Dean Emerson v Kempall Pty Ltd T/A Ray White Woollahra/Paddington
[2022] FWC 1864
•19 JULY 2022
| [2022] FWC 1864 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.365—General protections
Dean Emerson
v
Kempall Pty Ltd T/A Ray White Woollahra/Paddington
(C2022/2796)
| COMMISSIONER PLATT | ADELAIDE, 19 JULY 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection - whether the Applicant had been constructively dismissed – no constructive dismissal – application dismissed.
On 5 May 2022, Mr Dean Emerson (the Applicant) lodged a general protections application against Kempall Pty Ltd T/A Ray White Woollahra/Paddington (the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 14 April 2022, he was constructively dismissed in contravention of the general protections provisions of the Act.
On 24 May 2022, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Mr Emerson had not been dismissed. On 16 June 2022, the parties participated in a conciliation conference in front of one of the Commission’s staff conciliators. The matter did not resolve at conciliation.
As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.
On 29 June 2022, a Directions Conference was conducted by telephone. Directions were issued for the filing of material in respect of the jurisdictional objection, and a Hearing was scheduled for 18 July 2022.
Both parties were required to file their materials by 11 July 2022. The Applicant filed written submissions yet failed to file any witness evidence in support of his position. This deficiency was raised with the Applicant, who was provided an extension until 2.00pm on 12 July 2022 to file any witness evidence. The Applicant filed a statement in support of jurisdiction at 8.12am on 13 July 2022. The Respondent objected to the Applicant’s statement on the basis that it had not been filed in compliance with the Directions and as such, receiving the statement would deny the Respondent procedural fairness.
I determined to receive the Applicant’s statement on the basis that, generally speaking, the information included in the statement was consistent with the material included in the Applicant’s Form F8 Application. To ameliorate any procedural fairness issues, the Respondent was given an extension to file any materials in reply.
A Hearing was conducted, by videoconference, on 18 July 2022. The Applicant was represented by Mr Paul Lewis, whilst the Respondent was represented by Mr Anthony Sissian. Both parties were granted permission to be represented by a lawyer under s.596(2)(a) on the basis of complexity and efficiency.
At the conclusion of the Hearing, I upheld the Respondent’s jurisdiction objection, and dismissed the general protections application on the basis that the Applicant had voluntarily resigned from his employment, and therefore had not been dismissed. The reasons for this decision follow.
Law
Section 365 of the Act 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 associated 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.”
Section 386 of the Act provides the meaning of dismissed:
“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.”
The Applicant in this matter relies on s.386(1)(b) of the Act, in that he contends that he was forced to resign from his employment because of conduct, or a course of conduct, engaged in by the Respondent.
The foundational case for ‘forced resignation’ matters was that of Mohazab v Dick Smith Electronic (No 2)[2]. In discussing the concept of ‘forced resignation’ in that case it was stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”
In O’Meara v Stanley Works Pty Ltd,[3] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:
“[23]…It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.”…In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (emphasis added)
Evidence
The Applicant submitted a statement[4] and gave evidence. His relevant evidence is summarised as follows:
· The Applicant was employed by the Respondent as a property manager for approximately 2.5 years.
· In late January 2022, the Applicant sought a salary review.
· On 24 March 2022, the Applicant participated in a disciplinary meeting called by the Respondent. After this meeting, the Applicant came to the view that “they don’t want to pay me more, they are looking to get rid of me.”[5] The Applicant consulted with his doctor and took two weeks’ personal leave after the meeting, as he felt stressed and anxious. The Applicant did not file any medical evidence with the Commission.
· On 30 March 2022, the Applicant received a letter from the Respondent asking him to show cause as to why he should not be dismissed.[6] The letter referred to a number of alleged performance issues that occurred in the period between September 2020 and March 2022, an allegation that he refused to participate in a disciplinary meeting, and that he secretly recorded a meeting. He was required to show cause as to why he should not be dismissed by 5.00pm on 6 April 2022
· On 4 April 2022, the Applicant received a communication from Mr Randall Kemp (the Respondent’s Principal) which stated:
“Is this just this twirps way of getting paid for his last two weeks without having to work?” (sic)
· After receiving the communication above, the Applicant thought that it was abundantly clear that his employment was to be terminated.
· The Applicant provided a show cause response which was drafted with the assistance of his legal representative Mr Lewis and provided to the Respondent on 6 April 2022. The letter was dated 3 April 2022.[7]
· On 14 April 2022, the Applicant instructed his lawyer to send a letter to the Respondent, as recited below:
“Dear Mr Sissian,
We continue to be instructed by Mr Emerson (‘our Client’) in the above matter and write to you as the legal representative of Ray White Woollahra / Paddington (‘the Employer’).
On 3 April 2022 we supplied a lengthy and considered letter in response to the Employer’s letter of 30 March 2022, we reiterate the contents of our letter. The Employer is aware that our Client has been unduly stressed by the way the dispute has been managed and has been on sick leave due to this stress however, we are yet to receive any further communication from the Employer.
Our Client reasonably believes that a decision has been made by the Employer to terminate his employment and, given this, feels he has no alternative but to hand in his resignation effective immediately. Please accept this letter as his resignation.
Please arrange for his entitlements to be paid in full.
Our view is that our Client has been constructively dismissed.”
· In his written witness statement, the Applicant advised that he did not want a termination on his record.
· Whilst giving evidence, the Applicant re-stated that he did not want the stain of a dismissal on his record, but also stated he did not want to resign before securing alternative employment (which occurred sometime in the period between 15-19 April 2022).
· The Applicant was a poor witness who provided inconsistent accounts of his reasons for instructing his legal representative to send the ‘resignation’ letter.
· The Applicant was unable to explain why, having been concerned about a potential dismissal after the 24 March meeting and having his fears further heightened by Mr Kemp’s email on 4 April 2022, he persisted in providing a detailed response to the show cause letter on 6 April 2022. The Applicant gave evidence that whilst he was concerned about the prospect of his dismissal, there was a part of him which did not want to believe that he was going to be dismissed.
· The Applicant was unable to adequately explain why he did not simply wait to be dismissed, other than the fact that he did not want the stain of a dismissal on his records, as it may have impeded his employment prospects. My confusion was compounded when the Applicant stated that he wanted to secure alternative employment prior to ceasing his relationship with the Respondent.
Mr Kemp provided two statements[8] and gave evidence. Other than the question of whether his 4 April communication was intended to be sent to the Applicant or not, his evidence was not challenged.
Mr Kemp’s relevant evidence is summarised as follows:
· At the time the Respondent received the ‘resignation’ letter, it had not yet determined to dismiss the Applicant.
· The 4 April 2022 communication was not intended to be sent to the Applicant.
Submissions
The parties largely relied on their written submissions.
The Applicant contended that:
· Mr Kemp’s communication of 4 April 2022 made it abundantly clear, in the mind of the Applicant, that a final decision had been made by the Respondent and that his employment was being terminated.
· The Applicant was of the view that, as his employment was not going to continue, he had no other alternative but to hand in his resignation, thereby preserving a small amount of reputation and helping him gain future employment.
· The Applicant was constructively dismissed
The Respondent contends that there were other choices available to the Applicant which included allowing the ‘show cause’ process to conclude.
The Applicant’s decision to resign was driven by his desire to avoid the stain of a dismissal and that this had previously been held to be a voluntary resignation.[9]
Consideration
I am not persuaded that the circumstances, when viewed objectively, were such that the Applicant had no other option that to resign. I am not persuaded that the Applicant’s medical condition was any more severe than the level of stress and anxiety which would normally accompany a disciplinary process.
The Applicant had engaged extensively in the show cause process and could have simply waited for the outcome. It appears that the main driver of the Applicant’s decision to resign was either his fear that a termination would impact on his future employment prospects and/or reputation, or alternatively, that he made a decision to wait until he secured alternative employment before resigning. Whilst I suspect the real reason is the former, the lack of clarity in the Applicant’s evidence leaves the latter option open.
Neither of these circumstances fall within the meaning of a constructive dismissal.
As advised at the Hearing, I find that the Applicant was not dismissed and thus his general protections application made under s.365 of the Act must fail for want of jurisdiction.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Appearances (by videoconference):
P Lewis for the Applicant.
A Sissian for the Respondent.
Hearing details:
2022.
Adelaide:
July 18.
[1] [2020] FCAFC 152.
[2] (1995) 62 IR 200.
[3] PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006).
[4] Exhibit A1.
[5] Exhibit A1, para 12.
[6] Page 45 of the Digital Court Book.
[7] Page 50 of the Digital Court Book.
[8] Exhibit R1 and R2.
[9] Pacific National (NSW) Limited v Bell [2008] AIRCFB 555, Piakis v KDR Victoria Pty Ltd T/A Yarra Trams (2021) FWC 6048.
Printed by authority of the Commonwealth Government Printer
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