Jake Raymond Walker v Chiefs Son Distillery Pty Ltd

[2024] FWC 1827

[2024] FWC 1827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jake Raymond Walker
v

Chiefs Son Distillery Pty Ltd

(C2024/230)

COMMISSIONER PERICA MELBOURNE, 11 JULY 2024

Application to deal with contraventions involving dismissal

1. On 12 January 2024, Mr. Jake Raymond Walker filed an application under s 365 of the alleging he was dismissed from his employment with Chiefs Son Distillery Pty Ltd (Chiefs Son) in contravention of Part 3-1.

1. Chiefs Son made a jurisdictional objection that Mr. Walker was not dismissed as required by s 365(a).

1. The Commission’s powers to deal with a dismissal dispute under s 368 are subject to the determination of any jurisdictional issues.

1. For reasons that follow I have decided that Mr. Walker voluntarily resigned by e-mail on 5 December. He was therefore not dismissed as required by s 365(a). This application is therefore dismissed.

Procedural History

1. Mr. Walker filed his Form F8 on 12 January 2024. The Form F8 was twenty-two pages long exclusive of appendices. The Application included 36 appendices which ran 264 pages.

1. On 18 January 2024, Chiefs Son was served with the Application and appendices.

1. On 24 January 2024, Ms. Eugenia Ikonomou of the firm Employsure Law filed a Form F53 notice of representation which gave notice that Employsure Law would seek to represent Chiefs Son.

1. On 30 January 2024, the Commission wrote to Employsure Law as neither it nor its representative had filed a Form F8A employer response.

1. On 1 February 2024, the Form F8A was filed and served.

1. On 2 February 2024, Ms. Rebecca Millar, the representative of Mr. Walker wrote to the Commission advising that the service of the Form F8A was filed beyond the seven calendar days required of rule 21 of Fair Work Commission Rules 2013.

1. On 7 February 2024, the Commission issued Directions for the filing of material leading up to the Determinative Conference. The determinative conference was on the sole issue of the jurisdictional objection that Mr. Walker had not been dismissed.

1. On 12 March 2024, the Commission conducted a determinative conference on the “no dismissal” jurisdictional objection.

1. The conference was heard remotely using Microsoft Teams. Mr. Walker attended and was represented by Ms. Rebecca Millar. Chiefs Son was represented by Troy Plummer of Employsure Law. Maj. Stuart McIntosh Ms. Naomi McIntosh and Ms. Kate Emmanouel gave evidence on behalf of Chiefs Son. Mr. Walker gave evidence on his own behalf.

BACKGROUND

1. On 2 May 2022, Mr. Walker commenced employment with Chiefs Son as a full-time sales representative pursuant to a contract of employment.

September to November correspondence on sales

1. On the morning of 8 September 2023, Maj. McIntosh sent Mr. Walker an e-mail on the subject “Revenue Pipeline”. The e-mail set out broad areas in which Mr. Walker was to give the main focus on sales “in the context of declining sales figures, investment in risky and long projects and the extended nature of the income generated”. It stated “these strategies aim to target specific demographics and need to be executed by “a plan demonstrating the who and the how”. The e-mail ended “In 2024, the overall sales figures must increase dramatically”.

1. At 6:35 AM on 23 October 2023, Maj. McIntosh asked Mr. Walker to “please provide an urgent update on sales today including “expected cash flow for October, November and December 2023. At 12:36 AM, Mr. Walker responded with cash flow for those months and an explanation of the “objectives” he had completed in the 2023 and a bullet point list of what he “had achieved in this role to date”. At 1:41 PM Maj. McIntosh responded to Mr. Walker’s e-mail asking him to “list the actual money receipted in the months not the value of the project”, as he was “trying to determine cash flow”.

1. At 9:45 AM on 24 October 2023, Maj. McIntosh sent a further e-mail to Mr. Walker that noted “I still don’t have any idea of what is expected in the bank account on October, November, and December I am very concerned that we have $250,000 worth of expenditure but nothing coming in other than markets. This is super critical”.

1. Mr. Walker responded by e-mail at 11:45 AM on 24 October 2023: “it’s impossible to determine what’s coming in November and December, I have a generalised idea based on my pipeline and things I am working towards but if you’re looking for today’s money in the bank I cannot retrieve that ahead of time”. In the e-mail, Mr. Walker provides a “snap shot” of the work he had been doing and he notes, “Ultimately, this year has been tough on sales and even tougher on people in this industry. 250K worth of expenditure in one month is almost exorbitant in the eyes of any business owner but I have worked like an absolute dot this year to reach October and for us to be struggling to too the 250K bill does not sit well with me.”

1. On 10 November 2023, Mr. Walker sent a further e-mail to Maj. McIntosh which outlined the sales projects he was undertaking in 2023 and the “forward planning” he was undertaking for 2024 (“10 November e-mail”). That e-mail contained the following passages:[1]

“The reason for my email is that I'm not sure how far into 2024 I should plan. One of my stronger assets is my ability to piece together a timeline, and recently there's been a few things that are tipping me off that my time might be limited here at Chief's, obviously the cash flow this year being number one. … I've never been performance managed in my career, but I do know what the beginning of that cycle looks like, as I did performance manage two staff members in my role at the VACC.

It usually starts with planning, then monitoring, followed by a review. I suppose for the purposes of transparency, I'd like to know if you're planning on making the cut, and if so, would it be before Christmas, before my return in January, or just after then?

I'm of the opinion that next year would be an infinitely better year for sales, but I also understand cold hard math, and as a business owner myself, if I were trying to mitigate expenditure, I'd begin by cutting costs, and it's been readily acknowledged between us that I'm a rather expensive asset. I don't consider myself to be a stupid individual, and it was my foresight and deductions about Jetty Road that led us to Dainton, as I knew there was a problem that wasn't actively being addressed with you.

…
I do not send this email to force your hand, but I do send it with my current workload and 2024 sales plan in mind”

…
“I can confidently state that I have accomplished more than any other person in this chair, and I've not broken despite how difficult or tense things have gotten. I know you both are aware of this fact. Rest assured, if my hunch is correct, I will leave this role in better shape than I found it.”

Visit to general practitioner on 17 November 2023

1. On 17 November 2023, Mr. Walker attended a general practitioner Dr. Qi Li Lawrence Leow and presented that he was feeling “stressed out, low energy, and panic attacks (amongst other things).[2] The clinical notes Dr. Leow took at the meeting where as follows:

“Burn out, anxiety

Head of sales for whiskey distellery feeling stressed out
Low energy
Anxiety
Panic attacks
Irritable mood
Morere emtional than usual
Does not feel depressed
Denies any suicidal ideation
Doesn't want to be on medication

Over the last 6 months, progressively worsening
Dreads going to work
Has been looking at other options
ings are a lot better when he is at home
Feels overworked, not much down time
Overworked, understaffed
Working up to 80 hours a week

….
Reason for visit:
Burnt out

November e-mails concerning sales

1. At 1:30PM on 23 November 2023, Maj. McIntosh sent Mr. Walker a further e-mail responding to the 10 November 2023 e-mail. It included the following passages:[3]

“I am not confident that you have a realistic sales plan that will see us into next year!

Last week I asked you to provide a plan for 2024 showing your main focus areas and revenue sources. This should have been something that you already had and were tracking! Other than Accor and ILG, your email titled 'Forward planning 2024’, comprises no strategy or projections and this really concerns me.

…
We’ve been addressing this now for 8 months and have seen a decline in receipted revenue and this really worries me.

…
I am very concerned that the sales ideas will not eventuate, and even those that do will not generate consistent, medium to long term sales. We cannot survive on potential large sales that remain elusive and future dated!

I know you believe that next year will be infinitely better than 2023, however I believe 2024 will be a far worse financial year and without a strategy and very strict adherence to attainment, we will struggle a great deal.”

1. At 5:42 PM on 26 November 2023, Maj. McIntosh sent a further e-mail to Mr. Walker which included the text:
   
   

   “We don't have the luxury to cruise into next year. We have been addressing this sales underperformance for 9 months, specifically discussing the necessity to achieve targets for Oct, Nov and Dec, plus the ongoing declining in receipted sales revenue.

Your receipted revenue for Nov was $7,098 ex GST, yet we were planning on the reduced estimate of $26,100 (reduced from your estimate of $356,387).

This shows the trend line in constant decline and an average monthly revenue of $13,720 (ex GST) for this CY.

Your reduced estimate for Dec is $36,227, well short of your monthly target of $58,333 target and your estimate of $221,224.

Based on Dec being the average monthly revenue, your total ex GST receipted revenue will be $164,641.”

1. At 11:43 AM on 27 November 2023, Maj. McIntosh sent a further e-mail which included the following text: “you needed to have a plan for growing and supporting retail accounts includes indi stores.” It was also critical to plan for major sales events such as Father’s Day and Christmas.

Sick leave on 4 December 2023

1. At 7:18 AM on 4 December 2023, Mr. Walker sent an e-mail to Ms. McIntosh under the heading “Sick” which read: “Unfortunately I’m unable to make it in today, feeling under the weather. Apologies for the late notice. Only hit me once I got out of the shower, I think it might be anxiety related. So, I’m going to slow down and try again tomorrow”. Ms. McIntosh responded by text which asked, “one thing did we need to reply to Dan Murphy e-mail thought they asked for a response by 2 December 2023.”

The meetings of 5 December 2023

1. At 10:30 AM on 5 December 2023, an impromptu staff meeting was called with staff of Chiefs Son including Mr. Walker. What was discussed at that meeting and its length is contested (“the Staff Meeting”).

1. Sometime following that meeting, a smaller meeting was held between Maj. McIntosh and Mr. Walker (“Smaller Meeting”). There is a contest as to whether Ms. McIntosh was present at that meeting and also as to what was discussed.

“Resignation” e-mail and acceptance

1. At 2:22 PM on Tuesday 5 December 2023, Mr. Walker sent the following e-mail:[4]

“Dear Stuart and Naomi,

I write this with a heavy heart and mixed emotions; I’m surprised pain is one of them. It does pain me to leave after investing so much of myself in your brand. I have lived and breathed it daily and title with pride and the quiet knowledge that you both produce the finest whisky Australia has to offer. The glimpse into the industry has been eye- wateringly confronting and really given perspective into how hard you have to work in this industry just to make an honest dollar, especially against rising odds like taxes and socio-economic impacts, which have greatly effected profitability and margins for everyone in this industry.

It’s with the fullest sincerity that I say that I hope you’re able to weather the coming storm and come out the other side operational and intact.

Today we reached a mutually agreed outcome. I would resign from my position as your Head of Sales. My final day has been agreed upon as December 22, 2023.

During my time in this role, I wholeheartedly believe I have secured more accounts and long-term business than any other salesperson before me. I do take pride in the relationships I’ve built and I know you’ll stand the benefit from this long after I’ve left this role. I acknowledge I’m not your typical salesperson, and that is reflected in my approach with clients and larger accounts. My aim has always been to uphold the premium nature of the brand through channels that align harmoniously. My vision has been strategic and calculated from day one.
…

This has been a rewarding experience overall and has equipped me with a resolve I didn’t know I had, and it will serve me well in my coming endeavours and my current business. I have decided I will be staying in liquor in another capacity, so this may not be the last you hear from me.

I thank you for the opportunity and your personal investment in my skillset”

1. At 3:24 PM on 5 December 2023, Maj. McIntosh sent an e-mail to Mr. Walker that accepted the resignation and noted “We’ll both be super disappointed to see you leave, and that’s not just said to be nice”. It went to outline the matters Chiefs Son required Mr. Walker to attend to during the notice period.

1. On 6 December 2023 at 8:28AM, Mr. Walker wrote to Maj. and Ms. McIntosh in an e-mail which included the following text:
   
   

   “Obviously yesterday was an intense day. I am just going to take today to process and decompress from it, with such a big change taking place there’s a few things I need to organise personally I need some space to put my head back into the game and close out this coming period professionally and with dignity. Obviously, I’m a touch embarrassed about the staff meeting and becoming emotional like that. It’s not how I like to portray myself or carry myself. I struggle showing signs of weakness”.

1. Further e-mail traffic ensued between Mr. Walker and Maj. McIntosh over 6 and 7 December 2023 and later.

1. On 7 December 2023, Dr. Chia Lee issued a certificate of capacity in which stated the following.

“Certificate of capacity issued 07/12/2023.

Diagnosis:
Adjustment disorder with anxiety
Secondary to Workplace stress

Treatment Plan:
Counselling. May benefit from psychological counselling.

1. On 13 December 2023, a certificate of capacity on was issued on behalf of Mr. Walker as follows.

“Certificate of capacity issued 13/12/2023.

Diagnosis:
Adjustment disorder with anxiety
Secondary to Workplace stress

Treatment Plan:
Counselling. May benefit from psychologist input.”

1. Prior to my consideration of the submissions and evidence of Chiefs Son and of Mr. Walker, there are two preliminary issues which were raised in submissions and at the determinative conference.

PRELIMINARY ISSUES

Late service of Form F8A

1. Rule 21 of the Fair Work Commission Rules 2013 requires that an employer to a general protections application to lodge a response to the application within 7 calendar days after the day the employer was served with the Application.

1. Chiefs Son was served with Mr. Walker’s application on 18 January 2024. Chiefs Son lodged its Form F8A response on 1 February 2024, seven days late.

1. In the outline of argument, Mr. Walker sought to have the jurisdictional objection “struck out” on the basis of the late lodgement. The Applicant also made an objection orally at the hearing.[5]

1. Mr. Plummer, in support of the Commission receiving the Form F8A noted the “voluminous nature” of the application, requiring “his client to instruct one of his employed solicitors to be taken through all of the material and provide a coherent response to all of those matters”.

1. I asked Ms. Millar how Mr. Walker was prejudiced by the late lodgement. Ms. Millar submitted “there’s no real excuse for not complying with the legislation, the rules that the Commission is bound by”.[6]

1. On the basis of the submissions of both parties, the lack of any clearly articulated prejudice suffered by Mr. Walker and taking into account the lengthy nature of the material filed with the application, I decided to extend the time for receipt of the Form F8A under the broad discretion of the Commission to control its own procedure under s 589(1).

Leave to appear by Mr. Plummer of Employsure Law.

1. In correspondence before the determinative conference, and at the conference itself, Ms. Millar, on behalf of Mr. Walker, objected to leave being granted to Employsure Law and to Mr. Plummer of that firm appearing on behalf of Chiefs Son.

1. In her outline of submissions, Ms. Millar argued against leave being granted. She argued if leave was granted, it would not lead to the matter being dealt with more efficiently; Chiefs Son was able to represent itself; and it would not be “fair or just” to allow the employer to be represented by a lawyer when Mr. Walker was not.[7] At the hearing, Ms. Millar orally submitted, “I don’t believe the matter’s overly complex, and I think it would be fair to allow each party to represent themselves”.[8]

1. Mr. Plummer’s submissions in support of leave related to the volume of material that had been filed by Ms. Millar on behalf of Walker[9] and that it was his “intention to assist [the Commission] in limiting the matters that are put before you to make just and efficient time to confine all of those matters.”[10]

1. I decided to grant Mr. Plummer leave to appear under s 596(2)(a). The sheer volume of material filed, and the consequent complexity of the matter supported his argument that the assistance of a legal practitioner was required for the efficient conduct of the  proceeding. Mr. Plummer could assist me with the 482 pages of material in the Digital Court Book.

RELEVANT LAW

1. In order for the Commission to exercise its power to deal with a dispute under s 365, it must find as a jurisdictional fact the Applicant has been dismissed.

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.

1. Under the table in s 342(1)(a), an employer takes adverse action against an employee if the employer “dismisses the employee”. The meaning of “dismisses” is governed by the definition in s 12 which directs the reader to s 386:[11]

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.

1. The question then for consideration is whether Chiefs Son “dismissed” Mr. Walker such as to found an action under s 365.

SUBMISSIONS AND EVIDENCE OF WALKER

Submissions

1. The submissions filed by Ms. Millar on behalf of Mr. Walker are dense. Essentially, he argues that his resignation on 5 December 2023 was forced because of the course of conduct engaged in by his employer under s 386.

1. The course of conduct on which Mr. Walker relies includes the circumstances in which he says the resignation was made. He argues that he was “dismissed one hour after [his] e-mail without care or consideration to [his] mental state”. Walker argues that the forced nature of the resignation is supported by the following circumstances “around the time of the e-mail”:

“a) The Applicant was in a state of emotional distress.

b) The Applicant had noted a mental health concern to the Respondent twice in as many days.
c) The Respondent accepted the Applicant’s resignation forthwith, …
d) The Respondent failed to clarify or confirm if the Applicant genuinely intended to resign once the applicant had an opportunity to recover.
e) The Respondent was failing to pay the Applicant’s entitlements in accordance with the Award.
f) The Respondent was engaging in repudiatory conduct.
g) The Respondent was engaging in discriminatory behaviour.”

1. Mr. Walker relies on 26 separate circumstances he says “confirms the Respondent took numerous actions against [him], with the intent which could be said to have a probable effect of bringing the employment relationship to an end”. Those grounds include:

“• The failure of the Respondent to comply with the small business code and

·   The Respondent’s ongoing and unrealistic expectations of the Applicant and the Respondent’s unreasonable expectations of cash flow prediction, months in advance by the Applicant

·   A written refusal and unwillingness by the Respondent to compensation the Applicant for TOIL in accordance with the terms outlined in the offer of employment.”

Evidence of Walker

1. Mr. Walker filed three statements. Two of the statements were from Ms. Kate Charleston and Ms. Brooke Joseph, who were former employees of Chiefs Son. Mr. Walker did not call those witnesses at the hearing.

The Walker Statement

1. The third is entitled “Applicant Statement of Evidence” (the Walker Statement”). It is an amalgam of witness statement and reply submissions, including lengthy criticisms of the evidence filed by Chiefs Son. Paragraph 112 gives his account of what transpired at the Smaller Meeting on 5 December 2023 following what is described as the “impromptu staff meeting” on that day.

1. The Walker statement has a lengthy sixteen-page commentary on meetings and correspondence which Chiefs Son argues are meetings and e-mails regarding the performance of Mr. Walker in sales from April to late November 2023.[12] It contains submission of fact that Mr. Walker was “never formally performance managed” and that Chiefs Son gained “significant financial and personal benefit from Mr. Walker’s high end contacts in hospitality industry”.

Medical Consultation on 17 November 2023

1. The Digital Court Book contains notes of a consultation Mr. Walker had with his treating medical practitioner Dr. Leow. The notes state amongst other things “Burnt Out…Feeling stressed out, Low energy, Panic Attacks, Irritable Mood, More Emotional than Usual, does not feel depressed”. It also notes: “Dreads going to work, has been looking at other options”. The reason given by Walker for the visit was “burn out”.[13]

Mental State Leading up to 5 December 2023

1. Mr. Walker in his oral evidence gave that on 4 December 2023, he “woke up early for work… stepped into the shower and I experienced an anxiety attack”.[14] The reason for his anxiety was his “personal life was being encroached upon”, he was “meeting out of hours demands” and “advancing things that was going on”. He also explained his “personal life was coming into question a lot and there [were] conversations in the office that were taking place”. He took a day off on 4 December 2023 and notified of his absence by text, the effect of which he explains: “I was experiencing anxiety; I would try again tomorrow, and I was sorry for my absence. “[15]

Staff Meeting

1. In his evidence, Mr. Walker states he learned of the 5 December 2023 meeting about 50 minutes after arriving at work. He told there was an impromptu staff meeting upstairs and he was required to attend. He was not given a reason for the meeting and all staff attended.[16] According to Mr. Walker, the duration of the meeting was “approximately two hours”.[17]

1. His evidence is that the meeting was called “because the Respondents were experiencing a significant financial downturn in their business” and the “main thing, it was pointed at me, and saying my sales – it was my sales specifically”.[18]

1. He described the course of the meeting as follows:

“The staff meeting opened by Stuart talking extensively about the financial downturn they were both experiencing and the stress that they were under to keep the business running, and no one was really understanding how intense that was, the process on them. they were talking about a number of reasons for the downturn. Like, it was Naomi who said that it was industry wide. And Stuart specifically pointed out sales being down this year, and that some things that I had brought to the table hadn't come off in a timely and effective manner which meant that they were experiencing great financial difficulty which meant an overall downturn in people's roles. Sally's role was brought up first in marketing as a potential knock-back or a cut to be made or a reduction. And then they said that they may have to reduce or completely cut the sales function from the business because that was an expensive option.[19]

1. Later in his evidence he elaborated on how his performance was discussed in the meeting:

“They said that they've received some revenue in the bank. Essentially it wasn't meeting the requirements where they needed to be, in terms of expenditure. There was a number of – and I believe it was Stuart who said to me that, you know, despite my hard work nothing had come off and it was – yes, that's basically it.

1. Mr. Walker then gave evidence as to how the mention of “sales being down” made him feel:

“I felt demoralised, and I was extremely – I was extremely – I felt berated, really because there was a – it's pretty – yes, emotional.. I have dedicated a large portion of my employment to bettering their business and I had implemented a lot of things. I sold casks, I have attended events, I have – I've operated outside the sales bunch, and I was broadly across their business. And I was a loyal and a faithful employee to them and – sorry, yes.”[20]

1. His evidence was that he referred to his mental health issues at the meeting:

“I said that the sales function was an extreme one and it had weighed on me significantly, and the fact that my sales figures weren't where they needed to be had weighed on me quite significantly. And basically, I had said that it's taken a great deal of stress and a toll on me, personally. And that's when I became emotional and said that I'd been struggling with anxiety and persistent anxiety attacks.[21]”

1. No one comforted him at the meeting other than “Sally” in marketing. At the close of the meeting, he felt: “I was disappointed because I felt like – felt like all my hard work was – they hadn't seen it. I was extremely demoralised. I'm surprised it's happened in a public forum.”

Smaller meeting

1. An account of what transpired at a subsequent meeting is given in the Walker Statement.

1. In Walker’s oral evidence he also gave an account of what transpired at that meeting. He was “not really” advised of the meeting. When the first meeting ended, he was advised by Maj. McIntosh by telephone that the second meeting was about to take place and I need to come back up to the tasting room. No welfare checks were taken, and the tone of the meeting was “confrontational”.[22]

1. Those present at the meeting were Mr. Walker and Maj. McIntosh and Ms. McIntosh at the start of the meeting. According to his oral evidence “only Stuart and Mr. Walker” were present at the end of the meeting.[23]

1. In the Walker Statement, he asserts that another topic of conversation was a recording of an exit interview with Ms. Brooke Joseph. Apparently, when this was raised, “Naomi become irritated and began saying. She’s breached her NDA”. A customer walked in and left to attend the tasting and never returned. According to the submissions of fact in his “Statement”, Ms. McIntosh left the meeting before there was any discussion in relation to the cessation of his employment.[24]

1. In his oral evidence Mr. Walker described the course of the meeting as follows:

“Stuart repeatedly hounded me about not producing a sales plan and I disputed that fact. I said I produced a sales plan in 2023 which was rejected. He did not look at that sales plan. And I said that in order for me to formulate my 2024 sales plan I needed time, because obviously I submit my sales plan in December, so later on in December, obviously, you know, when accounts are closing and, you know, there's (indistinct) revenue coming back in. That way I can substantially do a sales plan. But he continued that he had no confidence in my ability. And at that time I started becoming – I started pushing back a little bit more, pushing on topics like, you know, my achievements and things that I had achieved in the role, and that I was confident that all the accounts that I had closed in 2023 were going to lead to a better '24. And they included several luxury hotels, a brand deal and some other things that were happening in the background including some European sales, as well.”[25]

1. He then gave evidence about what transpired towards the end of that meeting:
   
   

   “So, he brought up my sales figures that had been consistent decline according to Mr. McIntosh, which I refute. And eventually what transpired was, you know, he said, 'We can't continue to fund you, or cross fund you.' And I said, 'So, what is it? What's the outcome here?' I said, 'What are you going to do?' And he essentially said, 'Well, I think it's best that we decide on the date that should be your final day.[26]'

…it wasn't much of a discussion. It seemed to me that Stuart already had a notation in his diary because he looked down and then looked back up and date. So, it was obviously predetermined that – the outcome of that meeting had been sort of predetermined in that way. I do note for the Commission that there were several events that they needed me to attend during my two weeks notice period that he wanted me to fulfil and they needed me for that. And it was just after those events finished that they were planning on getting rid of me.”

Stuart asked me to put something in writing and he'd be happy to organise a reference for me. At that time, I asked Stuart how he wanted it to read. And Stuart said to me, 'Like a resignation.' [27]

1. Mr. Walker continued in his oral evidence: “He shook my hand and thanked me for my time. And he was obviously knew I was still emotional, and I guess his attempt to assuage my emotions at the time was to give me a hug. It’s still a raw memory actually”.[28]

1. What followed that meeting was a conversation in the office downstairs: “Sally, [Walker], Stuart and Naomi were part of that conversation. They asked me what I was going to do next and if I had anything planned. And I gave some generalised ideas about what I might do or where I might go – I said I need some time. And that’s why I potentially might. Spend some time in Tasmanian and take a European holiday.”[29]

1. Mr. Walker also gave evidence that he wrote the resignation directly after “four hours of an emotionally charged meeting. I wrote my resignation after those meetings at Stuart’s directive that he wanted me to sign my resignation”.[30]

1. His evidence was he then went downstairs and wrote his resignation letter “within a least twenty minutes of resigning. I just wanted to get it out of the way, and have it sent over to them for a formality, and I genuinely meant what I said and I thought maybe if I wrote that in my resignation letter they might see my heart and not accept it”.[31]

1. He then gave evidence of “conversations with Sally, Kate and Mitch”, which he recalls occurring “after he wrote the resignation letter”.

“Sally and I discussed at length how much she enjoyed working with me and how disappointed she would be to see me go, and that I was a light around the office for her. And that it was – you know, it continued to be a stressful working environment and that stress was compounded with me leaving. Then I went and spoke to Kate and Kate's recollection of events are relatively sound apart from that, you know, I did not speak to her, at twelve like she states. I spoke to her well after I sent my resignation email. And yes, I was – I was happy when I spoke to her because I personally struggled with showing signs of weakness and I didn't want to show any more weakness, so I put a brave face on while I was speaking to my colleague. I didn't want her last memory of me to be distraught and overly emotional[32].”

Previous attempted resignations

1. In his oral evidence, Mr. Walker conceded he had attempted to resign twice before:

Troy Plummer
So, you concede that you attempted to resign on at least two occasions?

Jake Raymond Walker
Yes, but there are - there's context to that.

Troy Plummer
In the context of those attempted resignations, you clearly didn't resign effectively on either of those occasions, did you?

Jake Raymond Walker
No, I did not.

Troy Plummer
And I put it to you that that was because you were unequivocally told on each occasion that you were valuable to the business and they did not wish for you to resign?

Jake Raymond Walker
Mr. Plummer, my value to the business is now in great question, so I'm not too sure what-

The Commissioner
No. Answer the question. Ask and answer, okay. The reason why your resignations weren't accepted is because you were unequivocally told that you were valuable to the business. It's a 'Yes' or 'No', isn't it?‑‑‑

Jake Raymond Walker
Yes, that's correct.

1. In re-examination, he gave the reasons why he had resigned:

Rebecca Millar
Going back to your previous attempted resignations what would you say prompted those resignations?

Jake Raymond Walker
What prompted those resignations were I was becoming increasingly frustrated at the amount of work that I was doing within the business, the underpayment of my overtime. There was a number of - you know, there was a lack of respect for my personal time. I was being talked to on my weekends, and there was a number of things happening there. On one of those occasions, I tried to resign in an open forum, because Mr. McIntosh and Mrs McIntosh did believe in having sales meetings in an open forum, and Stuart openly deleted things that I had going on in my pipeline. So, he would say, 'That's not coming in, delete, delete, delete, delete', and he berated me in that office. So, I tried to resign that day and I remember using the words to the effect, 'Well, if that's what you believe I might as well get in my car and "f" off', was my - and that's - yes.[33]

SUBMISSIONS AND EVIDENCE OF CHIEFS SON

Submissions

1. Chiefs Son denies Mr. Walker was dismissed; it submits that there was no termination at the initiative of the employer. The application should therefore be dismissed for want of jurisdiction.[34]

1. Chiefs Son argues on consideration of its evidence it cannot be said it took any action against Mr. Walker with the intent to bring the employment relationship to an end, nor did it take action which could be said to have the probable effect of bringing the employment relationship to an end. It asserts its evidence proves that Mr. Walker resigned of his own initiative. It rejects Mr. Walker’s argument that his resignation was at Chiefs Son’s initiative because of budgeting failures and cash flow problems.[35]

1. It argues the evidence “demonstrates a clear timeline of poor performance where Mr. Walker made a conscious decision to resign to avoid the repercussions of his failures to perform”. It asserts Walker’s “poor performance was a consequence of his own actions; the viability of business does not have any bearing on the Applicant’s capacity to make a conscious design to resign from his employment.”[36]

1. It rejects Mr. Walker’s contention that his complaints regarding alleged unpaid overtime, and time off in lieu arrangements have caused the Respondent to engage in conduct that forced him to resign. It argues the evidence provides comprehensive explanations with respect to the arguments on unpaid overtime and the time off in lieu arrangements.27 

Witness Statements

1. Chiefs Son filed three witness statements which were adopted by each witness under oath at the hearing: Maj. Stuart McIntosh, the director and “overall Manager”; Ms. Naomi McIntosh, who is the Sales and Marketing Manager; and Ms. Kate Emmanouel, the production co-ordinator at Chiefs Son.

Evidence of Stuart McIntosh

Statement of Mr. Stuart McIntosh[37]

Oversight of Mr. Walker

1. In his filed statement, Maj. McIntosh noted that “he is not normally involved in the Sales and Marketing Function”. From April 2023, Maj. McIntosh was asked by Ms. McIntosh to “become involved” with the oversight of Mr. Walker’s sales because he “failed to achieve his sales targets and with declining sales month on month”.

1. He notes from April 2023, this oversight was “done on a regular and systematic basis through discussions, screen talks and formal meetings. Later in 2023 they became more frequent as “Jake’s performance worsened” and more formal.[38]

Overtime and TOIL

1. Maj. McIntosh also deals with the TOIL issue. He notes that under the relevant Award, employees can take time off in lieu of overtime. Prior to 3 November 2023, all staff kept a personal log of additional hours worked by an honesty system. He states “there was no overtime required at the distillery other than “twice a year, all staff attended two events on a Saturday which counted as overtime. From 2023, a formal system was adopted and “based on Jake’s personal log, he had no TOIL to carry forward to the new system”.

1. He concedes that on 6 October 2023, Mr. Walker sent him an e-mail regarding work outside ordinary hours. In an e-mail sent at 11:22 AM on 6 October 2023 to Maj. McIntosh, Mr. Walker notes as a result of the overtime he was working, it was “taking a lot of time away from my own business which chips away at my overall earning capacity”. In that e-mail, Mr. Walker claims that he was working “10 hours a day and 80 plus hours a week without a break”.

1. Maj. McIntosh refutes that Mr. Walker was working 80 hours week. He states that “Walker would constantly advise customers that he was available 24/7”, which Maj. McIntosh “discouraged and advised him to stop telling people.” He also asked him “not to check his e-mails and messages while not at work”.

Correspondence and meetings with Mr. Walker concerning sales.

1. Maj. McIntosh notes that Mr. Walker was “never formally performance managed but outlines what he calls “specific performance discussions” he had with Mr. Walker from April until December 2023. He states he had meetings to discuss sales performance on 27 April, 18 July, 4 August, 4 and 7 September, 23 October, 30 October, 13 and 16 November 2023.

1. The following gives an indicative example of his evidence in relation to the “performance meetings” and e-mail that are referred to in the “Background” section of this decision.[39]

“On 27 April 2023, I had a meeting with Jake to discuss my concerns regarding his sales pipelines, past cash flow and projected new business. Annexed to this statement …is a copy of his sales pipeline that was brought to and discussed in the meeting.

On 18 July 2023, I had a meeting with Jake to discuss his poor sales figures which.
accounted for 1% of revenue. I raised concerns regarding his high-risk sales approach and his limited focus on retail, new or existing accounts. Annexed to this statement and marked SM-04 is a copy of the meeting minutes that I recorded shortly after the meeting.

On 4 August 2023, I had a meeting with Jake to discuss his poor sales figures for June and July 2023, being gross figures of $9,960 and $9,399 respectively.

On 4 September 2023, I had a meeting with Jake to discuss his lack of business pipeline and underperforming revenue. Annexed to this statement and marked SM-05 is a copy of the revenue figures that were brought to and discussed during the meeting.

On 7 September 2023, I had a meeting with Jake to discuss my concerns regarding the decline in sales. Annexed to this statement and marked SM-06 is a copy of the meeting minutes that I recorded shortly after the meeting.

On 8 September 2023, I sent Jake an email detailing my concerns regarding his declining sales figures, investment in risky and long-term projects and the extended nature of income being generated. This email clearly re-stated his specific sales focus areas. Annexed to this statement and marked SM-07 is a copy of the email I sent Jake on 8 September 2023.

On 23 October 2023, I sent Jake an email seeking an urgent sales update regarding expected cashflow for the rest of the year and timeframes on various projects. Jake replied to my email providing the requested updates. I decided it was necessary to hold a meeting with Jake because his updates included unrealistic income estimates.

On 23 October 2023, I had a meeting with Jake to discuss poor cash flow, the need to produce profit and to re-state his specific sales focus areas. Annexed to this statement and marked SM-09 is a copy of the meeting minutes that I recorded shortly after the meeting.

On 24 October 2023, I sent Jake an email seeking realistic sales estimates from the
correspondence that occurred on 23 October 2023. Jake replied advising he was unable to estimate revenue figures but was positive for November and December 2023.

On 30 October 2023, I had a meeting with Jake to discuss revised forecasted revenue figures and revisit the timeline of performance topics that had been discussed for the last few months. Annexed to this statement and marked SM-11 is a copy of the notes and statistics that I brought to the meeting.

On 10 November 2023, Jake sent me an email about his plans for the rest of the year and 2024.

On 13 November 2023, I had a meeting with Jake to specifically discuss all the matters set out in his email dated 10 November 2023. I told Jake that I wanted him around and that many discussions had occurred throughout the year, yet I was concerned that his sales continued to decline at each stage. Annexed to this statement and marked SM-13 is a copy of the email from Jake dated 10 November 2023 with my comments in red that I brought to the meeting for discussion.

On 16 November 2023, I had a meeting with Jake to discuss revised revenue figures for
2024.

On 23 November 2023, I sent Jake an email stating my concerns around his sales plan for 2024.

On 24 November 2023, Jake replied to my email dated 23 November 2023 and said he was "going to push through until the end of the year and try and fix the issue so leave it with me and I'll continue to do my best."

On 26 November 2023, I replied to Jake's email dated 24 November 2023, stating that he had been underperforming for the past 9 months and I also included statistics to demonstrate his ongoing underperformance.”

1. Maj. McIntosh was cross examined about these meetings and the notes he states he made shortly after those meeting. In answer to a question on why Maj. McIntosh took over as Mr. Walker’s direct report, he said:

“Jake was very well aware that I was taking over the planning and the execution of his sales, because until that point he'd failed to achieve his target at any point, and so there's no difference between who Naomi and I are dealing with, it's just that I'm a larger hammer and I wasn't going to put up with Jake's diminishing performance, and that's why I came onboard. So, Jake's awareness was pretty obvious, because as you can see from April I kept notes, and so he wasn't sitting down with Naomi, he was sitting down with me.[40]”

1. Ms. Millar, for Mr. Walker, sought concessions from Maj. McIntosh in cross examination that none of these e-mails or meetings amount to formal performance management:

Rebecca Millar
…it's fair to say the applicant was never warned by yourself or Ms. McIntosh that he was possibly subject to termination as a result of poor performance, correct?

Stuart McIntosh
Correct. He was never – he was never on the chopping block for termination. That was never the plan.

Rebecca Millar
So, could you explain the detailing poor performance and your timeline of events leading up to the meeting on the 5th regarding Mr. Walker's/applicant's alleged underperformance?

Stuart McIntosh
The sequence of the events – say the last bit again?

Rebecca Millar
You have painted quite a picture here in your statement regarding the applicant's alleged underperformance. However, you've failed to notify the applicant of his alleged underperformance and the consequences of that alleged underperformance.

Stuart McIntosh
That's incorrect...[41]

Staff Meeting

1. In his statement Maj. McIntosh stated following about the Staff Meeting:

“On 5 December 2023 at 10.30am, I called an impromptu staff meeting, which included Jake. This meeting was called last minute because I had heard murmurs that staff were concerned about their jobs and that morale was deteriorating as a result. I started the meeting by saying that the purpose of our meeting was to discuss the fact that 2023 had been a difficult year for everyone, especially for Naomi and myself. This was due to staffing issues, a FairWork claim and declining retail sales revenue. I stated that the economy would likely contract in 2024 based on consumer confidence and that costs would potentially be cut in 2024 to keep the business afloat. I advised them that not only did we have a significant amount of our wealth tied up in this business, but our jobs were as important to us, as theirs were to them. When I got onto the topic of sales, I stated that there had been some over expenditure based on projected income. Jake was not humiliated, questioned or blamed; rather he got slightly emotional and acknowledged that he had contributed to some of the difficulties. Jake's eyes welled up and because of this, after the staff meeting, Naomi and I decided to have a private conversation with him to check in and make sure that he was alright[42].

1. He attaches what he describes as “minutes” of the meeting that he says he “recorded on the same day as that meeting” which relevantly included the following[43]:

“It was outlined that unless sales improve in December and early January, significant cost cutting would need to occur and may include:

·   Reduction in production from 24 batches to 10, or even less.

·   Reduction in Marketing spend, namely reducing Sally's contracting days per week.

·   Reduction or re-structuring of the sales function. This may include reducing hours or being unable to fund the sales function.”

1. Maj. McIntosh was asked a question whether this passage of his meeting notes mean that Mr. Walker’s role was at risk. He responded:[44]

“… – I'll read the first line. It says, 'It was outlined that unless sales improved in December', so no one's roles were at risk if Mr. Walker's sales figures had come off, which he was pretty confident about. So hence reduction in production, and the other points are invalid, because, well, look, Jake was very – Mr. Walker was very confident that he was going to hit his sales…. there was no intent to restructure the company at all …”

1. Maj. McIntosh was asked to describe Walker’s demeanour at the meeting:[45]

“… And we reassured him that it wasn't all his responsibility that the money that he had guaranteed to come in hadn't come in, and it was purely a discussion around the expansion of the tasting room, which by the way was funded by the state government as a grant. So it wasn't that much of a big deal. It was Mr. Walker acknowledging that he had failed in bringing the cash flow in. I think, from my recollection, he had assured me there was $356,000 worth of income coming in in November and $7000 had come in. So, there's reason for him to be upset. He wasn't visibly upset. Everyone reassured him that it was fine, and we moved on.”[46]

…

“So, he didn't cry. I'm not sure what the technical term is. He didn't cry”

1. On the length of the meeting, Maj. McIntosh in his oral evidence says “the staff meeting went from 10:30 AM to about 11:15 AM and lasted about 45 minutes long.

1. According to Maj. McIntosh, shortly after the impromptu sales meeting, “Ms. McIntosh and I had a quick chat, we invited Jake to come upstairs for the primary purpose of making sure he was OK. When he came upstairs absolutely fine. So, he sat down and we made sure of that. There was a social discussion at start with, making sure things are okay, and then we started talking about his planning for 2024”.

Smaller Meeting

1. The account Maj. McIntosh gave of the Smaller Meeting involving himself and Mr. Walker is as follows.[47]

“On 5 December 2023 at 11.30am, after the staff meeting, Naomi and I had a meeting with Jake. The primary purpose of the meeting was to check that Jake was ok after the staff meeting, but also to talk about planning for 2024. After asserting that Jake was in a fit state to talk, we discussed the following performance matters: Jake's high-risk sales strategy, the decline in his sales revenue, unrealistic estimates on receipted income and his failure in prioritizing customisation and private casks.

Jake then said that his partner, Troy, wanted him to resign as Jake was unhappy in not
achieving his sales targets. However, Jake had told his partner that he wanted to stay. Jake said that he was likely to resign in early to mid-2024 as he wanted to re-locate his mother to Tasmania and travel around Europe.

Jake went on to say that he was affected by the stress of juggling his own growing company and the pressure of not hitting his sales targets. He felt the role was not fun anymore which worried him. He also talked about a personal issue of domestic violence towards his mother.

“I told Jake that he had to look after his own mental health, and I didn't want to see him hurt by the pressure of his sales role.

Jake then conceded that he didn't have any new leads or ideas, or a plan for 2024. He asked if we wanted him to resign. I

I said that we did not want him to resign, evident in the fact that we had retained him for so long. I said that we have invested so much into him and kept trying to equip him with the tools to do his job. That we believed in him. That we gave him methods. That we gave him strategy. We were passionate about getting him up to speed and supporting him. However, we needed a strong sales plan for 2024 and could not keep taking money from other areas to fund his role.

After this discussion, Jake said that he thought it was best if he was to resign. I again reiterated that we didn't want him to resign but understood his decision if he felt that he could not improve his performance, especially in light of his already busy personal life and his other business.

Jake stated that it had been an honour to work with us, that he had grown so much in the role both professionally and personally, that he had pushed himself further than he had ever done before and appreciated the support that we had given him. We agreed on his final date of employment to be 22 December 2023.”

1. Maj. McIntosh produced personal notes he says in evidence that he “recorded shortly after the meetings” which includes the following excerpt:

“Jake asked whether we wanted him to resign and we stated that we did not want him to resign, but he needed a strong, realistic plan for 2024. We stated again that we cannot keep cross funding other sales areas to fund his position.

Eventually, and after a very long and personal discussion, Jake said that he thought that it would be best if he was to resign. We reiterated that we did not want him to resign, but understood if he felt he could not improve his performance, especially under a Performance Improvement Model, and that it was adding additional pressure onto his already busy personal life and own company.

We acknowledged his very hard work and unfortunate position he found himself in, having to rely on people who didn't end up progressing with sales. He acknowledged the substantial personal development and resilience that he had found at CSD and that it was truly an honour to work here at the Distillery.

We agreed on the final date of 22 Dec 23 and outlined that we had a lot of work to do, especially as would not be replacing him in the short term. We outlined that he would need to get Hubspot up to speed and have a full list of actions and progress of the projects that he was working on. It would also help to make joint calls together to hand over with customers.”

1. There is a dispute as to whether Ms. McIntosh came back to this meeting after she had left to talk to customers. Maj. McIntosh gave oral evidence about her involvement in the meeting:[48]

Stuart McIntosh
So, she had a short tasting. A family came in, in the same room but down the other end. We did a short tasting for, I don't know, 20 minutes or so, and then she came back in. When she came back in, I said, 'I just wanted to let you know Jake has resigned.' And she said, 'Okay', 'Wasn't expecting that', kind of reaction, and then we sat down and really just talked for a few minutes with Naomi, just-

The Commissioner
You mean the three of you?

Stuart McIntosh
The three of us, yes. Yes, and just talked-

The Commissioner
How long does that go on for, do you reckon, in a guesstimate sort of a way? Half an hour?

Stuart McIntosh
No, not long at all. It was more of a wrap‑up, just to fill Naomi in that he had resigned.

The Commissioner
So, the corpus of the meeting, that was really, if I can describe it, a postscript, was it? So, the meeting had taken place, but she came and you've said, 'Well, he's resigned and that's it.' Is that‑?

Stuart McIntosh
Yes. I summarised it to her and he outlined that he was looking at going to Europe and that he wanted to move his mother down to his flat down in Tasmania.”

1. Maj. McIntosh gave evidence about the length of time between the end of the second meeting and the resignation letter:[49]

Rebecca Millar
Would it be fair to say that your meeting concluded with the applicant at or around 2 pm?

Stuart McIntosh
No, that's incorrect.

Rebecca Millar
What time do you say that the meeting concluded?

Stuart McIntosh
It went for about an hour. It started at 11.30. So the first meeting went for 45 minutes and the second meeting was give or take an hour. So it would have finished by 12.30, and that's when Mr. Walker was telling people that he had resigned. So it would appear that it's actually a couple of hours after, I believe. Is that correct? So 2.22 from - so, yes, probably a couple of hours later.

1. Maj. McIntosh also conceded in cross examination that at 3:24 PM on 5 December 2023 a draft e-mail accepting the resignation was sent in error to Mr. Walker.

Previous attempted resignations

1. In his statement Maj. McIntosh gives an account of two earlier occasions where Mr. Walker had attempted to resign:[50]

“Jake had made 2 previous attempts to voluntarily resign, these were in August 2023 and September 2023. On both occasions, I had passionately argued his retention. This was done on the grounds that I believed in his capability to create a realistic plan with forecasts and attain his targets. I cannot recall the details of his 2 previous attempted resignation attempts but they were in the context of casual discussions. At the time of both resignation attempts, I felt that I had to do a lot of ego stroking to convince him to stay and perform…”

Evidence of Ms. Naomi McIntosh

Staff Meeting

1. Ms. McIntosh affirmed the truth of the Statement she has filed in the proceeding. In that statement she gives an account of the Staff Meeting:[51]

“On 5 December 2023, an impromptu staff meeting was called as staff had talked about low morale and it was felt necessary to address everyone’s concerns about the business. We discussed that the stress was real and was a hangover from past employees and FWC that had taken up a fair chunk of our time, combined with the busy leadup to Christmas. We acknowledged that it had been a difficult year for everyone in that meeting. Stuart had laid out the economics for 2024 stating that interest rates were on the rise and people were going to spend less. Jake got emotional and said that he took his job seriously, really wanted to bring in the money, felt like it was on his shoulders and agreed that his sales were down. I reiterated at this point that this slowdown was across the industry and was being experienced by all our distillery colleagues and was further evidenced by the number of craft breweries going under. Stuart was clear in pointing out that we all had specific roles and that we needed to work as team to move forward: Mitch - coordinating production, barrel moving, etching of customization, Kate - bottling and market coordination/packing, Geoff - bottling, Sally - marketing/social media, Naomi - doing “her stuff”, Jake – sales, Stuart - operations management, including production.”

1. She was asked in cross examination what she observed about Mr. Walker’s demeanour at that meeting:[52]

Rebecca Millar
I think you're being asked about his demeanour specifically

Naomi McIntosh
Yes, and he was fine and he was open and fully imbursed in the discussion. At some point when we were talking about - so we talked about the effect that Brooke had had on all of us in staff, and that it had been a stressful year and a few months for Stuart and myself and that I said that it had also had a big impact on every single person including Mitch and Jake and Sally as well. And then Jake then went on to say - and that's when he started to get a little bit emotional about how he was proud and that he felt that he took his job seriously and he really wanted to bring in the money and that he felt that the weight was on his shoulders and he did agree that his sales were down. Jake, I would say, then recovered and participated in the rest of the meeting.

Rebecca Millar
Did the applicant announce to the room that he was suffering from a mental health condition?

Naomi McIntosh
I don't believe so. I don't recall that.

Rebecca Millar
Was the applicant visibly upset? Would you describe the applicant as being visibly upset?

Naomi McIntosh
I'd say he was physically upset.

The Commissioner
What did you see? Can you describe what you saw to think he was upset?

Naomi McIntosh
(Indistinct) with - yes. He was sitting on the straw. He was leaning forward with his elbows on his knees and his eyes were rolling up or they were red. He wasn't crying. He wasn't crying. He was still able to communicate. He was still able to verbally talk.

1. During re-examination Ms. McIntosh gave evidence about the length of this meeting: “I think maybe an hour”.

Smaller meeting

1. In her Statement Ms. McIntosh gave an account of the Smaller Meeting:[53]

   “Stuart and I sat down with Jake to have an open discussion, but to also ascertain what his sales plan for 2024 really was. Jake had recovered emotionally and what followed was a very open, professional and honest discussion. The discussion started with questions about Jake’s sales plan for 2024, that we needed to see figures as we had been asking for 3 months and that there had been many failed sales … A phrase I would often say to Jake was “I will get excited when we see the actual money”. Jake finally admitted in this meeting that he didn’t have a sales plan but that he “felt confident that 2024 would be better”. Jake went on to say that he had put his heart and soul into this job, he was strong, successful in every aspect of his life and he really wanted to make this job work, but it did stress him because he felt that he was not getting the results he expected of himself. He went on further to say that his partner, Troy, wanted him to leave and that he was thinking about it.

   I then had to briefly leave the conversation to serve some customers who had come in for a tasting.

   Around 30 minutes later, I returned to the discussion with Stuart and Jake. When I returned, Stuart said that Jake had resigned with the effective date being 22 December 2023. I said “oh, ok.” Jake then said that he had planned on anyways leaving the Company in early to mid-2024 to move to Tasmania and go on a big European holiday for the summer. Stuart then asked if Jake wanted to tell the other staff of his resignation, which he said he would do.

1. Ms. McIntosh was cross examined about how long she was absent from the meeting and the demeanour of Mr. Walker when she returned.[54]

Rebecca Millar
When you left the meeting to serve customers, how long do you think you were gone?

Naomi McIntosh
I think I was probably gone for about 30 minutes.

Rebecca Millar
… And when you returned, what was the demeanour of the applicant? What was actually said to you when you returned to that meeting to bring you up to speed what had occurred while you were gone?

Naomi McIntosh
Well, it appeared to me that Jake and Stuart were having a friendly discussion. Jake - Stuart said, 'To bring you up to speed, Jake has resigned', to which I replied, 'Okay', because that was not what I had seen coming. It was completely unexpected. Then Jake - it was all very - a bit of a personal conversation then and he said that he had planned on leaving the company anyway, that he's going to move to Tasmania to take his mother to escape the domestic violence and go on a big European holiday in the summery anyway so

Rebecca Millar
All right. So you definitely returned to the meeting after serving customers?

Naomi McIntosh
Yes, because that's when they told me that Jake had - that's when Jake told me about his plans to move and go on his holiday and that he had planned on leaving anyway.”

1. Ms. McIntosh also gave evidence about the length of the second meeting:

Troy Plummer
And the second meeting, the resignation meeting; how long, roughly, do you believe that went?

Naomi McIntosh
I think that probably - because I was out of it for 30 minutes, so it probably went for over an hour. So maybe an hour and 20 minutes, an hour and a half maybe. Maybe. I don't feel like I was back in that meeting for very long because the discussions had already happened. I came in and I found out that he had resigned so that was kind of the end of the meeting.[55]

Evidence of Ms. Kate Emmanouel

Text exchange and conversations on 4 December 2023

1. Ms. Kate Emmanouel, the production co-ordinator with Chiefs Son, affirmed her witness statement into evidence. In the statement, it gives an account of a text exchange between herself and Mr. Walker on 4 December 2023.

Monday 4 December 2023, 11:26 AM

Kate Emmanouel
Hope you are feeling okay? I am hoping it’s just a mental health day….

Jake Walker
Yeah I’m okay, I just woke up and decided that I didn’t want to be there. Lol

I’ll be in tomorrow, I just needed a day to figure out what I actually want to do.

I appreciate you checking in though, it’s much appreciate 

Kate Emmanouel
I thought so… it’s a pretty fucked up situation. Enjoy the sunshine at least 

1. She explained the circumstances of this text exchange in cross examination:[56]
   
   

   Rebecca Millar
   What was the reason behind sending the applicant text message

Kate Emmanouel
Well, we were conversing a couple of times before that and Jake was - I was getting to know Jake a bit more because Stuart and Naomi were away and not coming back (indistinct) and they were quite busy, so there was only - there's only four of us that work there, so it was quite close even though I didn't work side by side with him, we still had a relationship.

Rebecca Millar
All right. But what was the reason why you would directly reach out to the applicant to ask him if he was all right. Was there a conversation that occurred prior to this

Kate Emmanouel
Yes. It was - yes. So we were - he was talking about - the day before this, I believe it was, it's in my phone, the day before he was telling us about how he wanted to resign and that he was told that he can't and it was a conversation between him, myself and Sally, the other lady in the marketing team, and we got - I said, 'Well, let's bring Mitch in', and Mitch came in and I said - because he's about to sign us a lease. And it was a discussion in relation to Jake wanting to resign, but he was told that they need him and that we will - Mitch and I and Sally would be - our jobs would be non‑existent. So there - at the top of the statement it says, 'Yeah, very sad', that was in relation to - that was the message beforehand how Mitch is very loyal to them and that he won't believe what Jake is saying.

Rebecca Millar
All right. So just to clarify, you said that this discussion occurred the day prior to your text message to the applicant, correct?

Kate Emmanouel
I think so, yes. We had been texting. I can bring it up and give you word for word, if you like, but it was in relation to that conversation and so, yes, he took some time off because I know he had been a bit stressed between what to do, whether to stay, whether to go. He also had issues with his mother, I don't want to bring them up, that's irrelevant. So, yes, it was just a reach out.

Rebecca Millar
All right. And you specifically refer to it as a mentor(sic) health day, was there a discussion around the applicant's mental health?

Kate Emmanouel
He told us that he was sad and that he had a bit of anxiety and he felt like he was letting people down. That was-

Rebecca Millar
Was this - when was this discussion that you're referring to happened?

Kate Emmanouel
It happened over a week or two, it was a - it wasn't just one discussion.

Staff Meeting

1. In her witness statement which she adopted into evidence, Ms. Emmanouel gives the following account of the Staff Meeting:[57]

“On 5 December 2023, at approximately 10am, we were all called into a last-minute staff meeting. Stuart and Naomi told everyone not to panic and that they were going to try and keep everyone’s jobs. They admitted the business was struggling, and they might have to reduce a few things and move a few things around. In the meeting, Jake said that he had been struggling with his mental health, that he knew they expected better of him, that he was doing the best he could, that the sales weren’t working and that he needed to take a step back and work on his mental health. Shortly thereafter, the meeting finished, and I went back to the warehouse.

At around 12pm, I was still in the warehouse, sitting at a table putting together some boxes. Jake approached me with a smile on his face and said words to the effect of “I feel so much better, I don’t want that stress anymore. I am relieved”. I asked him what he was going to do, and he said he might take his mother to Tasmania, travel Europe with his partner. We then talked a bit more about the travel plans he had.”

1. In her cross examination she was asked about Mr. Walker’s demeanour. She described that he was “emotional”.[58] He was “crying. He had some tears. He said he was struggling with mental health…amongst other things”.[59]

1. In her oral evidence she described the discussion at the Staff Meeting, that Maj. and Ms. McIntosh explained they were “struggling”, that “they don’t want anyone to lose their job and they’re doing their utmost best, and they were basically asking if we had any ideas to increase business”. She says they stated “They’re going to have some setbacks, like instead of losing our jobs, it was they’re going to cut down on insurance things like that. They wanted us to feel as though we were safe”.[60]

1. She affirmed there was a discussion around a downturn in production, marketing and sales. Her evidence on what they stated was, “They may have to be reduced in order to save money, but it wasn’t “you are going to lose your job”. There was no discussion about overspending “it was just trying to keep the business going”. The reasons for the downturn given was “inflation, people aren’t spending as much on alcohol. It was a whole heap of things.”[61]

1. When asked whether Mr. Walker’s performance was raised in the meeting, Ms. Emmanouel stated, “No, he brought that up himself. He actually mentioned it, he said he was disappointed in himself”.[62] She went on:

“…Well, we were talking about sales obviously, because the sales weren't there and they were saying - they actually said, 'It's not your - we're not blaming you. We know the circumstances of the environment that we're living in now, pre COVID, et cetera.' And then he's like, 'Well, I take it personally because I feel as though I'm not doing the best I can', and yes, it was just kind of a mutual thing. Like we know you're doing the best, but we can understand - yes.[63]

…he said he was taking it personally, but Stuart and Naomi were reiterating that it was - yes, he wasn't excelling in sales, but they were understanding that things have changed in the whole dynamics of economics. It was just - it was portrayed to us that it - they're not targeting anyone.[64]”

1. Ms. Emmanouel denied there were statements made in the meeting “directed at Mr. Walker”. She said, “there was a lot of talk, chitter chatter obviously about the business and what we’re going to do moving forward. It was more like a team build up meeting you could say”.[65] She also denied Maj. McIntosh had said he had no confidence in Mr. Walker.

1. Ms. Emmanouel agreed in cross examination that the meeting lasted
   “around an hour”.[66] She also gives evidence about the “outcome of the meeting”:

“The outcome was that we all just have to work out ways that we can increase business and increase an income, that we may have to look at doing things differently, but, no, they just basically said that they're doing their utmost best to keep everyone's jobs and the conclusion was that we - that he then resigned and that was - all right.”[67]

After the staffing meeting

1. She gave evidence about what happened after the Staff Meeting. She went downstairs afterwards and an hour and a half from the Staff Meeting, Mr. Walker “walked down into the warehouse with a smile on his fact and said, ‘Oh I feel better now’ and then he goes ‘Yeah so much better’”.

1. When asked if he elaborated at why he was feeling better:[68]

“He was going to - he felt relieved that he didn't have to work with them, to continue having to work with them. He just basically said he feels relieved, and he's going to go and travel. He's got his other business; he's going to go and travel and - with his partner in Europe. We were discussing that, and I said, 'You won't want to come back.' Yes, that was pretty much the conversation.

Conversations with Mr. Walker about resigning

1. In her written statement, Ms. Emmanouel states that she had a conversation with Mr. Walker on 27 September 2023 concerning his resignation.[69]

“On 27 November 2023, Jake told me that he had tried to quit the night before and he had tried a few times before that, but that Stuart and Naomi wouldn’t let him. They would tell him that they really needed him and that they didn’t want him to leave. He said that during his conversation with them the previous night, Stuart and Naomi told him that they will have to cut staff, but that Jake was safe. I asked him to tell Mitch as I was concerned that Mitch was about to sign a new contract for a rental. I was concerned as I had pretty much just started at Chief’s and thought I would be the first to go. I got really concerned about my job and told him that I probably needed to start looking for another job.”

1. Mr. Walker filed a telephone bill that is redacted other than two telephone numbers “to refute any claim of allegedly resigning on 26 November 2023”.[70]

1. I asked Ms. Emmanouel whether the issue of the resignation had been raised with her prior to 5 December 2023:

The Commissioner
Is it your evidence and am I understanding correctly that the issue of the resignation had been raised with you before 5 December?

Kate Emmanouel
Correct. A few times, yes.

The Commissioner
All right. Over the course of how long?

Kate Emmanouel
It was pretty much more in the two weeks leading up to this there was a few discussions.

1. Ms. Millar followed up these questions with the following questions to Ms. Emmanouel:[71]

Rebecca Millar
All right. How was it that these discussions that occurred prior to the staff meeting, how did those come about? You do say you didn't have a lot to do with the applicant, but he's confided in your regarding resigning previously to the date, is that correct

Kate Emmanouel
Yes, that's right.

Rebecca Millar
And on what basis was he saying he was going to resign

Kate Emmanouel
He just wasn't happy. Things had changed. He didn't like being, like, on call, he - well, interrupted on - yes, he was saying that he got an email on his weekend. I don't know he just didn't like the dynamics. I'm not quite sure, to be honest. It was just - and then he was telling me that he knows their finances and that they're not doing well and then that got me involved saying, 'Am I going to keep my job.' It was just - there was so much going on. I wasn't - I didn't directly work with him but I was doing a lot of admin duties, so I was in the office with him, but he was out on the road, in, out, so I didn't have long conversations with him, if that makes sense.

Rebecca Millar
And so it was just about you saying that he - these were just general conversations where he'd come into the warehouse and tell you he was going to resign

Kate Emmanouel
No, it was mainly in the office. It was mainly in the office, but, yes, the last one was in relation to him saying that he had tried to resign four times the night before, but they said, 'No, we need you. Please stay with us', and that we - the three of us would do it together, the production and Sally will be - might have to say goodbye to them and that's when I said, 'Bring Mitch in.' Mitch came in, he goes, 'No, I call BS.' Yes.

Rebecca Millar
And this was done with the applicant present?

Kate Emmanouel
Yes. Yes, yes. Yes.

CONSIDERATION

Summary of contending arguments

1. I have read and taken into account the entirety of the argument made by Ms. Millar on behalf of Mr. Walker. For the sake of brevity, I do not rehearse each argument or all of the 26 factual matters she raises in the outline.

1. Mr. Walker argues he was asked to resign in the Smaller Meeting which was a dismissal for the purposes of s 386(1)(a).

1. He argues he made a “heat of the moment” resignation in a state of emotional distress or mental confusion such that he could not reasonably be understood to be conveying a real intention to resign.[72] Mr. Walker argues, “It was a situation where the employer treated the resignation as terminating the employment rather than clarifying or conforming with the employee after a reasonable time that the employee genuinely intended to resign” and that there was therefore a dismissal under s 386(1)(a).

1. The resignation was “forced” by a course of conduct of Chiefs Son and therefore was a dismissal under s 386(1)(b). This course of conduct included:

• The Respondent’s timeline of alleged meetings and e-mails regarding Mr. Walker’s poor performance”.

• The conduct of the Maj. McIntosh and Ms. McIntosh towards Mr. Walker in the Staff Meeting and the Smaller Meeting.

• Various “repudiatory conduct” such as “the failure of the Respondent to compensation for TOIL”, “unilateral changes to the terms of the contract of employment on 27 August 2022”, The Respondent “expected the Applicant to work 24/7 to meet budget”. Mr. Walker relies on an analogy to the situation of the applicant in Hobbs v. Achilles Taxation.[73]

1. The test for whether or not a course of conduct leading to a resignation could amount to either a dismissal at the initiative of the employer under s 386(1)(a) or a course of conduct leading to a forced resignation in 386(1) (b) is dealt with in the Full Bench decision in Bupa Aged Care Australia v. Tavassili:[74]

“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2)   A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

1. The position of Chiefs Son can be shortly put. It is that Mr. Walker tendered an effective resignation on 5 December 2023 and on the evidence, it cannot be said Chiefs Son took any action against Mr. Walker which could be said to have the probable effect of bringing the employment relationship to an end. Mr. Walker was therefore not dismissed as required by s 386(1).

Analysis of the Evidence

1. There are a number of facts that are relevant to my determination whether the course of conduct alleged to either amount to a dismissal or a forced resignation under s 386 which I consider below.

August and September attempted resignations

1. It is not contested Mr. Walker attempted to resign twice in “casual conversation in August and September leading up to the events of 5 December 2023. In his oral evidence, he conceded his resignation was refused by the McIntoshs ‘because he was valuable to the business”.

1. When he was asked why he had previously attempted to resign he stated:

“I was becoming increasingly frustrated at the amount of work that I was doing within the business, the underpayment of my overtime. There was a number of - you know, there was a lack of respect for my personal time. I was being talked to on my weekends, and there was a number of things happening there. On one of those occasions, I tried to resign in an open forum, because Ms. McIntosh and Mrs McIntosh did believe in having sales meetings in an open forum, and Stuart openly deleted things that I had going on in my pipeline. So he would say, 'That's not coming in, delete, delete, delete, delete', and he berated me in that office. So I tried to resign that day and I remember using the words to the effect, 'Well, if that's what you believe I might as well get in my car and "f" off', was my - and that's - yes.[75]

Conversations with Emmanouel about resigning

1. Under cross examination, Ms. Emmanouel indicated that the issue of resignation had been raised with her by Mr. Walker before 5 December 2023 “a few times…pretty much in the two weeks leading up to this there were a few discussions”. Mr. Walker indicated he was going to resign because he “wasn’t happy, things had changed. He was being interrupted on the weekend”;[76] and that “he knows their finances and they are not doing well”. These conversations occurred “mainly in the office”.

1. In his outline, Mr. Walker argues I “should disregard the evidence in paragraphs 4 and 5 of the witness statement of Ms. Emmanouel dealing with discussions about previous attempted resignation attempts” because of “inconsistencies”, namely that he did not attempt to resign on 26 November 2023, that he did not express to her that “he was disappointed in himself” and an assertion that “they had only known each other for a short period of time.”[77]

1. I accept Ms. Emmanouel may be mistaken on the evidence that Mr. Walker had indicated he had attempted to resign on 26 November 2023. Despite this error, my assessment of her oral evidence is that she is a credible and truthful witness. I find she had conversations with Mr. Walker concerning his resignation in the two weeks leading up to events of 5 December 2023.

Medical history of mental health of Mr. Walker

1. Mr. Walker argues his resignation was in the “heat of the moment” as he was in a state of emotional distress and he noted a “mental health concern to the Respondent twice in as many days”. His oral evidence was he resigned after “four hours of an emotionally charged meeting. I wrote my resignation after those meetings after Stuart’s directive that he wanted me to sign my resignation”.[78]

1. It is not disputed that he attended his GP on 17 November 2023. The clinical notes of that consultation indicate that Mr. Walker was feeling “burnt out”. The notes continue: “Burn out, Anxiety, Head of sales for whiskey distellery feeling stressed out, Low energy, Anxiety, Panic attacks, Irritable mood More emtional than usual, Does not feel depressed”. The doctor also notes “Over the last 6 months, progressively worsening, Dreads going to work, Has been looking at other options”. No clinical diagnosis is made as a result of this consultation and no treatment is prescribed.

1. Mr. Walker had a day of sick leave on 4 December 2023. In his e-mail informing Chiefs Son of his sick leave, Walker sent an e-mail to Ms. McIntosh under the heading “Sick” which read, “…feeling under the weather. Apologies for the late notice. Only hit me once I got out of the shower, I think it might be anxiety related. So, I’m going to slow down and try again tomorrow”. In his oral evidence he said he “woke up early for work… stepped into the shower and I experienced an anxiety attack”.[79] He explained the reason for his anxiety was his “personal life was being encroached upon. He was “meeting out of hours demands” and “advancing things that was going on”.

1. In his text exchange with Ms. Emmanouel, he explained his absence as follows:

Jake Walker
Yeah I’m okay, I just woke up and decided that I didn’t want to be there. Lol

I’ll be in tomorrow, I just needed a day to figure out what I actually want to do

1. After he was terminated his treating doctor issued two medical certificates which diagnosed Mr. Walker as having “adjustment disorder, Secondary to work place stress”.

1. I accept was suffering anxiety and stress but he was not diagnosed as having a medical condition until after the cessation of his employment.

The Staff Meeting

1. There is a contest on the evidence as to what transpired at the Staff Meeting and also its length.

1. The oral evidence of Mr. Walker is that this meeting was called “because the Respondents were experiencing a significant financial downturn in their business” and the “main thing, it was pointed at me, and saying my sales – it was my sales specifically”.[80] He went on: “Stuart specifically pointed out sales being down this year, and that some things that I had brought to the table hadn't come off in a timely and effective manner which meant that they were experiencing great financial difficulty which meant an overall downturn in people's roles”.

1. He raised the effect of the pressure of the sales role on him: “I said that the sales function was an extreme one and it had weighed on me significantly, and the fact that my sales figures weren't where they needed to be had weighed on me quite significantly. And basically, I had said that it's taken a great deal of stress and a toll on me, personally. And that's when I became emotional and said that I'd been struggling with anxiety and persistent anxiety attacks.”

1. Maj. McIntosh evidence was this meeting went for about an hour. In his written statement, he explains he stated that the economy would likely contract in 2024 based on consumer confidence and that costs would potentially be cut in 2024 to keep the business afloat. He continues: “I advised them that not only did we have a significant amount of our wealth tied up in this business, but our jobs were as important to us, as theirs were to them. When I got onto the topic of sales, I stated that there had been some over expenditure based on projected income. Jake was not humiliated, questioned or blamed; rather he got slightly emotional and acknowledged that he had contributed to some of the difficulties.”

1. On the demeanour of Mr. Walker at that meeting: “When we touched on the topic of over‑expenditure on the tasting room, Mr. Walker piped up and felt responsible for that, because he had all his guaranteed income coming in through October, November and December, and none of that had come in. So, he was mildly disturbed by it. I mean he welled up, I would say, is probably the best phrase.” He went on to explain “he didn’t cry.”

1. Ms. McIntosh also estimated the meeting went for about an hour from 10:00 AM. Her evidence was Maj. McIntosh had laid out the economics for 2024 stating that interest rates were on the rise and people were going to spend less. Her account is that Mr. Walker “became emotional and said that he took his job seriously, really wanted to bring in the money, felt like it was on his shoulders and agreed that his sales were down. I reiterated at this point that this slowdown was across the industry and was being experienced by all our distillery colleagues and was further evidenced by the number of craft breweries going under. Stuart was clear in pointing out that we all had specific roles and that we needed to work as team to move forward”.

1. When asked to describe Mr. Walker’s demeanour: “He was sitting on the straw. He was leaning forward with his elbows on his knees and his eyes were rolling up or they were red. He wasn't crying. He wasn't crying. He was still able to communicate. He was still able to verbally talk.”

1. Ms. Emmanouel’s evidence was Maj. and Mrs McIntosh explained they were “struggling”, that “they don’t want anyone to lose their job and they’re doing their utmost best, and they were basically asking if we had any ideas to increase business”. They stated they were “going to have some setbacks, like instead of losing our jobs, it was they’re going to cut down on insurance things like that. They wanted us to feel as though we were safe”.[81]

1. She affirmed there was a discussion around a downturn in production, marketing and sales. Her evidence was the McIntoshs stated, “They may have to be reduced in order to save money, but it wasn’t “you are going to lose your job”. There was no discussion about overspending, “it was just trying to keep the business going”. The reasons for the downturn given was “inflation, people aren’t spending as much on alcohol. It was a whole heap of things”.[82] Ms. Emmanouel denied there were statements made in the meeting “directed at Mr. Walker”. She said “there was a lot of talk, chitter chatter obviously about the business and what we’re going to do moving forward. It was more like a team build up meeting you could say”[83] She also denied Maj. McIntosh had said he had no confidence in Mr. Walker.[84]

1. When asked whether Mr. Walker’s performance was raised in the meeting Ms. Emmanouel stated “No, he brought that up himself. He actually mentioned it, he said he was disappointed in himself”[85]. And then he's like, 'Well, I take it personally because I feel as though I'm not doing the best I can', and yes, it was just kind of a mutual thing. Like we know you're doing the best, but we can understand - yes.”[86]

1. In cross examination Ms. Emmanouel described Mr. Walker’s demeanour as “emotional”.[87] He was “crying. He had some tears. He said he was “struggling with mental health…amongst other things”.[88]

1. There is no precise evidence of the length of this meeting, but the balance of evidence given by Maj. and Ms. McIntosh and Ms. Emmanouel is that the meeting was well short of two hours and instead went for about an hour. I accept that evidence.

1. Mr. Walker’s evidence on the substance of the meeting is that he was targeted. His performance in sales was blamed as the main driver of the poor position of the business and that Maj. McIntosh had stated he had no confidence in him. Ms. Millar in the Walker statement argues “it was nothing short of unprofessional conduct to attribute the Respondent’s overspending and financial downturn in the Industry to the Applicant. This was an open forum whereby employees’ roles are said to be at risk”.

1. The balance of evidence from Maj. and Ms. McIntosh and Ms. Emmanouel does not support the account given by Mr. Walker on this meeting. There is broad consistency between the three accounts given by Chiefs Son’s witnesses. There was a discussion of a downturn in production, marketing and sales. The broad economic context and its likely effects of the business were discussed. Maj. McIntosh denied Mr. Walker was “humiliated or blamed”.

1. I find Ms. Emmanouel’s description of the meeting compelling in that “there was a lot of talk about the business and what we’re going to do moving forward. It was more of a team build up meeting” and she denied Maj. McIntosh said he had “no confidence on Walker and the statements at the “the meeting was not directed at Mr. Walker”.

1. The evidence of Maj. and Ms. McIntosh and Ms. Emmanouel, though not precisely the same, are consistent that Mr. Walker brought his performance up himself. Maj. McIntosh’s evidence was that he mentioned this in the context of overspending in the tasting room. Ms. McIntosh expressed it as “he took the job seriously, really wanted to bring in the money and agreed his sales were down.” Although the context given in each account is different, the balance of evidence supports the account that Mr. Walker himself brought up and took responsibility for the lack of sales.

1. In the Walker statement submission of fact is made about his demeanour at the meeting: “The evidence is clear, the Applicant was distressed and emotional in this meeting, admitting to struggling with his mental health.”

1. In his oral evidence he says the following about his emotions at that meeting: “I felt demoralised, and I was extremely – I was extremely – I felt berated, really because there was a – it's pretty – yes, emotional. I have dedicated a large portion of my employment to bettering their business and I had implemented a lot of things. I sold casks, I have attended events, I have – I've operated outside the sales bunch, and I was broadly across their business. And I was a loyal and a faithful employee to them.”

1. On his demeanour at the meeting, Ms. Emmanouel claims “he was emotional, he had some tears”. It is also her evidence that Mr. Walker had mentioned his “mental health” in the meeting. Ms. McIntosh’s evidence was “He was leaning forward with his elbows on his knees and his eyes were rolling up or they were red. He wasn't crying. He wasn't crying. He was still able to communicate. He was still able to verbally talk.” Maj. McIntosh said “He wasn't visibly upset. Everyone reassured him that it was fine, and we moved on.[89] So he didn't cry. I'm not sure what the technical term is. He didn't cry”.[90]

1. I find that that Mr. Walker was emotional. He was visibly upset and there were tears in his eyes during the meeting. The evidence of the three Chiefs Son witnesses is that he was emotional but participated in the meeting.

Smaller Meeting

1. It was Mr. Walker’s evidence that there was little break between the Staff Meeting and the Smaller Meeting between himself and Maj. McIntosh.

1. Mr. Walker’s evidence of the second meeting was as follows:

“Stuart repeatedly hounded me about not producing a sales plan and I disputed that fact. I said I produced a sales plan in 2023 which was rejected. He did not look at that sales plan. And I said that in order for me to formulate my 2024 sales plan I needed time, because obviously I submit my sales plan in December, so later on in December, obviously, you know, when accounts are closing and, you know, there's (indistinct) revenue coming back in. That way I can substantially do a sales plan. But he continued that he had no confidence in my ability.”

And eventually what transpired was, you know, he said, 'We can't continue to fund you, or cross fund you.' And I said, 'So, what is it? What's the outcome here?' I said, 'What are you going to do?' And he essentially said, 'Well, I think it's best that we decide on the date that should be your final day.[91]

Stuart asked me to put something in writing and he'd be happy to organise a reference for me. At that time, I asked Stuart how he wanted it to read. And Stuart said to me, 'Like a resignation.'”

1. Maj. McIntosh gave evidence the Staff Meeting “went for 45 minutes” and the Smaller Meeting “was give or take an hour. So it would have finished by 12.30[92]” The primary purpose of the Smaller Meeting was to check that Mr. Walker was “ok” after the Staff Meeting, but also to talk about planning for 2024. He says the following in his witness statement:

“After asserting(sic.) that Jake was in a fit state to talk, we discussed the following performance matters: Jake's high-risk sales strategy, the decline in his sales revenue, unrealistic estimates on receipted income and his failure in prioritising customisation and private casks.”

Jake then said that his partner, Troy, wanted him to resign as Jake was unhappy in not achieving his sales targets. However, Jake had told his partner that he wanted to stay. Jake said that he was likely to resign in early to mid-2024 as he wanted to re-locate his mother to Tasmania and travel around Europe.

Jake went on to say that he was affected by the stress of juggling his own growing company and the pressure of not hitting his sales targets. He felt the role was not fun anymore which worried him. He also talked about a personal issue of domestic violence towards his mother.

I told Jake that he had to look after his own mental health, and I didn't want to see him hurt by the pressure of his sales role Jake then conceded that he didn't have any new leads or ideas, or a plan for 2024. He asked if we wanted him to resign. I

I said that we did not want him to resign, evident in the fact that we had retained him for so long. I said that we have invested so much into him and kept trying to equip him with the tools to do his job. That we believed in him. That we gave him methods. That we gave him strategy. We were passionate about getting him up to speed and supporting him. However, we needed a strong sales plan for 2024 and could not keep taking money from other areas to fund his role.

After this discussion, Jake said that he thought it was best if he was to resign. I again reiterated that we didn't want him to resign but understood his decision if he felt that he could not improve his performance, especially in light of his already busy personal life and his other business.”

1. Mr. Walker denies Ms. McIntosh attended the second meeting. Ms McIntosh’s evidence was that she attended but left shortly after it had commenced to serve customers, and also that the second meeting went for about an “an hour and twenty minutes”. In cross examination she gave evidence that when she came back “it appeared to me that Jake and Stuart were having a friendly discussion. Jake - Stuart said, 'To bring you up to speed, Jake has resigned', to which I replied, 'Okay', because that was not what I had seen coming. It was completely unexpected. Then Jake - it was all very - a bit of a personal conversation then and he said that he had planned on leaving the company anyway, that he's going to move to Tasmania to take his mother to escape the domestic violence and go on a big European holiday”.

1. Ms. Emmanouel gave evidence that Mr. Walker came downstairs and told her he felt relieved and discussed his proposed European holiday. Mr. Walker in his oral evidence, confirms a discussion occurred downstairs after the Smaller Meeting on these topics.

Did Maj. McIntosh ask Mr. Walker to resign?

1. There is a direct conflict in the evidence of Mr. Walker and Maj. McIntosh on whether he asked Mr. Walker to resign. I must decide which account is more credible based on the evidence before me.

1. The consistent evidence of all three Chiefs Son witnesses is Mr. Walker was not targeted or blamed for the travails of Chiefs Son at the Staff Meeting. I find he was not targeted at the meeting. Further I find that this first meeting went for about an hour ending around 11:15 AM.

1. Mr. Walker, on his own evidence, had sought to resign twice in casual conversation in August and September 2023. On both occasions his resignation had been refused. In my assessment - these previous and relatively recent resignation attempts make it more likely he offered to resign at the Smaller Meeting and less likely that Maj. McIntosh had asked him to resign.

1. Circumstantial evidence also supports a finding that Mr. Walker was not asked to resign at this Smaller Meeting. Mr. Walker had discussed resigning with Ms. Emmanouel. He indicated in a text message the day before that he had taken a sick day to “figure out what I actually want to do”.

1. I therefore find on the evidence I find it is more probable that Mr. Walker did not ask Mr. Walker to resign.

Was the resignation made in the heat of the moment?

1. Mr. Walker argues he was under extreme pressure on the day of his resignation. He feels he was targeted and blamed for the poor performance of Chiefs Son in the series of sales correspondence leading up to the 5 December 2023. He argues he was in a state of emotional distress based on his medical history leading up to and after the resignation. He argues he was subjected to four hours of relentless targeting at the Staff Meeting and the Smaller Meeting. His evidence is that he resigned in writing “within twenty minutes” of the Smaller Meeting.

Medical evidence

1. In the time leading up to the events of 5 December 2023, the correspondence outlined in the BACKGROUND section reveals Mr. Walker was under increasing pressure in relation to his sales performance. Whether or not that was justified is not an issue I need to resolve here.

1. On 17 November 2023, around three weeks before, he attended his doctor complaining he was “burnt out”. The doctor’s note also includes “Anxiety, Panic attacks, Irritable mood More emtional than usual, Does not feel depressed”.

1. He had a day off the day on 4 December 2023 after experiencing what he described in his e-mail as an “anxiety related” episode “in the shower”[93]. On the same day he sent a text to Ms. Emmanouel: “Yeah, I’m okay, I just woke up and decided that I didn’t want to be there. Lol - I’ll be in tomorrow; I just needed a day to figure out what I actually want to do”.

1. The clinical notes of the meeting of 17 November are a recitation of the symptoms Mr. Walker explained to his doctor with no diagnosis. He did not obtain a doctor’s certificate for his absence on sick leave on 4 December 2023. The medical diagnosis of adjustment disorder and workplace stress came after the cessation of his employment.

The 5 December 2023 meetings

1. The balance of the evidence on the time of the Staff Meeting are not precise but they are consistent that the meeting took less time than Mr. Walker states in his evidence. Further, as I have found above, the evidence of the three Chiefs Son witnesses is broadly consistent and does not support his contention that he was personally attacked at the Staff Meeting. I accept the account given by the Chiefs Son witnesses.

1. I find that he was emotional, had tears in his eyes or was lightly weeping at the Staff Meeting. Mr. Emmanouel gave evidence that he had mentioned his “mental health”. Mr. Walker in his evidence says he felt “berated” and “demoralised and had explained in the meeting that he was feeling stressed” and “anxiety”. I accept the accounts of the Chiefs Son witnesses that he participated in the meeting, including Mr. Walker himself raising the issue of his performance.

1. As to the evidence of what occurred at the Smaller Meeting, I have found in all the circumstances Maj. McIntosh had not asked Mr. Walker to resign. It is not contested there was a discussion on sales at the Smaller Meeting. Given the balance of evidence of the Staff Meeting supports a conclusion that the meeting was not an attack on Mr. Walker, it is more likely that the dialogue with Maj. McIntosh at the Smaller Meeting continued in this manner. On an assessment of the two conflicting accounts about what transpired at this meeting, I find that after a discussion on sales at this meeting, Mr. Walker offered to resign.

1. Mr. Walker’s evidence is that the Smaller Meeting finished around 2:00 PM. Neither the account of Maj. McIntosh nor Ms. McIntosh supports this length of time. Ms. Emmanouel indicates he came downstairs from the Smaller Meeting around 12:30 PM. It follows the evidence does not support that he had written his resignation within “twenty minutes” of the end of the second meeting.

1. It is not contested that after the meeting, Mr. Walker went downstairs and had a conversation with his workmates about what he was going to do next. I accept Mr. Emmanouel’s evidence that “he seemed relieved”, “like a weight had been lifted off his shoulders”[94] after the meeting.

1. If the Smaller Meeting finished around 12:30 PM, Mr. Walker had two hours to compose his termination e-mail which he sent at 2:22 PM. The termination e-mail is not a merely a written resignation; it is a statement of regret, a defence of his performance as a salesperson, and an expression of gratitude. The resignation was accepted by Maj. McIntosh by e-mail an hour later at 3:24 PM.

1. On the evidence before me I do not consider the resignation was made in such a state of emotional stress or mental confusion as to render his resignation as not legally effective. I consider his mental state was similar to that of Mr. Grout in Gunnedah Shire Council v. Grout[95] where the Full Court of the Industrial Relations Court found:[96]
   
   

   “There is no doubt that Mr. Grout was suffering at the time he wrote his letter of 18 May. There was a history of controversy about his work. He had had trouble sleeping. Dr Harris thought he was suffering from "severe work-related stress" that was "causing severe depression" and affecting his general health. On at least two occasions that day, in Dr Harris' surgery and during the meeting at the abattoir with Mr. Lyle and Mr. Kemmis, Mr. Grout broke down and wept. This evidence builds up an impression of a man under severe pressure. But it does not provide a basis for a finding that Mr. Grout's action in writing the letter was a product of confusion or was involuntary. Given that he had just had a conversation with Mr. Thomas in which he coherently and rationally discussed his situation and announced an intention consistent with what he stated in his letter, it would be extremely difficult to reach that conclusion. Moreover, Moore J's finding as to Mr. Grout's condition at that time is significant. His Honour did not find that Mr. Grout's mind was so affected by his medical condition that he was not capable of acting rationally, or that he was acting irrationally at the time. Nor did he find that he did not intend what he did. The finding was that he acted "to some extent, in a state of despair and was not in a state of emotional equilibrium, however composed he might have appeared at any particular time". In our opinion, Mr. Grout made a considered decision to leave his employment...”

Earlier attempted resignations and discussions with Ms. Emmanouel

1. The earlier attempted resignations in August and September are relevant to a consideration of whether the decision to resign was made in the heat of the moment. The fact that he had attempted to resign and was persuaded not to is evidence that he was contemplating resigning from his position before 5 December 2023.

1. The reasons he gave for the earlier attempted resignations was he was becoming “increasingly frustrated with the amount of work he was doing, the lack of respect for his personal time and the underpayment of overtime” and that “he was being talked to on weekends”. In his oral evidence, the reasons he ascribed to why he was feeling anxious and required a day off on 4 December 2023 was, “his personal life was being encroached upon”, he had “several text messages and phone calls over the course of his employment” and he was “meeting out of hours demands”.[97]

1. So, he had attempted to resign twice before. The reason he gave for those resignations are the same reasons he gave for his feeling of anxiety on 4 December 2023.
   I accept Ms. Emmanouel’s evidence that he was discussing resigning with her in the two weeks leading up to the events of 5 December 2023.[98] On 4 December 2023, he had texted Ms. Emmanouel and noted “I just needed a day to figure out what I actually want to do”. I infer from this text that Mr. Walker was contemplating whether to continue his employment at Chiefs Son.

Mr. Walker himself

1. In Bupa, the Full Bench refers to the English case Kwik Fit (GB) Ltd v. Linehum[99] an authority for the proposition that “intellectual make up of an employee” may be relevant to a heat of the moment resignation.[100]

1. Mr. Walker could not be more different than Ms. Tavassoli in the Bupa case. She was an Iranian refugee with limited English skills and was 55 years old[101]. Mr. Walker presents as an intelligent, sophisticated, and competent person in the world of business. During the time he was employed by Chiefs Son, he had what might be described as a “side hustle” lighting business.[102] It is apparent in the correspondence and in his presentation as a witness he did not lack confidence; for example in an e-mail sent on 10 November 2023 he stated: “I can confidently state that I have accomplished more than any other person in this chair…”

1. Furthermore, he had some experience with performance management in his earlier job at the VACC. In his e-mail dated 10 November 2023, he noted “I’ve never been performance managed in my life, but I know what the beginning of that cycle looks like, as I did performance manage two staff members in my role at the VACC”.

Finding

1. Mr. Walker was under pressure with respect to his sales performance. He had sought medical attention on 17 November 2023 and had a sick day on 4 December 2023 after having an anxiety related episode while showering. In August and he had attempted to resign and had been persuaded not to do so. In the two weeks leading up to his resignation he had discussed resigning with Ms. Emmanouel. On 4 December 2023 he had texted Ms. Emmanouel, “I just need a day to figure out what I actually want to do”.

1. I find that although he was suffering stress and anxiety as a result of the pressure he was experiencing at work, the mental anguish was not at such a level that his resignation cannot be regarded as genuine. The evidence of his presentation at the Staff Meeting given by the McIntoshs and Ms. Emmanouel is that he was emotional and may have been crying but he was able to participate in the meeting. At the Smaller Meeting, he was feeling pressure as a result of the discussion about his sales. I find that he orally resigned at that meeting. His written resignation was made around two hours after the Smaller Meeting had finished. He was not in such a state of emotional stress or mental confusion that his written resignation could not be regarded as conveying a real intention to resign.

1. The evidence of the previous attempts and his dialogue with Ms. Emmanouel infer Mr. Walker was contemplating resigning for some time. As this evidence infers that he had contemplated (and had tried) resignation before the 5 December 2023, the written resignation cannot be said to have been made in the heat of the moment. In those circumstances, Chiefs Son was not required to allow a reasonable period of time to pass before accepting the resignation.

1. It follows I find the circumstances of the resignation did not amount to a heat of the moment resignation under s 386(1)(a) as described in Bupa.

Was the resignation “forced” by a course of conduct of Chiefs son?

1. For some time Mr. Walker had been under pressure on sales. From September 2023, the exchanges between Mr. Walker and Maj. McIntosh on sales escalated. Mr. Walker thought this was unjustified. He considered (and no doubt still considers) that he was doing valuable work for the business which was not appreciated.

1. Mr. Walker adamantly stated in his evidence that “he had never been performance managed in his life” and that he was not subjected to a formal performance management plan at Chiefs Son. From my examination of the evidence and the documents exchanged in relation to sales between Maj. McIntosh and Mr. Walker, the escalation was caused by a revenue issue at the business. I am not required to resolve whether or not the criticisms are justified. There is nothing in correspondence between Maj. McIntosh to Mr. Walker that states that Mr. Walker’s job was in danger. There was clear dissatisfaction with the revenue generated from sales and some escalation in the text of that correspondence. Mr. Walker anticipated (with some justification) that he may be formally performance managed but there nothing to suggest his job was in danger.

1. Mr. Walker gave evidence his resignation came after “four hours of an emotionally charged meeting(s)”. The evidence of the three Chiefs Son witnesses do not support that evidence. The evidence of the McIntoshs and Ms. Emmanouel support a contrary view - the combined length of the first and second meeting was substantially shorter than four hours. Further, all three Chiefs Son witnesses gave evidence that Mr. Walker was not blamed for the poor performance of Chiefs Son and that Maj. Mcintosh had not said he had no confidence in Mr. Walker in the Staff Meeting. On balance of probabilities, I cannot find that the Staff Meeting would have had the “probable result of bringing the employment relationship to an end”.

1. I also have found that Maj. McIntosh did not ask for Mr. Walker’s resignation at the Smaller Meeting. Given my findings of fact on the Staff Meeting, the evidence about what transpired before and after the Smaller Meeting, and on an assessment of the conflicting evidence of Mr. Walker and Maj. McIntosh, I prefer the evidence of Maj. McIntosh as to the events of that Smaller Meeting. His evidence is that Mr. Walker orally resigned at that meeting.

1. The finding he orally resigned at the Smaller Meeting is supported from the uncontested evidence that he had sought to resign in August and September. In his oral evidence, Mr. Walker gave the reasons for those resignation attempts: his unhappiness at the hours he was working, alleged underpayment of overtime and the intrusion on his private life by work. His oral evidence on the reasons for his anxiety on 4 December 2023 are consistent with concerns he had about unreasonable encroachment of work on his private life.[103] On 4 December 2023, he texted Ms. Emmanouel that the reason he decided to take a sick day was “to figure out what I actually want to do”. I also accept Ms. Emmanouel’s evidence that she had discussions with Mr. Walker about him resigning in the two weeks leading up to 5 December 2023. This evidence supports an inference that he was thinking about resigning leading up to the events of 5 December.

1. It is the evidence of the three Chiefs Son witnesses that the Smaller Meeting was finished around 12:30 PM. This conflicts with the evidence of Mr. Walker that it finished at 2:00 PM. The balance of evidence before me is more consistent with the earlier time and I accept that evidence. Mr. Walker had almost two hours to compose the written resignation.

1. In all the circumstances, I do not consider the escalating correspondence regarding Mr. Walker’s sales, or the course of events in the Staff Meeting or the Smaller Meeting were designed to bring about the end of his employment nor did it have the probable result that he had no effective choice but to resign. The evidence regarding his earlier attempted resignations and the discussions concerning resignation prior to the meetings of 5 December 2023 work against an argument that the resignation was forced.

Finding

1. I therefore find that Chiefs Son did not engage in conduct with the intention of bringing the employment to an end within the second limb of Bupa. I do not consider there was a dismissal within the meaning of s 386(1)(b).

Did Chiefs Son engage in repudiatory conduct relating to conditions of employment?

1. Mr. Walker also argues that unilateral changes to the terms of the contract made on 27 August 2022 lead to him being “forced” to resign. This occurred 15 months before his resignation. The unilateral change was a change for an ability to claim a car allowance based on cents per kilometre to a fixed car allowance of $10,000.[104]

1. The other conditions of employment that Mr. Walker says forced him to resign was the failure to pay TOIL and the “expectation to work 24/7”. The facts on which Mr. Walker bases these claims are contested in the evidence and submissions of Chiefs Son.

1. In order for a course of conduct relating to condition of employment to found a basis for “forced” resignation under s 386(1)(b), there must be a unilateral change or a failure to comply with an industrial agreement or employment contract that has a repudiatory character. The failure most not be consistent with the continuation of the employment relationship.

1. Examples of conditions of employment leading to a constructive dismissal are to carry out work or employment causing serious risk of harm[105] if there has been a fundamental change in the employee’s duties or locations of work in breach of contract.[106] The examples given of repudiatory breaches relied on by Mr. Walker may give rise to a cause of action arising out of his contract or to enforce minimum terms of a relevant award, but they do not go to the heart of the relationship.

1. This analysis is supported by the facts of Hobbs which Deegan C sets out:[107]

“The Applicant produced pay slips to show that between 20 July 2011 and 2 November 2011 he had earned $11,647.75. He also produced documentation to demonstrate that in the same period he had received only $3,570.00 of that amount from the respondent. On numerous occasions between 2 November 2011 and 29 November 2011 the applicant raised with the respondent the non-payment of his wages. He sent the respondent emails and text messages and made a number of telephone calls. The only replies received from the respondent did not address the issue of the applicant’s unpaid wages…”

1. The applicant in Hobbs was paid less than half of his contractual entitlements. Such a breach of contract might be regarded as a fundamental breach of the employment relationship. I find that none of the matters raised in relation to conditions of employment have that character.

Finding

1. The conditions of employment matters raised by Mr. Walker do not give rise to either a termination on the employer’s initiative under s 386(1(a) nor to a forced resignation under s 386(2)(b).

CONCLUSION

1. For these reasons I conclude Mr. Walker was not dismissed.

1. Mr. Walker’s employment was not terminated at the initiative of the employer under s 386(1)(a) as on a balance of probabilities Major McIntosh did not ask him to resign. The circumstances of his resignation did not amount to a heat of the moment resignation under s 386(1)(a). The circumstances of the resignation did not amount to a “forced resignation” under s 386(1)(b). It follows that Mr. Walker was not dismissed as required by s 365(a). This application is therefore dismissed.[108]

COMMISSIONER

Appearances:

Ms. Rebecca Millar on behalf of the Applicant.
Mr. Troy Plummer on behalf of the Respondent.

Hearing details:

12 March 2024
Microsoft Teams

[1] DCB at 429-430.

[2] DCB at 209.

[3] DCB at 437-438.

[4] DCB at 88-89.

[5] PN111.

[6] PN137.

[7] DCB at 30.

[8] PN27.

[9] The Digital Commission Book was 482 pages long. 380 pages of it was material filed on behalf of Mr. Walker.

[10] PN31.

[11] Coles Supply Chain v Milford [2020] FCAFC 152 at [15], [86].

[12] DCB at 43-62.

[13] DCB at 209.

[14] PN938.

[15] PN947-950.

[16] PN953.

[17] PN955.

[18] PN958.

[19] PN963-964.

[20] PN966.

[21] PN985.

[22] PN992-994.

[23] PN1013.

[24] DCB at 66.

[25] PN995.

[26] PN1015.

[27] PN1017.

[28] PN1019.

[29] PN1029.

[30] PN1030.

[31] PN1040.

[32] PN1043.

[33] PN1260.

[34] DCB at 375-376.

[35] Ibid.

[36] Ibid.

[37] DCB at 377-384.

[38] DCB at 378.

[39] DCB at 379-382.

[40] PN180.

[41] PN189.

[42] DCB at 382.

[43] DCB at 447.

[44] PN252.

[45] PN257.

[46] PN255.

[47]DCB at 449-452.

[48] PN552 to PN557.

[49] PN434.

[50] PN384.

[51] DCB at 475-476.

[52] PN621-625.

[53] DCB at 476.

[54] PN687-689.

[55] PN711.

[56] PN799-803.

[57] DCB at 465.

[58] PN807-810.

[59] Ibid.

[60] PN811.

[61] PN812-814.

[62] PN815.

[63] PN818.

[64] PN819.

[65] PN835.

[66] PN822.

[67] PN817.

[68] PN828.

[69] DCB at 465.

[70] DCB at 394.

[71] PN841 to 842.

[72] Bupa Aged Care Australia Pty Ltd trading as Bupa Aged Care Mosman v. Shahin Tavassoli [2017] FWCFB 3941at [47].

[73] A decision of Deegan C in [2012] FWA 2907 which was not disturbed by the appeal decision of Drake SDP, Richards SDP and Gregory [2012] FWAFB 5697.

[74] [2017] FWCFB 3941 at paragraph [47].

[75] PN1260.

[76] PN841-842.

[77] DCB at 51.

[78] PN1030.

[79] PN938.

[80] PN958.

[81] PN811.

[82] PN812 to 814.

[83] PN835.

[84] PN836

[85] PN815.

[86] PN818.

[87] PN807.

[88] PN807 to 810.

[89] PN255.

[90] PN257.

[91] PN1015.

[92] PN434.

[93] DCB at 184.

[94] PN867.

[95] (1995) 134 ALR 156.

[96] Ibid at 166.

[97] PN947.

[98] PN838 to 844.

[99] [1992] ICR 183.

[100] [2017] FWCFB 3941 at [37].

[101] [2017] FWCFB 3941 at [2].

[102] DCB at 384.

[103] PN947.

[104] DCB at 37.

[105] Ottoman Bank v. Chakarian [1930] AC 277. The employee could refuse to transfer to a geographical area which would put the employee at risk.

[106] Hawker Siddley Power Engineering Ltd v. Rump [1979] IRLR 424 Truck Driver was contracted to only drive in Southern England was asked to work in Scotland. Was found to be dismissed by this conduct of the employer.

[107] [2012] FWA 2907, [8].

[108] PR776935.

Printed by authority of the Commonwealth Government Printer

<PR776934>