James Boland v Access Solutions (Tas) Pty Ltd T/A Access Solutions

[2021] FWC 448

[2021] FWC 448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Boland
v
Access Solutions (Tas) Pty Ltd T/A Access Solutions
(U2020/10353)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 2 FEBRUARY 2021

Application for an unfair dismissal remedy – no dismissal – application dismissed.

[1] Mr James Boland (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Access Solutions (Tas) Pty Ltd T/A Access Solutions (Access Solutions).

[2] On 26 August 2019 Mr Boland was employed by Access Solutions as an electrician and was being trained to be a lift mechanic. Mr Boland submits he was dismissed by Access Solutions and his employment ended on 20 July 2020.

[3] Access Solutions raised a jurisdictional objection to Mr Boland’s application. In its Form F3-Employer Response to Unfair Dismissal Application (Form F3) filed on 12 August 2020, Access Solutions claimed that there was no dismissal as Mr Boland voluntarily resigned his employment on 20 July 2020.

[4] Mr Boland submits that he did not resign from his employment. Mr Boland says he was on medical leave when he received a letter from Access Solutions notifying him that they had accepted his resignation.

[5] Mr Boland’s application was made within the time prescribed in s.394(2) of the Act. Although Access Solutions is a small family operation, it is not a small-business employer within the meaning of the Act therefore the Small Business Fair Dismissal Code does not apply. The dismissal was not a case of genuine redundancy.

[6] During his employment with Access Solutions, Mr Boland was covered by the Building and Construction General On-site Award 2010 1 and his annual earnings were below the high-income threshold. Mr Boland had completed a period of employment with the company that was at least the minimum employment period. Mr Boland was a person protected from unfair dismissal.

[7] This application was the subject of a conciliation conference however the matter was not resolved.

[8] This matter was heard by way of Determinative Conference. At the Determinative Conference Mr Boland gave evidence on his own behalf. Mr Boland filed a witness statement 2 and submissions3 in support of his application.

[9] Mr Ashley Dales, Owner and Managing Director and Ms Lydia Dales, Operations Project Manager, gave evidence for and on behalf of Access Solutions. Mr and Ms Dales filed witness statements 4 and Access Solutions filed submissions5 in support of their jurisdiction objection.

Statutory framework

Section 385(b)- Harsh, unjust or unreasonable

[10] The matters I am required take into account when assessing whether a dismissal was harsh, unjust or unreasonable within the meaning of s.385(b) of the Act, are set out in s.387 of the Act. It will only be necessary for me to consider these matters if I am satisfied Mr Boland was dismissed within the meaning of s.386(1) of the Act.

[11] Section 386 of the Act deals with the meaning of dismissed while s.394 sets out who may apply for an unfair dismissal remedy. The sections provide as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

(2)….”

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.”

[12] If Mr Boland was not dismissed by Access Solutions within the meaning of s.386(1) of the Act, there is no jurisdictional basis for him to pursue his unfair dismissal application. Accordingly, I must first determine if Mr Boland was dismissed.

The Evidence Presented

[13] Access Solutions submit that other than Mr Boland’s reliability it had no issues with Mr Boland’s performance and had supported him regardless of his various personal issues. 6

[14] Mr Boland began taking time off work for personal matters which included attending court for various matters and for medical reasons that he says had an impact on him from May 2020. 7

[15] Access Solutions submit Mr Boland’s various personal matters include allegations of drug use, resisting arrest, wilfully obstructing police, burglary, making off without payment, stealing, unlawful possession of property and driving whilst disqualified. Mr Dales submits that they were aware Mr Boland did not have a license due to a history of driving whilst under the influence of alcohol as they had obtained a National Criminal History check and they had made accommodations in their scheduling program to ensure he did not have to travel between jobs during the day. 8

[16] Ms Dales gave evidence that not only did they support Mr Boland with his loss of license they accommodated his requests for late starts or early finishes so he could attend to his various personal matters. 9

[17] Ms Dales’ evidence is that on 1 April 2020 whist attending a remote job site she found Mr Boland in a distressed state and subsequently arranged for his return home so he could take a couple of days off to attend to his personal matters. 10

[18] Ms Dales’ evidence is that on 15 June 2020 Mr Boland requested some time off due to personal issues his partner was having. Mr Boland subsequently took time off work returning on 29 June 2020. 11

[19] Mr Boland met with Mr Dales to discuss the various personal issues he was experiencing. Mr Dales submits they discussed some issues Mr Boland had with “minor” drug use that he felt he was being victimised for, or his new partner was, due to her work in a childcare centre. Mr Dales’ evidence is that during that meeting Mr Boland proposed his resignation as an option stating that his father had offered him work on some units in Cremorne, or Seven Mile Beach and he could work on those whilst he was sorting himself out. 12

[20] It is not in contention that Mr Dales was supportive during that meeting and encouraged Mr Boland not to resign. Mr Dales thought he could support Mr Boland by offering him some stability. Mr Boland says he left the meeting feeling good because he felt Mr Dales had respect for his openness, work ethic and performance. Mr Boland says the meeting was confirmed in writing by Mr Dales. 13

[21] Mr Boland called in sick again on 7 July 2020 and took the rest of that week off. On 13 July 2020 Mr Boland called in sick again for the whole week.

[22] On 20 July 2020 Mr Boland says he again woke up feeling unwell and rang Ms Dales at 6:45am to let her know he was taking unpaid leave for medical reasons. Mr Boland’s evidence is that he concluded the conversation saying words to the effect that ‘we may have to have a meeting around my employment after my medical leave had finished if my personal circumstances had not improved’. 14

[23] Ms Dales’ evidence is that during the phone call Mr Boland had apologised profusely for the ongoing inconvenience and that he again had to take time off work. Ms Dales says he then offered to resign. Ms Dales said she would talk to Mr Dales and Ms Belstead (Accounts Manager) and get back to him. Ms Dales produced evidence in support of her submission that she sent a text message to the site supervisors letting them know that Mr Boland wanted to take a month off or resign. 15

[24] Mr Boland says he did not offer his resignation. Mr Boland submits after speaking to Ms Dales he proceeded to call the “Eastern Shore Doctors” to make an appointment however he was unable to obtain an appointment until Thursday 23 July 2020. Mr Boland produced a medical certificate that specified he had been unfit for work from Monday 20 July 2020 until Sunday 6 September 2020 inclusive. Mr Boland says he sent a copy of that certificate to Access Solutions on the same day as his appointment. However, this was after he’d been informed that his resignation had been accepted. 16

[25] Ms Dales’ evidence is that on 21 July 2020 at 1:49pm she called Mr Boland and informed him after discussions with Mr Dales, Ms Belstead and the site supervisors they’d decided to accept his resignation. Ms Dales’ evidence was that Mr Boland agreed and said he understood her decision and asked what she would need from him. Ms Dales asked for his uniform back and that she would need to pick up the paperwork from his recent job and a resignation letter as a paper trail. Ms Dales’ evidence is that Mr Boland agreed, and she then arranged for them to meet the next day. 17

[26] Ms Dales’ evidence is that at 3:17pm she received a call from Mr Boland during which he asked if he was on medical leave could he get JobKeeper. Ms Dales replied stating she would have to check with Mr Dales. Ms Dales believes that it was at this stage Mr Boland changed his mind realising he could remain on JobKeeper whilst on unpaid leave however he did not state that he hadn’t resigned until they spoke the next day. 18

[27] Mr Boland did not initially recall making this call however Ms Dales had records of the call being received. Mr Boland later recalled making the call however maintains he didn’t resign. Mr Boland initially stated he had said he didn’t resign in the first phone call, he later stated he may have said it in the second phone call as well as the first phone call. After being questioned about his recollection Mr Boland’s evidence was that it was possible that he only raised the issue that he had not resigned until the second phone call. 19

[28] Mr Boland says on 21 July 2020 he called the office and spoke to the Account’s Manager (Ms Belstead) regarding JobKeeper as he was on unpaid leave. He says approximately an hour later Ms Dales called him stating that his resignation had been accepted. Mr Boland says he explained that he had not resigned and was on unpaid leave. 20

[29] On 21 July 2020 at 4:56pm Mr Boland received an email from Ms Dales stating:

“Hi James

Please find attached confirmation letter of verbal acceptance of your resignation.

Take care and wishing you all the best for the future.”

[30] Ms Dales email attached a letter accepting Mr Boland’s resignation. The letter states:

“Dear James

Acceptance of Resignation

We wish to confirm our verbal acceptance of your resignation by Lydia this afternoon.

After careful consideration and in line with discussions with Ashley 2 to 3 weeks ago when you first offered your resignation and again offering your resignation to Lydia via phone at 6.45am yesterday and after various discussions with senior employees it was agreed to accept your resignation.

Your final payment of any unused leave will be paid upon return of all uniform and any Access Solutions documentation or tools you currently have in your possession.

We wish you all the best for your future endeavors.(sic)” 21

[31] On 21 July 2020 at 5:16pm Mr Boland sent an email to Ms Linda Belstead, Accounts Manager with a copy to Ms Dales stating:

“I have had conversations with Lydia and Ashley around my personal life but a resignation was not ever confirmed.

I am meeting with Lydia tomorrow as im currently on medical leave.”(sic) 22

[32] Mr Boland sent another email at 5:17pm that same day stating:

“So to clarify sorry I dont accept this letter on my behalf.” (sic) 23

[33] On 21 July 2020 at 5:41pm Mr Boland received an email from Mr Dales stating:

“Hi James,

Thanks for your emails. I thought I would clarify some points so we are all on the same page.

A few weeks ago you offered to me your resignation as an option, due to your absence from work that was not based on medical reasons. I encouraged you not to do that as we would work with you to assist you overcome your various personal issues. I then met with you to discuss this and again mentioned that we wished to work with you as we wanted a long term future that was mutually beneficial, based on trust and reliability, amongst other things.

Since then you have worked less than a week, with another few weeks off and again taking more time off this week. I think overall you have worked one week in the last five.

On Monday you called Lydia at 6.45am to again say you were not going to work and offered to her your resignation. She then asked myself, Simon and Brodie about this and we all responded that we would accept this, this time.

In the meantime, you have contacted Linda to ask about Jobseeker and I instructed Linda that we had decided to accept your resignation.

Lydia then has called you today, Tuesday, and Linda had written you the letter, which looks like you are now renouncing your offer.

I will have to seek advice on what our obligations are, as I have never faced this before, therefore shall let you know what the right protocols are.” 24

[34] Mr Dales’ evidence is that he sought advice from Master Builders Association.

[35] On 21 July 2020 at 5:51pm Mr Boland sent an email to Ms Belstead and Mr Dales attaching a timesheet for the fortnight and stated:

“Again not sure what happens with job keeper payment around leave with out pay as I have no leave left could you please clarify this.

Moving forward I will call Ashley tomorrow as well as speaking with Lydia to discuss curcumstances.” (sic) 25

[36] At 6:01pm Mr Boland then sent an email to Mr Dales in which he states he is on unpaid leave:

“I am in a position where I have taken leave for personal reasons as discussed.

Ill call you tomorrow to discuss it all if you are happy?” (sic) 26

[37] On 22 July 2020 at 7:57am Ms Belstead replied to Mr Boland’s earlier email attaching his timesheet stating she would await further clarification from Mr Dales. 27

[38] Mr Boland says he rang Mr Dales at 9:00am on 22 July 2020 however he did not answer. He then sent him a text message at 9.05am. Mr Dales replied at 9:56am stating he was seeking advice from the Master Builders Association and he would let Mr Boland know the outcome. Mr Boland replied at 10:16am stating he would wait for a response. 28

[39] At 11:21am on 22 July 2020 Ms Dales again called Mr Boland and informed him she wanted to pick up the paperwork and uniform, Mr Boland said he did not want to meet with her until the issue of his resignation was resolved with Mr Dales. 29 Mr Boland says he spoke to Ms Dales again later that day. He says he told her that he considered the events to be ‘unilateral fraud’.30

[40] On 23 July 2020 Mr Dales sent an email to Mr Boland stating that as they had accepted Mr Boland’s resignation there was no other avenue available to him. 31

[41] On Friday 24 July 2020 at 12:36pm Mr Boland sent a text message to Mr Dales requesting he talk with him some time in the next week in an attempt to clear matters up. 32

[42] Mr Dales responded at 2:34pm stating that he was flying interstate and had to self-isolate on his return. Mr Boland replied stating that the matter couldn’t wait that long. 33 Mr Boland was aware that he only had 21 days to file an application for unfair dismissal.

[43] Mr Dales submits in considering whether or not to accept Mr Boland’s resignation he took into account that Mr Boland had provided information that his father had “work lined up that he could move onto”. Mr Boland denies that he had provided information to that effect. 34

[44] Mr Dales’ evidence is that Mr Boland had offered his resignation twice and had not resigned in haste, through intimidation, coercion, or by request. It was however on the second occasion that he decided to accept the resignation after discussing it with his site managers, Human Resources representative and his Operations Project Manager. 35

Consideration

[45] Deputy President Clancy helpfully summarised the decision of O’Meara v Stanley Works Pty Ltd 36 (O’Meara) in Thi Nho Tran v Bupa Dental Corporation Pty Ltd.37 In his summary the Deputy President stated that the conclusion of the Full Bench of the Australian Industrial Commission in O’Meara provided that:

•  there must be action by the employer that either intends to bring the relationship to an end or has that probable result; and

•  that in determining whether a termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. (references omitted)

[46] Ordinarily termination occurs without the agreement of the employee, however there are circumstances when an employee acts to sever the relationship by resigning or accepting the employer’s repudiation of the employment contract.

[47] An employer is generally able to treat a clear and unambiguous resignation as a resignation. 38 However, it is necessary to consider the circumstances surrounding a resignation such as those given in the heat of the moment or under extreme pressure.39

[48] In this matter the evidence supports a finding that Mr Boland had on at least two occasions offered his resignation. The first of those occasions is not in contention. The second occasion leading to the termination of Mr Boland’s employment is disputed.

[49] Mr Dales presented as a compassionate employer who had accommodated Mr Boland and his various needs, including his requests for time off to deal with personal issues.

[50] I found Ms Dales to be a credible witness and where the evidence pertaining to the matter of the second resignation is in dispute, I prefer the evidence of Ms Dales. Ms Dales’ oral evidence is supported by the text messages she subsequently sent to Mr Boland’s supervisors. Further, as outlined below, Mr Boland sent several emails after being notified that his resignation had been accepted however none of those emails mention that he had informed Ms Dales in their earlier conversations that he did not offer his resignation.

[51] The text message sent by Ms Dales immediately after her conversation with Mr Boland informed Mr Boland’s immediate supervisors that he had requested to take a month of work or he would resign. Ms Dales had sought the supervisor’s views and it was agreed that it would be best in the circumstances to accept Mr Boland’s resignation.

[52] It was accepted by Mr Boland that Ms Dales rang him back and spoke to him at around 1:49pm. It is not in contention that during that phone call Ms Dales confirmed that Access Solutions had accepted Mr Boland’s offer to resign and provided instruction as to the next steps which included returning his uniform and providing his resignation in writing. Mr Boland gave evidence that he was shocked by Ms Dales response, however, he maintains that it was at this point he said he hadn’t agreed to resign.

[53] Ms Dales’ evidence is that at no time during the conversation did Mr Boland inform her that he had not intended on resigning. For the reasons outlined above I prefer the evidence of Ms Dales.

[54] The evidence supports a finding that Mr Boland had on previous occasions proposed to Access Solutions that he would need to resign due to his need for time off as a consequence of his personal matters. On this occasion Mr Boland offered his resignation however he had not anticipated it was going to be accepted by Access Solutions.

[55] Mr Boland had requested unpaid leave or alternatively he proposed his resignation. His unpaid leave request was denied by way of acceptance of his resignation. The medical certificate he obtained after his resignation was accepted and that acceptance confirmed by Access Solutions does not change this fact.

[56] I have formed the view that Mr Boland did not dispute that he had not resigned at the time he was notified that his resignation had been accepted. Nor did he send any correspondence stating that he had informed Ms Dales that he had not intended to resign. Mr Boland sent correspondence contesting the situation however this was only after his resignation was accepted and arrangements had been made to collect company property. It is plausible that Mr Boland had not expected Access Solutions to agree to his resignation and expected that they would instead, as they had in the past grant him unpaid leave. However, this does not alter the outcome.

Conclusion

[57] The evidence supports a finding that Mr Boland had offered to resign from his position with Access Solutions only a couple of months earlier. Mr Boland had again offered his resignation on 20 July 2020 and Ms Dales considered his reasons before confirming acceptance of the resignation in writing. Mr Boland attempted to rescind his resignation after being in receipt of the confirmation of acceptance however Access Solutions declined.

[58] Therefore, I am not satisfied that Mr Boland’s employment was terminated at the initiative of Access Solutions, nor am I satisfied that Mr Boland was forced to resign. Mr Boland did not resign in the “heat of the moment or under duress”. I am therefore satisfied that neither s.386(1)(a) nor s.386(1)(b) of the Act applies to Mr Boland.

[59] Having found that Mr Boland was not dismissed from his employment within the meaning of s.386(1) of the Act, there is no jurisdictional basis for him to pursue his unfair dismissal application as the requirement in s.385(a) of the Act is not satisfied. It is therefore not necessary for me to otherwise deal with the merits of the application as sought by Mr Boland. The application for an unfair dismissal remedy is dismissed. An order 40 to this effect will accompany this decision.

COMMISSIONER

Appearances:

Mr J Boland on his own behalf
Ms L Dales with Mr A Dales from the Respondent

Hearing details:

2020.
Melbourne (by video link via Microsoft Teams):
November 4.

Printed by authority of the Commonwealth Government Printer

<PR726521>

 1   MA000020

 2   Exhibit A1

 3   Exhibit A2

 4   Exhibit R2 and R3

 5   Exhibit R1

 6   Ibid

 7   Exhibit A1

 8   Exhibit R1 and Exhibit R2

 9   Exhibit R3

 10   Ibid

 11   Ibid

 12   Exhibit R2

 13   Exhibit A1

 14   Ibid

 15   Exhibit R3

 16   Exhibit A1

 17   Exhibit R3

 18   Ibid

 19   Audio Recording of Determinative Conference on 4 November 2020

 20   Exhibit A1

 21   Exhibit R1, Supporting Document No. 8

 22   Exhibit A1

 23   Ibid

 24   Ibid

 25   Ibid

 26   Ibid

 27   Ibid

 28   Ibid

 29   Exhibit R3

 30   Audio Recording of Determinative Conference on 4 November 2020

 31   Exhibit A1

 32   Ibid

 33   Ibid

 34   Audio Recording of Determinative Conference on 4 November 2020

 35   Ibid and Exhibit R2

 36   PR973462

 37   [2018] FWC 3237 at [78]

 38   Ngo v Link Printing Pty Ltd (1999) 94 IR 375 at [12]

 39   Ibid

 40   PR726522