[2018] FWC 6466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Duncan Blandford
v
Burswood Nominees T/A Crown Perth
(U2018/5216)

DEPUTY PRESIDENT BINET

PERTH, 18 OCTOBER 2018

Application for relief from unfair dismissal – permission to be represented refused – jurisdictional objection – resignation – jurisdictional objection upheld – application dismissed.

[1] On 19 May 2018, Mr Duncan Blandford (Mr Blandford) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) seeking a remedy in respect of his dismissal by Burswood Nominees trading as Crown Perth (Burswood) from his employment as a part time Security Officer.

[2] On 28 May 2018 Burswood filed a Form F3 Employer Response objecting to the FWC hearing and determining the Application on the grounds that Mr Blandford resigned and was not dismissed by Burswood (Jurisdictional Objection).

[3] On 30 May 2018, the Application was listed for a Hearing on 30 July 2018 to determination both the Jurisdictional Objection and the merits of the Application.

[4] The Notice of Listing issued on 30 May 2018 included directions requiring the filing of materials.

Interlocutory Matters

[5] On 30 June 2018, Mr Blandford sought Orders pursuant to section 590(2)(a) of the FW Act requiring the following persons to attend the Hearing:

• Ms Jacci Williams – Burswood’s Human Resources Manager (Ms Williams)

• Mr Rudy Searle – identified on Mr Blandford’s application as a Security Manager (Mr Searle)

• Mr Peter Ross – currently employed by Burswood as a Security Officer (Mr Ross)

• Mr Mathew Adams – currently employed by Burswood as a Security Officer (Mr Adams)

• Mr Nigel Lau – identified on Mr Blandford’s application as a Security Officer (Mr Lau)

[6] Also on 30 June 2018, Mr Blandford sought Orders pursuant to section 590(2)(c) of the FW Act seeking production of certain documents.

[7] Orders to Attend requiring Mr Adams, Mr Ross and Mr Searle to attend the Hearing were granted by Commissioner Bissett on 6 July 2018 (Initial Orders to Attend).

[8] On 29 June 2018, the parties were offered the opportunity to engage in a Member Assisted Conciliation. Both parties agreed to participate, and on 10 July 2018 the parties attended a conciliation conference before me (Conference). The issues between the parties could not be resolved at the Conference. With the agreement of the parties, the Application was allocated to me to hear and determine.

[9] On 11 July 2018, Mr Blandford forwarded by email a copy of the Order that Mr Ross attend the Hearing to Mr Ross. On the same day he also forwarded by email copies of the Initial Orders to Attend to Ms Williams. In that email, Mr Blandford requested that Ms Williams forward the Initial Orders to Attend to the relevant individuals or in the alternative, requested that Ms Williams provide the individuals’ email addresses to Mr Blandford so that he could effect service by email.

[10] On 12 July 2018, Mr Blandford sought a further Order (Supplementary Application for an Order to Attend) pursuant to section 590(2)(a) of the FW Act requiring Ms Nurbati Taylor (Ms Taylor) to attend the Hearing. Ms Taylor was identified on Mr Blandford’s application as a human resources and recruitment officer.

[11] On 12 July 2018, Burswood applied to have the Initial Orders to Attend set aside on the grounds that the Initial Orders to Attend were not correctly served and would:

• not produce evidence relevant to the jurisdictional question of whether Mr Blandford was in fact ‘dismissed’;

• prolong the Hearing;

• result in unnecessary costs; and

• cause unreasonable inconvenience to both Burswood and the individuals the subject of the Orders.

[12] On 12 July 2018, a representative of Mr Blandford endeavoured to serve the Initial Orders to Attend on Ms Williams at Burswood’s business premises in person. Ms Williams refused to accept service. 1

[13] On 13 July 2018, Burswood informed the FWC that it opposed Mr Blandford’s application for Orders to Attend in relation to both Ms Taylor and Mr Lau. Burswood stated they opposed those orders being granted on the grounds that Mr Blandford had not demonstrated how the evidence of either of these proposed witnesses would assist the FWC in determining the Jurisdictional Objection. Burswood submitted that the evidence of Ms Taylor and Mr Lau was relevant only to the determination of the merits of the Application, and the proposed witnesses being called to give evidence would result in prolonging the Hearing unnecessarily and resulting in unnecessary costs.

[14] I conducted a telephone conference (Teleconference) on 20 July 2018 to determine Burswood’s application to have the Initial Orders to Attend set aside and Mr Blandford’s Supplementary Application for an Order to Attend.

[15] During the Teleconference, Mr Blandford withdrew his application for Mr Lau and Ms Taylor to be ordered to attend the Hearing. It became evident during the Teleconference that Mr Searle is no longer employed by Burswood and would suffer inconvenience and loss of income if he was compelled to attend the Hearing. As Mr Blandford failed to satisfy me that Mr Searle would be capable of giving evidence relevant to a fact in issue or assist me to determine the Application, I accordingly set aside the Order that Mr Searle attend the Hearing. The Orders to Attend requiring Mr Ross and Mr Adams to attend the Hearing remained in effect. Burswood’s legal representative, who had been granted leave to participate in the Teleconference, continued to assert that service of the Orders to Attend had not been effected by Mr Blandford in accordance with the Fair Work Commission Rules 2013 (Cth).

[16] By email sent on 23 July 2018, I directed Mr Blandford to file evidence in relation to his efforts to effect service of the relevant Orders to Attend on both Mr Ross and Mr Adams. Mr Blandford was also directed to provide a summary of the evidence that he sought to adduce from Mr Ross and Mr Adams at the Hearing.

[17] Mr Blandford filed evidence that he had emailed Mr Ross a copy of the Initial Orders to Attend at Mr Ross’ work email address. He also filed evidence that he had emailed a copy of the Initial Orders to Attend to Ms Williams and requested that she forward the Orders to Attend to Mr Ross, Mr Searle and Mr Adams, or to provide their contact details so that Mr Blandford could forward them himself. This was in addition to the uncontested evidence that he gave during the Teleconference that his representative had attempted to serve a copy of the Initial Orders to Attend at the business premises of Burswood on 12 July 2018 but service had been refused by Ms Williams. 2 Mr Blandford also filed evidence that on 11 July 2018, he had made inquiries of the FWC as to how he could effect service of the Orders, specifically asking whether an agent of the business could sign for an order. Mr Blandford stated that he was advised that serving directly on the employer or an agent of the employer would suffice.

[18] Rule 42 of the Fair Work Commission Rules 2013 (Cth) (FW Rules) provides as follows:

“42 How service is effected by parties

(1) Subject to these Rules, and any directions of the Commission, a person that is required to serve a document on another person must serve the document as soon as practicable.

(2) Service of a document on an individual, a body corporate or an organisation or branch of an organisation must be effected:

(a) by leaving the document with:

(i) the individual to whom it is addressed; or

(ii) the secretary of the body corporate; or

(iii) the secretary of the organisation or branch; or

(b) by tendering the document to:

(i) the individual to whom it is addressed; or

(ii) the secretary of the body corporate; or

(iii) the secretary of the organisation or branch; or

(i) with an individual, apparently over the age of 15 years, at the residence, or usual place of business, of the individual who is intended to be served; or

(ii) at the registered office of the body corporate; or

(iii) at the office of the organisation or branch; or

(iv) in a matter in which the individual, body corporate or organisation or branch has notified an address for service—at that address; or

(d) by posting the document in a prepaid envelope sent by Express Post or registered post to:

(i) the residence, or usual place of business, of the individual intended to be served; or

(ii) the secretary, at the registered office of the body corporate; or

(iii) the secretary, at the office of the organisation or branch; or

(iv) in a matter in which the individual, body corporate or organisation or branch has lodged an address for service—that address;

provided that if service is by Express Post, the person serving the document must retain the barcode of the prepaid envelope and produce it if required by the Commission; or

by fax to a fax number: or;

(e) by fax to a fax number:

(i) currently published by the person who is being served as his, her or its fax number; or

(ii) advised by the person who is being served as his, her or its fax number in response to a request for a fax number that was made immediately before the transmission of the document; or

(iii) appearing as the fax number of the person who is being served on a document lodged with the Commission by that person in the same matter;

provided that the person serving the document must retain the transmission record showing the successful transmission and produce it if required by the Commission; or

(f) by emailing the document to an email address:

(i) currently published by the person who is being served as his, her or its email address; or

(ii) advised by the person who is being served as his, her or its email address in response to a request for an email address that was made immediately before the transmission of the document; or

(iii) appearing as the email address of the person who is being served on a document lodged with the Commission by that person in the same matter;

provided that the person who is serving the document must:

(iv) print the email as a “sent item”, showing the transmission address and the date and time of transmission; or

(v) print a “delivered” statement or a “read receipt” showing the transmission address and the date and time of transmission;

and retain the document so printed and produce it if required by the Commission; or

(g) if:

(i) the person to be served is an employee of the person who is serving the document; and

(ii) a common form of communication between the employer and the employee is by email to a particular email address; and

(iii) it is reasonable for the employer to expect that an email to that email address will be received by the employee;

by emailing the document to that email address, provided that the employer must:

(iv) print the email as a “sent item”, showing the transmission address and the date and time of transmission; or

(v) print a “delivered” statement or a “read receipt” showing the transmission address and the date and time of transmission;

and retain the document so printed and produce if required by the Commission.

(3) For subrule (2):

registered office, in relation to a body corporate, means the principal office or the principal place of business of the body corporate.

secretary, in the case of a body corporate that is established under a law of the Commonwealth or of a State or Territory of the Commonwealth, means the secretary, clerk or other proper officer of the body corporate.

(4) For section 29 of the Acts Interpretation Act 1901, if service of a document is effected by posting it in accordance with paragraph (2)(d), a certificate:

(a) signed by:

(i) a person occupying, or performing the duties of, the office of Managing Director, Australian Postal Corporation; or

(ii) a person authorised in writing by that person to give a certificate under this subrule; and

(b) stating that a letter that was posted (with prepaid postage) at a specified time, on a specified day and at a specified place, and addressed to a specified address, would, in the ordinary course of the post, have been delivered at that address on a specified day;

is evidence of the facts stated.”

[19] However section 591 of the FW Act provides that:

“591 FWC not bound by rules of evidence and procedure

The FWC is not bound by the rules of evidence and procedurein relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).”

[20] More specifically Rule 6 of the FW Rules provides that:

“6 Dispensing with rules and orders inconsistent with rules

(1) The Commission may dispense with compliance with any provision of these Rules, either before or after the occasion for compliance arises.

(2) The Commission may make an order that is inconsistent with these Rules and if it does so, the order will prevail.

Note: An order of the Commission may be given in the form of a direction.”

[21] Given:

• Burswood is the employer of both Mr Ross and Mr Adams and consequently privy to their business and personal contact details;

• Mr Blandford emailed a copy of the Orders to Ms Williams in her capacity as Senior Human Resources Manager with responsibility for the conduct of his matter and requested that she forward the Orders to Mr Ross and Mr Adams or alternatively provide their contact details so that Mr Blandford could effect service;

• Mr Blandford also forwarded a copy of his Order to Attend directly to Mr Ross at an email subsequently provided to the FWC by Burswood as the business email address for Mr Ross (Ms Williams in fact confirmed that Mr Ross received the email and was advised by Burswood that he was not required to comply with the Order attached to it 3);

Mr Blandford endeavoured to have served in person a copy of the Orders to Attend on Ms Williams (who appears to be over the age of 15) at the usual place of business of Mr Ross and Mr Adams but Ms Williams refused to accept service; 4

Burswood is a corporation with significant internal human resource expertise who had engaged external legal advice;

Mr Blandford is a self-represented litigant without knowledge of or familiarity with workplace laws or court practices and procedures;

The undesirability of Mr Blandford interrupting Mr Ross and Mr Adams during the course of them performing their duties as security officers to personally serve the Orders to Attend; and

The privacy implications of Mr Blandford obtaining the residential contact details of Mr Ross and Mr Adams,

I was satisfied that Mr Blandford had made all reasonable efforts to effect service and therefore pursuant to Rule 6 of the FW Rules, I dispensed with further compliance with Rule 42. The parties were informed on 26 July 2018 that I was satisfied that service had been effected for the purposes of this Application.

[22] Notwithstanding this notification, neither Mr Ross nor Mr Adams attended at the Hearing in accordance with the Initial Orders to Attend. I adjourned the Hearing shortly after its commencement and directed Burswood to provide my Associate with the business email address of Mr Ross and Mr Adams. My Associate then forwarded a copy of the Orders to Attend to Mr Ross and Mr Adams. Mr Adams attended at the Hearing shortly thereafter in person. Mr Ross provided his evidence by telephone later the same day.

[23] The delay in the proceedings was unnecessary and disappointing.

Permission to be Represented

[24] A Notice of Listing was issued on 23 July 2018 which inter alia invited the parties to make submissions by close of business on 25 July 2018 if they wished to be represented by a lawyer or a paid agent at the Hearing. The Notice of Listing directed the parties that if they objected to the granting of leave to the other party to be represented by a lawyer or paid agent at the Hearing, the grounds for that objection ought to be filed by close of business on 26 July 2018.

[25] After close of business on 25 July 2018, Burswood’s representative, Mr Simon Billing of S Billing & Associates (Mr Billing), sent an email to Chambers indicating that submissions in relation to leave to be represented had been included in the Outline of Submissions filed by Burswood on 7 July 2018 prior to the direction contained in the Notice of Listing that was issued on 23 July 2018. Shortly afterwards, Mr Blandford filed submissions opposing the granting to Burswood of leave to be represented.

[26] In summary, it was submitted on Burswood’s behalf that Burswood should be granted leave to be represented because:

• the determination of the jurisdictional objection to the Application, involved the intersection of statutory interpretation and fact understood in the context of relevant case law;

• Burswood’s representative, Mr Billing, is an experienced practitioner, cognisant that a lawyer’s duty to the court is paramount and supersedes duties to his client; and

• Mr Blandford would also be assisted by dealing with Mr Billing, who would be in a position to focus on the relevant issues which Mr Blandford would need to bring to the FWC’s attention.

[27] Mr Blandford objected to leave to be represented being granted to Burswood on the grounds that:

• Burswood did not file their leave submissions on time (being filed one and a half hours late);

• Burswood had self-identified Ms Williams as a qualified and capable individual with an understanding of the facts of the case and the relevant performance management framework;

• Burswood had already gained the benefit of legal assistance in preparing their written materials;

• Taking into account Mr Blandford’s circumstance as a self-represented party with no legal training, and Burswood’s circumstance as a large company, it would be unfair to allow Burswood to be represented; and

• The presence of legal representation would not enable the matter to be dealt with more efficiently, and would in fact add unnecessary formality to the proceedings.

[28] Section 596 of the FW Actprovides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[29] In Warrell v Fair Work Australia 5 the Federal Court held that,

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission…”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.

[30] Ms Williams who ultimately appeared on behalf of Burswood at the Hearing, occupies the role of Senior Human Resources Manager and has done so since August 2011. She possesses a Masters in Human Resource Management. Her role remit includes responsibility for in excess of 3000 employees. Her responsibilities also include supporting the Executive General Manager and Employee Relations Advisor on employee relations matters. 6 Previous attendances at Commission proceedings have provided her with an opportunity to familiarise herself with conduct of Commission proceedings.

[31] Mr Blandford is a self-represented litigant with no familiarity with legal process or procedure.

[32] I was satisfied that the detailed written submissions prepared and filed on Burswood’s behalf in advance of the hearing and the opportunity to provide written closing submissions at the end of the Hearing would allow any legal complexity associated with the jurisdictional objection to be properly ventilated.

[33] Taking into account Mr Blandford’s objections to Burwood’s application for leave to be represented and the submissions for leave to be represented contained both in Burswood’s Outline of Submissions and in the email from Burswood’s representative on 25 July 2018, I was not satisfied that I should exercise my discretion to grant leave to either party to be represented at the Hearing.

[34] On 26 July 2018, the parties were advised that leave had not been granted for either party to be represented.

[35] Notwithstanding that leave to be represented was not granted, Mr Billing attended the Hearing and sat in the public gallery. During the course of proceedings he appeared to have conversations with individuals who I understand to be employees of Burswood. I reminded him on transcript that leave to be represented had not been granted and drew his attention to the recent Full Bench decision of Fitzgerald v Woolworths Ltd. 7

Hearing

[36] At the Hearing, Mr Blandford represented himself. He gave evidence on his own behalf. Mr Adams and Mr Ross gave evidence in accordance with the Initial Orders to Attend obtained by Mr Blandford.

[37] At the Hearing, Ms Williams appeared on behalf of Burswood. In addition to giving evidence herself, she called the General Manager of Security and Surveillance, Mr Brian Lee, as a witness (Mr Lee).

[38] Final written submissions were subsequently filed by Mr Blandford on 20 August 2018 and by Burswood on 6 September 2018.

Background Facts

[39] Mr Blandford commenced employment with Burswood as a part-time security officer on 21 December 2016 pursuant to an employment contract dated 23 December 2016. 8 At his request he was only rostered to work on weekends to accommodate his other work, study and personal commitments.

[40] Mr Blandford was one of a team of 190 security officers employed by Burswood to maintain a safe and secure entertainment precinct for patrons and staff. 9

[41] The Burswood Security and Surveillance Department operates within the boundaries of a highly regulated framework of legislation including:

• Casino Control Act 1984 (WA) and subsidiary legislation (including the Casino Manual and Principle Directions);

• Criminal Investigations Act 2006 (WA);

• The Criminal Code Act Compilation Act 1913 (WA) (Criminal Code); and

• The Liquor Control Act 1988 (WA). 10

[42] In addition to the relevant legislative requirements, Burswood has established detailed procedures for its security officers with respect to tactical communications and responses including the escalation of physical and serious incidents. These procedures are intended to minimise the risk of injury to staff and patrons. In addition to a requirement to possess certain security certifications, Burswood Security Officers are required to undergo additional security training upon their commencement for which Burswood is a registered training provider. Burswood’s Security Officers are also required to complete critical skills refresher training annually. 11

[43] On a weekly basis, the Head of Security, Investigations Manager and Investigations Officer conduct a review of all security incidents for that week. As a result of this review, matters are escalated according to their significance and corrective measures are implemented. 12

[44] Other than for a performance expectation meeting held in October 2017 at which the procedure for the management of lost property was reinforced with Mr Blandford (Performance Expectation Meeting), 13 Mr Blandford’s employment with Burswood proceeded without issue until late March 2018.

[45] On Saturday 31 March 2018, an incident occurred in which Mr Blandford, whilst dealing with a patron at the entrance of the Food Court, was alleged to have:

• failed to follow the correct escalation to senior security staff when dealing with a patron;

• used non regulation techniques to restrain the patron; and

• demonstrated unbecoming conduct.

[46] In accordance with Burswood’s Policy 1.18 – Performance Management (Performance Management Policy) a letter (First Allegation Letter) was handed to Mr Blandford on or around 6 April 2018 requesting that he attend a meeting on Friday 13 April 2018 (First Performance Management Meeting). The First Allegation Letter explained that the purpose of the meeting was to provide Mr Blandford with an opportunity to provide his version of events and any other relevant information. The First Allegation Letter sets out in detail the precise time, date and location the events are alleged to have occurred and the relevant policies and procedures which are alleged to have been breached. The First Allegation Letter also sets out the agenda for the meeting and contains a commitment on Burswood’s behalf to investigate the allegations fairly. The First Allegation Letter offered Mr Blandford the opportunity to have the meeting rescheduled to organise representation. Finally, the First Allegation Letter alerted Mr Blandford to the existence of an employee assistance program and availability of human resource advisor to answer any questions he had in the interim. 14

[47] On Friday 13 April 2018, Mr Blandford met with Ms Kylie Topperwien – Human Resources Advisor (Ms Topperwien) and Mr Jay Hayek – Security Shift Manager (Mr Hayek) to discuss the alleged incident. Burswood says that Mr Blandford admitted that he had failed to follow the correct process, but that he provided some context for his conduct including that Mr Blandford was tired. Mr Hayek explained Burswood’s expectations of how Mr Blandford should have handled the situation and offered Mr Blandford the opportunity to attend retraining at Burswood’s Security Training School. Mr Blandford accepted this offer. Having had regard to Mr Blandford’s explanation for his conduct, Ms Topperwien and Mr Hayek determined that it was appropriate to issue Mr Blandford with a First Written Warning and recorded a Documented Discussion. 15

[48] On Tuesday 17 April 2018, Mr Blandford was requested in writing (Second Allegation Letter) to attend a performance management meeting on Friday 20 April 2018 (Second Performance Management Meeting). According to the Second Allegation Letter, the purpose of the meeting was to provide Mr Blandford with an opportunity to provide his version of events and any other relevant information in relation to the allegation that he was involved in the following series of events which were alleged to have occurred during Mr Blandford’s Saturday 14 April 2018 – Sunday 15 April 2018 shift 16:

• made an inappropriate hand gesture to a colleague whilst in a public area of the casino;

• communicated with his shift manager in an inappropriate manner;

• failed to actively perform his duties between 3:15am-4am;

• failed to return his radio to the Security Muster Room; and

• left his rostered shift at approximately 3:56am without approval.

[49] As with the First Allegation Letter, the Second Allegation Letter sets out in detail the precise time, date and location the events are alleged to have occurred and the relevant policies and procedures which are alleged to have been breached. The Second Allegation Letter also sets out the agenda for the meeting and contains a commitment to investigate the allegations fairly. The Second Allegation Letter offered Mr Blandford the opportunity to have the meeting rescheduled to organise representation. Finally, the Second Allegation Letter alerted Mr Blandford to the existence of an employee assistance program and availability of human resource advisor to answer any questions he had in the interim. 17

[50] The scheduled Second Performance Management Meeting was postponed on a number of occasions at the request of Mr Blandford. Mr Blandford also sought additional information and clarification of Crown’s policies, which was provided to him. 18

[51] The Second Performance Management Meeting to discuss the incident which was alleged to have occurred on Sunday, 15 April 2018 was eventually held on Friday, 27 April 2018 and was attended by Mr Blandford, Ms Williams and Mr Lee. 19

[52] At the meeting, Mr Blandford declined to participate in any discussion regarding his performance and conduct and instead presented a written response to the allegations which was six pages in length. 20 Ms Williams says she informed Mr Blandford that Burswood would take into consideration the matters raised in his response, but would like to discuss each incident with him orally. Mr Lee informed Mr Blandford that he had viewed the surveillance footage and that this footage confirmed that Mr Blandford had made a finger gesture at another officer in the presence of patrons. Mr Blandford refused to discuss the incident and instead referred Ms Williams and Mr Lee to his written response.21 In light of this response, Ms Williams says she suggested that the meeting be rescheduled so that she and Mr Lee could read the written response and provide Mr Blandford with their additional questions in advance. Mr Blandford insisted that Ms Williams and Mr Lee read the written response immediately. Ms Williams commenced doing so and after reading his response to the first allegation, asked Mr Blandford whether he believed making the finger gesture was appropriate. Ms Williams says that at this point, Mr Blandford asked for the meeting to be rescheduled.22

[53] Ms Williams agreed that this occur and confirmed that Burswood would contact Mr Blandford to reschedule the meeting once she and Mr Lee had read his written response. 23

[54] Ms Williams says at no point during the meeting was there any suggestion made by herself or Mr Lee that Mr Blandford’s employment was potentially at risk. 24

[55] On Monday 30 April 2018, Ms Williams emailed Mr Blandford an invitation to continue the performance management meeting on 4 May 2018. 25

[56] On Wednesday 2 May 2018, Ms Williams was notified of another incident on Saturday 28 April 2018 in which it is alleged that Mr Blandford used inappropriate technique resulting in excessive force to remove a patron near the casino entry point. On the same day, Ms Williams emailed Mr Blandford a revised letter including this new allegation. 26

[57] Mr Blandford replied to the email requesting that the allegation be treated as a separate event and not be included in the performance management meeting scheduled for Friday 4 May 2018. In his email, he indicated that he felt that he was being bullied, harassed and discriminated and requested that the Second Performance Management Meeting be further adjourned and that Burswood provide its response in writing. 27

[58] On Tuesday 3 May 2018, Ms Williams responded to Mr Blandford’s email stating that it was Burswood’s preference to discuss all the matters in one meeting; however she was willing to discuss them separately if that was his preference. She informed Mr Blandford that Burswood wanted the opportunity to discuss his response to the Second Allegation Letter in person and that he was welcome to bring a support person (including a union representative) and would be permitted to take multiple breaks during the meeting. Ms Williams attached to her email a copy of Burswood’s ‘Policy 1.30 – Resolution of Workplace Issues, Grievances and Disputes’ and explained to Mr Blandford that if he had any concerns with the way she had conducted the performance management process, he could raise his grievance with a separate Human Resource Manager. In the email, Ms Williams suggested that the meeting be rescheduled to 9 May 2018. 28

[59] Mr Blandford did not respond to Ms Williams email. 29

[60] On Sunday 6 May 2018, Mr Blandford sent an email to Mr Blake Veverka, the Security Operations Manager stating as follows: 30

“Hi Blake,

I have made the decision to move on; I therefore am giving you 2 weeks notice, concluding my employment on May 20.”

[61] On 7 May 2018, Burswood confirmed its acceptance of Mr Blandford’s resignation and informed him that it did not require him to work out his notice period and instead he would be paid in lieu of notice. 31

[62] Mr Blandford submits he was unfairly dismissed and seeks an order that he be compensated $15,700 net. 32 Burswood submit that Mr Blandford was not dismissed and that he brought his employment to an end at his own initiative.

Statutory Framework

[63] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

[64] The term ‘dismissed’ is defined in section 386 of the FW Act as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

Consideration

[65] Mr Blandford acknowledges that he tendered his resignation. However, he submits that he was dismissed for the purposes of section 385 of the FW Act because he says he was forced to resign from his employment as a consequence of a course of conduct engaged in by his employer. He describes the course of conduct as follows:

“I had resigned due to the conduct of the employer who was consistentlt [SIC] charging me with allegations of misconduct and poor performance. Every time I came to work. This was despite me continuing to conduct my duties in accordance to custom and practice evidenced by all officers, and for myself over the past 18 months.” 33

[66] In addition to asserting that Burswood relentlessly and unfairly targeted him for performance management, Mr Blandford also asserts that the performance management process was conducted by Burswood in such a procedurally unfair manner that his resignation was an inevitable and intended consequence. 34

[67] Burswood denies that it forced Mr Blandford to resign from his employment. Burswood submit that it was in the process of conducting a reasonable performance management process to address legitimate conduct and performance issues when Mr Blandford chose to end his employment with Burswood by submitting his written resignation. 35

Intensity of Performance Management

[68] Mr Blandford asserts that he was relentlessly targeted for performance management.

[69] Mr Blandford commenced employment with Burswood on 21 December 2016. Save for a performance expectation meeting held in October 2017 (at which the procedure for the management of lost property was reinforced with Mr Blandford 36), his employment with Burswood proceeded without incident until the physical altercation with a patron on Saturday 31 March 2018.

[70] Burswood raised their concerns about the Saturday 31 March 2018 incident with Mr Blandford in the First Allegation Letter and provided him with an opportunity to provide an explanation for the incident at the First Performance Management Meeting held on Friday 13 April 2018.

[71] Following the events which occurred on Sunday 15 April 2018, Burswood issued Mr Blandford with the Second Allegation Letter and provided him with an opportunity to explain his conduct at the Second Performance Management Meeting held on Friday 27 April 2018. 37

[72] On Wednesday 2 May 2018, Burswood raised with Mr Blandford their concerns about his use of force in the Saturday 28 April 2018 incident and offered to deal with it in conjunction with the Sunday 15 April 2018 events. 38

[73] Mr Blandford tendered his resignation before any further performance management meetings occurred.

[74] In a period of employment of 16 months, Mr Blandford attended one counselling session, had allegations formally raised with him in writing on three occasions and attended two performance management meetings in relation to those allegations

[75] Mr Blandford does not assert that the events the subject of the allegations did not occur. The events which led to the allegations being put to Mr Blandford occurred in relatively close succession. However, Mr Blandford’s assertion that he was charged with allegations of misconduct or poor performance every time he came to work 39 is clearly a gross exaggeration.

[76] Based on my findings below in relation to the validity of the matters raised with Mr Blandford, I am not satisfied that the frequency of performance management which he was subjected to could reasonably be described as unreasonable or inappropriate, such that it left him with no alternative but to resign.

Validity of Performance Matters Raised with Mr Blandford

[77] The areas of concern raised with Mr Blandford were:

• On 31 March 2018, he failed to follow the correct escalation of the tactical communications process as he neglected to call a senior officer before physically engaging with a patron, used non-regulation techniques in restraining the patron and demonstrated unbecoming conduct whilst dealing with a patron at the entrance of the Food Court.

• On 14 April 2018, he made an inappropriate hand gesture to a colleague whilst in a public area of the casino.

• On 15 April 2018, he communicated with his shift manager in an inappropriate manner when he raised his voice and used a profanity.

• On 15 April 2018, he failed to actively perform his duties between 3:15am–4am.

• On 15 April 2018, he failed to return his radio to the Security Muster Room at the conclusion of his shift.

• On 15 April 2018, he left his rostered shift at approximately 3:56am without approval.

• On 28 April 2018, he used inappropriate technique resulting in excessive force in removing a patron near the casino entry point.

[78] Mr Blandford does not deny that any of the allegations raised with him were factually untrue. In fact in his email to his supervisor of 24 April 2018 informing his supervisor of a change in his availability to work, Mr Blandford appears to acknowledge that he had behaved inappropriately. In his email, he attributed this inappropriate conduct to fatigue: 40

“I need to drop my availability from Sunday nights, effective immediately, due to university timetable changes. I have had to make these changes as I have been allowing fatigue to accumulate do[SIC] to an over commitment to my varied obligations, which has also lead to me becoming ill-tempered at work (and scoring a couple of HR meetings).”

[79] However Mr Blandford submits that Burswood’s instigation of a performance management process in relation to these allegations was unreasonable because there was an explanation for his conduct that was the subject of allegations. He also says that his conduct was not in breach of any code or policy, or if it was, that Burswood do not enforce their own policies and procedures in a consistent manner, and therefore to enforce those policies in his case was evidence that he was unfairly being singled out by Burswood.

[80] For example, in relation to the allegations with respect to his conduct on 31 March 2018, Mr Blandford says that the technique which he used to restrain the patron which Burswood deemed ‘incorrect technique’ occurred ‘due to frustration and stress-induced impatience’ and was a consequence of him not being permitted to change his roster arrangements. Mr Blandford asserts that, given that he was able to articulate the correct technique, rather than sending him for re-training at a time which was inconvenient to him, Burswood should have instead addressed his obvious anxiety and fatigue. 41

[81] Under cross-examination, Mr Blandford conceded that the Burswood personnel conducting the meeting discussed his welfare at the meeting 42 and offered to intervene to have his shifts adjusted.43 I note that Mr Blandford was employed by Burswood on a part-time basis and by his own choice, was available to work only on weekends. Burswood’s Security School (at which the security training is conducted) is only open on weekdays from 9am to 5pm. Therefore arranging the training during his normal working hours was not practicable. I note that Mr Blandford was paid to attend the training notwithstanding that it was in addition to his normal rostered shifts.44

[82] In relation to the allegation that he made an inappropriate hand gesture (extending his middle finger) he says that the finger gesture he used was not offensive and not in direct breach of any policy. In any event, he says that policies are routinely breached and cites as examples employees wearing a five o’clock shadow contrary to Burswood’s Dress Code or shoes which were unpolished. Even if his gesture was in breach of a policy or code, he says that his conduct did not warrant performance management because there were no patrons present and that if there were, the gesture would not cause them offense. 45

[83] I note that the finger gesture made by Mr Blandford, extending his middle finger at his colleague, is colloquially used as a non-verbal way to express a profanity. CCTV footage tendered by Burswood reveals that patrons were nearby Mr Blandford when he made the gesture. 46

[84] In relation to the allegation that he communicated with his Shift Manager in an inappropriate manner on 15 April 2018, Mr Blandford now denies he raised his voice. 47 However in the written response to the allegations he provided to Burswood at the Second Performance Management Meeting, Mr Blandford admitted not only that he raised his voice and but also that he used a profanity.48

[85] Mr Blandford says that to the extent that his interaction with his supervisor was inappropriate, his behaviour should be excused because he had had to deal with difficult patrons that evening and he was frustrated by having another allegation of poor performance raised with him. 49

[86] In relation to the allegation that he failed to actively perform his duties between 3:15am-4am on 15 April 2018, Mr Blandford says that during that time, he was in the locker room suffering a panic attack following the verbal exchange with his Shift Manager. Mr Blandford says this panic attack prevented him from performing his duties. 50

[87] Mr Blandford concedes that he did not report that he suffered a panic attack at the time or seek medical assistance. 51 Had he done so it may well have been the case, based on the evidence of Burswood’s approach to employee welfare, that Burswood would have treated his absence from duties as an employee welfare issue rather than as a matter of misconduct or poor performance.

[88] In relation to the allegation that he failed to return his radio to the Security Muster Room, Mr Blandford says that after suffering a panic attack he wanted to leave the workplace as quickly as possible so he left the radio at the security desk at the staff entrance (Delta 7). He submits that Burswood’s instigation of performance management process in relation to his failure to return this radio to the Security Muster Room was inconsistent because Burswood routinely permitted members of the Nyoongar Patrol and the NZA security staff to return radios to Delta 7. Mr Blandford also alleges that other aspects of the Standard Operating Procedure for radios are routinely disregarded and that to raise his failure to return his radio to the Security Muster Room was inconsistent and therefore unreasonable. 52

[89] Contrary to Mr Blandford’s assertion that standard operating procedures were routinely disregarded, Mr Adams, who gave evidence as a consequence of the Order to Attend, asserted that he and his team always complied with the standard operating procedure for security radios which required that radios be signed in and out. 53 Mr Adams also explained that members of the Nyoongar Patrol returned their radios to Delta 7 because they were not employees of Burswood and therefore could not access the Security Muster Room. Mr Adams said that he had never witnessed security officers employed by Burswood leaving their radios at Delta 7.54 Mr Ross, who also gave evidence at Mr Blandford’s insistence, gave evidence that he had himself referred an employee to Human Resources for failing to return their radio to the Security Muster Room.55

[90] In relation to the allegation that he left the workplace before his roster was completed, Mr Blandford says that a variance of four minutes between his watch and his employer’s records was not unreasonable and could not constitute misconduct. 56

[91] Ms Williams gave evidence that matters of time and attendance are regularly followed up with employees. 57 She says that notwithstanding it was a small discrepancy, the matter would have been raised with Mr Blandford, although potentially not as formally, had there not contemporaneously existed other, more serious allegations, that Burswood wished to discuss with him.58 Mr Ross gave evidence that employees are not supposed to leave early, that it is against procedure and that he was aware of employees being ‘written up’ for leaving early.59

[92] Finally, in relation to the allegation that he used the incorrect method to restrain a patron on 28 April 2018, Mr Blandford says it was inappropriate that Burswood raised this as a performance issue because when he reported the incident to his supervisor immediately afterwards, he was reassured that his conduct was understandable in the context of the sequence of events in which it occurred. According to Mr Blandford, such incidents are commonplace and are normally dealt with by the shift manager rather than being escalated to human resources for performance management. Mr Blandford also says that it is evident that Burswood were unfairly targeting him because his colleague triggered the incident by physically engaging with the patron and, contrary to policy, had done so without a signal from a senior officer, but his colleague was not himself subject to performance management. Mr Blandford also states that more serious physical altercations with patrons occurred the same night without any performance management or disciplinary consequences for himself or others, and claims this as further evidence that he was being unfairly targeted by Burswood. 60

[93] I am satisfied that the allegations raised with Mr Blandford are not inappropriate matters for Burswood to raise with him in the context of the environment in which he works. This is not a situation where a performance management plan: ‘…lacked any evidence and intelligible justification such that it would be considered by a reasonable person to unreasonable in all the circumstances.’ 61

[94] Burswood is a licensed casino operator and operates within a highly regulated legal framework. Its security personnel are called upon to deal with patrons who are in emotionally heightened states, often aggressive and frequently affected by drugs and alcohol. It is critical to the safety of those patrons, the security officers dealing with them, and other Burswood patrons and personnel, that security officers interact with patrons using appropriate techniques. If Burswood does not enforce the use of these techniques by its officers, those officers may be liable to criminal charges of assault and Burswood exposed to claims for injuries both to patrons and officers. 62

[95] In order to maintain a sense of order, it is important that security officers conduct themselves in a professional manner. 63 Unprofessional conduct by security officers is likely to convey an adverse impression regarding the security of the venue. This has the dual potential to discourage patrons who are concerned about safety from frequenting the venue and to encourage those patrons who might be tempted to act inappropriately to do so. Making an obscene gesture to a work colleague in the role Mr Blandford performed is inappropriate. Doing so in a public place while performing a role that is intended to provide patrons with confidence in their personal safety renders it even more so.

[96] It is not unreasonable for Burswood to inquire into the absence of a security officer from his allocated work area. Burswood has strict regulatory requirements dictating how many security officers must be working at any particular time. 64 Furthermore, in the event of an incident, the number of officers in any particular area may be critical to the capacity of Burswood to safely resolve the incident.

[97] While critical of Burswood investigating his absence from his allocated work area, in the other breath Mr Blandford criticises his employer for failing to be sensitive to the medical incident which Mr Blandford asserts he suffered. He does not explain how his employer might reasonably have ascertained that he suffered an anxiety attack and therefore how they could provide appropriate medical and psychological support but for their investigation into his absence, given that he did not report the incident and Burswood only became aware of his alleged panic attack in the course of the Second Performance Management Meeting.

[98] Mr Blandford sought to deflect from the validity of the matters raised with him by asserting that Burswood did not apply its policies and procedures consistently. However the evidence of those witnesses compelled by Mr Blandford to given evidence via the Orders to Attend was in fact to the contrary. 65

[99] Mr Blandford remained adamant that Burswood singled him out for performance management in relation to conduct which it tolerated in other employees and in fact tolerated in him up until March 2018. The evidence of Burswood is that other employees were in fact subject to performance management in relation to conduct of the same or of a similar nature to the allegations raised by Burswood with Mr Blandford. For example, Ms Williams attested that there had been 78 formal performance management meetings involving security personnel in 2018 up to the date of the Hearing. She explained that the number of meetings with security personnel was particularly high because security is an area of Burswood’s operations which is subject to rigorous regulatory control and therefore Burswood cannot afford to be remiss in not addressing concerns. 66

[100] Other than his own assertion that he was unfairly singled out, Mr Blandford struggled to produce corroborative evidence that this was in fact the case. In fact the two witnesses Mr Blandford had compelled to give evidence both gave evidence under oath that other employees were performance managed for the same type of conduct as Mr Blandford. 67 Mr Ross also gave evidence that it was not unusual for employees to have multiple allegations raised with them and/or have allegations raised in close succession.68 Mr Ross denied Mr Blandford’s suggestion that lots of people have been performance managed out of the security department. In fact, Mr Ross noted that a number of people including himself had been employed in the department for a significant length of time.69 He also stated that:

“As far as being performance managed out, are you referring to them being terminated, there’s not that many people that are actually terminated in the department, no...” 70

[101] However, what is most critical to note is that Burswood had not yet reached any conclusion about the appropriate response to the events which occurred on 15 April 2018 or subsequently on 28 April 2018. 71 The explanation which Mr Blandford provided for his conduct at the Hearing might well have satisfied Burswood that an employee welfare-focussed rather than disciplinary-focussed approach may have been most appropriate in Mr Blandford’s circumstances.

Procedural Fairness of Performance Management Process

[102] Mr Blandford also asserts that the performance management process was conducted in a procedurally unfair way and that the manner in which the process was conducted gave him no alternative but to resign. For example he alleges that:

• Ms Topperwien and Mr Hayek used a condescending tone during the course of the First Performance Management Meeting held on 13 April 2018 and that this, combined with their request that he wait outside the room while they considered his response, was disempowering and belittling. 72

• Ms Williams and Mr Lee attempted to force him to waive his rights to provide a written response to the performance issues raised with him during the Second Performance Management meeting on 27 April 2018. 73

The format of the two performance management meetings in which he was required to respond to questions posed by Burswood personnel, unfairly exposed him to the risk of exposing other performance issues.

The practise of Burswood personnel taking their own notes of the meetings held with him and not requesting that he agree to the accuracy of the minutes was intimidating. 74

[103] My observation of Mr Blandford’s language is that it can be highly emotive and that he is inclined towards the use of poetic licence. Neither Ms Topperwien nor Mr Hayek gave evidence at the Hearing. However, the notes of the First Disciplinary Meeting suggest that they were concerned with Mr Blandford’s welfare as much as his performance and therefore I am not satisfied that they adopted a condescending tone or that their behaviour would be objectively viewed by a reasonable person as disempowering or belittling. There is nothing unusual or exceptional about an employee being asked to step outside a meeting room while those conducting an investigation confer.

[104] Mr Blandford did not identify any legal basis for his assertion that he had a right to provide a written response to the performance management issues raised with him. 75 It would appear to me that Burswood in fact sought to provide Mr Blandford with the opportunity to provide verbal answers to their questions in order to give him more expansive opportunity to respond to the issues which were of concern to Burswood. In any event, Burswood did not prevent Mr Blandford providing a written response and indicated a willingness to contemplate either or both methods of communication.76

[105] While asking an employee to review and confirm the accuracy of meeting minutes is useful in establishing an agreed record of meeting, a decision not to adopt this practice does not of itself make a disciplinary process unfair or improper. There was nothing preventing Mr Blandford taking his own contemporaneous notes if he believed that Burswood were incapable of keeping an accurate record.

[106] There is nothing exceptional or unusual about an employer adopting a scripted question and answer format in performance management and disciplinary investigation meetings. In fact, the practice often ensures enhanced procedural fairness because it improves the likelihood of ensuring that all relevant information is obtained.

[107] Mr Blandford identifies as the source of his distrust for Burswood an alleged breach of a term of his letter of offer which provided for the reimbursement of the cost of a regulatory licence in December 2016. Other than initially querying this entitlement, there is no evidence that he escalated this issue within Burswood at the time or subsequently until these proceedings commenced, in order to enable the matter to be resolved. 77

[108] Mr Blandford also pointed to Burswood’s payment in lieu of requiring him to work out his notice period preventing him having an opportunity to farewell his colleagues as further evidence of Burswood ‘victimising’ him. However as this postdates his resignation, it cannot be said to be evidence that Burswood forced him to resign. In any event, under oath, Ms Williams provided a sound explanation for Burswood’s decision to pay Mr Blandford in lieu of requiring him to work his notice period. 78

Conclusions

[109] I am not satisfied that the allegations raised with Mr Blandford were inappropriate matters to raise with him in the context of the environment in which he works. Nor am I satisfied that the allegations were raised in an inappropriate way. Even if they were, I do not accept that Mr Blandford had no alternative but to resign.

“The critical verb in section 386(1)(b) of the FW Act is ‘forced’. That is, the Act requires that a resignation in order to be a resignation at the initiative of the employer must be a resignation that was forced upon the Applicant by the course of conduct of the employer” 79

[110] In his submissions Mr Blandford states that:

“At no time throughout this whole process did Crown make any attempt to alleviate or investigate my claims of stress and anxiety.” 80

[111] And in his witness statement that:

“Every time I went to work I was charged with fresh allegations for conduct that had no consequence for anyone else. I had run out of sick leave, was highly stressed and anxious and was receiving nothing but harassment from security management and HR.” 81

[112] With respect, it appears that Mr Blandford has a perception of events which is not objectively reasonable and that it is this perception which fuelled his decision to resign, rather than his resignation being forced upon him by the conduct of Burswood.

[113] When Mr Blandford raised concerns about the reasonableness of the allegations made against him and of the performance management process, he was presented with numerous mechanisms to assist him to address these concerns and reduce his stress and anxiety without the need to leave the organisation:

• He was provided with an opportunity to undertake additional training to improve his knowledge of correct engagement techniques. 82

• He was offered the opportunity to dispute the outcome of the First Written Warning. 83

• Burswood agreed to his request for a reduced workload so that fatigue was not contributing to his ability to resolve the issues with Burswood.

• He was invited to contact the human resources department in advance of any meetings if he required any clarification or assistance. 84

• He was provided access to counselling and support through the employee assistance program. 85

• He was assisted with the preparation of his responses via the prompt provision of documentation he requested. 86

• He was repeatedly invited to bring with him a support person or union representative. 87

• He was offered the opportunity to have the meeting rescheduled to organise representation. 88

• The performance counselling meetings were rescheduled on numerous occasions at his request. 89

• Burswood permitted him to provide responses to the performance management issues in writing rather than responding orally. 90

• He was given the opportunity to have allegations dealt with at one meeting rather than two to reduce the anxiety associated with attendance at multiple performance management meetings. 91

• He was invited to lodge a grievance about the performance management process with a different HR officer or to an independent third party. 92

[114] Most employees find performance management a stressful and anxious experience. This is why best practice employers provide employees with access to employee support services during performance management processes. Mr Blandford did not provide any medical or other evidence to support his assertion that the stress or anxiety he suffered was beyond that which might reasonably be expected to be suffered by any employee undergoing performance management. If the mere fact an employee found performance management stressful could be relied upon as a basis for asserting that the employer had forced the employee to resign, then an employer could never effectively manage the performance of underperforming employees without being found to have dismissed them.

[115] Mr Blandford concedes he did not inform his employer that he suffered an anxiety attack nor did he seek medical attention. The first time Burswood became aware of his alleged anxiety attack was during the Second Performance Management meeting. The evidence of Mr Lee and Ms Williams is that at that meeting Mr Blandford did not display any evidence of unusual stress and anxiety. To the contrary he was calm. He was invited to bring a support person and did not feel so anxious and intimidated that he chose to do so. He had been informed on multiple occasions of the existence of employee support services. Mr Lee’s evidence is that if Mr Blandford had expressed any anxiety about returning to the workplace, Burswood would have explored counselling support and other assistance; however as Mr Blandford did not do so, Burswood had no basis on which to believe that if the anxiety attack did in fact occur, that Mr Blandford’s medical state was such that further progression of the performance management process and/or his return to work was inappropriate. 93

[116] Mr Blandford chose to resign. According to his own evidence, he did so with the intention of working out his notice period. 94 This evidence is of itself inconsistent with Mr Blandford’s description of the anxiety and stress which he says he suffered in the workplace and which he says left him no alternative but to resign.

[117] As was acknowledged by Bissett C in Neil Ashton v Consumer Action Law Centre: 95

“It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, view objectively, left the employee with no choice but to resign.”

[118] As was the case in both Neil Ashton v Consumer Action Law Centre 96 and in Love v Alcoa of Australia Ltd,97 a resignation may still be voluntary not withstanding that it was tendered to avoid a direction to attend a disciplinary meeting which the employee suspected would ultimately result in their dismissal.

[119] Burswood had embarked on a structured performance management process consistent with its Performance Management Policy. This process commenced with an investigation meeting for the purposes of gathering facts and for providing Mr Blandford with an opportunity to respond to the allegations and provide an explanation for his conduct. There is no evidence that Burswood had formed a view or reached a conclusion as to whether any of allegations had been substantiated. At the time of Mr Blandford’s resignation, Burswood were endeavouring to arrange a further meeting before determining the course of action that it would take (if any), including remedial action such as training, or a reprimand such as a written warning. There is no evidence that Burswood had formed a view or reached a conclusion as to what, if any, remedial or disciplinary action it would take. 98

[120] Mr Blandford was only at the start of the performance management process and there is no evidence that Burswood had any intention of bringing the employment relationship with him to an end. 99

[121] In fact there is no evidence that Burswood intended to impose any disciplinary consequences on Mr Blandford. The explanations provided by Mr Blandford might well have been accepted by Burswood as a sufficient explanation for his conduct. Burswood did not have an opportunity to determine whether this was the case or convey their decision to Mr Blandford because he chose to resign.

[122] The only authority upon which Mr Blandford relied in support of his case was Isabel Nohra v Target Australia Pty Ltd. 100Mr Blandford asserted that this case provided authority that immediate acceptance of a resignation constituted termination at the initiative of the employer. This case does not have factual application to Mr Blandford’s circumstances. The case involved an application for an extension of time to make an unfair dismissal application. In the course of determining the application for an extension of time, Commissioner Roberts held that the employer’s immediate termination of an employee’s employment in the wake of the employee tendering a resignation that was expressed to take effect many months in the future constituted a dismissal for the purposes of section 386 of the FW Act. Burswood did not bring forward the date of Mr Blandford’s resignation; rather, it elected to pay him in lieu of requiring him to work his notice period.

Conclusion

[123] I am satisfied that the termination of Mr Blandford’s employment was at his own initiative and not at the initiative of Burswood. I am also satisfied that he was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.

[124] I find that Mr Blandford was not ‘dismissed’ for the purposes of section 386 of the FW Act and is therefore not protected from unfair dismissal pursuant to section 396 of the FW Act. In these circumstances, the FWC is unable to consider the merits of his application for a remedy from unfair dismissal. Mr Blandford’s Application is accordingly dismissed.

[125] An order dismissing the Application will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

D Blandford, Applicant.

J Williams for the Respondent.

Hearing details:

2018.

Perth.

July 30.

Final written submissions:

Applicant, 20 August 2018

Respondent, 6 September 2018

1 Transcript at PN15–PN17.

2 Ibid at PN15–PN17.

3 Ibid at PN7.

4 Ibid at PN15–PN17.

5 [2013] FCA 291.

6 Exhibit R1 at [4]–[9].

7 (2017) 270 IR 128.

8 Exhibit R1 at [11]; Exhibit A1; Exhibit A3.

9 Exhibit R4 at [14].

10 Ibid at [16].

11 Ibid at [14]–[26].

12 Exhibit R4 at [27]–[33]; Transcript at PN211.

13 Exhibit A3; Exhibit R2.

14 Exhibit R1 at [12]–[14] and Attachments JW2 and JW3; Exhibit A3.

15 Ibid at [15]–[17] and Attachments JW4 and JW5.

16 Ibid at [19] and Attachment JW6.

17 Ibid.

18 Exhibit R1 at [20]–[22] and Attachment JW7.

19 Exhibit R1 at [24]; Exhibit A3.

20 Transcript at PN57.

21 Transcript at PN59.

22 Exhibit R1 at [25]–[26] and Attachment JW8; Exhibit A3.

23 Exhibit R1 at [27].

24 Ibid at [28]–[30].

25 Exhibit R1 at [31] and Attachment JW10.

26 Exhibit R1 at [32]–[33] and Attachment JW11; Exhibit A3.

27 Exhibit R1 at Attachment JW12.

28 Ibid at [34] and Attachment JW13.

29 Ibid at [35].

30 Ibid at [36] and Attachment JW14.

31 Ibid at [37]–[38] and Attachment JW15.

32 Exhibit A1 at 7c.

33 Ibid at 3c.

34 Exhibit A2 at 5b; Exhibit A1 at 3c.

35 Exhibit R3 at [2].

36 Exhibit A3; Exhibit R2; Transcript at PN472.

37 Exhibit R1 at [24]; Exhibit A3.

38 Exhibit R1 at [32]–[33] and Attachment JW11; Exhibit A3.

39 Transcript PN113.

40 Exhibit R1 at Attachment JW7.

41 Exhibit A2 at 5c.

42 Transcript at PN186.

43 Exhibit R1 at Attachment JW4.

44 Exhibit R4 at [30].

45 Exhibit A1 at [4]; Exhibit R1 at Attachment JW9.

46 Exhibit R4 at [40] and [45] and Attachment BL6.

47 Exhibit A2 at 5c.

48 Exhibit R1 at Attachment JW9.

49 Ibid.

50 Exhibit A2 at 5c; Exhibit R1 at Attachment JW9; Exhibit A1 at 4c.

51 Transcript PN581–PN587.

52 Exhibit A1 at 4c; Exhibit A2 at 5c; Exhibit R1 at Attachment JW9.

53 Transcript at PN301–302.

54 Ibid at PN316–PN317.

55 Ibid at PN870.

56 Exhibit A1 at 4c; Exhibit R1 at Attachment JW9.

57 Transcript at PN628–PN630.

58 Ibid at PN660.

59 Ibid at PN868–PN869.

60 Exhibit A1 at 4c; Exhibit A2 at 5c; Exhibit A3.

61 Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 at [102].

62 Transcript at PN182; Exhibit R4 at [14]–[33].

63 Exhibit R4 at [31]–[32].

64 Ibid at [41].

65 See for example the evidence of Mr Adams with respect to the signing in and out of radios. Transcript PN285–PN302.

66 Transcript at PN703–PN707.

67 See for example the evidence of Mr Ross at PN870.

68 Transcript at PN874.

69 Ibid at PN875–876.

70 Ibid at PN879.

71 Ibid at PN93, PN768.

72 Exhibit A2 at 5c.

73 Ibid.

74 Ibid.

75 Exhibit A1 at 4f.

76 Transcript at PN535.

77 Ibid at PN558–PN565.

78 Ibid at PN724.

79 David Mendicino v Tour-Dex Pty Ltd[2010] FWA 9114 at [7]–[8].

80 Exhibit A2 at 5c.

81 Exhibit A3.

82 Exhibit R1 at Attachment JW4.

83 Ibid at Attachment JW5.

84 Ibid at Attachment JW3, JW6.

85 Exhibit R1 at Attachment JW3, JW6, JW10, JW11; Transcript at PN228, PN801.

86 Exhibit R1 at [20]–[22] and Attachment JW7.

87 Ibid at Attachment JW3, JW6, JW10, JW11.

88 Ibid at Attachment JW3, JW6, JW10, JW11.

89 Exhibit R1 at [20].

90 Ibid at [25]–[28] and Attachment JW8.

91 Exhibit R1 at [33]–[34]; Transcript at PN219.

92 Exhibit R1 at [34] and Attachment JW13; Transcript at PN224–227 and PN664.

93 Transcript at PN598–609 and PN801–802.

94 In fact Mr Blandford asserts that unfairness arises from Burswood’s paying him in lieu of notice rather than allowing him to work out his notice and farewell his colleagues. See Exhibit A1 at 3c; Exhibit A3; Exhibit A4 at 3.2.

95 [2010] FWA 9356 at [59].

96 Ibid at [60].

97 [2012] FWAFB 6754.

98 Exhibit R1 at [28]–[29]; Exhibit R4 at [49]–[51]; Exhibit R1 at JW2; Transcript at PN818.

99 Neil Ashton v Consumer Action law Centre[2010] FWA 9356 per Bissett C; Robert Daffey v MSS Security Pty Ltd[2011] FWA 3983 per Roberts C.

100 [2010] FWA 6857 at [10]–[11].

Printed by authority of the Commonwealth Government Printer

Duncan Blandford v Burswood Nominees T/A Crown Perth