David Jeffery Hyder v JBS Australia Pty Limited
[2022] FWC 1795
•11 JULY 2022
| [2022] FWC 1795 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
David Jeffery Hyder
v
JBS Australia Pty Limited
(C2022/2554)
| DEPUTY PRESIDENT LAKE | BRISBANE, 11 JULY 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection – resignation – no dismissal found – application dismissed.
Mr David Jefferey Hyder (the Applicant) lodged an application with the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) (the Act).
The Applicant claimed he was constructively dismissed from his employment with JBS Australia Pty Limited (the Respondent) on 1 April 2022.
The Respondent raised a jurisdictional objection to the application on the basis that the Applicant was not constructively dismissed, but that he voluntarily resigned on 1 April 2022.
Directions were set for the filing and service of material by no later than 4.00pm (AEST) on Friday 10 June 2022 for the Applicant, and by 4.00pm (AEST) on Friday, 17 June 2022 for the Respondent.
The Applicant emailed further material to the Respondent and the Commission on 30 July 2022.
The Respondent did not object to the further material being tendered at the hearing, despite being served late, provided the Respondent could put questions to witnesses about the material.
The material was allowed to be tendered.
The Commission’s Jurisdiction
The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s 368.
If the Commission is satisfied that all reasonable attempts to resolve the dispute (other than arbitration) have been, or are likely to be, unsuccessful, it must issue a certificate under s.368(3). Section 370 imposes a substantial restriction[1] upon applicants by preventing a general protections court application being made unless the Commission has issued a certificate under s.368(3)(a) in relation to the dispute.
The Commission cannot issue a certificate pursuant to s.368(3) of the Act unless “an application is made under s 365.”[2] An application cannot be considered to have been properly made unless the criteria outlined in s.365 have been properly addressed.[3]
Section 365 of the Act relevantly states:
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.
The Full Court in Coles Supply Chain v Milford[4] made the following relevant observations about the Commission’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:
a)The Commission’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the Commission’s authority to perform its functions under s.368 (at [51]).
b)a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the Commission’s authority to compel an employer to participate in its conciliation processes (at [65]).
c)it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).
d)that dispute must be resolved before the Commission’s powers under s.368 can be exercised at all (at [67]).
e)the Commission is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).
f)in so determining the limits of its authority the Commission may determine matters of fact (at [71]).
g)the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the Commission (at [74]). The Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the Act (at [75]); and
h)the determination by the Commission is not authoritative in the sense of being final. If the Commission errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the Act (at [79]).
“A person who has been dismissed”
The pertinent question for the Commission is whether the Applicant was forced to resign, in circumstances that constituted constructive dismissal.
“Dismissed” is defined in s.12 of the Act by reference to s.386. Section 386 provides:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
In Bupa Aged Care Australia Pty Ltd v Tavassoli,[5] the Full Bench summarised the relevant tests under s.386 as follows:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s 386(1) of the 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.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.”
Evidence
The Applicant commenced employment with the Respondent as a Shipping Coordinator on 27 January 2022. The Applicant reported to Ms Caroline Richards, Manager of Australian Office/Byproducts Trader for the Respondent.
While he was employed by JBS Australia Pty Ltd trading as Swift & Company Trade Group (STG), there were three Shipping Coordinators in the Shipping Team:
a)The Applicant;
b)Snezana Grubac; and
c)Kate Sodling.
During the Applicant’s first week of employment with the Respondent, Ms Grubac provided feedback to Ms Richards about the Applicant to the effect that “he didn’t know a lot and wasn’t able to follow, manage or respond to his emails,” and that “he seemed overwhelmed and distracted.”
On or about 11 February 2022, the Applicant requested to take a days’ leave on 15 February 2022. Leave was approved by Ms Richards.
On or about 14 February 2022, the Applicant disclosed to Ms Richards that he was managing personal issues outside of work. These personal issues related to his relationship with his ex-wife, his son’s mental health, and his own health.
The Applicant explained to Ms Richards that his leave scheduled for 15 February 2022 was to take his son to a psychology appointment. The Applicant claimed that his ex-wife refused to take their son to his appointment. He stated that his ex-wife “does things” to make his life as difficult as possible, and that “this is what happened in my previous job.” Ms Richards advised the Applicant that he would need to take leave.
The Applicant took leave on 15 February, partly as paid personal leave and partly as leave without pay, accounting for the Applicant’s accrued leave balances at the time.
On 16 February 2022, Ms Richards convened a “2 week catch up meeting” with the Applicant. The Respondent claimed the purpose of this meeting was to inquire as to how the Applicant was settling in.
Ms Richards recalled that during the meeting, the Applicant appeared quite upset and stressed, and inquired about “what was going on.”
The Applicant stated that he was finding emails “overwhelming,” and expressed his concern that his personal requirements would mean that he would not be able to keep his job.
The Applicant stated that his ex-wife was “doing some not very nice things” to him, and that he was also dealing with his 12-year-old son’s suicidal ideations. The Applicant explained that his son required support at fortnightly medical appointments, and that he was also required to regularly meet with various medical practitioners of his own. The Applicant also indicated that he had further personal matters to attend to, such as visiting the post office.
Ms Richards offered for the Applicant to take a further two days leave. The Applicant accepted her offer and took leave without pay on 17 and 18 February 2022. Ms Richards stated that the Applicant would need to take a half day annual leave when he had medical appointments to attend in the future.
On the following occasions, the Applicant was afforded flexibility by the Respondent to address personal matters and attend appointments when required:
a)On or about 25 February 2022, while Brisbane was experiencing heavy rainfall, the Applicant left work part way through the day to care for his children who were anxious about the extreme weather.
b)On 7 March 2022, the Applicant was allowed to work from home when he notified Ms Richards approximately 20 minutes before his start time that he had forgotten he had an appointment and a rental inspection.
c)On 30 March 2022, the Applicant left work part way through the day to pick up his son from the sick bay at school.
When the Applicant left work early on the aforementioned dates, he was not asked to submit a leave request for the balance of the day and was not required to provide evidence (such as medical certificate) to justify his absences.
On 14 March 2022, the Applicant called Centrelink before he started work. The call continued past his work time, causing the Applicant to be away from his desk for 1-1.5 hours.
Ms Richards could not see if the Applicant was online, and contacted the Applicant via Microsoft Teams at approximately 9.57am to determine whether he was at work.
The Applicant explained by text message just after 10.00am that he was on a personal call that was taking longer than expected. The Applicant acknowledged that the personal call was being taken during work hours, apologised, and offered to take the day as leave to make up for it.
Between 10.00am and 10.20am, the Applicant called Ms Richards and explained that he had been on the phone to Centrelink. The Applicant apologised, and again offered to take the day as leave. Ms Richards indicated that she did not mind if he took the day off, or started work, but that he needed to let her know.
The Applicant claimed Ms Richards was “not impressed” on the phone, and presented him with an aggressive ultimatum to decide whether to take leave or start work. The Applicant felt he had no choice and returned to work. The Respondent rejected the Applicant’s interpretation of the phone call.
On 15 March 2022, Ms Richards and Mr Scott Goodwin, Senior People & Culture Business Partner for the Respondent, convened an informal meeting with the Applicant. The purpose of this meeting was to:
a)Primarily, inquire about the Applicant’s wellbeing, as Ms Richards had received feedback from other team members that he seemed distracted. Ms Richards also personally observed situations where he had become ‘short’ with other team members;
b)Ensure the parties were on the same page about expectations regarding working hours and notice to take leave;
c)Gain a better understanding of when the Applicant and his son’s pre-booked appointments were scheduled, so that they could be entered into the Respondent’s leave calendar and Ms Richards could manage the appropriate delegation of work;
d)Provide general feedback in relation to the Applicant’s performance in the role as Ms Richards had herself observed, and also provide feedback from team leaders that the Applicant was having trouble grasping some of the tasks he was assigned; and
e)Explore what additional support could be offered to the Applicant.
During this informal meeting, the Applicant explained the broad circumstances of why he was on a personal call during work hours on 14 March 2022. The Applicant claimed that he was experiencing domestic violence from his ex-wife, including hacking his IT systems. The Applicant claimed his ex-wife’s goal was to impact his employment by targeting his health and refusing to take their son to his psychologist appointments. The Applicant claimed that his ex-wife had done this before, causing mental health issues and causing him to be dismissed. The Applicant explained that he could not afford to lose his job with the Respondent and had been taking practical steps to secure his IT systems. The Applicant explained he had been dealing with these personal issues periodically for the past five years since he and his ex-wife had separated, and “expected things to get worse before they got better,” but that his circumstances would not last forever.
Ms Richards and Mr Goodwin were of the impression that the meeting was productive and positive. No formal performance management process was commenced with the Applicant.
The Applicant felt he was ambushed and did not have an opportunity to bring any note-taking material to the meeting.
The Applicant claimed after the meeting on 15 March 2022, where he had disclosed the extent of his personal circumstances, it became the Respondent’s intent to remove him from his employment.
The Applicant claimed that after 15 March 2022, he experienced an exponential increase in his work being returned to him because it was incorrect or contained mistakes. The Applicant claimed these mistakes were manufactured by the Respondent to sabotage him and were verbalised across the open plan office.
Examples of instances where the Applicant claimed mistakes were manufactured include:
a)Manipulating emails to and from his email account, including deleting emails that had been sent to him and sending emails pretending to be him;
b)Manipulating his Microsoft Teams messages;
c)Hiding shipping folders in the wrong location on his Desktop;
d)Manufacturing situations to create the perception that he had poor email and priority management skills;
e)Strategically being fed incorrect or incomplete information to impact his performance.
The Applicant claimed he asked Mr Goodwin for help accessing the Employee Assistance Program, but that information was not provided to him.
The Respondent agreed it provided feedback about the Applicant’s performance at regular intervals throughout his employment. However, the Respondent submitted that the frequency of these conversations did not exponentially increase, as the Applicant alleged, after it became aware of his personal circumstances.
Ms Richards recalled providing feedback to the Applicant but denied that the purpose of this feedback was to force the Applicant to resign.
Ms Richards, Mr Goodwin and the Applicant’s colleague, Ms Shilpa Ravikumar, Shipping Team Leader for the Respondent, denied altering, creating, or deleting emails, files, or Microsoft Teams messages on the Applicant’s computer, nor were they aware of anyone employed by the Respondent doing the same.
On 23 March 2022, the Applicant took two days leave to seek mental health treatment because of his work environment. The Applicant felt he would be persecuted by the Respondent for taking mental health leave, so told the Respondent he was physically unwell.
On 30 March 2022, Ms Ravikumar noted to Ms Richards in a brief conversation that the Applicant’s attitude had been “poor” since he came back to work, and that he had refused to do a couple of tasks she had requested. Ms Richards advised she would discuss it in the Applicant’s probation review the following day.
On 30 March 2022, the Applicant approached Ms Richards part way through the day and indicated that he needed to pick his son up from the sick bay at school. Ms Richards confirmed that would be fine and the Applicant left work.
On the morning of 31 March 2022, the Applicant sent Ms Richards a text indicating that his son was still sick and that he would need to work from home. Ms Richards confirmed that would be fine.
At 11:15am, Ms Richards convened a meeting with her team by Microsoft Teams. Ms Richards announced her plans to move some of the team to different desks. These moves were primarily for the Applicant’s benefit, so that he could be seated next to a more experienced trader who could support the Applicant’s development.
Through the course of that day, Ms Richards identified an issue with a task completed by the Applicant. She contacted him by Microsoft Teams to discuss the task and how he was prioritizing his emails. Ms Richards indicated that she would shortly telephone him to discuss those matters.
Ms Richards observed that the Applicant had read her message before his Microsoft Teams status changed to “unavailable”. Ms Richards attempted to contact the Applicant by telephone, but he did not pick up. Ms Richards sent the Applicant a text message requesting that he call her back, but he did not return her call.
On 1 April 2022, the Applicant sent Ms Richards a text message indicating that his son was still sick and that he would need to work from home. Ms Richards replied, asking the Applicant to call her.
Ms Richards and the Applicant had a conversation by telephone in which Ms Richards claimed the Applicant became aggressive and made threats to the effect that he would “come after her, boots and all”. Ms Richards recalled the conversation to the following effect:
Applicant: “You wanted me to call, why do I need to call you?”
Ms Richards: “I need to know what’s going on with your emails. If you can’t access emails at home, you won’t be able to work from home.”
Applicant: “I’d like to tell you some things about myself that you don’t know. As a manager, it’s your responsibility to know your staff and their identity and what drives them. Do you have a few minutes to discuss that with me?”
Ms Richards: “Yes.”
Applicant: ‘‘THE RESULTS OF ALL THE PSYCHIATRIC & PSYCHOMETRIC TESTING I HAVE HAD DONE SHOWS THAT I AM DRIVEN BY SOCIAL JUSTICE. I’M A BOOTS AND ALL KIND OF GUY. YOU NEED TO BE AWARE OF THAT.”
“I WANT TO TELL YOU WHAT LED TO MY DIVORCE, BECAUSE I HAVEN’T SHARED THAT WITH YOU YET.”
“DURING MY MARRIAGE I BECAME AWARE OF A SITUATION THAT NEEDED ADDRESSING. I KNEW THAT MY WIFE WAS NOT OF THE SAME OPINION AND THAT IF I WENT AFTER IT, IT WOULD COST ME EVERYTHING I HAD IN THE WORLD, BUT I DID IT ANYWAY.”
“I HAVE A LOT OF SUPPORT MECHANISMS IN A NUMBER OF DIFFERENT AREAS.”
“I’M A REGULAR CHURCH GOER WITH OVER 600 PEOPLE IN THE CONGREGATION. THROUGH THESE VARIOUS GROUPS I HAVE MET SEVERAL EX JBS EMPLOYEES FROM BONING ROOMS, WHO HAVE TOLD ME WHAT GOES ON.”
“I KNOW PEOPLE WHO KNOW PEOPLE, PEOPLE WHO USED TO LUNCH WITH KIM BEAZLEY, PEOPLE WHO ARE HIGH UP IN THE GOVERNMENT, CEO ‘S, GM’S, AND WORK PLACE SAFETY MINISTERS AND LAWYERS, AND ALL LEVELS OF GOVERNMENT. I AM VERY WELL CONNECTED AND I KNOW WHAT NEEDS TO BE DONE. IT IS THE SAME AS THE SITUATION WITH MY WIFE. I WAS AWARE OF DIRTY AND ILLEGAL TACTICS THAT NEEDED TO BE ADDRESSED.”
“I’VE BEEN DELIBERATELY FEEDING YOU ENOUGH ROPE AND YOU WERE STUPID ENOUGH TO TAKE IT.”
Ms Richards: “David, I don’t understand what you are talking about. You aren’t making any sense.”
Applicant: “I’m talking about work. I saw the red flags appearing early in the piece and I have been busily gathering evidence, taking notes and I’m going to expose the dirty and illegal tactics being used by you and JBS?”
Ms Richards: “Ok, at this point we needed to follow the company policy. If you have a grievance, the correct procedure is to contact our HR rep and discuss with them directly.”
Applicant: “I know how that would finish up, it could be expensive. I know people, I’m a boots and all kind of guy. I know lots of police people, high up police people, high ranking army officials and the type. I’m coming in, boots and all. I’m all in and I come in hard.”
Ms Richards: “You do not sound in a fit state to work. I am terminating this phone call. I will get Scott to call you.”
At 8.38am, the Applicant tendered his resignation by email.
At 9.15am, Mr Goodwin sent an email in response, which offered for the Applicant to reconsider his decision to resign, allowing him until 12.00pm that day to confirm his decision.
At around 11.00am, Mr Goodwin sent the Applicant a text message confirming he had sent him an email. Mr Goodwin did not receive a Response from the Applicant by 12.00pm.
At around 12.50pm, Mr Goodwin attempted to contact the Applicant by telephone but could not reach him. At around 2.00pm, Mr Goodwin sent the Applicant an email confirming that he would process the Applicant’s termination.
The Applicant’s employment was terminated on 1 April 2022, effective immediately.
Consideration
The Applicant asserted that other employees had manufactured or deleted emails or information that was aimed at sabotaging his work performance, he provided many documents from the Respondent that he says demonstrated that there was a concerted effort to diminish his performance and create errors in his work. Despite the Applicant’s emphatic belief that the Respondent had been colluding in a nefarious manner, I found the Respondent’s witnesses provided cogent and balanced recollections as to the Applicant’s performance, his errors, and the efforts they had gone to provide time off and support to the Applicant in his no doubt difficult situation. The Respondent had had discussions with the Applicant to assist in his performance and understand his personal situation. However, the Applicant offered his resignation freely and was asked to reconsider by the Respondent. There was no evidence that the Applicant had no option, rather the Applicant had options and he elected to resign.
Conclusion
I am not satisfied that the Respondent’s actions left the Applicant no option but to resign. The Applicant elected to resign, and the Respondent gave the Applicant time to reconsider. In these circumstances it is clear to me that the Applicant freely made his choice to resign and the Respondent’s actions preceding the resignation did not leave resignation as the only option nor the desirable option for the Respondent. The Respondent wanted the Applicant to succeed in his role, they had invested time and resources to bring him on and train him, his resignation left a gap in the organisation. I find that there was no dismissal pursuant to s.386(1)(b).
The application is therefore dismissed. I Order accordingly.
DEPUTY PRESIDENT
[1] Ward v St Catherine’s School [2016] FCA 790 at [3].
[2] Fair Work Act 2009 (Cth) s 368(1).
[3] Coles v Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [64], [67].
[4] (2020) 300 IR 146; [2020] FCAFC 152.
[5] (2017) 271 IR 245 at 268-9; [2017] FWCFB 3941 at [47]-[48].
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