Erik Diefenbach v Plastic Printing Pty Ltd T/A Ink Signs

[2016] FWC 3810

[2016] FWC 3810

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Erik Diefenbach
v
Plastic Printing Pty Ltd T/A Ink Signs
(U2016/114)

SENIOR DEPUTY PRESIDENT DRAKE MELBOURNE, 15 JUNE 2016

Application for relief from unfair dismissal.

[1] This application pursuant to section 394 the Fair Work Act 2009 (the Act) was listed before me for hearing on 1 June 2016.

[2] Mr Diefenbach represented himself. The respondent was represented by Mr Jake Howard, Director, and Mr Bradley Poole, Director.

[3] Mr Diefenbach resigned his employment on 17 December 2015. I decided to initially determine whether Mr Diefenbach’s employment had been terminated by the respondent by way of a constructive dismissal. I informed Mr Diefenbach that if there was no dismissal the application could not properly be before me. He indicated that he was content for me to determine that issue first.

[4] Mr Diefenbach gave oral evidence regarding his alleged constructive dismissal. He also provided an Outline of Submissions, a document headed Attachment “A” written by Mr Howard, a statement received on 18 April 2016, and an Outline of Submissions on Jurisdiction.

[5] In the application for Unfair Dismissal Application (Form F2) lodged by Mr Diefenbach, at paragraph 3.2, he referred to additional paragraphs which were attached and numbered 1 to 20. I referred Mr Diefenbach to those paragraphs.

[6] Mr Diefenbach and Mr Howard have not had a particularly happy relationship. A number of incidents were described by Mr Diefenbach as bullying and harassment. There was a particular incident which troubled Mr Diefenbach. On this occasion he discovered a document created by Mr Howard. Mr Diefenbach referred to the discovery of this document as “the final straw”. After some questioning it was settled that that discovery took place on 11 December 2015.

[7] Mr Diefenbach described the event as follows:

“After all these repeated instances of mistreatment, the final straw for me was finding a 3 page document which was clearly visible on Jakes desk. This document contained fictional dialogue of possible future events, all focussed on me. Most of the topics contained in this document never happened nor were they ever brought up by me or the directors of plastic printing. It was written in a similar style as a play, with my part, then their part. Below is a small excerpt from this document.

STOOL
[do we warn him about the stool before we go up]

ERIK BRINGS THE STOOL DOWN TO PRINT AREA.

We find the biggest chain we can, and we padlock it to his bench.

Erik cuts padlock.

Erik, we are not paying you to sit down. If I see it again, it is getting thrown out. If you want to get paid to sit down go get a job as a bus driver.

(Note: I did sit down occasionally, but it no way affected my work. In January 2016 I had an x-ray and an ultrasound on my right foot to try and find the cause of the pain I have been experiencing for the past few months.)

The document states that I should find a different job or the fact that they would replace me on 5 different occasions.

VISITING RUSS
[firstly we need to give Russ the heads up about Erik, by saying to him if he has any complaints or issues just to come and see us. And the biggest problem is probably going to be Erik just wandering over for a chat and annoying your blokes for scrap and wasting their time.]

Erik is outside chatting to Russ when we need him.

Hey Erik, if you want to work for Shire Steel, go speak to Russ about getting a job.

The above events and dialogue are imagined by Jake and never happened.

I feel extremely strongly about the last point, as I have been a regular customer of Shire Steel for a number of years and feel that if anything like this was said to them it would lessen their opinion of me.”

[8] I asked Mr Diefenbach about this event and the period following it. I said to him:

“--- for me to decide whether or not your resignation can be a constructive dismissal, I have to closely examine the circumstances out of which you resigned. So I need to understand the timing.---“  1

[9] In attachment “A” he said:

“I struggled with this information for a few days feeling that I’d be forced to leave my employment. I was under pressure from my wife to stay at my job. My sleep was affected, my family was affected, and my self-esteem was affected. On 17th December, too angry to carry on working under those conditions and afraid that I was going to have a stroke from the stress (I suffer from high blood pressure), I told Brad I was leaving and I got everything I could think of off my chest.

Jake stood above me on the stairs as I spoke angrily and said “just go, just go then”.

My initial emotions in the days following 17th December were of relief at getting out of a toxic environment. It didn’t take me long however to realise that leaving my job had been forced on me. I genuinely enjoyed my job and running the printers etc was very fulfilling for me. For the record I would like to state that I genuinely feel I was an asset to the business in every way, and the negativity directed towards me was absolutely unwarranted.”

[10] Mr Diefenbach’s evidence was that he struggled with the information on the document for a few days. He felt that he had been forced to leave his employment. His sleep was affected, his family was affected and his self-esteem was affected. I asked Mr Diefenbach what happened between the 11^th and 17^th of December. I asked him if he was thinking about the events and deciding what to do during that period. He responded:

“--- No, I had decided on the day that I found the document, I made a photocopy and I went downstairs and I probably shouldn’t have, but I showed it to one of my co-workers.---“   

And I said to him, ‘This can only end one way.’ So that was my immediate reaction, was ‘That this can only end one way.’---“

[11] Mr Diefenbach and his wife discussed the situation for the balance of that period. His wife wanted him to stay because they needed the money. He wanted to leave, but he knew he could not stay. In the end his wife gave him permission to go.

[12] He worked on the Monday, Tuesday and Wednesday following the discovery of the offensive document. He resigned on Thursday, 17 December 2015.

[13] He did not lodge an anti-bullying application.

[14] He did not seek legal advice as to whether he should resign.

[15] He did not speak to Mr Howard or Mr Poole about his contemplated resignation.

[16] I was satisfied that Mr Diefenbach decided to resign. He had other, although limited, choices. He was not forced to resign. He was offended, and rightly so. He contemplated his circumstances, discussed them with his wife and resigned. I was not persuaded that these circumstances amounted to a constructive dismissal. It was for these reasons that I issued my finding and order of 1 June 2016.

SENIOR DEPUTY PRESIDENT DRAKE

 1   TPN 103

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