David Hill v Pilbara Iron Company Services Pty Ltd
[2023] FWC 794
•20 APRIL 2023
| [2023] FWC 794 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
David Hill
v
Pilbara Iron Company Services Pty Ltd
(C2022/7836)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 APRIL 2023 |
Application to deal with contraventions involving dismissal
Dispute and outcome
Mr David Hill (the Applicant) commenced employment with the Pilbara Iron Company Services Pty Ltd (the Respondent) as a mobile plant operator in 2013. From around August 2022, the Applicant was absent from work on successive periods of personal leave, having suffered from a heart condition. The Applicant says his cardiologist and general practitioner cleared him to return to work on 28 September 2022.[1] However, on 30 September 2022, the Respondent’s occupational therapist certified the Applicant not fit to return to work until 28 October 2022.[2] The Applicant had, by this stage, exhausted his leave entitlements and had financial commitments to meet. For several reasons, the Applicant formed the view that the Respondent would not make his return to work easy and there could be a considerable delay.[3] In early November 2022, the Applicant’s solicitor sent the Respondent a letter dated 27 October 2022 advising the Respondent that the Applicant was resigning from his employment (Resignation Letter). The Resignation Letter set out that ‘[i]n the circumstances our client has no alternative but to resign from his employment. This amounts to constructive dismissal.’
The Respondent has objected to the Applicant’s general protections application, which he made under s 365 of the Fair Work Act 2009 (Cth) (the Act) on 25 November 2022, on the basis the Applicant was not dismissed within the meaning of s 386 of the Act.
The Respondent’s objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[4] Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[5] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from his employment within the meaning of s 386(1)(a) or/and (b) of the Act.
The short answer to that question is that the Applicant was not ‘dismissed’ by the Respondent but resigned voluntarily. My detailed reasons follow.
Background
Although there is disagreement between the parties concerning the sites on which the Applicant worked and in what capacity he did so at the beginning of the employment relationship, at the relevant time he worked on the Mesa A mine site within the Respondent’s Robe Valley Operations in Pannawonica, Western Australia.
Whilst the Applicant provided evidence in support of his case, the Respondent relied upon the evidence of Phillip Norris, Mine Operations Manager at the Robe Valley Operations (Norris), and Iesha Simons, Injury Management Advisor for Robe Valley and Paraburdoo Operations (Simons).
2.1 The Applicant’s evidence
On 10 August 2022, the Applicant was hospitalised due to atrial tachycardia.[6]
On 15 August 2022, the Applicant attended a meeting at the head office of the Respondent with Cameron Winsor, Superintendent (Winsor), and Amanda Farmer, Human Resources (Farmer).[7] Also in attendance was the Applicant’s support person, Grace Mawby.[8]
At the meeting on 15 August 2022, the Applicant voiced his concerns to Winsor and Farmer, expressing – in short:
a) when he had changed over from a previous grader operator on 29 April 2022, the operator had left site because of COVID-19 and the Applicant had not been advised that the grader had not been appropriately cleaned and sanitised before he operated the vehicle;
b) Winsor claimed that he had paid for the Applicant’s expenses from being in isolation from his personal bank account – to avoid raising the incident with superiors;
c) the number of people in isolation within the camp impacted the risk of contracting COVID-19 again and could potentially place him back in hospital;
d) the lack of mask wearing by colleagues in the light vehicle environment notwithstanding direction from management and authorities; and
e) the absence of suitable disinfectant products in administration and difficulty in discussing with supervisors due to past experience.[9]
The Applicant acknowledged that Winsor and Farmer were interested in him elaborating his concerns so that they could possibly assist his return to work.
The Applicant purports holding similar discussions about the management of COVID-19 at his own work site.[10]
On 15 August 2022, the Applicant’s cardiologist, Dr Troy Nunn (Dr Nunn), confirmed in correspondence dated that same date that the Applicant had ‘Long Covid. A copy of Dr Nunn’s letter was provided to the Respondent.[11]
The Applicant states that while the Respondent has been provided with full records, it claimed to have been unaware of his mental health issues until 20 September 2022, despite there being a clear email trail and medical records, which had been made available months before this date.[12]
The Applicant said that Simons asked him to obtain a ‘work capabilities’ form filled out by his general practitioner, Dr Olla.[13] The Applicant noted that Dr Olla completed the form and also certified him unfit for work until 28 September 2022. Included on the work capabilities form of 2 September 2022 was the following ‘Other Recommendations / Comments’:
Recommended to return to work after review on … mine site but preferably a different worksite to avoid [exacerbation] of his medical conditions.[14]
The Applicant added that the Respondent also required him to provide a work capabilities report (Capabilities Report), which appears to be a reference to the ‘work capabilities’ form.[15] The Applicant said the Capabilities Report showed that Dr June Sim (Dr Sim) was in error because of the following extract:
… he provided a letter from Dr Varugehese who recommended that he work at a different site. He said that this was the second consultation with Dr Varugehese. He was initially seen in December 2021, however, I was not aware of this when I saw him on 24 December 2021.
Included in the Applicant’s evidence was a letter from Dr Sim of 30 September 2022 to Simons. Dr Sim outlined that she had reviewed the Applicant in the presence of his partner, Hayley, on 29 September 2022 (Sim Report).[16] In respect to the Applicant’s health from a cardiac perspective, Dr Sim stated:
From a cardiac perspective he had been seeing Doctor Nunn. He said Dr Nunn said his tachycardia is not due to anxiety. He was then referred to a cardiologist with electrophysiological interest, Dr Liu. He initially saw Dr Liu at the end of June 2022.
Dr Liu has suggested that he requires electrophysiological study and ablation. This is currently booked for 28 October 2022. He last saw Dr Lui last week.
David said he was driving home from Perth when he felt dizzy in August 2022. He felt his temperature increase and he presented to an acute care clinic in Cockburn. They gave him antacids which did not help. His friend then drove him to the emergency department at St John of God Hospital.
He said his heart was again doing “weird stuff”. He was prescribed oral Amiodarone. He was on a loading dose of Amiodarone and then is currently on 200 mg daily…
Since being on the Amiodarone and his heart rate still increases. Occasionally he feels dizzy and slightly short of breath. This lasts a few minutes. He said his oxygen saturation will drop down to the 80’s with an increase five minutes later. The frequency of these episodes have reduced since he has been on Amiodarone…
David has a history of tachycardia which was initially thought to be supraventricular tachycardia. I understand that later on it is believed that he has an atrial tachycardia and he is due to undergo an EP study and ablation on 28 October 2022. In view that he continues to have intermittent episodes of palpitations and shortness of breath, although reduced since commencing Amiodarone, I recommend that he remains unfit for work until the ablation is completed. It is difficult to predict the triggers of these events and if he experiences similar episodes while at work he will have to come off the machinery.
From a mental health perspective I note that his psychiatrist has recommended that he does not return to the same worksite. The psychiatrist’s opinion appears to have been in place since December 2021 which had not previously been relayed to us. As these recommendations from the psychiatrist have occurred twice in the past 12 months, it suggests a permanent restriction and he will need to explore redeployment to another work site.[17]
The Applicant said he attempted to contact the Respondent’s management continually whilst on sick leave and particularly in October 2022, about returning to work, but his attempts were frustrated. The Applicant gives evidence that by 27 October 2022, he spoke to Norris, who purportedly promised to consult with the Respondent’s injury management advisor and call the Applicant back, with a view to allowing him back on site for 1 November 2022. The Applicant stated:
Phillip Norris claims in paragraph 14 of his witness statement that I expressed frustration during the telephone call of not being able to return to work. That is correct. He also claims that he assured me that I [sic] was absolutely Rio Tinto’s intention to have me return, and the conversation ended with myself and him agreeing that I would reach out to Phillip Norris to discuss the details of my return to work following my successful ablation procedure the following day. That is not correct. In actual fact, what happened was Phillip Norris said that he needed to speak to Iesha Simons as injury management advisor, in relation to allowing me to come back to work. He also said that he was ‘thinking about putting me on Mesa J’ and that he would get back to me after he discussed my return to work with Iesha Simons. It was never agreed between us that obligation was on me to contact him, as he claims, to discuss the details of my return to work.[18]
The Applicant stated that there were many phone calls between Simons and him over his intended return to work.[19] However, according to the Applicant, Simons would claim that she could not approve the return to work until she had spoken with Norris, and she would claim that she could not get hold of him.[20]
The Applicant provided in his evidence an email he had sent to the Respondent titled ‘David Hill Return to Work Update’, dated 28 September 2022. The email states:
…On the 21St September, I attended an appointment with Dr Lui, my cardiologist, and he stated that he found the cause of my heart issues (From My Emergency Visit on the 10th August). He said that in his opinion my diagnosis is ATRIAL TACHYCARDIA. Dr Liu recommended that I get an EP Study and an ablation done as soon as possible. Apparently in Dr Liu’s opinion the loop recorder I had implanted was set to the wrong perimeter and wasn’t capturing the correct information. He has booked me at St John of God Murdoch on the 28th October 2022. In consultation with my GP (Dr Ola), Dr Liu said that it would be safe for me to operate heavy machinery with my condition on a remote mine site and he also mentioned that the medication I am taking wouldn’t affect my operating ability (Amiodarone). My GP (Dr Ola) once again stated that it was recommend that I be placed at another mine site.
Also, my Psychiatrist Dr Chacko on 15th September 2022, has the same opinion as my GP and cardiologist, that I should be moved to a different mine site.[21]
The Applicant said that by the time he spoke to Norris on 27 October 2022, he had been waiting for weeks to learn about when he would be returning to site.[22]
The Applicant explained that having not heard back from Norris or anyone in management, he formed the view that the Respondent was not going to make his return to work easy and there could be further considerable delay.[23] At this time, the Applicant had exhausted personal leave entitlements and was absent ongoing remuneration.
In early November 2022, on the Applicant’s instructions, the Applicant’s solicitor sent the Respondent the Resignation Letter. The Resignation Letter set out that ‘[i]n the circumstances our client has no alternative but to resign from his employment. This amounts to constructive dismissal’. The Applicant stated that he instructed his lawyers to provide a resignation on 7 November 2022 due to there being a total failure of communication from his employer and he felt that he could not trust them to provide a safe working environment.[24]
2.2 Norris’ evidence
In reply to the Applicant’s concerns about the risks of COVID-19 at Mesa A mine, Norris explained that from the early stage of the pandemic, the Respondent had strict safety protocols in place to minimise the risk of COVID-19 at its mine.[25] Norris said the COVID-19 measures were in place from at least early 2021 and continued to be in force in line with the relevant WA government mandates.[26]
Norris gave evidence that he understood that the Applicant had referred to raising his safety concerns with the Respondent on 15 August 2022, but the meeting occurred on 1 August 2022 and the Applicant thereafter commenced leave on 2 August 2022.[27]
Norris noted that the Applicant alleged that the Respondent had no concerns for his health.[28] According to Norris the assertion was incorrect because:
a) as it relates to COVID-19, the Respondent took extensive steps to minimise the associated risks; and
b) as it relates to the Applicant’s mental health, the Respondent had always been encouraging to the Applicant about his return to work and had been actively working with the Applicant to facilitate that return. Norris cited that in February 2022, the Respondent offered the Applicant the opportunity to relocate to a different site (Hope Downs) and had actively encouraged the Applicant to access the Respondent’s Employee Assistance Program (EAP).[29]
Norris gave evidence that the Applicant had provided medical certificates from his general practitioner for the periods 17 August to 17 September 2022 (inclusive) and 2 September 2022 to 28 September 2022.[30]
Norris said that on 29 September 2022, an occupational physician engaged by the Respondent assessed the Applicant and concluded that he would not be fit for work at least until he had undergone the ablation procedure that had been recommended by his cardiologist and scheduled for 28 October 2022.[31]
Norris said that the Applicant called him twice, once on 12 October 2022 and then again on 27 October 2022.[32]
In respect of the telephone call on 12 October 2022, Norris said that at the end of the call he informed the Applicant that he would need to speak to Simons.[33] Shortly after the call and as promised to the Applicant, Norris emailed Simons to seek an update as to the status of the Applicant’s return to work.[34] Norris said that Simons emailed him the following day and asked him to call her.[35] Norris recalls discussing with Simons that they should wait to hear from Norris regarding the outcome of his planned ablation procedure before setting a return to work date.[36]
Norris said that he spoke to the Applicant on 27 October 2022. During that call, Norris said he:
a) indicated to the Applicant that in line with the medical advice of Dr Sim that he move sites, he had secured him an operator position at Mesa J mine, which they could discuss following his procedure; and
b) ended the phone call by asking the Applicant to reach out to him after his procedure to discuss the details of his return to work.[37]
Norris noted that the Applicant had, in his witness statement, referred to having sent him an email.[38] Norris said that whilst he did not directly reply to the email, the Applicant attempted to call him four days later on 24 October 2022, and he missed the call.[39] Norris explained that Simons emailed him that same day to say the Applicant had called regarding an update.[40] Norris said that he emailed Simons to confirm that he would follow up with the Applicant.[41]
Norris said that having called the Applicant on 27 October 2022, the Applicant expressed his frustration that he had not yet been able to return to work. Norris said that he assured the Applicant that it was the Respondent’s intention to have him return, and the conversation ended with the Applicant and him agreeing that the Applicant would reach out to him to discuss the details of his return to work following his successful ablation procedure the following day.[42] Norris said that he did not hear anything from the Applicant after that call.[43]
Addressing the Applicant’s assertion that he had exhausted all paid leave entitlements, Norris gave evidence that the Respondent has a generous personal leave policy, noting on 17 April 2022, as a gesture of good faith, the Respondent recredited the Applicant with personal leave he had taken in the period 6 October 2021 through to 23 December 2021, despite the Applicant having been unfit for work during this time.[44]
2.3 Simons’ evidence
Simons gave evidence that in her role as an injury management advisor, she was responsible for assisting employees in managing and returning to work, from injuries.[45] At the relevant time she was managing the Applicant’s return to work and was doing the same for some 60–80 other employees.[46]
Responding to the Applicant’s assertion about the Respondent’s approach to COVID-19, Simons stated that the Respondent had strict COVID-19 safety protocols in place, which were designed to reflect and comply with the directions and issues of the WA government.[47]
In response to the suggestion in paragraph [15] of the Applicant’s witness statement that the report of Dr Sim was in error, Simons stated:
a) Dr Sim had assessed the Applicant on 24 December 2021. Not long before this (December 2021) the Applicant had also seen Dr Varughese (his psychiatrist) who had recommended that he transfer to a different site;
b) according to the Sim Report, the Applicant had not disclosed to Dr Sim in December 2021 that his psychiatrist had recommended he transfer sites. The Sim Report referred to a letter from the Applicant’s psychiatrist recommending he work at a different site, and Dr Sim simply made the comment that this was the first she had heard of the recommendation to transfer, as the Applicant had not disclosed this to her; and
c) she understood that the Applicant did not make the Respondent aware of Dr Varughese’s recommendation until after his appointment with Dr Sim on 24 December 2021.
Simons stated that on 11 October 2022, she sent a copy of the Sim Report to the Applicant and called him to discuss Dr Sim’s recommendation about undergoing the ablation procedure first, before returning to work.[48] Simons said that she understood from the Applicant’s witness statement at paragraph [23] that he referred to this call. Simons recalled informing the Applicant that in light of the Sim Report, neither her nor Norris were able to approve his return to work until after his ablation procedure.[49] Simons said that she did not suggest to the Applicant that he had not been returned to work because he had not been able to get in contact with Norris.[50]
Simons stated that on 12 October 2022, Norris emailed her advising that he had just spoken with the Applicant, and he was seeking an update as to the status of the Applicant’s return to work plan.[51] Simons noted having had a conversation with Norris following this email exchange, during which Norris and her agreed that they could not determine the date of the Applicant’s return to work until after his ablation procedure.[52]
Simons acknowledged that on 24 October 2022, the Applicant called her asking for an update with his plan to return to work.[53] She informed him that one of his leaders would be in touch and then emailed Norris and asked him to follow up with the Applicant.[54]
2.4 The Applicant’s submissions
The Applicant submits that he resigned on 7 November 2022 due to the following factors:
a) the Respondent was acting in a biased and prejudicial manner in refusing to accept the advice of the Applicant’s specialist and general practitioner over return to work, instead favouring the converse opinion of an occupational therapist;
b) the Respondent was resisting the Applicant’s attempts to return to work and was generally being unavailable and unhelpful in allowing and facilitating this process;
c) the Respondent failed to call the Applicant at the expiry of his medical certificate period as promised. The Respondent simply failed to communicate with the Applicant;
d) the Applicant was suffering financial pressure and was unable to meet his household costs and was forced into resignation partially due to financial pressure; and
e) the Applicant was concerned, with justification, that further barriers would be raised with respect to his return to work including assessment by Peter Simpson (Simpson) and the resulting refusal to allow him to exercise his workplace rights.
The Applicant added that there is ample evidence that the termination of his employment was due to a course of conduct, adopted by the employer, including:
a) the Respondent has a history of failing to provide a safe work environment or address issues raised by the Applicant with respect to safety;
b) the Respondent has a long history of taking adverse action against the Applicant for exercising workplace rights, including threats to withdraw complaints if he wished to return to work;
c) the Respondent discriminated against the Applicant in refusing to facilitate contact over his return to work and in failing to implement the work clearances provided by the Applicant’s specialists; and
d) the Respondent allowed the Applicant to exhaust his sick leave and failed to assist him in returning to work thereby making a resignation a financial necessity.
The Applicant reports having been subject to ongoing bullying throughout 2021 and 2022.[55]
2.5 The Respondent’s submissions
The Respondent submitted that the question for the Commission was whether it could be said that the Applicant was forced to resign from his employment because of conduct, or a course of conduct, engaged by the Respondent.
The Respondent characterises the Applicant’s bases for his forced resignation in the following terms:
a) the Respondent failed to provide the Applicant with a safe work environment, either in relation to COVID-19 and/or his mental health (Safe Work Environment Failure);
b) there was a ‘long history of [the Respondent] taking adverse action against the Applicant for exercising workplace rights’, and/or that the Applicant was otherwise precluded from seeking redress of this adverse action if he were to remain in the Respondent’s employ (Alleged Adverse Action);
c) the Respondent refused to contact the Applicant about his return to work (Alleged Refusal to Contact); and
d) the Respondent failed to assist the Applicant return to work (Alleged Failure to Assist the RTW).[56]
The Respondent submitted that this multiplicity of reasons stands in stark contrast to the Applicant’s evidence at paragraph [29] of his witness statement, where he emphasised he was positively agitating to return to a workplace notwithstanding he felt compelled to leave because of some apparent concern for his own safety. The Respondent submitted that the Applicant had, despite the abovementioned bases for his resignation, then confined his reason for resigning to the fact that the Respondent had not permitted him to return to work.
Regarding the Safe Work Environment Failure, the Respondent again submitted it was untenable for the Applicant to maintain that his concern about contracting COVID-19 was so great that he had no real choice but to resign in circumstances where he had, up until November 2022, been agitating to return to work at the mine site which he alleged was unsafe.
The Respondent further submitted that any suggestion that the Respondent’s workplace was not safe from COVID-19 was unsustainable without evidentiary foundation. The Respondent pressed that from the early stages of the pandemic, extensive measures had been introduced to mitigate against the risks of COVID-19. In short, the Respondent considered the Applicant’s argument regarding COVID-19 was speculative and an opinion the Applicant was unqualified to give.
The Respondent argued that if the Commission were to find that the Applicant’s concerns for his safety were justified, it could not be said that he was left with no choice but to resign. The Applicant had not exhausted discussions with the Respondent about his COVID-19 concerns, and when the Applicant had raised concerns about COVID-19 protocols at a meeting on 1 August 2022, the Respondent had, by the Applicant’s own evidence, been receptive of his concerns.[57]
The Respondent observed that there appeared to be a suggestion in the Applicant’s materials that his decision to resign was motivated by his concern about the Respondent’s preparedness and/or capacity to adequately protect his mental health.[58] The Respondent stated that it did not accept that it failed to provide the Applicant with a safe work environment vis a vis his mental health, noting that the Applicant had not, in any event, discharged the evidential burden to establish that he was in fact bullied. The Respondent contended that the Commission should exercise caution in finding that there was an objectively reasonable basis for the Applicant having concerns as to whether the Respondent would adequately protect his mental health, particularly having regard to the considerations set out in ‘Briginshaw.’ The Respondent added that absent a finding that there was an objectively reasonable basis for the Applicant’s concerns, those concerns could clearly not have provided the Applicant with an objectively reasonable basis for concluding that he had no real choice but to resign from his employment.
The Respondent further submitted that where the Respondent had made clear to the Applicant that it was open to relocating him to another site, it was plainly not reasonable for the Applicant to form the view that he had no choice but to resign in light of any concerns he may have held about the work environment at Mesa A mine.
The Respondent observed that the Applicant was under the impression that he was left with no choice but to resign if he was to seek redress for the supposed breaches of his workplace rights based upon a report by Simpson, the Managing Director of a private psychology company that the Respondent had engaged to assess the Applicant (BSS Report). The Respondent pressed that there was no basis for the Applicant attributing the summations of Simpson to the Respondent, particularly in the absence of any evidence of the Applicant testing his apparent concerns in this regard with the Respondent.
In response to the Alleged Refusal to Contact and Alleged Failure to Assist the RTW, the Respondent argued that the evidence demonstrated that the Respondent repeatedly communicated to the Applicant an intention to have him return to work. The Respondent noted that Norris had, on several occasions, engaged with the Applicant in an encouraging manner about his return to the Robe Valley Operation, and even on the Applicant’s own materials, the Applicant acknowledged the telephone call on 27 October 2022.
The Respondent submitted that the Applicant’s contention that his email dated 20 October 2022 was ‘ignored’, misrepresented the nature of the exchanges between the Applicant and Norris. The Applicant’s email was enquiring about the plan for his return to work, and on the Applicant’s own evidence, said the Respondent, Norris spoke to the Applicant about such return verbally, following on from the email.
The Respondent submitted that the last exchange between it and the Applicant prior to the Resignation Letter being prepared was a conversation between the Applicant and Norris in which Norris indicated they would discuss the details of the Applicant’s return to work further, after he recovered from his ablation procedure.
It was argued that Norris’ evidence should be preferred to the evidence of the Applicant, both in light of the Applicant’s confused recollection of conversations, but also having regard to the fact that the broader context of discussions supports Norris’ account. The Respondent submitted that once it is accepted that Norris asked the Applicant to contact him following his ablation procedure, any criticism of the Respondent’s failure to contact the Applicant between 29 October 2022 and 7 November 2022 is exposed as hollow. The Respondent observed that in any event, there was no evidence of any attempt on the part of the Applicant to contact or otherwise follow up with the Respondent during this period, with the consequence that it was not reasonable for the Applicant to form the view that some absence of communication in a ten-day window following his surgery left him with no choice but to resign.
Regarding the Applicant’s criticisms of the Sim Report, the Respondent submitted that Dr Sim was the only one of the practitioners to possess a detailed understanding of the requirements of the Applicant’s role, and Sim Report post-dated reports of other practitioners. Further, the Sim Report did not indicate a permanent, or event indefinite, restriction on the Applicant’s return to work, it simply suggested that the matter should be revisited after the Applicant’s ablation procedure, which Dr Sim was aware was scheduled for 28 October 2022. Insofar as the Sim Report recommended the Applicant be offered the opportunity to relocate, the Applicant’s own evidence acknowledged that there was an opportunity that the Respondent had been proactively discussing with the Applicant, stated the Respondent.[59]
In respect of the Applicant’s economic circumstances, the Respondent contended there was no evidence that the Applicant ever broached the issued with the Respondent, including by requesting any form of special leave of salary continuance. If anything, submitted the Respondent, it had, through its prior conduct of recrediting leave to the Applicant, demonstrated a flexibility and understanding in its approach to the Applicant’s circumstances.
Moreover, the Respondent submitted that following the receipt of the Resignation Letter, it responded in writing to the Applicant’s solicitor, advising that:
a) the Respondent did not agree that the Applicant had not alternative but to resign;
b) the Respondent ‘would like to give [the Applicant] the opportunity to rescind his resignation’; and
c) the Respondent would be prepared ‘to meet with [the Applicant] and work through next steps and his return to work’.
The Respondent submitted that it received no reply to its response to the Resignation Letter from either the Applicant or his solicitor.
Consideration
3.1 Relevant principles
Central to the consideration in this case is the operation of s 386(1) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. However, that section is relevant for present circumstances. The word ‘dismissed’ is defined in s 12 of the Act as having adopted the meaning in s 386. Section 386 reads:
(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.
There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[60] in the following terms:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here 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 (1), the requisite employer conduct is the essential element.[61]
While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan (City of Sydney RSL) gave further consideration to the operation of s 386(1)(a), expressing:
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[62]
The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).[63] This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that the Act had retained the use of the phrase and that the judgment in Mohazab remained good authority as to the connotation of that formula.[64]
While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[65] Furthermore, while a termination of employment may involve more than one action, it is important to ask oneself what was the critical action or actions which constituted a termination of employment.
3.2 Termination at the Respondent’s initiative and a forced resignation
It is uncontroversial that the Applicant resigned; the controversary sits with whether the Applicant was dismissed.
At the hearing, the Applicant pressed that he relied upon both elements of s 386(1) of the Act. However, for the most part, the second element of s 386(1) was the one which was predominately addressed by the parties.
The determination of whether the Applicant was dismissed hinges in part on whether the Commission prefers the evidence of the Applicant or Norris and Simons. Briefly stated, the evidence of Norris and Simons is preferred in light of the clarity of their accounts and given the contemporaneous direct evidence[66] that supports their narratives.
I will turn to the specifics of Norris’ and Simons’ evidence shortly, but first it is necessary to address the conflicting medical opinions and the Applicant’s assertion about the same. The Applicant argued that the Respondent acted in a biased and prejudicial manner in refusing to accept the advice of the Applicant’s specialist and general practitioner over that of its occupational therapist, concerning his return to work.
The Applicant acknowledges having been reviewed by Dr Nunn on 15 August 2022. Attached to his witness statement was a letter from Dr Nunn, confirming that the Applicant had Long Covid.[67] Further, the Applicant refers to having obtained a Work Capabilities Form from Dr Olla on 2 September 2022. At this time, Dr Olla was said to have provided a medical certificate, certifying the Applicant unfit until 28 September 2022.[68] Thereafter, the Applicant was assessed by Dr Liu on 21 September 2022, which resulted in Dr Liu issuing a letter of 23 September 2022, in which he stated:
David Hill has been found to have sustained atrial tachycardia resulting in symptoms of palpitations. This has responded to medical therapy. At review on the 21.09l.2022 he was improving and I see no reason why he can not resume full duties after the 28.09.2022.[69]
In his email to Simons titled ‘David Hill Return to Work Update’, the Applicant acknowledged the review by Dr Liu on 21 September 2021 and identified that Dr Liu had recommended an ‘EP Study’ and ‘an ablation to be done as soon as possible’.[70] The Applicant continued that ‘Dr Liu said that it would be safe for me to operate heavy machinery…that the medication I am taking wouldn’t affect my operating ability (Amiodarone).’
Dr Liu held the view on 21 September 2022 that he saw no reason why the Applicant could not resume full duties. However, Dr Sim reviewed the Applicant on 29 September 2022. Briefly stated, Dr Sim:
a) observed that the Applicant had been seen by Dr Nunn;
b) referred to the Applicant initially seeing Dr Liu at the end of June 2022;
c) acknowledged that Dr Liu suggested the Applicant requires electrophysiological study and ablation, which was booked for 28 October 2022; and
d) reported that notwithstanding the intervention of Amiodarone, the Applicant expressed that his heart rate still increases, he occasionally he feels dizzy and slightly short of breath, his oxygen saturation will drop down to the 80s with an increase five minutes later, but that the frequency of the episodes had reduced since he had been on Amiodarone.
Critical to Dr Sim’s assessment was that notwithstanding the introduction of the Amiodarone, the Applicant had continued to be symptomatic. This factor clearly had relevance to Dr Sim’s assessment. The Sim Report of course reads:
In view that he continues to have intermittent episodes of palpitations and shortness of breath, although reduced since commencing Amiodarone, I recommend that he remains unfit for work until the ablation is completed. It is difficult to predict the triggers of these events and if he experiences similar episodes while at work he will have to come off the machinery.[71]
The Sim Report was the most contemporaneous medial assessment before Norris and Simons and had been undertaken at a time when the Applicant was medicated on Amiodarone. In my view, the reliance by Norris and Simons on the Sim Report was not in any way indicative of prejudice or bias against the Applicant. It was a sensibly held position considering the contemporaneous nature of the assessment and its identification that the Applicant remained symptomatic notwithstanding medication and would need to come off machinery if similar episodes [of symptoms] ensued. Further, the assessment of Dr Sim and the view held by Norris was not that the Applicant was precluded from ever returning to work. The immediate threshold issue was the successful completion of the Applicant’s ablation procedure on 28 October 2022.
The Applicant levels against the Respondent the assertion that it was resisting his attempts to return to work and was generally being unavailable and unhelpful in allowing and facilitating this process. The assertion cannot be sustained on the evidence. I have found that Norris spoke to the Applicant on 12 October 2022 and 27 October 2022 regarding his return to work. Regarding the discussions held on 27 October 2022, I have found that Norris:
a) indicated to the Applicant that, in line with the medical advice of Dr Sim that he move sites, he had secured him an operator position at Mesa J mine, which they could discuss following his procedure; and
b) ended the phone call by asking the Applicant to reach out to him after his procedure to discuss the details of his return to work.[72]
It is therefore unreasonable for the Applicant to conclude on the 27 October 2022 that he had no capacity to earn an income or that he was forced to resign from his role when he had been in recent communication with Norris about being allowed back on site, and all indications were that following the successful completion of the ablation – a return to a different mine site would be facilitated.
In support of the contention that he was forced to resign, the Applicant relied upon an assertion that the Respondent failed to call the Applicant at the expiry of his medical certificate period as promised, and the Respondent had simply failed to communicate with the Applicant. Whilst it is apparent that it was the Applicant who called Norris on 12 October and 27 October 2022, it was Simons who sent the Applicant the Sim Report on 11 October 2022 and telephoned him. Further, Simons gives evidence that she informed the Applicant that neither her nor Norris were able to approve the Applicant’s return to work until after the ablation procedure. Insofar as the Applicant or Simons is to be believed in this respect, for reasons already explained, I prefer the evidence of Simons. Further, whilst it was more likely than not that the Respondent did not call the Applicant until after the expiry of his medical certificate, it is not the case that the Respondent had simply failed to communicate with the Applicant.
Understandably in circumstances where the Applicant had exhausted all paid leave, the Applicant was purportedly suffering financial pressure and was unable to meet his household costs. However, it is not the case that the Respondent was in any sense of the word responsible for the Applicant’s heart condition or for that matter the Applicant’s financial stability. The Applicant suffered, from all accounts, from a non-work related illness and was considered medically unfit by his own general practitioner for the period of 17 August 2022 until 28 September 2022. The exhaustion of any paid leave entitlement during this period was not something that the Respondent had inflicted upon the Applicant.
Further, whilst the Respondent considered the Applicant unfit to return to work until such time as the ablation procedure had been performed, this was a reasonable stance to adopt. Any financial pressure encountered by the Applicant was inevitably due to his own agency. Further, it was evident that in circumstances of past hardship, where paid leave balances had been exhausted, the Respondent had credited to the Applicant leave used by the Applicant (see the period of 6 October 2021 until 23 December 2021). Whilst the Applicant was aware of this approach given the letter of 17 April 2022 from Winsor to the Applicant’s representative, a Mr Mullally, he did not explore or otherwise raise with the Respondent whether the Respondent was positioned to assist him given the financial pressures he was facing.
The Applicant spoke of there being ample evidence that his dismissal was due, in part, to the Respondent having a history of failing to provide a safe work environment or address issues raised by the Applicant with respect to safety. As to whether the work environment was unsafe on the basis that the Applicant contracted COVID-19 whilst working within it, neither the Commission nor the parties are positioned to draw that conclusion. To do so would be to proffer speculative opinion removed from any sense of objectivity.
However, I have found that when the Applicant expressed concerns about the Respondent’s response to, and management of, COVID-19, Winsor and Farmer were receptive to hearing the Applicant’s concerns, to assist his return to work – a point the Applicant, appropriately, admitted. Further, given the Applicant had not been in the workplace post the discussion with Farmer and Winsor, the Respondent had not been provided an opportunity to remedy any perceived safety shortcomings the Applicant may have held in this respect.
While the Applicant’s safety concerns extended to his mental health, the evidence is such that the Applicant had been offered psychological counselling, had received the recrediting of leave when unfit to work for a period in 2021, and that the Respondent had taken seriously (as it should) the recommendation from the Applicant’s doctors that a move to another mine site was warranted.
The Applicant asserts that the Respondent had a long history of taking the Alleged Adverse Action against him, and in this respect it appears that the Applicant relies upon his evidence that a ‘BSS Report’ of 19 October 2021 had stated that the Applicant had to either pursue his belief that his workplace rights had been violated to determine what both the ‘company and myself could do to assist the future’.[73] According to the Applicant, the BSS Report had made it clear that if he wanted to continue his employment and return to work safely and successfully, he was not allowed the option to address previous breaches of workplace rights. Briefly stated, the BSS Report at Annexure DH-7 did not state that which is asserted by the Applicant, but instead traversed the Applicant’s desire to return to work whilst also seeking to hold purported perpetrators of mistreatment to account whilst not trusting site management.[74]
The Applicant refers to having attended the medical assessment with Dr Sim on 29 September 2022 and being advised that in light of his PTSD diagnosis from the psychiatrist, the Respondent would more than likely move to medically separate him.[75] First, the Sim Report makes no reference to such contention and even if Dr Sim made such statement verbally, she is not the Respondent and has no authority to make a decision about separation. Whilst the Applicant purports that his wife heard Dr Sim make such comments, the Applicant was the only witness to give evidence in support of his case.
At paragraph [7] of the Applicant’s second witness statement, he states:
[o]n 27 October 2022, I felt that notwithstanding no job offer I needed to resign for the reasons contained in my earlier statement. I knew that I could obtain work elsewhere and I had no faith at this point in Rio Tinto acting in a lawful manner towards me in the workplace, or allowing me back on site given the failure of Phil Norris to get me back.
Whilst it may appear odd that the Applicant refers to not having a ‘job offer’, it became evident on granting an order for the production of documents that the Applicant had received an offer of employment of 28 October 2022 for permanent full-time work with BHP. The Applicant conceded, appropriately in my view, that he had interviewed with BHP for a role as an ancillary operator on 3 October 2022.[76]
The Applicant stated in his first witness statement that he had instructed his lawyers to provide his resignation on 7 November 2022.[77] However, in his second witness statement, the Applicant stated that he had instructed his lawyers on 27 October 2022 to advise of his forced resignation[78] – at a time when he said that he did know that a job offer would come from BHP the next day on 28 October 2022.[79] The Resignation Letter was dated 27 October 2022.
Counsel for the Respondent observed that after the application for the order of production of documents (documents which showed that the Applicant had a job offer from BHP on the 28 October 2022), the Applicant changed his story about the date of his resignation, citing 27 October 2022 as the date he advised his lawyers to issue his resignation. Counsel observed that this date emerged for the first time in the evidence after the perhaps unanticipated request for production of documents required the Applicant to disclose an offer of employment from BHP, which was open for acceptance for only two days.
The Respondent argued that the Applicant’s resignation and the multiplicity of reasons proffered had occurred in a context where around the date of his resignation he had plainly secured an alternative source of work.
I have found that the Applicant elected to voluntarily resign from his employment and did so after having made the decision to interview with another employer. Whilst appreciative that the Applicant perceived multiple shortcomings of the Respondent, including its alleged failure to provide a safe work environment, alleged taking of adverse action and discrimination, alleged refusal to contact the Applicant regarding his return to work and assist in that process, I am of the view that the Applicant’s perception of such shortcomings did not equate to the Respondent engaging in a course of conduct that negated all choice for the Applicant, such that he was forced to resign.
Furthermore, I do not consider it to be the case that the Applicant resigned in the heat of the moment such that his resignation could not be characterised as voluntary, because he was in a state of emotional distress or confusion. The Applicant had advised his lawyers to notify the Respondent of his resignation in circumstances where he was awaiting news of whether he had secured work with another employer – this does not strike of reactivity but rather a calculated move to ensure future employment. Notwithstanding that, Norris and Simons were working aligned to the agenda of returning the Applicant to an alternative mine site and back to work.
Whilst much was made at hearing that the Respondent had not offered the Applicant in writing a position at another mine site, Norris was firm in his evidence that he had consulted with the other mine site and had secured a position for the Applicant there. As noted, I prefer the evidence of Norris over that of the Applicant for reasons already cited.
Importantly, the Applicant bears the onus of showing that he did not resign voluntarily, and must prove that, by an objective measure,[80] the employer forced his resignation.[81] On any objective level, it is not evident that the Respondent took action with intent (or which had the probable result) of bringing the relationship to an end.[82] 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 and one that must be ‘closely drawn and rigorously observed’.[83] Based on the evidence before the Commission, it is plain that the Applicant’s choice was not so negated such that resignation was inevitably the only recourse he had as at 27 October 2022 – or was that 7 November 2022? Of course, the change in the Applicant’s position regarding the date on which he instructed his lawyers to tender his resignation, considering the ‘late’ disclosure of the offer of employment with BHP, did little to reinforce his credibility before this Commission.
Conclusion
On all the facts and evidence before the Commission, I have concluded that it was quite clearly the discretion of the resigning employee, the Applicant, which gave rise to the termination of employment. There was not a termination of employment at the initiative of the employer and the conduct of the Respondent was not such that there was an intention of bringing the employment to an end or that termination of the employment was the probable result of its conduct such that the Applicant had no effective or real choice but to resign.
The application is therefore dismissed. An Order[84] is issued to this effect.
DEPUTY PRESIDENT
Appearances:
T Petherick for the Applicant.
J McLean of counsel for the Respondent.
Hearing details:
2023.
Perth (by video):
5 April.
[1] Witness Statement of David Hill dated 13 March 2023, [9] (Hill Statement).
[2] Ibid [10].
[3] Ibid [12].
[4] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37.
[5] Ibid 602 [51].
[6] Hill Statement (n 1) [9].
[7] Ibid [10].
[8] Ibid.
[9] Ibid [11].
[10] Ibid [13].
[11] Ibid [14].
[12] Ibid [15].
[13] Ibid [16].
[14] Ibid annexure DH-2.
[15] Ibid [15].
[16] Digital Hearing Book, 25–8 (DHB).
[17] Ibid 28.
[18] Hill Statement (n 1) [21].
[19] Ibid [23].
[20] Ibid.
[21] DHB (n 16) 140.
[22] Hill Statement (n 1) [24].
[23] Ibid [12].
[24] Ibid [26].
[25] Reply Statement of Phillip Norris dated 20 March 2023, [7] (Norris Reply Statement).
[26] Ibid [8].
[27] Ibid [9].
[28] Ibid [10]
[29] Ibid.
[30] Witness Statement of Phillip Norris dated 3 March 2023, [10]–[11], annexures PN-3, PN-4 (Norris Statement).
[31] Ibid [12].
[32] Norris Reply Statement (n 25) [11(a)].
[33] Ibid.
[34] Ibid [11(a)], annexure PN-8.
[35] Ibid [11(b)].
[36] Ibid.
[37] Ibid [11(c)].
[38] Ibid [12(a)].
[39] Ibid.
[40] Ibid.
[41] Ibid.
[42] Norris Statement (n 30) [14].
[43] Ibid [15].
[44] Norris Reply Statement (n 25) [13], annexure PN-10.
[45] Reply Statement of Iesha Simons dated 20 March 2023, [6] (Simons Reply Statement).
[46] Ibid.
[47] Ibid [8(a)].
[48] Ibid [11].
[49] Ibid.
[50] Ibid.
[51] Ibid [12].
[52] Ibid [13].
[53] Ibid [14].
[54] Ibid [14], annexure IS-2.
[55] Hill Statement (n 1) [4]–[6].
[56] Applicant’s Outline of Submissions, [17].
[57] Hill Statement (n 1) [5].
[58] Ibid [15].
[59] Ibid [12].
[60] (2017) 271 IR 245.
[61] Ibid 268–9 [47].
[62] (2018) 273 IR 126, 129–30 [10] – [11].
[63] (1995) 62 IR 200 (Mohazab).
[64] (2016) 262 IR 221, 228 [23].
[65] Mohazab (n 63) 205.
[66] Norris Reply Statement (n 25) [11(a)], [11(b)], [12(a)]; Simons Reply Statement (n 45) annexures IS-1, IS-2.
[67] Hill Statement (n 1) annexure DH-1.
[68] Ibid annexure DH-3.
[69] Ibid annexure DH-10.
[70] DHB (n 16) 140.
[71] Ibid 28.
[72] Norris Reply Statement (n 25) [11(c)].
[73] Hill Statement (n 1) annexure DH-7.
[74] Ibid.
[75] Second Statement of David Hill in response to application for production of document dated 21 March 2023, [3] (Second Hill Statement).
[76] Ibid [6].
[77] Hill Statement (n 1) [26].
[78] Second Hill Statement (n 75) [8].
[79] Ibid.
[80] O'Meara v Stanley Works Pty Ltd (Australian Industrial Relations Commission, Giudice J, Watson VP and Commissioner Cribb, 11 August 2006) [23] (O’Meara).
[81] Australian Hearing v Peary (2009) 185 IR 359, 367 [30].
[82] O’Meara (n 80) [23].
[83] Doumit v ABB Engineering Construction Pty Ltd (Australian Industrial Relations Commission, Munro J, Duncan DP and Commissioner Merriman, 9 December 1996).
[84] PR761155.
Printed by authority of the Commonwealth Government Printer
<PR760799>
2
7
0