bevis said Mr Kraak and Mr Forbes tried to downplay the incident. Mr Bevis said he gave them his medical certificate and walked out of the office even more stressed, saying he could have died. Mr Bevis said he walked out to drive home and they both stopped him, saying that he could not take the ute home. Mr Bevis said he thought that as he was still working for the Respondent and the ute was part of his salary and he told them.

[130] Mr Bevis said Mr Kraak and Mr Forbes made him empty his ute in the middle of the carpark again in a stressed state. Mr Bevis said they continued trying to downplay what he had gone through. 

[131] Mr Bevis agreed with the proposition that he felt he was forced to resign on 4 August 2021 but that he attempted to withdraw his resignation on 21 August 2021. Mr Bevis was asked if his concerns about bullying and safety still existed when he attempted to resign and his evidence was to the effect that they still existed. He claimed because of the pandemic he had no choice but to seek to withdraw his resignation.

[132] It was put to Mr Bevis that his attempt to withdraw his resignation was 17 days after he tendered his resignation. Mr Bevis was asked if there had been a change in the practices of the Respondent between 4 August and 21 August and he said it got worse. Mr Bevis said he had a family to feed. It was put to Mr Bevis he had a family to feed on 4 August and therefore finance did not play a part in his decision. Mr Bevis agreed he had the same financial obligations on 4 August. Mr Bevis said he thought about it, and how was he going to get a job in the pandemic year.

[133] The Respondent submitted that Mr Bevis in his 16 October witness statement said “I felt I was forced to quit because of the extreme stress caused by the unsafe work practices I was subjected to daily that actually made me fear for my safety.” The Respondent said that on 21 August 2020, Mr Bevis contacted Mr Forbes via text message stating “I will not be resigning after speaking with Fair Work.”

[134] The Respondent argued that this contradicted Mr Bevis’s statement, and said that if Mr Bevis felt that he had no choice but to resign due to safety reasons, it is unclear why he would attempt to withdraw his resignation and ask to return to work more than two weeks after providing his resignation.

[135] Mr Bevis said the actions of Mr Kraak and Mr Forbes caused him serious mental stress, anxiety, high blood pressure, sleepless nights, and heightened alert to danger and the fear of height.

[136] Mr Bevis said he is usually fit and healthy and worked extremely long days for the Respondent and had 10 years left of his working life and now he has to start again at 59 years of age. Mr Bevis said he is now seeing a psychologist to help relieve some of his stress.

[137] Mr Bevis said his yearly wage was $80,000.00 and he sought six months compensation.

Respondent seeks audit in Response to Health and Safety Concerns

[138] The Respondent submitted that Mr Bevis raised very few health and safety concerns during his employment. The Respondent said that many of Mr Bevis’ concerns were only raised after his resignation for the purposes of his Workcover claim and his unfair dismissal application, and that the concerns raised during Mr Bevis’ employment were addressed immediately by the Respondent.

[139] The Respondent said that Mr Bevis had requested colleagues support his claim that the workplace was unsafe, and that from around 9 October 2020, Mr Bevis began text messaging employees of the Respondent offering a payment of $200 for those employees to provide details of new site installers in order to assist him. Despite this offer being made by Mr Bevis, the Respondent said there was no third-party evidence to support Mr Bevis’ claims.

[140] Mr Kraak said that on or around 9 September 2020, he received a message from an employee of the company that Mr Bevis had sent a text message to his phone offering $200 for the details of new site installers to assist him in his case. Mr Kraak provided a copy of the text with his evidence.

[141] The Respondent submitted that upon receiving the complaints from Mr Bevis after his employment ended the Respondent took several steps to investigate its practices to ensure it was safe for employees to continue working.

[142] The Respondent submitted that between 28 September 2020 and 19 October 2020, the

Respondent requested that WHSQ attend its site and provide feedback as to how it can improve its practices.

[143] The Respondent submitted that an objective assessment of the Respondent's workplace resulted in a number of matters being raised by WHSQ, however WHSQ did not raise any serious concerns and found that the concerns that did exist were largely standard across all industries.

[144] The Respondent relied on an email of Daniel Schuppli of 29 September 2020 regarding the assessment of 28 September 2020 where he stated:

“My initial feedback is that it is very difficult to reduce the "consequences" unless your [sic] are using the highest of the hierarchy of controls. You are not the only one to do this we see this all the time. It seems to be acceptable by nearly everyone.”

[145] Mr Kraak said Work Health and Safety did not raise any matters that were the subject of Mr Bevis’ complaints.

[146] Mr Kraak attached to his statement notices issued by WHSQ and the corresponding improvement notices concerning exposed wires on electrical leads; Housekeeping issues; Inspection of lifting equipment; Missing electrical tags and labels; and Angle grinders missing appropriate handles.

[147] The Respondent submitted that it is clear from the correspondence and details around the assessment that, whilst there were some safety concerns with respect to the Respondent's business, it was nothing unusual when compared with practices across the industry. The Respondent submitted that if the safety practices of the Respondent were so substandard that employees had no choice but to resign their employment, this would have been apparent when the objective assessment of the workplace was conducted. The Respondent submitted that given the high threshold attached to section 386(1)(b) of the FWA, it cannot be said that Mr Bevis was put in a position whereby he had no choice but to resign his employment due to safety concerns.

[148] It was put to Mr Bevis that where a representative of WHSQ said the Respondent’s work practices are largely compliant there is no reason to question the accuracy of that statement. Mr Bevis said, no because WHSQ cannot deal with things that have happened prior to the day they are on site.

[149] It was put to Mr Bevis that WHSQ visited the Respondent’s workshop in September 2020. Mr Bevis said WHSQ are there to help the business get back on track. Mr Bevis said he was told WHSQ could not deal with issues unless they see it happening or there is more than one complaint.

CONSIDERATION

[150] The Respondent has raised a jurisdictional objection that the Applicant was not dismissed. Accordingly, I must determine first whether the Applicant indeed was dismissed.

The approach to considering whether an employee has been dismissed

[151] When considering whether an employee has been dismissed, the general approach is set out in the Decision of a Full Bench of the former Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd 7:

“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’ ”

[152] The Full Bench in O’Meara cited an earlier Decision of a Full Bench in ABB Engineering Construction Pty Ltd v Doumit 8:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[153] The Full Bench in O’Meara went on to observe:

“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 to 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.” (footnotes omitted)

[154] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 9 a Full Bench of the Commission noted:

“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

‘1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

•  where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

•  where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.’

[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)

[155] Commission Hampton in Sathananthan v BT Financial Group Pty Limited 10 distilled the general legal principles into the following, having considered the above cases:

•  The question as to whether the resignation was forced within the meaning of the FW Act is a jurisdictional fact that must be established by the applicant;

•  A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination;

•  The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;

•  Conduct includes an omission; 11 

• 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; and

•  In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.

[156] The Respondent referred to the decision in O'Meara v Stanley Works Pty Ltd 12where it was held:

“In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[157] The Respondent argued that any assessment of the health and safety of the Respondent's workplace must be assessed on an objective basis. The Respondent said that whilst numerous allegations of unsafe practices have been made by Mr Bevis, there is no corroborating third party evidence to support these allegations. The Respondent argued that many of the concerns raised were largely overstated or arose due, to errors or issues created by Mr Bevis.

[158] The Respondent further argued that while numerous complaints were raised by Mr Bevis with the Respondent's clients, he had not provided any evidence of wrongdoing being raised by these clients. The Respondent further submitted it is unclear when complaints were made to these workplaces and the nature of those complaints. While Mr Bevis provided evidence of an email from Ridley High Performance Animal Nutrition Products, the Respondent said this email was a confirmation that the complaints of Mr Bevis were received and a request made that Mr Bevis cease contacting the company. The Respondent said this email was not indicative of any work health and safety breach taking place.

[159] The Respondent said Mr Bevis stated the health and safety concerns raised with the Respondent's clients were all “under investigation.” The Respondent said that any time an employer receives a health and safety complaint, they are required to investigate it, and stating that breaches are “under investigation” was not indicative of unsafe practices taking place. The Respondent further noted that in the three-month period from Mr Bevis’ statement being filed to the date of the Respondent’s submissions, Mr Bevis had not produced any evidence of the outcome of these investigations, and that had the concerns been of such a serious nature that they amounted to a constructive dismissal, they would have been addressed immediately by at least one of the clients of the Respondent. The Respondent said that none of the clients contacted by Mr Bevis had raised any health and safety concerns with the Respondent.

[160] Mr Bevis has raised a number of serious issues including that he was not properly trained to perform work at heights and did not have the relevant licenses however completed training to work at heights after he left employment with the Respondent. Mr Bevis said Mr Kraak gave out letters of competency that was not legal. Mr Bevis said the Respondent did not have monthly safety meetings.

[161] Mr Bevis also said Workcover was also reviewing his claim. The Respondent submitted this matter was not a review of Mr Bevis’ Workcover claim.

[162] Mr Bevis claimed Mr Forbes harassed him in the carpark and that Mr Kraak showed him how to work in an unsafe manner. Mr Bevis said Mr Kraak asked him to disconnect a motor when he was not a licensed electrician.

[163] Mr Bevis said the danger he was placed in had caused his medical condition. Mr Bevis did not call any witnesses to give independent medical evidence.

[164] The fact that Mr Bevis requested his job back 17 days after he resigned is wholly inconsistent with his claim that he was forced to resign by the actions of the Respondent. The evidence indicates Mr Bevis raised few of the concerns that were the subject of his evidence before he was terminated. Many of these issues were agitated by Mr Bevis after his termination and as part of this unfair dismissal application.

[165] Given the significant period of time between his resignation and his attempt to retract his resignation 17 days later it cannot be said the resignation was in the heat of the moment. Mr Bevis returned to work for the Respondent for a considerable period before deciding to seek to retract his resignation. Mr Bevis claimed in his evidence that his reason for seeking to retract his resignation was that he required the income to support his family. This does not support a conclusion that Mr Bevis had no choice but to resign and tends more to support the conclusion that he made a voluntary decision to resign on 4 August and made a further voluntary decision to seek to retract his resignation on 21 August.

[166] The complaints Mr Bevis raised concerning Ridley in late 2019, and Pacific Seeds in early 2020 related to incidents many months before he claimed he had no choice but to resign. If Mr Bevis felt at the relevant times that his employer’s practices were unsafe it would have been open to him to raise his concerns with WHSQ at that time. It would also have been open to Mr Bevis to take that step on 4 August 2020. The evidence suggests Mr Bevis had alternative steps he could have taken, and resignation was not his only option.

[167] Mr Bevis produced some material from third parties who were clients of the Respondent however none of these third parties participated in the hearing or provided material confirming Mr Bevis’ claims. There was also no evidence that WHSQ held serious concerns about the Respondent following its audit. The assessment conducted by WHSQ did not support Mr Bevis depiction of the Respondent’s safety practices and indicate WHSQ appeared to regard the deficiencies as common failings that it directed the Respondent to address.

[168] Mr Bevis’ bullying allegations also contained some inconsistency. He claimed Mr Forbes told employees to ostracise him, however conceded in his evidence some employees said this was not the case.

[169] I am also inclined on the evidence to accept the Respondent’s submission that Mr Bevis could have brought the state of the tyres on his work vehicle to the attention of the Respondent earlier than he did.

[170] The video footage on Mr Bevis’ own evidence, was footage of him working unsafely, when he also admitted he had a telephone with him and he could have made a complaint about the unsafe work he claimed he was being asked to perform.

[171] The complaints concerning alleged bullying and unsafe practices at Cruise Craft pertained to a time after he had resigned so are not relevant to the question as to whether Mr Bevis had no choice but to resign on 4 August.

[172] Mr Bevis decided to resign in the course of the meeting on 4 August, only a few days after receiving a first and final written warning. Considering the evidence overall a picture develops of Mr Bevis being aggrieved about a number of different things at the time he decided to resign, including his disagreement with the substance of the reasons for his receiving the first and final warning on 31 July, particularly his perception that he had falsely been accused of stealing, his perception that Mr Forbes had being bullying him over a period of time, and also his view that the Respondent’s workplace health and safety practices were unsafe.

[173] The threshold required to bring the matter within the meaning of dismissed as set out in s.386(1)(b), requires a finding after an objective analysis of the Respondent’s conduct that the Respondent’s conduct gave Mr Bevis no reasonable choice but to resign.

[174] The evidence does not tend to support Mr Bevis’s subjective belief that he had been the target of bullying by Mr Forbes. The evidence tends to show there were rational explanations for why Mr Forbes pressed Mr Bevis about issues such as missing tools, and the evidence also tends to support the Respondent’s submission that Mr Bevis was not accused of stealing as he claimed, and the Respondent had a reasonable basis for taking steps such as inspecting its own company vehicle. Mr Bevis on his own admission lost his temper during discussions with Mr Forbes which tends to further support the conclusion that there was a rational basis for the warning being issued.

[175] I have no doubt that Mr Bevis genuinely holds the view that the Respondent’s workplace health and safety practices are unsafe, but his opinion does not objectively make it so. It would seem from the evidence that the Respondent’s practices may have been deficient in certain respects, including whether employees always held the appropriate tickets to perform certain functions, and whether SWMS’s and JSA’s had been properly completed or safety barriers used appropriately. The evidence of an audit of the Respondent conducted by WH&S in response to issues raised by Mr Bevis does not support the gravity of the Mr Bevis’s claims made against the Respondent and there was no other evidence to support Mr Bevis’ allegations strongly denied by Mr Forbes and Mr Kraak.

[176] In any event Mr Bevis had alternative steps he could have taken as referred to above, including making a complaint to WH&S Qld, or refusing to perform a particular task that he believed was unsafe. As already stated, his decision to seek to retract his resignation 17 days afterwards, and the evidence that he continued to report for work during his notice period up to 21 August does not support an objective conclusion that the Respondent’s conduct in respect to safety issues gave Mr Bevis no reasonable choice but to resign.

[177] On the basis of the evidence I am satisfied Mr Bevis’ resignation was voluntary, there was no dismissal within the meaning of s.386(1), and therefore there is no jurisdiction to deal with Mr Bevis’s application and the application is therefore dismissed.

COMMISSIONER

Appearances:

Mr D. Bevis appearing on his own behalf.

Mr M. Guteridge of NB Lawyers appearing for the Respondent.

Hearing details:

2021,

Brisbane:

10 March

Printed by authority of the Commonwealth Government Printer

<PR729911>

 1   (1996) AIRCFB 22722.

 2   (2006) 58 AILR 100.

 3   Exhibit 1.

 4   Exhibit 2.

 5   Exhibit 3.

 6   Exhibit 4.

 7   [2006] AIRC 496 (PR973462).

 8   Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 9   [2017] FWCFB 3491.

 10   [2019] FWC 5583.

 11   Fair Work Act 2009 s. 12.

 12   (2006) 58 AILR 100.