David Eccleston v Jbam Holdings Pty Ltd T/A Tyrepower Gateshead

[2021] FWC 5303

[2021] FWC 5303

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Eccleston
v
JBAM Holdings Pty Ltd T/A Tyrepower Gateshead
(U2021/4706)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 26 AUGUST 2021

Unfair dismissal – whether applicant was forced to resign because of conduct, or a course of conduct, engaged in by his employer – applicant not dismissed.

Introduction

[1] Mr David Eccleston was employed as a Technician by JBAM Operations Pty Ltd trading as Gateshead Tyrepower (JBAM). On 13 May 2021, Mr Eccleston gave written notice of his resignation to JBAM. Mr Eccleston contends that he was dismissed on the basis that he was forced to resign because of conduct, or a course of conduct, engaged in by JBAM, and that his dismissal was unfair. JBAM denies those allegations and contends that Mr Eccleston chose to resign of his own free will.

[2] I heard this matter by video conference on 19 August 2021. Mr Eccleston gave evidence in support of his case, as did his partner, Ms Jenna Gray, and Mr Riley Fisher, former Assistant Manager of JBAM. Ms Gabrielle Blanch, Group Human Resources Manager for JBAM, Mr Blain Vandersteen, Chief Executive Officer and a director of JBAM, and Ms Jacqueline Vandersteen, Chief Financial Officer and a director of JBAM, gave evidence for JBAM.

Dismissal

[3] The question of when a person has been dismissed is governed by s 386 of the Fair Work Act 2009 (Cth) (Act):

“(1) A person has been dismissed if:

(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”

[4] There is no suggestion in this case that Mr Eccleston was dismissed within the meaning of s 386(1)(a) of the Act. Mr Eccleston accepts that he resigned from his employment with JBAM, but says he was forced to do so because of conduct, or a course of conduct, engaged in by his employer.

[5] The test to be applied in a case concerning an alleged forced resignation under s 386(1)(b) of the Act is “whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in [s 386(1)(a)], the requisite employer conduct is the essential element.” 1

[6] The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one. 2 The line, however, must be “closely drawn and rigorously observed”.3

Conduct which Mr Eccleston alleges forced him to resign

[7] Mr Eccleston contends that he was forced to resign because JBAM engaged in the following conduct or course of conduct:

1. Multiple allegations of theft were made against Mr Eccleston in circumstances where he did not engage in any theft.

2. JBAM failed to maintain a safe workplace. In particular, JBAM’s workshop at Gateshead had a rodent problem which caused wiring to become unsafe and the workshop was not tagged or tested as it should have been.

3. A lack of action taken by JBAM in relation to Mr Eccleston’s well-being.

4. An excessive workload in the eight months preceding Mr Eccleston’s resignation, which resulted in his health being compromised and no action being taken by JBAM.

5. A lack of record keeping and a failure to carry out correct procedures. In particular, Mr Eccleston contends that JBAM did not keep accurate records of meetings with him and Mr Eccleston was told that he did not need to have a support person present on 12 May 2021 during a meeting in which he believes he was demoted.

6. Hiring a new manager while Mr Eccleston was on leave and without him being given an opportunity to apply for the position.

Relevant facts

[8] Tyrepower is a co-operative of around 300 stores across Australia. Mr and Ms Vandersteen (through JBAM) are part owners in seven of those Tyrepower stores. One of those stores is located in Gateshead, Lake Macquarie, New South Wales. That was the store at which Mr Eccleston worked.

[9] JBAM has a small head office, where Mr and Ms Vandersteen work, together with Ms Blanch and three part-time booking staff.

[10] Mr Eccleston commenced employment with JBAM in about May 2019. He was employed in the role of Technician. There is no doubt that Mr Eccleston has wide experience and excellent skills as a Technician.

[11] During Mr Eccleston’s interview for the role of Technician, he and Mr Vandersteen discussed the fact that the Gateshead Tyrepower business was for sale. Mr Eccleston expressed his interest in moving into a management role. They also discussed the prospect that Mr Eccleston may be able to become an owner operator of the Gateshead Tyrepower store in the future.

[12] In September 2020, Mr Eccleston took over management responsibility for the Gateshead Tyrepower store, in addition to his responsibility for technical work undertaken in the workshop. There is a dispute as to whether Mr Eccleston was promoted to the position of Manager, as he contends, or was appointed to the role of Acting Manager, as JBAM contends. The appointment was not recorded in writing.

[13] I find, on the balance of probabilities, that Mr Eccleston was appointed to the role of Acting Manager in September 2020, for the following reasons:

(a) First, Ms Blanch, Mr Vandersteen and Ms Vandersteen all gave evidence that Mr Eccleston’s appointment to the role of Acting Manager was announced to all JBAM managers at a meeting on 23 September 2020. Mr Eccleston attended that meeting by telephone, although he could not participate in parts of the meeting because he had to attend to business matters in the Gateshead store. Mr Eccleston gave evidence, which I accept, that he could not remember whether Mr Vandersteen said during the 23 September 2020 meeting that he was appointed to the role of Acting Manager or Manager.

(b) Secondly, JBAM’s usual process is to appoint a person to the role of Acting Manager, rather than straight to the role of Manager. JBAM currently has three other Acting Managers in its Tyrepower stores. Employees in the position of Acting Manager are given training and an opportunity to prove themselves in the management role.

(c) Thirdly, although I accept Mr Eccleston’s evidence that Mr Vandersteen told staff, a few customers and Ms Gray during after-work drinks at the Gateshead store that Mr Eccleston was the new manager in the Gateshead store, I accept Ms Blanch’s explanation that staff and customers are not told of an individual employee’s employment arrangements and, in that context, it was appropriate for them to be told that Mr Eccleston had responsibility for managing the Gateshead store (even though he was the Acting Manager).

[14] On being appointed to the role of Acting Manager, Mr Eccleston’s wage did not change, but he was given the use of a fully maintained company vehicle and a fuel card. At that time, Mr Vandersteen and Mr Eccleston discussed the potential for Mr Eccleston to buy into the Gateshead Tyrepower store. I do not need to make findings as to the precise terms of this conversation because it does not bear on the question of whether Mr Eccleston was dismissed some eight months later, on 13 May 2021.

[15] Notwithstanding the confusion as to whether Mr Eccleston was appointed to the role of Acting Manager in September 2020, he accepts that from November 2020 he was working in the role of Acting Manager.

[16] Mr Eccleston informed JBAM that there was a rodent problem in the Gateshead store and rodents had chewed wiring in the building. Mr Eccleston arranged for a pest control expert to treat the rodent problem. Mr Vandersteen gave evidence that an information technology contractor used by the business fixed some wiring chewed by the rodents so that the information technology system would continue to operate. I accept that evidence; there is no suggestion that the information technology system at the Gateshead store did not continue to operate.

[17] Mr Eccleston gave evidence, which I accept, that the Gateshead store was not tagged and tested as it should have been. I also accept Ms Blanch’s evidence that an employee of JBAM was being trained to undertake the tagging and testing of its stores, but that process took some time and that was the reason for the delay in tagging and testing of the Gateshead store.

[18] The training provided to Mr Eccleston in the role of Acting Manager was a cause of some tension. Mr Eccleston believed he had undertaken sufficient training and was ready to be a Manager. Mr Vandersteen and Ms Blanch took a different view. They believed Mr Eccleston required further training, including in relation to matters such as inventory management.

[19] Mr Eccleston says that the Gateshead Tyrepower store was understaffed while he was the Acting Manager. He says that from September 2020 he was effectively working two positions, namely Technician and Manager. Mr Vandersteen accepts that it was unusual to have an employee managing a Tyrepower store from the workshop, but he explained to Mr Eccleston how he believed it could work with a capable ‘2IC’ dealing with most of the customers and Mr Eccleston operating mostly as a Technician/Foreman from the workshop. Mr Vandersteen uses the financial performance of a store as a guide to how many staff should be working in a particular store. He accepts that, at times, the Gateshead store was short on staff but at other times it had plenty of staff to deal with the level of business being conducted in the store. Mr Vandersteen and Ms Blanch also gave evidence, which I accept, that although they did not always get staffing levels right, they made genuine efforts to provide adequate numbers of staff by providing staff members from other stores to assist at the Gateshead store when they could.

[20] In February 2021, Mr Eccleston was informed that JBAM was actively looking to recruit a Mechanic for the Gateshead store, in addition to the full-time apprentice Mechanic employed in October 2020. These steps were taken as part of an effort to resolve the staff issues about which Mr Eccleston complained. The recruitment process for the additional Mechanic did not produce any suitable candidates. As an interim measure, Ms Blanch arranged for one of JBAM’s employees who was based on the Central Coast to work in the Gateshead store every Tuesday and Wednesday.

[21] In March 2021, Mr Eccleston was offered a job by a different employer in the role of a Mechanic. It was on better terms and conditions than he was receiving with JBAM. Mr Eccleston discussed the offer with Ms Blanch, who contacted Mr Vandersteen to discuss the situation. On 26 March 2021, an email was sent by Ms Blanch to Mr Eccleston offering to match the offer that had been made to Mr Eccleston by the competitor business, but without a company car. The offer also stated that “The outcome of this would mean the recruitment of a Store Manager, which would commence if you were to agree to the above offer being accepted. The offer would then come into play once a Manager has been placed in the Store.” Ms Blanch followed the offer up with Mr Eccleston after about a week because he had not responded to the email. Mr Eccleston said that he was still discussing the offer with his partner and would come back to Ms Blanch. Ms Blanch formed the view that Mr Eccleston intended to leave JBAM’s business, so Ms Blanch started working with the directors of JBAM on a strategy as to how they would move forward at the Gateshead store.

[22] Throughout March and April 2021, Mr Eccleston was required to assist with a stocktake in the Gateshead store. Mr Eccleston found it difficult to complete the stocktake because he was continually interrupted with other issues that required his attention in the store.

[23] Mr Eccleston believes that it is when the stocktake process commenced that things “started to sour”. Discrepancies were found when the stocktake of tyres was being undertaken. About $8,000 worth of tyres were unaccounted for. Mr Eccleston looked into the discrepancies. He found that the previous Manager of the Gateshead store had not charged a client, Skip the Tip, for 12 truck tyres.

[24] In light of issues discovered during the stocktake process, JBAM decided that a formal investigative process would take place. At 10am on Sunday, 18 April 2021, Mr Eccleston was emailed an invitation to attend a meeting at work at 9am on Monday, 19 April 2021. The email was sent to Mr Eccleston’s work email account. Understandably, he did not read it on Sunday, 18 April 2021. Nor did Mr Eccleston see the email early on Monday morning because he was assisting two apprentices in the business. At about 9am on Monday, 19 April 2021, Ms Blanch attended the Gateshead store and told Mr Eccleston she was in attendance for a meeting. Mr Eccleston said he did not know anything about a meeting and had not seen any email about it. In the email sent the prior day Mr Eccleston had been given the opportunity to bring a support person to the meeting. Ms Blanch informed Mr Eccleston that he was within his rights to have the meeting pushed back so that he could have a support person present. In the result, the meeting went ahead at about 10am with Mr Vandersteen, Mr Eccleston and Ms Blanch. During the meeting Mr Vandersteen and Ms Blanch raised their concerns over a number of transactional and stock related matters. Mr Eccleston was forthcoming in his responses to the matters raised by Mr Vandersteen and Ms Blanch. That afternoon Mr Eccleston recovered 12 tyres from Skip the Tip. During the meeting Mr Eccleston was also questioned about an invoice that had been issued to a former Manager and current casual employee of the Gateshead store, Mr Colin Bryson, where the price shown on the invoice for tyres was zero. The invoice was in Mr Eccleston’s name. Mr Eccleston said that he did not prepare the invoice and did not know anything about it. Mr Eccleston was then given time to investigate the matter. Mr Eccleston felt as though he was being “framed” for the tyres because his name was on the invoice but he did not prepare it.

[25] Later that afternoon, Mr Vandersteen spoke to Mr Fisher about the invoice to Mr Bryson. Mr Fisher contends that Mr Vandersteen said to him words to the effect, “If you see anything suspicious tell me. I think Dave [Eccleston] might be stealing money with Col [Bryson].” Mr Vandersteen accepts that he raised the issue with Mr Fisher but says that Mr Fisher has exaggerated the story. Mr Vandersteen denies that he accused Mr Bryson of stealing and says that he said to Mr Fisher that things were going wrong in the business and he wanted to know why. I prefer Mr Vandersteen’s evidence in relation to this disputed conversation over the evidence given by Mr Fisher. I accept that Mr Vandersteen was trying to get to the bottom of a range of issues concerning missing stock and he had not reached any conclusion that Mr Eccleston was stealing from the business. Even though I have found that Mr Vandersteen did not directly accuse Mr Eccleston of stealing when he spoke to Mr Fisher, he certainly insinuated that Mr Eccleston may have been involved in stealing from the business.

[26] On 20 April 2021, Mr Bryson turned up to the Gateshead store. He asked Mr Eccleston what was going on and why there had been an accusation about giving him tyres for free and Mr Eccleston pocketing the money. Mr Bryson told Mr Eccleston that Mr Vandersteen had previously told him that he could have the tyres for free as part of the sponsorship for his buggy. The owner of Skip the Tip also turned up to the Gateshead store on 20 April 2021. He asked Mr Eccleston about what was going on. Mr Eccleston felt as though his “brain had shut down”. He was concerned that his staff and customers thought he was a thief. Later in the day on 20 April 2021, Mr Eccleston went to see his general practitioner, who issued him with a medical certificate for two days of sick leave. Mr Eccleston felt in “full meltdown mode”. The doctor asked Mr Eccleston to investigate whether his employer had an employee assistance program and any workers’ compensation options which may be available for him.

[27] On 26 April 2021, Mr Eccleston returned to work. He spoke to Ms Blanch about a range of matters, including concerns about his wife’s pregnancy and how he was feeling stressed. Ms Blanch asked Mr Eccleston how he felt about counselling, and suggested that he access a mental health care plan from his general practitioner.

[28] There is a dispute as to whether Mr Eccleston asked Ms Blanch how he could access workers’ compensation. On the balance of probabilities, I find that Mr Eccleston did ask Ms Blanch about workers’ compensation on 26 April 2021. That issue was of concern to Mr Eccleston and he had spoken to his general practitioner about it on 20 April 2021. I find that Ms Blanch did make suggestions to Mr Eccleston as to how he could access a mental health care plan but she did not take positive steps to assist him to make a workers’ compensation claim.

[29] Mr Eccleston also gave unchallenged evidence, which I accept, that Ms Blanch told him that Mr Vandersteen had his “wires crossed” in relation to the issue concerning Mr Bryson and had realised that he did give Mr Bryson the tyres as part of his sponsorship. She then said that the issue was “water under the bridge” and that he needed to shake hands with Mr Vandersteen and move on. Ms Blanch recommended that Mr Eccleston take the remainder of the week off to get back on his feet. Mr Eccleston remained upset that he had been accused of theft and Mr Vandersteen had not apologised to him.

[30] Following Mr Eccleston’s meeting with Ms Blanch on 26 April 2021, he agreed to take the remainder of the week off as annual leave. As Mr Eccleston was about to leave work, Ms Blanch asked him to return his keys to the work car. He asked why. Ms Blanch explained that the car may be needed as a courtesy vehicle while he was on leave. Mr Eccleston said that there was already a courtesy vehicle on site. Ms Blanch’s response was that it was company policy for staff not to have company cars whilst on leave. Mr Eccleston was furious. He believed that the company car was part of his contract and he had his daughter’s car seat and other personal belongings in the car. Mr Eccleston said he was cancelling his leave, and he would see a doctor and obtain a medical certificate. Mr Eccleston then drove home and dropped off his personal belongings before returning to the Gateshead store and handing the keys to the work ute to Ms Blanch. Mr Eccleston also informed Ms Blanch that he was taking his toolbox off the premises because his tools had been going missing when relief staff were called in to work at the Gateshead store. Mr Eccleston told Ms Blanch that he was going to see his general practitioner and would be in touch with her.

[31] The next morning Mr Eccleston consulted his general practitioner. He was diagnosed with severe anxiety and depression and provided with a medical certificate for two weeks’ sick leave. Mr Eccleston emailed a copy of the medical certificate to Ms Blanch and asked her whether that was enough evidence for a WorkCover claim. Mr Eccleston did not receive a response to that question.

[32] On 7 May 2021, Mr Eccleston called Ms Blanch because he wanted to touch base about his return to work on 12 May 2021. Ms Blanch informed Mr Eccleston that there had been a lot of changes at work, as well as a massive clean-up of the workshop. Ms Blanch told Mr Eccleston that they could discuss these matters further on his return to work. Mr Eccleston asked whether he needed a support person for the discussion on his return to work. Ms Blanch told him not to worry about it, because it was not going to be “that type of meeting”.

[33] While Mr Eccleston was absent from work on sick leave, a customer had paid Mr Eccleston $360 in cash for stock purchased from JBAM. There is no dispute that Mr Eccleston provided this cash to the Gateshead store.

[34] On 12 May 2021, Mr Eccleston returned to work. He was told by Mr Fisher that there was a new Manager and a new Mechanic. He was also told that another Mechanic was starting on the following Monday. Mr Eccleston shook hands with who he believed was the new Manager and was assigned a task.

[35] Notwithstanding what Mr Eccleston was told by Mr Fisher, I accept Ms Blanch’s evidence that JBAM had not employed a new Manager and new Mechanic for the Gateshead store. Instead, JBAM’s group Relief Manager, Mr Adam Sullivan, had been covering for Mr Eccleston during his absence and JBAM’s group casual Mechanic, Mr Shaun McLean, had been working in the Gateshead store.

[36] At about 1pm on 12 May 2021, Mr Eccleston had a meeting with Mr Vandersteen and Ms Blanch. Mr Vandersteen initially informed Mr Eccleston that he intended to record the meeting, but the recording did not take place. Mr Vandersteen did provide Mr Eccleston with a notepad to take notes. Mr Eccleston contends that he was told by Ms Blanch that his position was “unsustainable”. Ms Blanch denies that she said any such thing to Mr Eccleston on 12 or 13 May 2021. Ms Blanch says that she informed Mr Eccleston that the business had made the decision to revert him back to his role of Technician/Mechanic, and that a permanent Manager was going to be placed at the Gateshead store. Ms Blanch also says that she informed Mr Eccleston that a second Mechanic had been hired to commence in the Gateshead store in a few weeks’ time. I prefer Ms Blanch’s evidence over Mr Eccleston’s evidence in relation to these disputed parts of their conversation for the following reasons. First, I accept that Ms Blanch and Mr Vandersteen did not want Mr Eccleston to depart the business; they valued his skills and experience as a Technician, as demonstrated by the offer they made in March 2021 to match the offer Mr Eccleston had received from a competitor business. It is therefore unlikely that Ms Blanch or Mr Vandersteen said that Mr Eccleston’s position in the business was “unsustainable”. Secondly, Ms Blanch was cognisant of Mr Eccleston’s fragile mental state and I accept her explanation that it was for that reason that she framed the reason for the decision to revert Mr Eccleston back to the role of Technician/Mechanic in brief terms simply as a “business decision”. Mr Eccleston complained that he was told that he did not require a support person for the meeting and felt as though he had been misinformed.

[37] In response to the idea that he would revert back to the role of Technician/Mechanic, Mr Eccleston says that he said that if that was the position they were offering him, he did not have much choice but to resign. Ms Blanch says that Mr Eccleston responded by saying words to the effect that “this makes my decision easy” and then explained that he would be providing two weeks’ notice and resigning. Mr Vandersteen gave evidence that Mr Eccleston provided his verbal resignation in the meeting on 12 May 2021, but did not give his account of what Mr Eccleston actually said in that regard. There is no dispute between Mr Vandersteen and Mr Eccleston that Mr Vandersteen asked Mr Eccleston to write his resignation on the notepad. I accept Mr Vandersteen’s evidence that Ms Blanch asked Mr Eccleston to think about it overnight. This is consistent with Ms Blanch’s concern as a Human Resources Manager that Mr Eccleston may have not been acting rationally after receiving information that was clearly disappointing to him. Ms Blanch wanted Mr Eccleston to think about his situation overnight before making a decision about his employment with JBAM.

[38] There is a fine distinction between Mr Eccleston saying on 12 May 2021, as he contends, “I do not have much choice but to resign” and, as Ms Blanch contends, “this makes my decision easy” and he would be providing notice and resigning. On either version, Mr Eccleston did not actually resign on 12 May 2021. Taking Ms Blanch’s evidence at its highest, Mr Eccleston only said that he would be providing notice and resigning. Accordingly, I find that Mr Eccleston did not resign on 12 May 2021.

[39] Mr Eccleston left work on 12 May 2021 due to his level of distress. Prior to leaving work, Mr Eccleston said that he would be seeking legal advice before he resigned because he was unsure whether it was the right thing to do at that stage. Mr Eccleston did not obtain legal advice, but he did speak to a person from the Commission about resigning from a job when he did not really want to, as well as the possibility of making a claim for orders to stop bullying conduct. Mr Eccleston says that he was struggling mentally and was not in a position to make a bullying claim.

[40] On 13 May 2021, Mr Eccleston returned to work. He attended a meeting with Ms Gray as his support person. Mr Vandersteen and Ms Nicole Masters, Inventory Manager, were present in person at the meeting. Ms Blanch participated by telephone. Mr Eccleston felt as though he was being pressured to resign. Mr Vandersteen explained that if Mr Eccleston resigned, he would be paid out his two weeks’ notice. At the end of the meeting, Mr Eccleston agreed to tender his resignation and said he would send it by email. Mr Eccleston also asked if there were any other matters to be discussed while he had a support person present. He was told there were no other matters to be discussed. Mr Eccleston then spoke to Ms Gray outside and they agreed that Mr Eccleston would submit his resignation because the workplace was “toxic and they had already replaced my role as Manager”. Mr Eccleston then submitted his resignation by email at 3:41pm on 13 May 2021. The email did not provide any reasons for Mr Eccleston’s resignation. The email stated that Mr Eccleston was “notifying you of my resignation as of 13.5.21. As agreed to be played [sic] out the 2 weeks’ notice period”. In his reply statement, Mr Eccleston said that he “resigned on 13/5/21 as after 8 months of excessive workload and lack of clarity around my role, I felt I was now being forced out of my position”.

[41] After sending his resignation email, Mr Eccleston walked back into the workplace and was told that there was another matter they wanted to bring to his attention. Mr Eccleston felt overwhelmed because he had just been told that he did not require his support person to be present for any further discussions and Ms Gray had left the workplace. There was then a discussion about missing stock, including stock which had been placed in the rubbish bin. Mr Eccleston then left the workplace and sought further medical attention because he was not feeling well.

[42] Following his resignation, Mr Eccleston submitted a workers’ compensation claim. Mr Eccleston has received workers’ compensation payments in respect of the period from about 27 April 2021 until the date of the hearing. Those payments are at the rate of 95% of Mr Eccleston’s usual earnings (not including overtime) for the first 12 weeks and will reduce to a lower percentage thereafter.

Was Mr Eccleston dismissed?

[43] I have no hesitation in finding that JBAM did not intend to bring its employment relationship with Mr Eccleston to an end. Mr Vandersteen and Ms Blanch appreciated the extensive skills and experience that Mr Eccleston brought to the business in his capacity as a Technician/Mechanic, and wanted to retain him in the business. So much is clear from the efforts they made to retain his services after he was offered alternative employment by a competitor in March 2021. Although they had a very positive view of Mr Eccleston’s technical skills, they were of the opinion that he was not ready for the role of Manager of the Gateshead store. The experiences they had with Mr Eccleston in relation to a range of managerial matters including inventory and management training led them to form that opinion.

[44] As to whether the termination of Mr Eccleston’s employment relationship was the probable result of JBAM’s conduct such that Mr Eccleston had no effective or real choice but to resign, I make the following findings in relation to the specific conduct relied on by Mr Eccleston:

1. It was appropriate for steps to be taken to investigate the stock discrepancies identified in the stock take process at the Gateshead store. However, a reasonable investigation should have been completed before Mr Vandersteen suggested or insinuated to any employees or customers of JBAM that Mr Eccleston may have stolen from the business. That did not happen. Further, allegations concerning the tyres provided to Mr Bryson at zero cost should not have been raised with Mr Eccleston in circumstances where it was Mr Vandersteen that had agreed to provide those tyres to Mr Bryson as part of the sponsorship of his buggy. The allegations made against Mr Eccleston and the manner in which the investigation was conducted caused Mr Eccleston distress. Notwithstanding the deficiencies in the process, the investigation was not completed before Mr Eccleston resigned and no action was taken against him, before or after his resignation, in relation to the missing items of stock or any cash paid to the business. JBAM has not contended in these proceedings that Mr Eccleston stole any stock or cash from the business. Having regard to all the circumstances, I do not consider that termination of Mr Eccleston’s employment relationship with JBAM to have been the probable result of JBAM’s conduct in relation to the stock issues, nor did it leave Mr Eccleston with no effective or real choice but to resign. Mr Eccleston had the option of waiting for the conclusion of the investigation process to see whether any allegations of theft would be put to him directly and whether any action would be taken by JBAM in relation to them. No such allegations were put directly to Mr Eccleston prior to his resignation.

2. The rodent problem identified by Mr Eccleston was fixed after he engaged the services of a pest control expert. The damage to wiring was rectified to the extent that it may have jeopardised the information technology system used by JBAM at the Gateshead store. I am not satisfied on the evidence that any other damage to the wiring caused by rodents presented a significant risk to the health or safety of employees working at the Gateshead store. I accept that the Gateshead store was not tagged or tested as it should have been. JBAM took steps to rectify this situation by having an employee trained to do the tagging and testing work, however that work was not done before the cessation of Mr Eccleston’s employment with JBAM. The steps JBAM took in this regard were not sufficient. It is not acceptable to leave a store in a state where it has not been tagged and tested as required. However, I do not consider that termination of Mr Eccleston’s employment relationship with JBAM to have been the probable result of JBAM’s failure in this regard, nor did it leave Mr Eccleston with no effective or real choice but to resign. This issue played a very small part in Mr Eccleston’s evidence before the Commission and he did not make any significant mention of it in his discussions with JBAM leading up to his resignation. Although I accept that Mr Eccleston was genuinely concerned about this issue, I do not consider that it played a significant part in his decision to resign from his employment with JBAM.

3. Mr Eccleston feels aggrieved at what he considers to be a lack of action taken by JBAM in relation to his well-being. There is no doubt that Mr Eccleston’s mental health suffered in the period leading up to his dismissal. I accept that Ms Blanch and Mr Vandersteen were genuinely concerned for Mr Eccleston’s well-being, but they also had a business to run. Ms Blanch did ask Mr Eccleston how he felt about counselling, and suggested that he access a mental health care plan from his general practitioner. Ms Blanch also agreed for Mr Eccleston to take time off work when he was struggling. Although Ms Blanch did not take active steps to assist Mr Eccleston to make a workers’ compensation claim, that is somewhat understandable in circumstances where Ms Blanch is the Human Resources Manager for JBAM and it is not in JBAM’s interests for a workers’ compensation claim to be made against it. Further, Mr Eccleston has been able to make a successful workers’ compensation claim in relation to his employment with JBAM. The evidence did not reveal whether Mr Eccleston obtained assistance from a solicitor or other third party to make such a claim. In all the circumstances, I do not consider that a lack of action on the part of JBAM in relation to Mr Eccleston’s well-being left him with no effective or real choice but to resign, nor was termination of his employment relationship with JBAM the probable result of any such lack of action. These conclusions are reinforced by the fact that Mr Eccleston remains aggrieved that he was not given the opportunity to apply for the position of Manager of the Gateshead store. Had Mr Eccleston been offered that position, I am confident that he would have accepted it.

4. Mr Eccleston contends that he had an excessive workload in the eight months preceding his resignation, which resulted in his health being compromised and no action being taken by JBAM. I accept that Mr Eccleston did work exceptionally hard in the eight months preceding his resignation in an attempt to prove himself in a managerial role. His workload was high. He suffered poor mental health during this period. However, on 12 May 2021, Mr Eccleston was told that a new Manager and a new Mechanic were being recruited for the Gateshead store. I accept that JBAM genuinely intended to recruit those additional employees for the Gateshead store. It follows that although Mr Eccleston had a high workload in the eight months preceding his dismissal, he could not reasonably have thought that his workload would remain at that level into the future after the engagement of a new Manager and a new Mechanic. It follows that Mr Eccleston’s past high workload did not leave him with no effective or real choice but to resign, nor was termination of his employment relationship with JBAM the probable result of JBAM’s past conduct in that regard.

5. Mr Eccleston points to a lack of record keeping and a failure to carry out correct procedures. In particular, Mr Eccleston contends that JBAM did not keep accurate records of meetings with him and he was told that he did not need to have a support person present on 12 May 2021 during a meeting in which he believes he was demoted. The inaccurate records on which Mr Eccleston relies are notes made by employees of JBAM of their discussions with Mr Eccleston. Copies of those notes were not shared with Mr Eccleston during his employment with JBAM. They were relied on by JBAM in the hearing of this matter. Because Mr Eccleston did not know about the notes and any alleged inaccuracies in them before he resigned, they cannot have been part of the conduct which forced him to resign. Further, although Mr Eccleston’s recollection of the conversations differ from the notes taken by employees of JBAM, I do not consider the differences to be malicious or any deliberate act on the part of the employees to criticise or undermine Mr Eccleston. The differences reflect different recollections of past conversations. I am satisfied that there are no other inaccurate records, apart from the records of meetings, which could have realistically caused Mr Eccleston to form the view that he had no option but to resign. As to the failure to tell Mr Eccleston that he needed to have a support person present at the meeting on 12 May 2021, I agree that it would have been preferable for Mr Eccleston to have been given the opportunity to have a support person present at a meeting in which Mr Vandersteen and Ms Blanch knew that they were going to inform Mr Eccleston that he was to revert from his Acting Manager role to his contracted role of Technician/Mechanic. It was reasonably obvious that such news would be disappointing to Mr Eccleston, particularly in his fragile state at that time. However, I do not consider that termination of the employment relationship was the probable result of the failure to inform Mr Eccleston that he could bring a support person to the meeting. Mr Eccleston could have refused to participate in the meeting without a support person present. If he had done so, I am confident that the meeting would have been postponed. In any event, the presence of a support person at the meeting on 12 May 2021 would not have altered the fact that JBAM had made a decision to recruit a new Manager for the Gateshead store and Mr Eccleston would be required to revert to his contracted position of Technician/Mechanic.

6. JBAM made a decision, having tried Mr Eccleston out in the role of Acting Manager for almost eight months, that he was not ready for the role of Manager and that it was in the best interests of the business to recruit a new Manager and not to invite Mr Eccleston to apply for the position of Manager. That was a reasonable decision for JBAM to make in the circumstances. Mr Eccleston was disappointed, but he was in an acting role and had no right to be appointed to the position of Manager. The fact that Mr Eccleston contends that he should have been given an opportunity to apply for the position of Manager suggests that his relationship with Mr Vandersteen and Ms Blanch had not become untenable and his disappointment in not being given, or considered further for, the role of Manager was the principal reason for his resignation.

[45] I accept that there was a lack of clarity around Mr Eccleston’s role of Acting Manager and what he had to do in order to be appointed to the role of Manager. Mr Eccleston was frustrated at the amount of time it was taking for him to be appointed to the role of Manager and potentially buy into the business. He was also frustrated at what he perceived to be a lack of staff and action taken to address issues raised by him. Mr Eccleston had the opportunity to leave the business and work for a competitor in March 2021. He elected not to take up that offer. The relationship became further fractured when issues were raised with Mr Eccleston in relation to the stock take undertaken at the Gateshead store. Mr Eccleston then suffered difficulties with his mental health. Ultimately JBAM made a decision that Mr Eccleston was not ready to be the Manager of the Gateshead store, but it wanted to retain him in his contracted position of Technician/Mechanic. Mr Eccleston had no right to be appointed to the role of Manager or continue in his appointment to the role of Acting Manager. Mr Eccleston was bitterly disappointed at being overlooked for the role of Manager. It is clear that that was the principal reason for his decision to resign. I find that termination of the employment relationship was not the probable result of JBAM’s conduct such that Mr Eccleston had no effective or real choice but to resign. In short, Mr Eccleston was not forced to resign because of conduct, or a course of conduct, engaged in by JBAM. He chose to resign, principally because he was disappointed at not being offered, or being further considered for, the role of Manager.

Conclusion

[46] For the reasons given, Mr Eccleston was not dismissed by JBAM within the meaning of s 386(1)(b) of the Act. Accordingly, Mr Eccleston’s application for relief from unfair dismissal is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Eccleston on behalf of himself
Ms Blanch on behalf of the Respondent

Hearing details:

2021.
Newcastle (by video conference):
August 19.

Printed by authority of the Commonwealth Government Printer

<PR733233>

 1   Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47]

 2   Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996)

 3   Ibid