Jason Jenkins v Agmech Consultants Pty Ltd T/A National Mulchers - [2023] FWC 411

[2023] FWC 411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Jason Jenkins
v

Agmech Consultants Pty Ltd T/A National Mulchers

(U2022/11074)

DEPUTY PRESIDENT MASSON

MELBOURNE, 21 FEBRUARY 2023

Application for an unfair dismissal remedy – jurisdictional objection raised – whether dismissed within meaning of s 386(1)(a) – found that not dismissed within meaning of s 386(1)(a) - application dismissed.

Introduction

On 18 November 2022, Mr Jason Jenkins (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Agmech Consultants Pty Ltd T/A National Mulchers (the Respondent) on 31 October 2022 was unfair. The Applicant seeks an order for compensation.

On 29 November 2022, the Respondent filed its Form F3 response to the unfair dismissal application in which it raised a jurisdictional objection to the application, that being the Applicant was not dismissed.

Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for mention/conference before me on 14 December 2022. After hearing from the parties, I determined to conduct a hearing pursuant to s 399 of the Act. The matter was listed for hearing on 13 February 2023. The Applicant was also granted permission to be legally represented in the proceedings pursuant to s 596(2)(b) of the Act.

At the hearing Ms J Zhou of Counsel appeared for and called the Applicant to give evidence. Mr Stuart Sealey, who is the Owner/Director, appeared for the Respondent, gave evidence himself and also called the following persons to give evidence;

Daniel Peters – Machine Operator for the Respondent
Luke Oborne – Machine Operator for the Respondent
Russell Coxall – Managing Director Plastek Industries
Marcus Berlyn – Business Owner Ableworks

Background and evidence

Applicant’s employment

The Applicant commenced employment with the Respondent in its Ballarat maintenance workshop as a casual employee on 3 August 2021[1]. While his hours as a casual were not set, the Applicant states he worked an average of 36 hours per week[2]. He further states that his hourly rate of pay as a casual employee was $28.00 however timesheets provided by the Respondent indicate that his rate of pay in the period from 9 August 2021 to 26 December 2021 was $30.00 per hour[3]. The Applicant agreed in cross-examination that his relationship with Mr Sealey had, prior to the end of his employment, been productive and that the Respondent had made a significant investment in the Applicant by way of training.

Mr Sealey states that when the Applicant commenced employment with the Respondent, he had no fixed address as his own house was occupied by tenants. He further states that at the time the Applicant commenced he had explained to Mr Sealey that his intention was to move back into his own house when the current tenant vacated, following which he was going to build a shed on his property and start his own business. Mr Sealey produced an ABN extract of a company called Uniweld Ballarat which the Applicant established on 25 October 2021[4]. It became apparent Mr Sealey says that the timing of when the Applicant could move back into his own house would be delayed and consequently the Applicant was happy to stay with the Respondent until he sorted his shed out and set up his new business[5].

Around Christmas 2021, the Respondent advised the Applicant that he would be converted to full-time. According to Mr Sealey, the Applicant initially sought an after tax net rate of pay of $35 per hour which Mr Sealey says he discussed with his accountant[6] but then after consideration confirmed to the Applicant that his gross rate of pay would be $33.00 per hour[7] in addition to which he would have use of a Company car for private use and also receive a fuel card[8]. Mr Sealey agreed in cross-examination that the change to permanent employment was not confirmed in a written contract, that this was an oversight but was consistent with the Respondent’s normal practice of relying on verbal communication with the Applicant.

Mr Sealey further states that in or around April 2022, the Applicant’s tenant confirmed to the Applicant that he would be moving out in or around mid-May 2022, but the Applicant was struggling to find temporary accommodation until then. During this period Mr Sealey allowed the Applicant to park his caravan on Mr Sealey’s property and use the bathroom and toilet facilities in Mr Sealey’s home on a short-term basis. The Applicant accepted this offer from around 21 March – 15 May 2022 and also joined Mr Sealey and his wife for the majority of their evening meals (prepared by Ms Sealey) on Monday – Friday each week in this period[9].

Mr Sealey says that as the Applicant’s experience developed in working for the Respondent, Mr Sealey decided to further increase the Applicant’s rate of pay to $36.00 per hour, which took effect on 31 July 2022[10]. He states that at the same time, he initiated a trial period where the Applicant would help with logistical decisions and assist Mr Sealey organise the workflow through the workshop as the rest of the team were in the field. Mr Sealey also highlighted that an annual leave accrual error following the Applicant’s conversion from casual to permanent employment in January 2022 was identified in June 2022. Once the error was identified, the Applicant’s annual leave accrual was corrected on and from the pay period ending 19 June 2022[11].

Mr Sealey also states that the Respondent invested a significant amount of money into the training and accreditation of the Applicant in the period from May 2022 until his employment ended in October 2022. This included;

Heavy rigid vehicle license training[12];
Construction industry safety training[13];
First aid training[14];
EnergyConnect HSE induction[15];
Four wheel drive vehicle training[16];
Active Tree Service field operators safety induction[17];
Driving Operations (Pilot Vehicle) training[18]; and
Civil construction skid steer steel loader operations training[19].

With respect to the Applicant’s reading and writing challenges, Mr Sealey agreed in cross-examination that he and his wife were aware of the Applicant’s limited reading and writing abilities and that Ms Sealey helped the Applicant with the courses he undertook because of his literacy limitations.

Mildura project

Mr Sealey states that around June 2022, an opportunity emerged for the Respondent to undertake work on a project in Mildura, with the potential start date being late August or early September 2022. If the Respondent were successful in securing the work, all employees would be offered the opportunity to participate in the project including the Applicant, for which they would receive $50 per hour, $60 per night meal allowance with accommodation provided while deployed on the project.

Following the Respondent being formally engaged for the project, Mr Sealey says he had a discussion with the Applicant and two other employees, Daniel Peters and Luke Oborne in the workshop tearoom during which it was stated that all operators on the project would be required to work the same intervals and hours. Those hours were according to Mr Sealey, approximately 10 hours per day, 6 days per week for 3 week swings to enable all employees to share the opportunity and to rotate the commitment between more employees. It was further stated to the employees present that if the Respondent was successful in completing phase 1 of the project in terms of safety, professionalism and efficiency the option of phase 2 could be discussed.

The Applicant states that he was requested to go on to the Mildura project even though he had never driven a mulcher machine and despite his completing a medical before he left which revealed he had 20% loss of hearing and Type 2 diabetes[20]. He says he was initially reluctant to go as he was doing a bit of weekend welding work “on the side” and was concerned at missing out on this work if he went to Mildura. He further states that Mr Sealey convinced him to go and said to him he would get $50 per hour on a 6 days per week/12 hour shift roster. He also states Mr Sealey told him he would receive payment for all travel while on the project. He claims that had he received the rates and conditions explained to him by Mr Sealey, it would have been a profitable project for him[21].

Mr Sealey rejected the Applicant’s evidence that he had no prior operating experience on the mulcher. Mr Sealey referred in detail to the Applicant’s previous operating experience including on the tracked mulcher that he operated while on the Mildura project[22]. Mr Sealey also referred to Work/Service History records filed in evidence to rebut the Applicant’s evidence that he had no prior experience operating the mulcher machine[23]. Mr Sealey was not cross-examined on that evidence.

Mr Sealey agrees that the Applicant was required to undergo a medical prior to mobilising for the Mildura job. He also agrees that the report identified the hearing loss and Type 2 diabetes referred to by the Applicant. The requirement for the Applicant to proceed on the job was to have in place a plan to manage his diabetes[24].

The Applicant states that the Mildura job did not turn out the way it had been explained to him. He says that instead of working 12 hour shifts he only worked 10 hour shifts, he did not get paid for travel between the accommodation and the worksite each day which was a 30 minute drive and that payment for his travel to Mildura on 2 October 2022 was at the standard hourly rate of pay, not the $50 project hourly rate[25].

After his first week on the Mildura job, the Applicant says he was paid on the following Monday, which was 10 October 2022, and realised that he received less in his pay than he expected. He subsequently rang Ms Sealey that afternoon and told her he expected more pay. Ms Sealey advised him that if he was unhappy with his pay he would need to speak with Mr Sealey[26].

On 11 October 2022, the Applicant says he called Mr Sealey and complained that he was not being paid what was agreed, that of $50 per hour for 12-hour shifts and he had also not received payment for travelling between the accommodation and worksite. The Applicant claims Mr Sealey became heated during the conversation and at one point confirmed in response to a challenge from the Applicant that he would be happy to work for the money being paid to the Applicant. The Applicant then responded by saying he “was happy to pack up and come home then”. The Applicant says Mr Sealey calmed down at this point and advised the Applicant that if he stayed on the Mildura job for another two weeks he could then come back to Ballarat and run the workshop, everything would return to normal and he would not need to return to Mildura[27].

When cross-examined on his understanding of the conditions for the Mildura project, the Applicant confirmed that he was dissatisfied with payment conditions on the project, reaffirmed his belief that employees were going to be paid for 12 hour shifts, were told they would get paid travel time but agreed that the detail of the travel payments was not discussed. He conceded that he made an assumption about the travel payments based on his previous experience with the Respondent.

Mr Sealey gave a somewhat different version of events to that of the Applicant regarding the Mildura job. Mr Sealey says he tried to contact the Applicant on 11 October 2022, there was no answer and so he left a message. He says the Applicant returned his call later that day and told Mr Sealey that he was going to resign as he was not earning enough money and was paying too much tax. He asked Mr Sealey whether he would work for $50 per hour to which Mr Sealey says he replied “yes”, following which the Applicant then said “right, well I’m coming home now then”. Mr Sealey says he then asked the Applicant whether he would finish the three week swing he had committed too, as two weeks were required to train up another operator so that the Applicant did not have to return to Mildura. Mr Sealey says the Applicant agreed to stay for another two weeks[28].

Under cross-examination Mr Sealey agreed that the Applicant held concerns in relation to three particular aspects of the Mildura project conditions, those being the 10 hour shift, the reduced travel time payment between Ballarat and Mildura and the lack of a travel time payment between the accommodation in Wentworth and the job site. He agreed that he was frustrated during his conversation with the Applicant on 11 October 2022 but rejected that he was angry as claimed by the Applicant. While characterised in the Respondent’s material as the Applicant’s ‘first resignation’, Mr Sealey conceded that the Applicant had not actually stated to him during their telephone discussion on 11 October 2022 that he was resigning. Rather, Mr Sealey took the language used by the Applicant as indicating an intention to resign. Mr Sealey also stated that when he was able to persuade the Applicant to remain on the Mildura project for a further two weeks before returning to the workshop, he was “relieved” the Applicant was going to stay with the Respondent.

In relation to the remuneration arrangements agreed for the Mildura project, Mr Sealey states that all operators on the project received the same rates and conditions. This included the two operators Daniel Peters and Andrew McIntyre who had already completed a three week block from 12 September to 1 October 2022 when the Applicant arrived on 2 October 2022[29]. As regards the timekeeping arrangements, Mr Sealey states that the Respondent uses a real time, time sheet clocking phone app where employees can visually see locations and timesheet entries of all other employees.

He further states that a typical day on the Mildura project consisted of slightly more than the anticipated ten hour days, which included pre-start and machine shut down which was paid. He says other operators clocked up approximately 11-11.5 hours per day but did not claim unclaimable travel time to and from accommodation[30]. He says this was explained to the Applicant during the first week of the Applicant’s time on the Mildura project when Luke Obourne brought to the Applicant’s attention that each employee was required to clock on at the beginning of their pre-start on Arumpo Road, Buronga, NSW and not when they leave the supplied accommodation in Wentworth which was 37 km away. Mr Sealey states that this was part of the previously agreed project conditions, it was normal practice for the Respondent’s projects and all other employees were happy with the arrangements[31]. He rejected that the Applicant had been misled by him regarding the project conditions and claimed that the Applicant had misunderstood the conditions.

Mr Obourne and Mr Peters were both adamant during cross-examination that the conditions explained and understood by employees were that of a $50 flat hourly rate for all hours worked, 10 hour shifts worked from 7.00am to 5.30pm on a 6 day per week basis with a 30 minute unpaid lunch break. They also confirmed that while travel to and from Mildura from Ballarat was covered, daily travel to and from the worksite was not subject to payment of a travel allowance.

Mr Sealey states that the Applicant was speaking aggressively during their phone call on 11 October 2022, so he says he offered the Applicant the opportunity to return to the workshop to continue working in his original role as welder/workshop assistant and confirmed he would not ask him to return to the Mildura job. The Applicant completed the remaining two weeks and came back and worked in the workshop from 24-28 October 2022[32]. Mr Sealey agreed in cross-examination that at the end of his phone call with the Applicant on 11 October 2022, he felt the matter was largely resolved.

Mr Obourne gave evidence during cross-examination regarding the Applicant’s conduct while on the Mildura project. He states that the Applicant knew all of the conditions, as did the other staff, but came across as angry when complaining directly to the client’s Operations Manager about his conditions. Mr Obourne says that because of the Applicant’s behaviour towards the client he felt the need to apologise to the client’s Operations Manager. Mr Obourne says he reported the Applicant’s behaviour to Mr Sealey when Mr Obourne returned from the Mildura project and came into the workshop in the week of 31 October 2022.

During cross-examination, Mr Peters clarified that he had not spoken to the Applicant regarding conditions on the Mildura project until the Applicant returned to the workshop in the week of 24 October 2022. He says he had a conversation with the Applicant in the workshop on Saturday 29 October 2022, in which he says the Applicant remained disgruntled and upset about the project conditions. Mr Peters stated that during this conversation he confirmed the project conditions to the Applicant. He also agreed that he received a visit from the Applicant “out of the blue” about a week after the Applicant ceased employment with the Respondent. He described the visit as unusual and that it involved a general chat during which the Applicant claimed that he had been sacked by Mr Sealey.

Applicant’s resignation or dismissal

The Applicant states he returned to the workshop on 24 October 2022 and that in the first week back everything was normal. On 31 October 2022 sometime during the morning, he says Mr Sealey asked to have a quick word with him in the smoko room which is a separately enclosed room with a door in the workshop. Once the Applicant stepped inside the smoko room, he says Mr Sealey said he wanted to discuss the Mildura job and some other stuff[33].

The Applicant went on to describe the conversation with Mr Sealey. He says Mr Sealey expressed that he was not happy with the way the Applicant went about the Mildura job and was particularly disappointed with their phone conversation on 11 October 2022. He says Mr Sealey also claimed that the Applicant had been badmouthing Mr Sealey to a local business owner Marcus Berlyn and had also been spreading rumours about another company Mr Sealey had an interest in called “Viking”[34].

The Applicant denied the allegations in relation to his badmouthing Mr Sealey to Mr Berlyn or spreading rumours about “Viking”. He says that after he finished talking about “Viking” Mr Sealey then said to the Applicant “I can’t see us working together from this point on” which the Applicant understood to mean that he could not keep working for the Respondent. He says he then asked Mr Sealey, “so what do you want? Do you want me to pack my gear and go?” to which he says Mr Sealey replied “yes.” The Applicant states he then asked if he could take the day to clear his stuff out to which Mr Sealey agreed[35]. The Applicant claimed that throughout their conversation in the smoko room, Mr Sealey was very worked up which was in contrast to his normal demeanour of being cool and polite. He further states Mr Sealey was flustered throughout their conversation and spoke very loudly and in an angry manner[36].

Throughout the rest of the day on 31 October 2022, the Applicant states he moved his tools and belongings out of the workshop and told colleagues that he had been fired. He says he was approached by Ms Sealey at the end of the day who asked him to sign a document confirming his resignation[37] (Cease Employment Letter) which he declined to do as he could not read it, Ms Sealey declined to read it to him and because he felt pressured to sign it. He also stated to Ms Sealey that he was not happy with the way he had been fired and had already spoken to a solicitor, which he now concedes was not true. Later that evening he was copied in on a group message in which it was stated that “unfortunately Jason has decided to part company today…”[38].

The Applicant states that he had no intention of resigning his employment on 31 October 2022. He states that he had been planning to sell his house and travelling around Australia prior to commencing employment with the Respondent. He says that after he started with the Respondent he discovered he loved the job working in the workshop and that it was a good place to work. Because he enjoyed the job, he says he changed his travel plans and waited to get the tenant out of his house so that he could move in and continue working at the workshop. Because of the changes he had made in his life, he states there was no reason for him to resign[39].

Mr Sealey rejects significant elements of the Applicant’s version of their conversation on 31 October 2022. He says he approached the Applicant on 31 October 2022 and requested to have a conversation with him in the workshop smoko room as he wanted to discuss the Applicant’s behaviour and conduct on site at Mildura. This behaviour included a situation in which another operator was forced to apologise to the Operations Manager of the Respondent’s client on the Mildura job because of the Applicant “ranting” about his pay and conditions. In wanting to raise these matters with the Applicant, Mr Sealey says it did not mean that warnings or disciplinary action would follow[40].

Mr Sealey also states that he was asking the Applicant about his side of the story around his behaviour on the Mildura job and also about information Mr Sealey had received regarding the Applicant disclosing information about the Respondent and Mr Sealey’s confidential business dealings. He says when these matters were raised with the Applicant in their discussion in the smoko room, the Applicant became intense and defensive and said, “well I will just leave then”[41].

In relation to the disclosed confidential information, Mr Sealey explained that he had purchased and then sold 3 machines through a separate company for approximately $1m each. One of the machines needed to have a winch valued at $16,000 removed as part of the sale arrangements which he was then able to sell separately. That information was according to Mr Sealey known to the Applicant. Mr Sealey states that Mr Berlyn called him in the week prior to the Applicant’s cessation of employment and advised him that the Applicant had been in Mr Berlyn’s workshop that week using the steel bending equipment and had discussed with Mr Berlyn the financial details of the sale of the above-referred machinery and winch. Mr Sealey formed the view, he says, that it was inappropriate for the Applicant to have been discussing Mr Sealey’s confidential business dealings with Mr Berlyn.

When cross-examined on whether he had discussed Mr Sealey’s business dealings with Mr Berlyn, the Applicant agreed that in response to a question posed by Mr Berlyn in his workshop, he told him that he was not aware of any property that Mr Sealey and another business partner owned on which they were exploring for gold. As regards the sale of the machinery referred to in Mr Sealey’s evidence, the Applicant he stated that he could not recall discussing with Mr Berlyn, the subject of ‘Viking” which was the company through which the equipment was sold. He claimed however that Mr Sealey’s business dealings were ‘common knowledge’ and agreed with the characterisation put to him that such discussion might be characterised as ‘workshop gossip’.

Mr Berlyn confirmed during cross-examination that the Applicant had disclosed details of the sale of the equipment referred to by Mr Sealey in his evidence. Specifically, Mr Berlyn stated that the Applicant had told him that Mr Sealey was taking the winch off one of the machines to sell separately and that he was also ‘cleaning up’ on the buying and selling of second hand equipment through the ‘Viking’ business. Mr Berlyn states that the matters disclosed to him by the Applicant were none of either his or the Applicant’s business.

Mr Sealey states that prior to his conversation with the Applicant, no paperwork had been prepared by him to formalise the discussion as there was no plan at that stage to move the conversation to a formal review process. He also claims that he conducted the conversation with the Applicant in measured tones and did not raise his voice in a loud or angry tone. There were other people in the workshop so any loud or angry conversation would have been heard he says[42]. When cross-examined on the discussion in the smoko room Mr Sealey rejected that it was a disciplinary meeting. He further stated that he wanted to have a casual chat with the Applicant regarding the Applicant’s belief that Mr Sealey had ‘misled’ him over the Mildura project entitlements and he also wanted to raise his concerns over the disclosure of confidential information by the Applicant. He resisted the proposition that the purpose was to confront and discipline the Applicant. Mr Sealey also referred to evidence of normal performance management processes followed by the Respondent as shown by documented performance reviews conducted with other employees[43].

When pressed in cross-examination Mr Sealey rejected that he had said to the Applicant that he could not see them working together. When asked why he did not seek to dissuade the Applicant from resigning in circumstances where, on his own evidence, the Applicant was a valued employee Mr Sealey gave the following explanation. He said that as the discussion progressed in the smoko room, the Applicant rejected that he had done anything wrong and showed no contrition or remorse. In circumstances where he now held concerns over the Applicant as a consequence of his disclosure of confidential information to Mr Berlyn, Mr Sealey stated he was happy to accept the Applicant’s resignation and did not try and change the Applicant’s mind.

Mr Sealey also agreed during cross-examination that he did not seek to clarify or confirm notice period requirements with the Applicant at the end of their discussion in the smoko room. He confirmed that he took the Applicant’s statement “well, I’ll just leave then” as a resignation with immediate effect and treated it as such. Mr Sealey says he then responded, “if that’s what you want”.

Mr Sealey was cross-examined in relation to the Cease Employment Letter which the Applicant declined to sign. He variously stated in response to questions regarding the letter that;

while he did not witness the conversation between Ms Sealey and the Applicant, he had seen the draft letter before it was provided by Ms Sealey to the Applicant;
the normal means of communicating with the Applicant was through verbal communication having regard to the Applicant’s literacy difficulties;
agreed that asking the Applicant to sign the Cease Employment Letter was highly unusual given the Respondent’s normal method of engagement with the Applicant;
sought confirmation of the Applicant’s resignation in writing because of the lead up events which caused Mr Sealey to have concerns about the potential repercussions;
denied that it was an attempt by him to ‘cover his tracks’ following the ‘dismissal’; and
agreed that despite the letter stating that the Applicant’s employment would end without a notice period “as directed by Jason”, there had been no such direction but rather he inferred from the Applicant’s language that he would be finishing up immediately.

Mr Sealey states that he was extremely disappointed when the Applicant resigned as the Respondent’s business activity increases significantly from October through to June/July in the following year. The resignation has he says, left the Respondent in a difficult situation where it will struggle to meet the needs of customers without help in the workshop where the Applicant was working. He also refers to the significant financial investment made by the Respondent in the Applicant’s training[44]. He conceded however in cross-examination that much of that training was necessary for the Mildura project.

Mr Sealey expressed scepticism at the Applicant’s claims that he expected to remain employed with the Respondent until he retired. Mr Sealey refers to several matters that causes him to distrust that evidence. He says the Applicant has been planning to build a workshop at his Cardigan Village property so that he can expand his own business ‘Uniweld’ and has kept Mr Sealy informed on progress including difficulties with a neighbour over a fence replacement. He further states that at no stage had the Applicant said that immediately prior to commencing employment with the Respondent he had planned to sell his property and travel around Australia in a caravan. He also refers to the Applicant’s ownership of a rural block of over two hundred acres near Buangor, his ownership of a house and property on which he obtained a planning permit to build a workshop on and an ABN that allows him to run a business trading in, building and repairing trailers and ute trays which he has done for some 20 years with his father in a previous business[45].

The Applicant states that following his dismissal he worked for another company for around a week, that company owned by Russell Coxall, who he claims is a friend of Mr Sealey. That work ended he says following a text message from Mr Sealey on 20 November 2022 to Mr Coxall stating that “your new welder is doing me for $76k for unfair dismissal”[46]. He further states that he has been unable to secure ongoing stable employment in the area but has picked up some casual employment and has continued to do some work for himself welding ute trays and fixing trailers. He further states that he has recently secured a loan to build his own workshop [47].

When pressed in cross-examination on his job seeking efforts since his employment with the Respondent ended, the Applicant claimed that there was not enough work to sustain his private business on a full-time basis and for that reason he had expected to remain with the Respondent. He also referred to efforts to secure alternate employment, which included approaching two companies, Tagalong Trailers and Beaver Trailers. He agreed that he had not produced any other evidence of his job seeking efforts.

Mr Coxall gave evidence that he did engage the Applicant as a contractor for less than a week after Mr Sealey had provided him the Applicant’s contact details on 10 November 2022[48]. He further stated during cross-examination that the decision to cease using the Applicant was due to the Applicant’s skill levels and had nothing to do with the text message sent to him by Mr Sealey on 20 November 2022 as he had already decided not to continue using the Applicant. He readily conceded that his use of the term ‘dirtbag’ to describe the Applicant in his text message response to Mr Sealey on 20 November was inappropriate.

Has the Applicant been dismissed?

A threshold issue to be determined in this matter is whether the Applicant has been dismissed from his employment. The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:

(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.

Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

The authorities in respect of the meaning of the term ‘dismissed’ are well traversed. In a decision made prior to the passage of the Act, the Full Court of the Industrial Relations Court of Australia Mohazab v Dick Smith Electronics Pty Ltd[49] (Mohazab) was considering whether an employee had been forced to resign in circumstances where the employee signed a letter of resignation drafted by the employer shortly after being interviewed in relation to allegations of dishonesty. After setting out the findings of fact the Full Court said the following when considering the meaning of ‘termination at the initiative of the employer;’

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of the employee.”

and at 5:-
“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” (our emphasis added)”

In a more recent Full Bench decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[50] (Bupa), the Full Bench was dealing with an appeal of a decision in which the member at first instance found that the dismissal was within the meaning of s.386(1) and that the dismissal was unfair. The Full Bench in Bupa was concerned with a ‘forced’ resignation and how the passage of the FW Act impacted prior authorities when it stated as follows;

“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations;

· where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

· where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

Having identified there were two elements to s.386(1) and after extensively considering the authorities, the Full Bench then said;

“[47] 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.”

As set out above, s 386(1) is divided into two limbs, subsections 386(1)(a) and (b) respectively. In this matter, the Applicant contends that he was dismissed from his employment as per the first limb of s.386(1). He denies that he resigned, either voluntarily or because he was forced to by the Respondent’s conduct. He contends that he was terminated at the Respondent’s initiative.

Evidentiary findings

In turning to consider whether the Applicant was dismissed at the Respondent’s initiative, it is necessary for me to make findings in relation to a number of evidentiary matters. That is so because of the substantial factual contest over a number of matters central to establishing whether the Applicant’s dismissed was at the initiative of the Respondent. Before turning to that factual contest, I make the following observations regarding the credit of witnesses.

Dealing firstly with witnesses for the Respondent. I found Mr Obourne and Mr Peters to both be open and forthright in their evidence. They answered the questions put to them in a candid manner and where they were unsure on a particular point they acknowledged that uncertainty. For example, when Mr Obourne was questioned on when he had discussed the Applicant’s behaviour on the Mildura project with Mr Sealey, he was uncertain as to exactly when he had done so, acknowledged that uncertainty and agreed that the discussion took place in the week following his return from Mildura.

Mr Berlyn and Mr Coxall were similarly credible in their evidence. They answered forthrightly and made appropriate concessions. For example, Mr Coxall acknowledged that his use of the term ‘dirtbag’ in describing the Applicant in a text message exchange with Mr Sealey on 20 November 2022 was not appropriate or professional language.

In respect of Mr Sealey, I also found him to be credible in his evidence. He came across as genuine in his responses and was not dogmatic in his evidence as shown by concessions he made on key points. For example, when pressed on why he did not attempt to dissuade the Applicant from resigning, he accepted that it may be hard for the Commission to understand why he did not do so given his earlier evidence that the Applicant was a valued employee. He also readily conceded key points such as the Applicant having not expressly stated he was resigning during their 11 October 2022 telephone conversation. Mr Sealey also agreed that the language used in the unsigned Cease Employment Letter indicating an instruction from the Applicant as to their being no notice period was inaccurate.

Finally, I turn to the credit of the Applicant’s evidence. He came across as firm and resolute in his evidence but appeared reluctant to make any concessions that might weaken his case. There are also a number of evidentiary conflicts that cause me to approach the Applicant’s evidence with some caution. This can be seen by the following.

Firstly, the Applicant initially denied in cross-examination, then equivocated on whether he discussed Mr Sealey’s confidential business dealings with Mr Berlyn before finally accepting there was ‘workshop gossip’ regarding Mr Sealey’s business but sought to justify it on the basis of Mr Sealey’s business affairs being common knowledge. His evidence regarding what was discussed with Mr Berlyn was firmly rebutted by the direct evidence of Mr Berlyn which was not challenged in cross examination.

Secondly, the Applicant was adamant in his evidence that he was misled by Mr Sealey regarding the conditions applying to the Mildura project. That was despite unambiguous evidence given by Mr Sealey, Mr Obourne and Mr Peters as to what was discussed in the briefing regarding project conditions. When pressed in cross-examination on the specific issue of travel time payments, he reluctantly conceded that the specifics of the travel time entitlements were not discussed in the project briefing and that he had made assumptions regarding the travel entitlements based on what he says was his previous experience on other site work with the Respondent.

Thirdly, when approached by Ms Sealey to sign the Cease Employment Letter on the afternoon of the 31 October 2022, he stated a falsehood to Ms Sealey that he had already sought legal advice regarding his sacking by Mr Sealey. He retreated from that untrue statement in his evidence and sought to justify the untrue statement on the basis of feeling pressured to sign the document.

Finally, he also gave evidence that he mobilised for the Mildura project having not previously operated a mulcher, evidence that was directly rebutted by Mr Sealey who provided documented evidence that disproved the Applicant’s statement. Mr Sealey’s evidence on this point was not challenged in cross-examination.

I now turn to make necessary evidentiary findings in relation to the matter before me.

The Applicant started working with the Respondent on a casual basis in August 2021 and moved to permanent full-time employment in January 2022. During the period of his employment, his rate of pay increased from $30 to $36 per hour. He undertook a significant amount of training paid for by the Respondent in the brief period of his employment, although it is noted that much of this training was required for the Mildura project. The relationship between the Applicant and Mr Sealey was acknowledged by both to be productive and sound, as evidenced by the fact that the Applicant was assisted in his accommodation by Mr Sealey when he allowed the Applicant to reside in his caravan on Mr Sealey’s property for a period of approximately two months. Prior to the Mildura project, there was no evidence of rancour or tension in the working relationship and it is uncontroversial that Mr Sealey regarded the Applicant as a valued employee at that point.

It is in respect of the Mildura project that the relationship between Mr Sealey and the Applicant appeared to deteriorate and provides an important context in which subsequent events on 31 October 2022 need to be construed. It is uncontroversial that Mr Sealey briefed the Applicant, Mr Peters and Mr Obourne in a meeting at the Respondent’s workshop in advance of the mobilisation for the Mildura project. The Applicant drew from that briefing a different understanding of the entitlements he would receive for working on the Mildura project then his colleagues. As earlier stated, he claimed that he was misled by Mr Sealey in relation to certain entitlements he would receive on that project, that being the 10 hour shifts worked versus the 12 hour shifts he claims he was told would apply. He also states that he received a lesser travel time payment then advised although he conceded in cross-examination that the details of the travel time payments had not been discussed and that he had made assumptions regarding what payments he would receive.

By contrast to the Applicant, Mr Obourne and Mr Peters were clear in their recollection of the entitlements that would apply on the Mildura project, that recollection aligning with the explanation Mr Sealey says he provided to the Applicant, Mr Peters and Mr Obourne. I consequently prefer the evidence of Mr Sealey on this point as it is supported by Mr Peters and Mr Obourne. I am not satisfied that the Applicant was misled regarding the entitlements that would apply on the Mildura project and he received the same conditions as each of his colleagues.

Notwithstanding my finding that the Applicant was not misled regarding the project conditions, he was nonetheless angry and disgruntled with his conditions on the project. I am satisfied on the uncontested evidence of Mr Obourne that the Applicant made his dissatisfaction known by complaining to the Operations Manager of Active Trees, the Respondent’s client on the Mildura project. Mr Obourne felt concerned enough about the Applicant’s conduct and demeanour towards the Operations Manager that he later apologised to him on behalf of the Respondent. Further evidence that the Applicant was angry and disgruntled regarding his project conditions can be seen in the evidence of Mr Peters who gave unchallenged evidence that when he spoke with the Applicant in the workshop on or about Saturday 29 October 2022 on Mr Peter’s return from Mildura, the Applicant remained ‘disgruntled and upset’ about the conditions.

It is against the above background of the Applicant’s dissatisfaction with his conditions on the Mildura project that Mr Sealey and the Applicant had a telephone discussion on 11 October 2022 following the Applicant’s complaint to Ms Sealey regarding his pay. The Applicant claims Mr Sealey became heated in the discussion; a claim denied by Mr Sealey who did agree however that he was frustrated with the Applicant’s claim that Mr Sealey had misled him. Mr Sealey described the Applicant’s demeanour as aggressive during the conversation.

There is a conflict in the evidence as to the respective demeanour of Mr Sealey and the Applicant during the 11 October 2022 telephone call. I prefer the evidence of Mr Sealey for the following reasons. The Applicant had already angrily complained to the Operations Manager of Active Trees regarding his conditions and remained upset and disgruntled some 3 weeks later when he discussed the conditions with Mr Peters in the workshop. Further, in the course of the conversation with Mr Sealey, he threatened to leave the project early and return to Ballarat leaving the Respondent without the necessary compliment of operators.

By contrast to the Applicant’s behaviour, Mr Sealey responded to the Applicant’s dissatisfaction by offering him a reasonable alternative, that of allowing the Applicant to return to his normal role in the workshop and not requiring him to do any more swings on the Mildura project. The Applicant agreed to Mr Sealey’s request of remaining on the project for the balance of his three week swing. The pattern of the Applicant’s behaviour leads me to conclude that it is more likely that his demeanour in the conversation with Mr Sealey was aggressive and was only placated when Mr Sealey offered him the option of returning to the workshop and not doing any further swings on the Mildura project.

I accept based on the unchallenged evidence of Mr Sealey that the Mildura issue between he and the Applicant was largely resolved by the agreement reached that the Applicant would complete his three week swing and the return to the workshop role which the Applicant did on 24 October 2021.

While Mr Sealey may have characterised the Applicant’s threat to come home early because of his dissatisfaction with the project conditions as a resignation, I do not accept that the Applicant’s language or actions constituted a resignation on 11 October 2022. Rather, it is more likely that the Applicant expressed his anger and frustration in an inelegant manner. While the Applicant’s threat to return to Ballarat did not constitute a resignation, it indicates that the Applicant was prone to react unfavourably where conditions or circumstances were not to his liking.

Turning now to the events of 31 October 2022, it is not in contest that the Applicant returned to his normal role in the workshop on 24 October 2022. Mr Sealey was away in the week of 24 October 2022 so work proceeded normally for the Applicant in that week. On Mr Sealey’s return to the workshop on 31 October 2022, late in the morning that day he asked the Applicant to join him for a discussion in the smoko room. Mr Sealey described his intention of having a casual conversation with the Applicant to discuss a range of matters including the Mildura project and more recent reports Mr Sealey had received that the Applicant was discussing Mr Sealey’s personal business arrangements with external parties, specifically, Mr Berlyn.

It was put to Mr Sealey in cross-examination that the actual purpose of his seeking a private discussion with the Applicant was to confront and discipline him. He resisted that proposition and referred to evidence of formal performance management undertaken by him with respect to other employees and maintained that had he intended such an approach with the Applicant he would have undertaken a formal process. The Applicant seeks to characterise the meeting as a disciplinary meeting by reference to Mr Sealey seeking to conduct the meeting privately whereas Mr Sealey explained that approach as simply one of wanting to ensure he treated the Applicant with respect and dignity in circumstances where the subject matter of their discussion could be uncomfortable. I found the evidence of Mr Sealey to be credible on this point and am not persuaded that his objective was to confront and discipline the Applicant. The surrounding circumstances which are discussed further below also support Mr Sealey’s evidence in my view.

Mr Sealey described the Applicant’s reaction to the matters raised with him in their discussion as being that of intense and defensive and at the conclusion of their discussion the Applicant stated, “well I will just leave then”, which Mr Sealey took to be the Applicant communicating his resignation. He says he clarified with the Applicant whether that was what he wanted and then agreed to the Applicant’s subsequent request to use the rest of the day to remove his gear from the workshop.

The Applicant puts forward a different version of the conversation in the workshop. He refers to Mr Sealey as being loud and aggressive during their conversation and at the conclusion of their discussion Mr Sealey stated to the Applicant that he did not believe he (Mr Sealey) could work with the Applicant anymore. The Applicant took this to be communication of his dismissal following which he then clarified whether he should pack up his gear to which Mr Sealey agreed.

There were regrettably no witnesses to the conversation between the Applicant and Mr Sealey in the smoko room on 31 October 2022, that discussion being central to the question of whether the Applicant was dismissed at the initiative of the Respondent. It is therefore necessary to make findings on the content of the discussion by consideration of Mr Sealey and the Applicant’s direct evidence and also taking into account the surrounding circumstances.

The Applicant refers to certain matters that support his version of the conversation in the smoko room. He says his direct witness evidence should be preferred. He refers to Ms Sealey’s attempt to get him to sign the Cease Employment Letter, which he characterises as an attempt by the Respondent to cover its tracks. He draws attention to the fact that the Respondent had previously relied on verbal communication only with him regarding his employment matters which made the use of the proposed Cease Employment Letter highly unusual. He also describes the enjoyment he derived from his role with the Respondent, so much so that he altered his previous travel plans and had resolved to remain in the Respondent’s employ. Finally, he claimed that while he had secured council approval to build a shed on his property which would assist develop his private business Uniweld Ballarat, the work he was likely to secure through that private business would not be enough to offset the loss of his permanent employment with the Respondent. He relies on all of these matters in support of his submission that he had no reason or intention of resigning on 31 October 2022.

There are also other significant matters that assist to provide important context to events on 31 October 2022, which are as follows. The relationship between Mr Sealey and the Applicant was sound and productive up to the point of his termination of employment. The Applicant was a valued employee and his resignation had placed the Respondent in a difficult position in the busiest time of year for the Respondent which was compounded by the difficulty of attracting competent staff in a tight labour market. Mr Sealey also went to considerable lengths to assist the Applicant when he was unable to secure stable accommodation while waiting for a tenant to vacate his property, as revealed by allowing the Applicant to place his caravan on Mr Sealey’s property for a period of approximately two months during which period the Applicant regularly joined Mr and Mrs Sealey for dinner in their house. There is also the matter of the significant training investment the Respondent made in respect of the Applicant in the three month period before his employment ended.

The above contextual matters are important in my view as they reveal that a productive working and personal relationship was in place in which the Applicant was a valued employee of the Respondent. It does not indicate that the Respondent was motivated to terminate the Applicant’s employment. To the contrary, these matters favour a conclusion which I draw, that the Respondent was well disposed to the retention of Applicant as an employee up until events of 31 October 2022.

Also, important to construing the events that occurred on 31 October 2022 is that of the background of events related to the Mildura project, the Applicant’s involvement in which concluded with his return to the workshop on 24 October 2022. He had been unhappy with the conditions on that project and had threated to ‘walk off’ that job and return to Ballarat, that outcome being averted by Mr Sealey offering to relieve the Applicant of the requirement to continue his involvement on the Mildura project after the conclusion of his initial three week swing and allowing him to return to his workshop role.

As earlier stated, the Applicant’s behaviour in respect of the Mildura project disclosed a propensity to react poorly to circumstances he was unhappy with. That is evident from his angry complaints to the Active Trees Operations Manager about his conditions, for which outburst Mr Obourne later apologised to the Operations Manager. I have also found that the Applicant reacted poorly in his telephone conversation with Mr Sealey on 11 October 2022 by threatening to leave the Mildura job. His level of disquiet is further revealed by the fact that even though he completed his three week Mildura project swing on or about the 23 October 2022, he was on the unchallenged evidence of Mr Peters, still upset and unhappy about the project conditions when Mr Peters spoke with him on Saturday 29 October 2022. That conversation between Mr Peters and the Applicant occurred just two days before the smoko room discussion with Mr Sealey.

The above background suggests that the Applicant at the time of the conversation with Mr Sealey on 31 October 2022 was likely to have been still upset about being ‘misled’ by Mr Sealey, a compliant I have previously found to be baseless. Nevertheless, the Applicant was clearly aggrieved and it is inherently unlikely given his earlier behaviour that he would have maintained a calm demeanour in the smoko room conversation when the issues of both his conduct on the Mildura project and his disclosure of confidential information to Mr Berlyn were raised with him. I consequently accept the evidence of Mr Sealey that the Applicant was intense and defensive in their conversation.

As to the Applicant’s claim that Mr Sealey was loud and angry in their smoke room discussion, I reject that evidence. There were no witnesses called to support that claim. The Applicant himself stated in his evidence that Mr Sealey was normally “cool and polite” in his demeanour. No other instances of Mr Sealey being loud or aggressive were brought forward in evidence. That is to be contrasted with the evidence regarding the Applicant’s earlier conduct.

Returning to the conflict in evidence over the content of the smoko room conversation and taking into account all of the surrounding circumstances, I prefer the evidence of Mr Sealey that the Applicant became intense and defensive when the issues of his conduct were raised with him. I am satisfied this led the Applicant to state to Mr Sealey that he would pack up his gear and leave, which Mr Sealey understood to be his resignation following which Mr Sealey confirmed in response to a question from the Applicant that he could use the rest of the day to pack up his gear. My reasons for preferring Mr Sealey’s are based on my assessment of the surrounding circumstances and specifically take into account the following.

Firstly, the Respondent invested professionally and personally in the Applicant during his short period of employment. It increased his rate of pay from $30 to $36 per hour in a short period of time while also converting him from casual to permanent employment. Mr Sealey supported him personally in terms of his accommodation arrangements while he was awaiting a tenant to vacate his property. The Respondent also spent a significant amount on his training in the three months prior to the Applicant’s employment ending.

Secondly, the working relationship between the Applicant and Mr Sealey was productive according to both of them. The Applicant was a valued employee and his loss has created challenges for the Respondent in a period when their work activity has increased and in circumstances where a tight labour market makes it difficult to secure competent staff. Mr Sealey also thought enough of the Applicant to provide his contact details to Mr Coxall on 10 November 2022 when Mr Coxall was looking for a welder.

Thirdly, there is no evidence that Mr Sealey was prone to angry outbursts or dealing with employees in a harsh or arbitrary manner. The Applicant himself stated that Mr Sealey was normally “cool and polite” in his dealings with the Applicant. Moreover, the evidence indicates that Mr Sealey has previously applied appropriate formal performance management in circumstances of conduct or performance issues of other employees.

Fourthly, the Applicant had previously and very recently displayed behaviour of responding poorly to circumstances he considered unfavourable to himself, that of the Mildura project conditions. That issue was clearly still alive when he met with Mr Sealey on 31 October 2022 as evidenced by his conversation with Mr Peters on the immediately preceding Saturday when he was still upset over the Mildura project conditions.

As to the matters raised by the Applicant in support of his case that he had no reason to resign and was in fact dismissed, the following may be said. I find the Applicant’s claims that his plans for travel and selling his property changed on obtaining the workshop role with the Respondent to be self-serving and not to be accepted. He worked closely with Mr Sealey and resided on his property for two months in the March-May 2022 period during which he regularly shared an evening meal with Mr Sealey and his wife. During his employment with the Respondent, he regularly discussed his plans to establish and develop his own business with Mr Sealey which included providing updates on progress in his plans to secure council approval to build a shed on his property. At no stage did he refer in those discussion to earlier plans he may have had to sell his property and/or travel.

As to the Applicant’s claim that there was not enough work to keep him going full-time in his private business, that claim is hard to reconcile with his efforts to secure council approval for development of his property and obtain a bank loan to build a shed on his property to assist develop his private business. I also note that the key concern the Applicant held regarding mobilisation for the Mildura project was the loss of income from private work he suffered or was likely to suffer in that period. The Applicant sought to downplay in his evidence the volume of private work that was available and referred to the low level of income earned from his private business since his cessation of employment. I would be more confident in accepting that evidence had any invoicing records for Uniweld Ballarat for the period prior to and since his termination of employment been produced.

The Cease Employment Letter provided by Ms Sealey for the Applicant to sign on 31 October 2022 warrants further scrutiny. It was prepared by Ms Sealey and was seen by Mr Sealey before it was provided to the Applicant for signing, which he declined to do. The fact that the letter was prepared and put in writing, which was out of the ordinary in terms of the Respondent’s normal dealings with the Applicant, does raise a suspicion that the Respondent was anxious to have a written record of the reasons for the Applicant’s separation of employment so as to protect itself. That suspicion is compounded by the Applicant’s evidence that Ms Sealey declined to read the letter to the Applicant, even knowing his literacy difficulties.

Mr Sealey conceded that the preparation of the letter was motivated by wanting to have a written record when he referred to events leading up to the termination of employment which caused him to hold concerns about the potential repercussions of the termination of employment. While making some concessions regarding the letter, including that it inaccurately recorded the Applicant’s instruction that no notice period would be observed, Mr Sealey firmly resisted the proposition that the letter was prepared to cover the Respondent’s tracks.

That the Respondent sought a written record of the reasons for the Applicant’s separation does in the circumstances weigh in favour of the Applicant’s case that he was dismissed. It is however not decisive as the reasons could be, as the Applicant submits, the Respondent’s attempt to ‘cover its tracks’ or may have been genuinely motivated by Mr Sealey’s concern at the Applicant’s behaviour and conduct in the lead up to the separation. While on balance it weighs in favour of the Applicant’s claim to have been dismissed by Mr Sealey, it does not displace the other matters to which I have referred to above.

It follows from the above and I am satisfied that the Applicant communicated in clear terms to Mr Sealey at the conclusion of their conversation in the smoko room in the workshop on 31 October 2022 that he was resigning his employment. Mr Sealey accepted the resignation which took effect that day. Mr Sealey did not seek to dissuade the Applicant from that course of action even though he was a valued employee. That was he said because of concerns he particularly held in relation to the Applicant’s disclosure of confidential information and his refusal to acknowledge or express any kind of contrition during their conversation.

Consideration

Having made relevant factual findings above, I now turn to consider whether the Applicant was dismissed at the initiative of the Respondent within the meaning of s 386(1)(a) of the Act as he contends.

Whether Applicant was terminated at the Respondent’s initiative (s. 386(1)(a))

In the present case, I have found that the Applicant resigned during his discussion with Mr Sealey in the workshop smoko room on 31 October 2022. The resignation was proffered in circumstances where he was unhappy with the matters raised with him by Mr Sealey. That was consistent with the Applicant’s previous behaviour when he threatened to return early from the Mildura project because of his dissatisfaction with project conditions he wrongly claimed to have been misled about. On the occasion of the 31 October 2022 discussion, Mr Sealey declined to offer an alternative to the Applicant or dissuade him from the path of resignation, that being in contrast to Mr Sealey’s approach to the Applicant when he threatened to leave the Mildura job during their 11 October 2022 telephone discussion.

The Applicant did not contend that he had resigned and made clear that his case was pressed solely on the basis of his having been directly dismissed by Mr Sealey. Having failed to establish that he was dismissed by Mr Sealey and having not argued he was otherwise dismissed under either the first or second limb of s 386(1) that may end the matter. However out of abundance of caution it is also appropriate for me to consider whether the Applicant’s resignation that I have found was caused by ‘jostling’ by the employer or in the heat of the moment or in a state of emotional stress or mental confusion such that the Applicant did not genuinely intend to resign.

As to whether the resignation was an impulsive decision of the type referred to in Bupa, the evidence before me indicates that the Applicant was unhappy with the conditions he received on the Mildura project as evidenced by his threat to ‘walk off’ that project. He remained unhappy as of 29 October 2022. I am also satisfied that he did not respond well to circumstances he perceived as unfavourable to him. This tells against a conclusion that it was an impulse decision. Nor do I accept that he was in a heightened or confused emotional state, but rather was defensive and intense. Even if he were in a heightened emotional state it does not follow that the resignation was not genuine. I agree with and adopt the reasoning of Colman DP where he said the following when referring to a passage from Bupa in Jack Lipari v YPA Estate Agents Pty Ltd (Lipari);

“[30] It is clear from this passage that the mere fact that a person resigns in circumstances of heightened tensions or strong emotions will not turn a rash or imprudent decision made by an employee into a dismissal at the initiative of the employer. Rather, if, applying the objective test referred to by the Full Bench, it can be said that the employee could not reasonably be considered to have conveyed a real intention to resign, then there may be a termination on the employer’s initiative if the employer treats the resignation as effective. The conclusion must be that objectively no such intention was evident, not simply that it is fair to allow the employee an opportunity to rethink the matter. There is no statutory ‘cooling off’ period for resignations. It is for the Parliament to create any such rule. The Commission cannot fashion one.”[51]

I am satisfied that the Applicant in the present case conveyed a real intention to resign and that it was open in the circumstances for Mr Sealey to accept that resignation. Nor do I find that Mr Sealey ‘jostled’ or provoked the resignation such as to render it at the Respondent’s initiative. As I have previously found, Mr Sealey sought to raise the Applicant’s conduct in a private discussion and in doing so acknowledged in his evidence that might have been uncomfortable for the Applicant. Thus it proved, as shown by the Applicant’s reaction of resigning. However, the fact the Applicant resigned does not mean Mr Sealey’s conduct of raising his concerns with the Applicant was inappropriate or that it was the act that resulted “directly or consequentially in the termination of the employment”.

If the mere act of an employer raising concerns with an employee regarding their conduct was all that was required to trigger a termination at the initiative of the employer, then any form of coaching, counselling, discipline or performance management of an employee would be a potential trigger for a termination at the initiative of the employer if the Applicant resigned in response to such action by the employer. That is not the state of the law on the authorities set out above.

It follows from the foregoing that I am comfortably satisfied that the act that resulted directly or consequentially in the termination of the Applicant’s employment was that of his resignation and not as he contends, an act of the Respondent. It follows that he was not dismissed within the meaning of s 386(1)(a) of the Act. When questioned, the Applicant’s representative specifically confirmed that the Applicant did not contend that he was dismissed within the meaning of s 386(1)(b).

Conclusion

I find that the applicant has not been dismissed within the meaning of s. 386(1)(a) of the Act and he did not contend he was otherwise dismissed within the meaning of s 386(1)(b). Accordingly, at the time the applicant made the s 394 application, the Applicant was not a person who has been dismissed for the purposes of s 394 of the Act. The Respondent’s jurisdictional objection is therefore upheld.

The application is therefore dismissed. An Order giving effect to this decision will be separately issue.

DEPUTY PRESIDENT

Appearances:

J Zhou for the Applicant.
S Sealey for the Respondent.

Hearing details:

2023.
Melbourne (by Microsoft Teams):
February 13.

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[1] Exhibit R2, Second Witness Statement of Stuart Sealey at [3]

[2] Exhibit A1, Witness Statement of Jason Jenkins at [7]

[3] Exhibit R1, First Witness Statement of Stuart Sealey, Attachment NM-2, Applicant payslips for the period from 9 August 2021 – 30 October 2022

[4] Exhibit R1, Attachment NM-15, ABN extract for Uniweld Ballarat

[5] Respondent Outline of Argument Objections at 5d

[6] Exhibit R1, Attachment NM-13, Email exchange between Eamon Sullivan and Stuart Sealey dated 10 January 2022

[7] Exhibit R1, Applicant payslip for week ending 9 January 2022

[8] Exhibit A1 at [8]

[9] Respondent Outline of Argument Objections at 5d

[10] Exhibit R1, Applicant payslip for pay week ending 31 July 2022

[11] Respondent Outline of Argument Objections at 5d, Exhibit R1, Attachment NM-2, Payslip for pay period ending 19 June 2022

[12] Exhibit R1, Attachment NM-3, Statement of Attainment, License to drive heavy rigid vehicle, dated 18 May 2022

[13] Exhibit R1, Attachment NM-4, CPCCWHS1001-Prepared to work safely in the construction industry, dated 27 July 2022

[14] Exhibit R1, Attachment NM-5, First Aid Training accreditation, dated 27 July 2022

[15] Exhibit R1, Attachment NM-6, EnergyConnect HSE Induction, dated 15 August 2022

[16] Exhibit R1, Attachment NM-7, PNL 4WD Driving Training, dated 21 August 2022

[17] Exhibit R1, Attachment NM-8, Active Filed Operations Safety Induction

[18] Exhibit R1, Attachment NM-11, Pentrans Consulting Driving Operations (Pilot Vehicle) training, dated 11 September 2022

[19] Exhibit R1, Attachment NM-12, Statement of Attainment – Conduct civil construction skid steer steel loader operations, dated 12 October 2022

[20] Exhibit R1, Attachment NM-10, Pre-employment medical, dated 2 September 2022

[21] Exhibit A1 at [10]-[14]

[22] Exhibit R2 at [7]

[23] Ibid, Attachments NM-25 & NM-26, Work/Service History Logs

[24] Exhibit R2 at [9]

[25] Exhibit A1 at [15]-[16]

[26] Ibid at [17]

[27] Ibid at [18]-[20]

[28] Respondent Outline of Argument Objections at 5b

[29] Ibid

[30] Exhibit R2 at [11]

[31] Exhibit R2 at [12]

[32] Ibid

[33] Exhibit A1 at [22]-[26]

[34] Ibid at [27]-[29]

[35] Ibid at [30]-[34], Attachment JJ-3, Text Message dated 31 October 2022

[36] Exhibit A1 at [35]

[37] Exhibit R1, Attachment NM-16, Cease of Employment Letter

[38] Exhibit A1 at [37]-[42]

[39] Ibid at [46]

[40] Exhibit R2 at [14]

[41] Ibid at [15]

[42] Ibid at [16]-[17]

[43] Exhibit R2, Attachments NM-23 & NM-24, Performance review records

[44] Exhibit R2 at [21]

[45] Ibid at [19]-[20]

[46] Exhibit A1 at [43]-[45], Exhibit R1, Attachment NM-9, Text message dated 20 November 2022

[47] Exhibit A1 at [45]

[48] Exhibit R1, Attachment NM-9

[49] [1995] IRCA 625; 62 IR 200.

[50] [2017] FWCFB 3941.

[51] +[2019] FWC 3546, [30]

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