Jason Linke v North Bondi RSL Club Ltd
[2025] FWC 117
•26 FEBRUARY 2025
| [2025] FWC 117 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jason Linke
v
North Bondi RSL Club Ltd & Anor.
(C2024/7556)
| DEPUTY PRESIDENT CROSS | SYDNEY, 26 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal – forced resignation – jurisdictional objection – no dismissal – jurisdictional objection upheld – application dismissed.
Mr Jason Linke (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 21 October 2024. The Applicant claims that adverse action was taken against him by the North Bondi RSL Club Ltd (the Club) and Mr Josh Farquhar (the Respondents) under ss.340, 341, 343, 351 and 352 of the Fair Work Act 2009 (Cth) (the Act).
The Respondents raised a jurisdictional objection that the Applicant was not dismissed as the Applicant resigned from his employment on 30 September 2024. The Applicant contests the objection on the basis that he was constructively dismissed and forced to resign with such conduct constituting dismissal pursuant to s.386(1)(b) of the Act.
I note that the submissions of the Applicant refer to only one Respondent, being the Club. As the Club was the employer of the Applicant, they will be considered as the Respondent for the purposes of this decision.
Directions were issued and the matter was listed for Hearing on 18 December 2024 (the Hearing). The Applicant was represented by Mr Adam Guy of Counsel, and the Respondent was represented by Ms Kristen Lopes of Colin Biggers Paisley Solicitors.
There was no objection raised by either party regarding representation at the Hearing. I granted permission for both the Applicant and the Respondent to be represented. Representation was granted on the basis that the matter would run efficiently given the complexity of the matter, and there would be no unfairness between the parties.
Background
Outlined below are the facts as I have found them to exist. There were no significant issues between the parties as to the relevant facts in the matter, and the issues between the parties arise primarily from the conclusions that may be drawn from those facts.
The Applicant commenced employment with the Club on or around 21 September 2015 as a casual employee. He was progressively promoted within the Club and, on 22 May 2022, was appointed to the role of Chief Executive Officer (CEO) on a full-time basis. In addition to his role as CEO, The Applicant was appointed as the Company Secretary on 19 November 2021 and served as the approved manager for the Club’s liquor licence from the same date.
As CEO, the Applicant was responsible for providing senior leadership, management, and direction of all operational functions of the Club, overseeing day-to-day trading operations, ensuring statutory and legislative compliance, and maintaining service standards. His salary was $180,000.00 per annum.
As Company Secretary, his duties included advising the Board on governance matters, monitoring compliance with Board policies, circulating Board papers, ensuring accurate recording of Board minutes, and facilitating the induction and professional development of Directors.
The Applicant’s roles and responsibilities were outlined in his Employment Contract, which provided:
ROLE RESPONSIBILITIES:
| Major Goal | To ensure the clubs success by providing senior leadership, management and direction pf all operational functions of the Club. To oversee the Club’s day-to-day trading operations in accordance with NBRSL goals and business objectives as well as the operating policies. Practices and procedures as determined at departmental level and approved by the Board of Directors. |
| Key responsibilities | 1. ADMINISTRATION · THE IMPLEMENTATION OF POLICY ACROSS THE CLUB AS DIRECTED BY THE BOARD · MONTHLY REPORTING TO THE BOARD, INCLUDING A WRITTEN REPORT ON THE RUNNING OF THE CLUB SINCE THE LAST MONTHLY REPORT WAS WRITTEN 2. PREMISE OPERATIONS – SECURITY/CONTRACTORS/BUILDING · RESPONSIBILITY FOR THE SUPERVISION, UPKEEP AND CLEANLINESS OF NBRSL LEASED PREMISES · RESPONSIBILITY FOR SECURITY FOR ALL STOCKS AND MONIES IN THE CLUB WITH THE RELEVANT MANAGERS · RESPONSIBILITY FOR SECURITY AND SAFETY OF THE PREMISES 3. CLUB COMMITMENT AND INVOLVEMENT WITH COMMUNITY ACTIVITIES · ORGANISATION, PLANNING AND PROMOTION OF CLUB FUNCTIONS · MAINTENANCE OR ESTABLISHMENT OF CLUB’S COMMUNITY ACTIVITIES, IN ACCORDANCE WITH THE EXPRESSED POLICY OF THE BOARD · FACILITATING SUPPORT TO CHARITIES AS AGREED WITH THE BOARD 4. CLUB EXTERNAL RELATIONS · MAINTENANCE OF RELATIONS WITH: o EMPLOYERS ASSOCIATIONS AND UNIONS o LIQUOR LICENSING DIVISIONS o CLUBS NSW 5. GENERAL · DIRECT THE OPERATION OF THE CLUB FOR THE ACHIEVEMENT OF OBJECTIVES, FINANCIAL PERFORMANCE AND SATISFACTION OF MEMBER’S EXPECTATIONS. · WORK CLOSELY WITH THE SENIOR MANAGEMENT TEAM TO FURTHER THE CLUBS VISION, MISSION AND PURPOSE AND GOALS · EFFECTIVE UTILISATION OF PEOPLE RESOURCES, INCLUDING PLANNING, RECRUITMENT, TRAINING AND PERFORMANCE APPRAISALS · ADHERENCE TO THE LEGISLATIVE REQUIREMENTS GOVERNING THE OPERATION OF THE CLUB · ENSURE THE CLUB IS ALWAYS SECURE AND MAINTAINS ADEQUATE INSURANCES · IMPLEMENT AND MAINTAIN RESPONSIBLE GAMBLING PRACTICES 6. GOVERNANCE · SUPPORT GOOD GOVERNANCE THROUGH RECOGNISING AND SUPPORTING THE ROLES AND ACCOUNTABILITIES OF THE BOARD OF DIRECTORS AND MANAGEMENT · MONITOR, REPORT AND ADVISE THE BOARD OF DIRECTORS ON ISSUES THAT ARISE WHICH WILL HAVE SIGNIFICANT IMPLICATIONS ON THE OPERATION OF THE CLUB · PREPARE FINANCIAL FORECASTS FOR BOARD APPROVAL · REPORT TO THE BOARD OF DIRECTORS IN SIGNIFICANT VARIATIONS AND ANY SUBSEQUENT ACTIONS TAKEN · ENSURE STATUTORY AND LEGISLATIVE REQUIREMENTS ARE MET IN RELATION TO CORPORATE PLANNING AND REPORTING |
As the approved manager for the Club’s liquor licence, The Applicant was responsible for ensuring compliance with the Liquor Act, managing the responsible service of alcohol, maintaining an incident register, and liaising with local police and stakeholders.
In addition to the Club, there exists the North Bondi RSL Sub-Branch (the Sub-Branch). Only members of the Sub-Branch have full voting rights in the Club. As a result, it is the members of the Sub-Branch that control the Club.[1]
Arising from a perceived lack of focus on Veterans welfare, there was a complete removal and replacement of the current Board of Directors of the Sub-Branch (the Board) on 19 May 2024, with Mr Farquhar elected as Chair, and four other Directors, including Mr Barlow, being appointed. The new Board commenced with a mandate to enhance the provision of welfare support to veterans, aligning with the Sub-Branch’s strategic focus. As Mr Farquhar explained in his evidence:[2]
The sub branch implemented a plan, well, developed a plan throughout last year which was extensive engagement beyond the sub branch, extensive engagement with other welfare organisations, extensive engagement with other sub branches even, to implement a number of full time roles. The sub branch certainly has the resources to pay for this. Our sub branch has more than $3 million in cash and between 50 and $100 million in assets, depending on property valuations.
On 11 July 2024, Mr Farquhar provided a positive referee report for the Applicant as part of his application to the UNSW Business School for admission into their Executive MBA program.
On 19 June 2024, the Board passed a resolution to create a new executive-level role titled Head of Strategy & Veteran Support, which would report directly to the Board. Mr. Nathan Stapleton was appointed to this role on 22 July 2024. His responsibilities included developing and enhancing support for veterans, optimizing coordination with the Sub-Branch and other stakeholders, and working alongside the CEO to optimize the Club’s profitability without reducing support to veterans.
The Applicant asserted that almost immediately, Mr. Stapleton began to provide direction and control over the Applicant by both WhatsApp and email. The Applicant referred to the creation of a WhatsApp group chat on 28 July 2024 which was titled ‘Club and strategy ops [operations]’. The Applicant also referred to the creation of a further WhatsApp group which was titled ‘NBRSL Marketing Strategy’.
The Applicant sent an email on 19 August 2024 attempting to clarify the roles of both himself and Mr Stapleton. The email relevantly stated:
Thanks mate.
1. Great idea, lets commence a daily stand up (scrum) starting from next week
2. Clear delineation of operations v strategy
3. Expect a meeting invite from Leanne (10:30am duration 20 mins).
In the interim if you can send me through your FY25 strategy plan for me to preread and prevent overlap in strategy.
From 19 to 25 August 2024, the Applicant was absent from work on personal leave.[3]
Arising from a meeting between the Applicant and Mr Barlow on 15 August 2024, at 2.14pm on 27August 2024, Mr. Barlow sent an email to the Board (which Mr Farquhar did not receive until 13 September 2024), that relevantly stated:
Good evening gents,
Prior to tomorrows Board meeting, I wanted to raise a few questions and concerns I have in respect of Nathan’s role and the proposed changes.
In principle, I am supportive of an appointment to take care of veteran support, marketing and community engagement as originally intended. However, I have a few concerns about how this role is taking shape.
Firstly, the role we initially wanted Nathan to fill appears to have changed significantly. When we voted to bring Nathan on to the club, it was into the position of a welfare executive function to develop, oversee and deliver welfare support capability to veterans. This made sense given his status and experience. Yet now we are looking to appoint him as a ‘Senior Executive’ who will have powers existing above those of our existing CEO. The job description has clearly deviated significantly from what we initially hired him for. In this circumstance, I question whether we have completed our due diligence in hiring him for such a position. Should we not have a fair and transparent process for hiring such a significant and well-paid position in the club? I am concerned that our hiring process would not withstand external scrutiny if it was subjected to it.
Secondly, Nathan taking new responsibility for club operations seems like an unnecessary additional level of bureaucracy to the organisation, as well as an unnecessary addition to his role. A chain of command from Senior Executive to a Chief Executive Officer, to and Operations Manager appears a very top-heavy construct for a club like ours. I question whether we can afford to carry 3x salaries for such club operations functions. I don’t understand why we need this? Jason has proved to be a capable and effective CEO from what I have observed in my short time on the board. I don’t believe he needs additional oversight. Are there functions of his role that he is failing to execute? If so, has he been approached and counselled on performance?
Additionally, if the establishment of this Senior Executive position is a move to replace Jason’s role, I think we need to be very clear and upfront about what we are intending to achieve. There may be a solid argument from Jason for constructive or unfair dismissal, or at least adverse action or general protections claim, as Jason’s role would significantly change without proper consultation.
Thirdly, are we still beholden to the existing club constitution noting we still have not received the updated version? And if so, is there a hiring process written into the constitution at all? Are we adhering to this?
I just want to make sure we as the board are going about things the right way, noting the issues with the last board. Looking forward to some clarification/discussion.
Later on 27 August 2024, the Board meeting occurred. I accept, principally in the absence of Mr Farquhar addressing that meeting in his statement, that in that meeting, Mr Farquhar attempted to establish a co-ordination committee for the Club and Sub-Branch, and expressed frustration that the Board had not supported it.
Following the board meeting on 27 August 2024, Mr Farquhar sent the Applicant and Mr Stapleton a text message stating:
Jason and Nathan, don’t make a single decision on anything, and don’t allow a single dollar to be spent, without first putting it in a circulating resolution for the Board to approve. These c***s don’t want to delegate authority – so fine, that’s how well operate.
On 28 August 2024, Mr Stapleton received a call and several text messages from Mr Blake Johnson, the Operations Manager of the Club. Mr Johnson said “[The Applicant] has been going around telling the staff that they should resign immediately, that he was going to delete all the corporate records from the ICT system, and he has been talking to suppliers saying that they shouldn’t have anything to do with the Club. He has told [two employees] to leave, but I’ve spoken to them and told them to stay. We need to protect the ICT system. I think we need to get a document approved by the board to take control of the ICT system so no damage can be done.”
Mr Stapleton then contacted Mr Farquhar, who was at a meeting at a nearby café in Bondi. Mr Stapleton said: “Mate we’ve got a problem. According to [Mr Johnson], [the Applicant] is talking about destroying the company, deleting corporate records from the system and encouraging the staff to resign alongside him. [Mr Johnson] is suggesting that we need to take immediate actions, specifically to protect the corporate records he is seeking to destroy, by protecting the ICT system.”
Mr Stapleton and Mr Farquhar returned to the Club together. Mr Farquhar consulted with other Board members, who granted him authority to issue a letter to the ICT provider, assigning Mr Stapleton control over the ICT system until further notice.
Mr Farquhar and Mr Stapleton then located the Applicant and met with him towards the back of the Club near the TAB room. Ascertaining what was said in that conversation has not been assisted by the Applicant not giving a complete record of what he asserts was said, either in his first statement or his reply statement. Nonetheless, I accept that:
(a) Mr Farquhar apologised for his behaviour in the Meeting the previous evening;
(b)The Applicant expressed concern about the way the Club was operating, noting that Mr Stapleton’s initial role was in Veteran Support however that had changed with him providing direction on hospitality matters;
(c) Mr Farquhar and Mr Stapleton expressed concern for the Applicant’s welfare;[4]
(d)The Applicant explained there were a lot of things going on in his personal life.[5] He was under a lot of pressure and was seeing a counsellor;
(e)Mr Farquhar and Mr Stapleton encouraged the Applicant to take as much time off as he needed to focus on his mental health; and
(f) The Applicant agreed Mr Johnson could manage the Club in his absence.[6]
At 6:40 pm that evening, Mr Stapleton sent a Whatsapp message to the Applicant stating:
Hey mate, thanks for talking to us today. We’ve got your back. Please don’t hesitate to give me a buzz anytime and about anything at all. 24/7. Take this time over next few days to focus on your own needs and NOT think about Club stuff – all that can wait. Well figure out immediate stuff together on Tuesday, then you can take as much further time as you need. Whatever you ultimately decide, we will support you. And the CEO position remains yours while you’re away and will be waiting for you when you come back from leave. Everything else well figure out between us as we move forward – there is zero need to be worry about it.
On 29 August 2024, the Applicant sent an email to the Club’s board of directors stating:
Dear Directors,
I would like to extend my sincere gratitude for your support over the past few months. Although times have been challenging, the Club has veen my home for nearly a decade. North Bondi RSL Club is not just a Veteran and Community Club; it has profoundly shaped who I am both professionally and personally.
Firstly, I want to acknowledge and thank you for your messages overnight. I am pleased to share that we are now nearing the end of my partners recuperation. Carolina is not only a strong leader but also an incredibly supportive partner, mother, and friend.
In the coming days, I will be spending some quality time with my immediate family in Ulladulla. I will then return to the Club to continue advancing our mission, vision, values and strategy, ensuring that our 12,000 members continue to enjoy the welcoming, safe, and vibrant hospitality services we provide.
Thank you for all your support and well wishes.
On Monday 2 September 2024, Mr Stapleton sent a WhatsApp message to the Applicant enquiring as to his welfare.
On 3 September 2024, Mr Farquhar and Mr Stapleton met with the Applicant at a café in Double Bay. In that meeting Mr Farquhar reassured the Applicant that the Board and staff were fully supportive and that he should take as much time as needed to focus on his personal matters. The Applicant agreed to take at least another week off.
On 4 September 2024, the Applicant’s became aware that Mr. Stapleton had been enrolled in a Club Managers’ Association Australia course, a prerequisite to becoming a club CEO.
On 5 September 2024, the Applicant’s authority as a delegate for ‘Open Table’ (an app-based ordering system) was revoked.
In response to the Applicant’s absence from work, on 5 September 2024, the Board resolved to establish a Management Committee with Mr Farquhar and Mr Stapleton appointed as members with delegated responsibilities from and on behalf of the Board. The Management Committee was separate and unrelated to the Sub-Branch’s Coordination Committee discussed on 27 August 2024.
Further on 5 September 2024, Mr Stapleton sent an email to Mr Johnson, cc’ed to Mr Farquhar, that stated:
G’Day Blake,
In my newly established role as Executive Chairman of NBRSL Club Management Committee, I have directed that Jason will remain on leave until a mutually agreed date, and that this will not occur before at least Tuesday 10 Sep 24.
I have informed Jason that he is to disconnect from work because he deserves a break. We want him to come back fully rested and recuperated having had time to invest in his family and himself. I have told him that he is not to communicate with any Club Staff on work matters during this time to ensure they are not burdening him, with matters that can be resolved otherwise. I have also told him that if a matter comes up that he feels he needs to get involved in, he is to contact me first.
Under the authority delegated to me by the Board, you are directed to:
1. Inform staff that Jason is taking a well earned break and that they are not to contact him for work related matters until I notify you otherwise. Of course, staff are free to communicate with Jason on personal matters or to just check in on him, and they are encouraged to do so if they feel it appropriate. However, we do not want him to be burdened with work related matters whilst he is on leave, in order to allow him to focus on himself and his family.
2. During the period of Jason’s absence, commencing from 28 Aug 24, until Jason’s formal return to work, you are appointed as Acting CEO of North Bondi RSL Club. You are to report directly to me during this period. You will be paid an according pro-rata rate of renumeration for acting as CEO in this period.
3. The Board is very happy with your performance to date. Pending review of the contractual terms of your employment, we presently intend to end your probation period.
Please contact me at any time, to discuss this or any other matter that may arise in relation to your functioning as Acting Ceo.
Vr
Nathan Stapleton
On 6 September 2024, two staff members provided Mr Stapleton with statements setting out their concerns regarding the Applicant’s performance and conduct over the previous 12 months. In response to the concerns raised by staff, and to mitigate the immediate risk of damage to the Club’s operations, the Club took measures which included changing locks, passwords, email access, and bank authorities. The Applicant does not appear to have been contemporaneously aware of the changing of the locks but was aware of the stopped email access.[7]
On 10 September 2024, the Applicant was locked out of ‘Deputy,’ the Respondent’s business, human resources, and rostering software, and was removed from the role of Company Secretary without his knowledge or consent.
On 10 September 2024, the Applicant sent a medical certificate stating that he was unfit for work until 17 September 2024.
Later on 10 September 2024, Mr Farquhar received correspondence from the Applicant’s solicitor. That letter stated:
Dear Chairman and Board of Directors,
Employment of Jason Linke
We act for Jason Linke Client in relation to his employment with North Bondi RSL Club Employer
Personal Leave
1. As you are aware, our Client is currently exercising a workplace right pursuant to section 97 of the Fair Work Act 2009 Act to take personal leave as he is unfit for work because of a personal illness. Our Client has complied with section 107 of the Act by providing you with his medical certificate dated 9 September.
2. We trust the above sufficiently meets your requirements.
Meeting scheduled for Tuesday, 10 September 2024
3. We are instructed that Josh Farquhar and Nathan Stapleton had scheduled a meeting with our Client for 9am Tuesday, 10 September 2024. Our Client was unable to attend this meeting due to his personal illness. We understand that our Client has requested that this meeting be rescheduled to a date after 17 September 2024.
4. Prior to our Client attending any rescheduled meeting, we kindly request that you provide our Client with an agenda for the meeting so that our Client can prepare and seek legal advice, if required.
5. Our Client is concerned about the nature of the meeting due to the following recent events:
a. On 19 August 2024, our Client exercised a workplace right pursuant to section 97 of the Fair Work Act 2009 Act to provide care or support to a member of his immediate family. Our Client complied with his obligations under section 97 of the Act to provide you with notice of the personal leave;
b. On 19 August 2024, our Client was directed to consult with Mr Stapleton prior to making any decisions in his role as CEO. This direction was clearly an attempt to alter our Clients position by unilaterally changing his authority . This alteration prejudiced our Client in his role as CEO;
c. On 26 August 2024, our Client returned to work.
d. On 3 September 2024, our Client attended a meeting with Mr Farquhar and Mr Stapleton during which our Client was directed to take personal leave. Our Client complied
e. On 5 September 2024, our Client received a sincere email from Mr Stapleton in respect of the our Clients leave but the email was inaccurate in its portrayal of our Clients need to disconnect from work and our Clients personal circumstances.
f. On 6 September 2024, our Client realised that his access to his work emails was removed.
g. On 8 September 2024, our Client was advised that staff of the Employer had been informed that there was new management in charge and that the locks of the premises had been changed.
6. The above events indicate to our Client and our office that the Board of Directors may mentioned events, it would appear that the catalyst and reason for the Board taking the
7. We remind you that section 340 of the Act prohibits an employer from taking adverse action against an employee because the employee has exercised a workplace right.
8. Further, we remind you that section 550 of the Act deems that any person who is involved in a contravention of the Act is taken to have contravened that provision. Section 550 of the Act would permit our Client to bring proceedings against individual members of the Board in relation to any contravention of the Act.
9. An agenda would ensure that our Client is prepared for the proposed meeting and can obtain legal advice prior to attendance.
Next steps
10. We look forward to receiving from you an agenda for the proposed meeting.
11. In the interim, please immediately restore our Clients work email access and provide our Client with a set of the new keys.
On 11 September 2024, the Applicant was removed from the role as the Approved Manager on the Respondent’s liquor licence, although the Applicant does not appear to have been contemporaneously aware of that fact.[8] Where a Licensee is to be absent for six weeks or more their authority needs to be delegated.[9]
On 16 September 2024, the Club received further correspondence from the Applicant’s legal representative notifying the Club that he had submitted a worker’s compensation claim. The certificate of capacity stated that the Applicant suffered an injury at work on 28 August 2024 due to Mr Farquhar’s conduct towards him that day and was certified unfit for work until 17 October 2024.
On 25 September 2024, Mr Farquhar received confirmation from the Club’s workers compensation insurer confirming that the Applicant’s claim had been provisionally accepted for 12 weeks.
On 30 September 2024, the Applicant emailed all Directors of the Club advising:
Directors,
I hereby resign effective immediately as Chief Executive Officer and Company Secretary of North Bondi RSL Club Limited.
Regards,
Jason Linke
On 15 October 2024, the Respondent’s Solicitor wrote to the Applicant’s Solicitor stating, in part:
10. Your client failed to give the requisite notice of resignation and the club remains entitled to make a deduction on that account under the Award (although the club reserves the right to treat the resignation as a constructive dismissal by the club for serious and wilful misconduct in the face of allegations that were already starting to be raised with your client and that are continuing to emerge: plainly your client is not entitled to benefit from his own wrongdoings).
[Emphasis added]
Was the Applicant forced to resign under s.386(1)(b) of the Act?
Section 386(1) of the Act relevantly provides that 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.
The Applicant’s main contention is that he was dismissed within the meaning of s.386(1)(b) of the Act as he was forced to resign.
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Tavassoli),[10] the Full Bench of the Commission conducted a detailed analysis of authorities relating to whether particular resignations constituted dismissal pursuant to various legislative schemes. After that analysis, the Full Bench provided the following distillation:
[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 probably 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.[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.
[Emphasis added]
Applicant’s Submission
The Applicant submitted that the Respondent engaged in a course of conduct whereby the express and implied terms of the Contract were breached, including:
(a)Mr Stapleton managing the Applicant and performing some of his duties from July 2024;
(b) Having Mr Stapleton referred to as the ‘Managing Director’ and requiring the
Applicant to report to him from 28 August 2024;
(c)Revoking the Applicant’s access to ‘Open Table,’ his emails as well as the Respondent’s human resources portal between 5 and 10 September 2024;
(d)Physically changing the locks and not providing the Applicant keys on 8 September 2024;
(e)Removing the Applicant from his role as Company Secretary on 10 September 2024; and
(f)Removing the Applicant as the Approved Manager on the Respondent’s liquor licence on 11 September 2024.
The Applicant submitted that when looking at the role of the Applicant, being the CEO, Company Secretary and Approved Manager of a registered club, the conduct detailed above is sufficient to give rise to a ‘constructive dismissal.’
The Applicant submitted that he was concerned about his liability arising out of his obligations under both the Corporations Act 2001 (Cth) and the Liquor Act 2007 (NSW) in circumstances where the duties and benefits he enjoyed under the Contract to ensure compliance with these legislative obligations had been significantly eroded if not totally removed from him by the Respondent.
In doing so, the Respondent had engaged in repudiatory conduct sufficiently serious in nature that forced the Applicant to resign his employment.
Even in the Respondent’s own solicitor’s correspondence of 15 October 2024, there is the statement that the Respondent reserved their rights to treat the resignation as a constructive dismissal by the club for serious and wilful misconduct.
Respondents’ Submission
The Respondent noted Section 386 of the Act sets out the circumstances as to when an employee has been dismissed, and the Applicant’s reliance on s.386(1)(b). The Explanatory Memorandum to the Act at paragraph 1530 provided two examples which would allow for a finding that an employee was constructively dismissed under s 386(1)(b) of the Act, adopting the common law concept of “constructive dismissal”, being:
(a) where the employee is effectively instructed to resign by the employer in the face of a
threatened or impeding dismissal; or
(b) where the employee resigns in response to conduct by the employer which gives him
or her no reasonable choice but to resign.
The Respondent submitted that the use of the word ‘forced’ in the Act, is an indicator of the high threshold that has to be met to establish if an Applicant had no other choice but to resign from their employment because of the actions of their employer.
The Respondent submitted that Mr Farquhar’s initiatives to improve the delivery of welfare support to veterans and their families did not impact upon the duties of the CEO. Mr Stapleton’s role was not operational in nature, and it was denied that Mr Stapleton had any interest in performing the Applicant’s role of CEO.
The Board’s decision to implement a Management Committee on 5 September 2024 was in response to the Applicant’s decision on 3 September 2024 to extend his period of sick leave. The Applicant thereafter confirmed that his personal leave would continue until 17 September 2024 and he submitted a workers compensation claim on 16 September 2024.
The Applicant was subsequently informed that his workers compensation claim had been provisionally accepted on 25 September 2024 for 12 weeks. While on workers compensation, the Applicant resigned from employment on 30 September 2024.
The Respondents submitted that they had not engaged in any course of conduct that compelled or forced the Applicant to resign. The Respondents deny that they engaged in any conduct between 28 August 2024 to 30 September 2024 which demonstrated an intention to bring the employment relationship to an end.
Consideration
I do not consider the conduct of the Respondents relied on by the Applicant was conduct intended to bring the Applicant’s employment to an end. On the contrary, the steps taken were proportionate responses to threats that I accept were reported to the Club by others.
The Respondent did not engage in conduct with the intention of bringing the relationship to an end. The Applicant had an effective and real choice as to whether to resign.
While, in the circumstances of the removal from the positions of Licensee and Company Secretary, the blocking of email access and changing of the locks, and the revoking of access to the booking and HR systems, there is some initial attraction to the submission that the Applicant had no reasonable choice but to resign, the lack of contemporaneous knowledge at the time of resignation of the licensing arrangements, the Company Secretary status, and the changing of the locks, severely weakens such reliance.
From the time of the Applicant’s Solicitors letter on 10 September, to the resignation on 30 September 2024, there was no event or conduct engaged in by the Respondent that could be said to have intended to bring the employment to an end. In final submissions the Applicant correctly conceded:[11]
All I can say, because it is what is in evidence, is 75 and 76, that, in those 20 days, it gets to a point where he feels compelled to resign for fear that he may, again, may be on the hook for his obligations as they arise under the Corporations and the Liquor Act.
The evidence referred to above by the Applicant was at [75] and [76] of the Applicant’s statement, and was as follows:
On 30 September 2024, I felt compelled to resign as I believed I had no reasonable alternative. At the time of my resignation, I was unaware that I had been removed as Company Secretary or as the Approved Manager for the liquor licence. My increasing concerns about my ability to fulfill my duties in these roles were exacerbated by being locked out of the Club premises and effectively prevented from performing my responsibilities.
In light of these circumstances, I concluded that I could no longer discharge my obligations under the Corporations Act 2001 (Cth) and the Liquor Act 2007 (NSW). This untenable situation left me with no other option but to resign, which I communicated to the Board via email, effective immediately.
There was no basis to support the above conclusion of the Applicant, and the Applicant’s evidence in cross-examination regarding licensing arrangements was:[12]
And then from 28 August onwards, right through, you did not return to work prior to your resignation. Correct? --- Yes. Yep.
So would you agree that it would be prudent for the club to ensure that there was some mechanism in place to ensure that the club could operate when there’s no CEO in place? --- From my experience, the club could operate without a CEO, and had done. For my previous annual leave over three years, they were without a CEO for a number of weeks, so I believe so.
Given the regulatory requirements, the licensing, the liquor handling obligations, do you think it was prudent to implement a management committee to oversee the operations? --- I think the licensing requirement is six weeks. If the licensee, or approved manager in this instance, is away for six weeks, then I would need to delegate my authority. I didn’t see myself being away for longer than that amount of time.
But you were in fact away for longer than that, weren’t you? --- I was, yeah, eventually, but at that time.
The Respondents’ actions, such as the establishment of the Management Committee and the delegation of IT control to Mr. Stapleton, were taken to address operational risks and ensure the continuity of the Club’s operations during the Applicant’s absence. These actions were not intended to force the Applicant to resign but were necessary to manage the Club’s operations effectively.
Far from engaging in the proscribed actions, I find that the Respondents took action that was supportive of the Applicant, and which was the complete opposite of conduct intended to bring the Applicant’s employment to an end. In particular, I note:
(a)That in the meeting on 28 August 2024, Mr Farquhar and Mr Stapleton expressed concern for the Applicant’s welfare, and encouraged the Applicant to take as much time off as he needed to focus on his mental health;
(b) Mr Stapleton’s WhatsApp message sent to the Applicant at 6.40pm on 28 August 2024;
(c)The Applicant’s email to the Club’s board of directors acknowledging the support he had received, dated 29 August 2024;
(d)Mr Stapleton’s WhatsApp message sent to the Applicant on 2 September 2024, enquiring as to his welfare; and
(e)The meeting between Mr Farquhar, Mr Stapleton and the Applicant on 3 September 2024 where Mr Farquhar reassured the Applicant that the Board and staff were fully supportive and that he should take as much time as needed to focus on his personal matters.
The Applicant’s claims that the Respondents’ conduct left him with no real choice but to resign are not supported by the evidence. In the period of 20 days from the time of the Applicant’s Solicitors letter on 10 September, to the resignation on 30 September 2024, there was no event or conduct engaged in by the Respondent that could be said to have intended to bring the employment. I note that in that period the Applicant was legally represented.
Conclusion
The Applicant was not dismissed pursuant to s.386(1)(b) of the Act. The Jurisdictional Objection is upheld, and the Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A Guy of Counsel, on behalf of the Applicant.
Ms K Lopes, Solicitor, on behalf of the Respondent.
Hearing details:
18 December 2024.
In-person.
10AM.
[1] Transcript PN 268.
[2] Transcript PN 281.
[3] Transcript PN 154.
[4] Transcript PN 192.
[5] Transcript PN 193.
[6] Transcript PN 196.
[7] Transcript PN 999 to 1001.
[8] Transcript PN 999 to 1001.
[9] Transcript PN 157.
[10] [2017] FWCFB 3941.
[11] Transcript PN 1014.
[12] Transcript PN 155 to 158.
Printed by authority of the Commonwealth Government Printer
<PR783239>
0
1
0