Jeremy Kiss v Australian and New Zealand Banking Group Limited
[2022] FWC 1595
•22 JUNE 2022
| [2022] FWC 1595 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jeremy Kiss
v
Australian and New Zealand Banking Group Limited
(C2022/245)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 22 JUNE 2022 |
Application for the Commission to deal with a dismissal dispute under s.365 of the Act – jurisdictional objection that there was no dismissal – Applicant not dismissed.
On 31 December 2022, Mr Jeremy Kiss made a general protections application involving dismissal to the Fair Work Commission pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to this application is the Australian and New Zealand Banking Group Limited (ANZ) and it objects to Mr Kiss’ application, asserting that there was no dismissal.
Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
As a person must have been dismissed in order to be entitled to make a general protections dismissal dispute application, I must determine whether Mr Kiss has been dismissed before the Commission can exercise powers under s.368 to deal with a dispute about whether Mr Kiss was dismissed in contravention of the general protections set out in the Act.[1]
An application was made by ANZ pursuant s.594 of the Act for an order prohibiting Mr Kiss from disclosing matters discussed in the conciliation that arose from his general protections non-dismissal dispute application that was conducted by Deputy President Anderson on 12 November 2021. Ultimately, I did not make an order because the parties agreed that any material filed by either party that went to the substance of the conversations that may have been had during the conciliation conference before Deputy President Anderson would not be entered into the record of these proceedings and that I should disregard the substance of the discussions that were had before the Deputy President.[2]
Background facts
Mr Kiss commenced employment at ANZ on 12 October 2020 as a Senior Cloud Engineer for ANZ’s Platform and Engineering team. His role required him to write codes and configurations to build infrastructure in accordance with the requirements in specified units of work, referred to as ‘tickets’, that were assigned to him. Mr Kiss was required to store the codes and configurations he authored in a central repository via ‘pull requests’ so that members of the Platform and Engineering team could use them or deploy them to ANZ systems. From the commencement of his employment Mr Kiss worked predominantly from home due to conditions imposed by the COVID-19 pandemic.
In May 2021 Mr Kiss had some discussions with Mr Wayne Spiteri, the Main Lead in the ANZ technology division. Their discussions initially focussed on Mr Kiss’ career interests. It would appear that Mr Kiss did not consider that the work he was required to perform in his role aligned with where he thought his career should be heading and that he had an interest in assuming leadership roles. Mr Spiteri suggested to Mr Kiss that he discuss other areas of work within ANZ with particular Leaders who he knew might be hiring and able to provide career advice to Mr Kiss. Such discussions between Mr Kiss and various other ANZ Leaders appeared to take place but ultimately the dialogue did not result in Mr Kiss changing roles because performance issues subsequently emerged from ANZ’s perspective. ANZ took the view that these would need to be addressed before any internal positional move could take place.
In late June 2021, conflict arose between Mr Kiss and an ANZ contractor. Mr Daniel McKeown, the line manager of Mr Kiss, and Ms Kate Barelli, an ANZ Business Partner to whom Mr Kiss had reported the conflict, reviewed the circumstances and determined that Mr Kiss and the ANZ contractor were equally at fault. Mr Kiss was however dissatisfied with this and took it up with Mr McKeown in a message he sent at 9.56am on 27 July 2021 via the “Slack” communication platform used by the ANZ. In his reply sent a short time later, Mr McKeown outlined that the matter was for him (Mr McKeown) to manage and he encouraged Mr Kiss to focus on his own work delivery. Mr Kiss wanted to continue dialogue regarding the contractor, at which point Mr McKeown offered to provide context regarding the ANZ’s decision during a catch-up to take place the following day. While acknowledging there had been a number of things at play for Mr Kiss, Mr McKeown also flagged a range of other matters he wished to discuss and indicated he wanted to ensure Mr Kiss was in a position to deliver the work required of him. The immediate reply of Mr Kiss was defensive in tone. He moved the planned time of the catch-up meeting.
Mr McKeown made a note of their catch-up, which took place on 28 July 2021. It would appear Mr Kiss continued to want to discuss the ANZ contractor and challenge Mr McKeown’s decision. He ultimately had to be told by Mr McKeown that he had to accept the decision that had been made. Feedback given by Mr McKeown suggested Mr Kiss was not delivering work in line with the expectations of ANZ.
Between 4 August and 13 August 2022 inclusive, Mr Kiss was absent for 5 working days on personal leave pursuant to medical certificates. Mr Kiss has complained about the contact made with him during this absence but the communications from Mr McKeown that has been produced do not appear to me to have been unreasonable in either purpose or tone.[3] Mr McKeown took into account these days of absence but still remained? concerned about Mr Kiss’ lack of productivity at work. He met with Mr Kiss on 18 August 2022 and outlined his expectations regarding output and the taking and recording of personal leave. Mr McKeown advised Mr Kiss that he was under informal performance management and that they would thereafter be meeting on a weekly basis to discuss his work.
Their next meeting to discuss the work performance of Mr Kiss took place on 25 August 2022. An incident involving another colleague on 19 August 2022 was also discussed but Mr Kiss complains he was denied the opportunity to respond formally to the allegations against him. Mr McKeown produced a file note he made regarding this meeting which outlined issues raised regarding lack of productivity, interactions with colleagues[4] and failures to attend team meetings.
A foreshadowed follow-up meeting took place on 1 September 2021. Mr Kiss, Mr McKeown and Mr Rakesh Garala attended. Mr Kiss stated that he was denied the opportunity to respond formally to further allegations of misconduct and poor performance. Mr McKeown produced his notes of the meeting.[5] These recorded that even allowing for his personal leave, a particular ‘ticket’ that had been with Mr Kiss for 6 weeks had not been progressed. In particular, it was noted there had been no progress following Mr Kiss’ return to work on Monday 16 August 2021 and as a result, ANZ had arranged for the required work to be completed by another employee. At the hearing, Mr Kiss claims he had performed some work on that ticket but this would not have been apparent to ANZ because he had did not save the work on a shared platform and deleted it from his “local system”. Nonetheless, Mr Kiss was advised he would be allocated another ticket which was to be his work priority. The outcomes of the meeting recorded by Mr McKeown evinced the desire of ANZ to try an understand whether there were matters affecting Mr Kiss’ ability to perform in his role that it needed to be aware of. The measures the ANZ intended to put in place to manage Mr Kiss’ attendance and assist with his task prioritisation were recorded and the proposed actions were confirmed in an email sent to Mr Kiss by Mr McKeown on 8 September 2021.[6] Mr McKeown also raised Mr Kiss’ lack of action on the ticket that had been allocated to him.
On 14 September 2021 there was a telephone discussion between Mr Kiss and Mr McKeown. Mr McKeown disclosed to Mr Kiss that he would not be transferred to another team within ANZ until he started to deliver his required work and advised that formal coaching would commence because no work had been completed on the ticket allocated to him on 2 September 2021 prior to Mr Kiss commencing personal leave on 9 September 2021. While Mr McKeown confirmed Mr Kiss would be required to produce daily summaries of his working time, he also expressed confidence in strengths Mr Kiss possessed, and in his ability to get through the coaching process. Mr Kiss’ recollection of the discussion about performance management was less positive. In particular, he claims that Mr McKeown told him that even if he had performed above and beyond from 1 September 2021, he would have been performance managed. Mr Kiss said he subsequently raised a number of concerns with Ms Barelli on 15 September 2021.
From Wednesday 15 September 2021 – Tuesday 12 October 2021 (inclusive), Mr Kiss was absent on personal leave under medical certificates which stated he was unable to attend work due to a medical condition. Mr Kiss complained of contact received from Mr McKeown during this absence but again, I do not consider it to have been inappropriate or unreasonable in either purpose or tone.[7] Mr Kiss declined to sign a medical release requested by ANZ.
On Thursday 14 October 2021, Mr Kiss filed his general protections non-dismissal dispute application pursuant to s.372 of the Act with the Commission.
On 20 October 2021, Mr McKeown sent Mr Kiss an email attaching an informal coaching plan. Mr Kiss sent an email to Mr McKeown in reply asserting there was no detail with the respect to the allegations of non-performance and asserted the request for “hour-by-hour” updates on his work was inappropriate, such that he would not meet it. Mr McKeown replied with an email on 21 October 2021. He confirmed ANZ’s intention to proceed with the informal coaching plan and stated the underlying purpose of their 20 October 2021 meeting was to support the work performance of Mr Kiss and his growth in the role. Access to the EAP service of ANZ was offered.
On Tuesday 26 October 2021, Mr McKeown emailed Mr Kiss the informal coaching plan, advising that it would commence the next day and conclude on 24 November 2021. He advised there would be weekly ‘check in’ meetings in between and outlined details of the performance concerns he had.
Mr McKeown says Mr Kiss was then on sick leave from Thursday 28 October 2021 until Tuesday 16 November 2021.[8] Mr Kiss produced medical certificates stating he was unable to attend work due to a medical condition from Wednesday 3 November 2021 – Friday 12 November 2021 inclusive. Mr Kiss also took carer’s leave on Friday 19 November 2021 and Monday 21 November 2021 and was again on personal leave from Tuesday 23 November 2021 to Friday 26 November 2021 inclusive.
On 4 November 2021, Mr McKeown had sent Mr Kiss an email for attention upon his return to work. The email outlined Mr McKeown’s concerns about Mr Kiss’ performance and directed him to read his coaching plan upon his return to work, accept tickets assigned to him, progress the necessary work on them and provide daily progress updates. It was stated that a failure to comply with these directions might result in disciplinary action. Mr McKeown then sent a further email on 23 November 2021 which noted the abovementioned absences and observed that due to them, the coaching plan remained outstanding. Mr McKeown advised that implementation of the coaching plan would be required upon Mr Kiss’ return to work and it would be extended so as to conclude on Friday 17 December 2021. Mr McKeown also outlined that if, at the conclusion of the coaching plan, there was no improvement in Mr Kiss’ performance or if Mr Kiss was unable to complete the plan, he would start the process of engaging ANZ’s Grow to Perform to establish a formal Performance Improvement Plan (PIP). Mr McKeown concluded his email by stating:
“…in implementing the coaching plan, my intention has always been to work with you to support you to meet the plans objectives and therefore, the requirements of your role as Engineer - an important role in our team. I look forward to working with you and to seeing an improvement in your performance.”[9]
The conference for the general protections non-dismissal dispute s.372 application was held on Friday 12 November 2021. On Tuesday 16 November 2021, Mr Kiss sent a message to Mr McKeown and Ms Christina Tsakiris, Senior Lawyer at ANZ, with the title “Separation Clarification” and asked what was meant by “separation agreement”. It would appear, from a message he had sent Mr McKeown on 15 November 2021,[10] that Mr Kiss wondered whether “separation” meant moving to another team within ANZ. Ms Tsakiris declined a meeting request from Mr Kiss on 17 November 2021. She considered it was not appropriate for her to engage directly with Mr Kiss because she was an internal legal advisor to ANZ. In a reply message to Mr Kiss, Ms Tsakiris advised that Mr McKeown would meet with Mr Kiss to both discuss Mr Kiss’ return to work and answer his questions about what was meant by a separation.[11] During late November 2021 and early December 2021, settlement negotiations appear to have then taken place between ANZ and the then legal representatives of Mr Kiss. As these negotiations did not result in a separation agreement being reached, the understanding of Ms Tsakiris was that Mr Kiss would be returning to work on 10 December 2021.
Mr Kiss presented a medical certificate stating he was unable to attend work due to a medical condition from Monday 29 November 2021 – Friday 10 December 2021. As such, meetings to discuss the coaching plan and his FY21 Remuneration outcome, which had resulted in no bonus being paid to Mr Kiss, could not take place.
On 9 December 2021, Mr Kiss and Mr McKeown had a series of exchanges on ‘Slack’ that indicated that Mr Kiss was consulting his general practitioner, Dr Brian Pliatsos, that day. Dr Pliatsos saw Mr Kiss at approximately 2pm on 9 December 2021 and recorded in his notes that Mr Kiss was “considering resigning.”[12] In a later account from Dr Pliatsos given on 27 March 2022, he stated that Mr Kiss reported being unable to deal with stress caused by work to the point where he was “forced to resign”, which “he did shortly after”.[13] Mr Kiss stated that as his call with Dr Pliatsos on 9 December 2021 neared conclusion, “it was agreed that I would be resigning after having also spoken with my lawyers before speaking with Dr Pliatsios.”[14]
Mr Kiss resumed exchanges on ‘Slack’ with Mr McKeown at 3.28pm on 9 December 2021, firstly asking whether he required a pass to attend the office the next day and subsequently explaining he was only intending to go to the Tech Bar to return his laptop and pass. This prompted Mr McKeown to respond with consecutive messages which stated:
“Hi mate, Can I give you a quick call as I’m not sure what the plan is. I thought ANZ and your legal team didn’t agree terms so you’d be returning to work”; and
“Feel free to call anytime, but if you’d rather let me know over slack or email that is ok too – keen to understand where things are at as I wasn’t expecting you to be handing in your laptop tomorrow.”[15]
At 5.11pm, Mr Kiss sent Mr McKeown a ‘Slack’ message which said: “I have sent an email just now”. The email sent at that same time to Mr McKeown had the title ‘Tendered Resignation’[16] and stated:
“…
Since this FWC session…the working conditions at ANZ remain unchanged and no less worse than previously endured.
As at writing this email, a mutually agreeable separation has not been reached with ANZ Bank Australia through my legal representation and after consultation today with my representation and medical practitioner, it is advisable to tender my resignation.
…
In the last correspondence forwarded by my legal representation, Ms Tsakiris states that ‘ANZ looks forward to welcoming me back to work and continuing to support me’, this is entirely illogical and it is not a good faith suggestion as evident by the entire history of events through my employment to this point.
This tendering of resignation is to be effective from 10/12/2021 and I will be returning the ANZ property such as the laptop and pass to the Tech bar at 833 Collins Street tomorrow. Additionally, I will provide photographic proof of this by way of another email in this chain.
Regards
Jeremy Kiss”[17]
Mr McKeown responded by sending an email at 6.20pm confirming receipt of Mr Kiss’ resignation. Mr McKeown enquired as to whether Mr Kiss did not intend to work out his 4-week notice period, such that 10 December 2021 would be his final date of employment. Mr McKeown also reminded Mr Kiss that ANZ provided confidential EAP services to former employees and provided the relevant telephone number.[18]
In an email replying at 5.49am on Friday 10 December 2021, Mr Kiss confirmed he would be handing back his ANZ equipment that day and ending his employment with ANZ on 10 December 2021.[19] At 6.21am, Mr Kiss posted a message on ‘Slack’ that was visible to his ANZ colleagues which stated: “resigned yesterday and dropping off laptop etc today” (with a hand waving emoji)[20] and at 8.04am, he confirmed by email that he had returned the ANZ laptop and security pass.[21]
Mr McKeown sent an email back to Mr Kiss at 8.15am on 10 December 2021 stating:
“Thanks for confirming that your final date of employment is today, 10 December 2021 and that you won’t be working out your notice period. In this case, we are happy to waive your notice period. I also just wanted to point out that the proposed termination date of 10 December 2021 was in the context of settlement discussions between Christina Tsakiris and your legal representatives. Those discussions were completely separate to your resignation which you have tendered at your own initiative.
…
Let me know if you have any questions.”[22]
Mr Kiss did not respond further and nor did he attempt to withdraw his resignation.
Consideration – was there a dismissal?
In Coles Supply Chain Pty Ltd v Milford,[23] the Full Court of the Federal Court outlined the task of the Commission in cases such as this one, as follows:
“To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be “allowed” for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.”[24]
Section 386(1) of the Act defines the meaning of “dismissed” as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative: or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
…”
The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[25] (Tavassoli) considered the legal principles pertaining to s.386(1) of the Act. Having examined what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”,[26] the Full Bench stated:
“[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.”
I have considered s.386(1)(a), whether Mr Kiss’ employment with ANZ has been terminated on the initiative of ANZ, in the manner articulated in Tavassoli. That is to say, judged objectively, did Mr Kiss not intend to resign his employment on 9 December 2021? I consider the answer to this question is “No” for the following reasons:
a)Emailing the resignation was not a “heat of the moment” action by Mr Kiss. It was tendered following (unsuccessful) settlement negotiations between Mr Kiss’ then lawyers and ANZ that had taken place over an almost four week period;
b)Mr Kiss consulted both his then lawyers and treating doctor on the day he tendered his resignation. He had consulted his doctor approximately three hours before emailing his resignation;
c)The resignation was in writing and Mr Kiss had clearly considered the requirement to subsequently return his laptop and security pass and the need to make arrangements for this to occur;
d)Mr Kiss had been unhappy working in the Platform and Engineering team at ANZ and had since at least May 2021 been seeking to move out of it because he considered his talents could be better utilised elsewhere;
e)Mr Kiss had previously expressed thoughts of resigning from ANZ to his doctor on 10 August 2021 and 21 September 2021; and
f)There was no attempt by Mr Kiss to withdraw his resignation during ensuing correspondence with Mr McKeown or the period leading up to the date of its effect. For instance, when Mr McKeown acknowledged receipt of the resignation one hour after it had been tendered and sought confirmation of the operative date, the reply from Mr Kiss was sent the following morning with the advice that his intention was to serve his notice period.
As to s.386(1)(b), I have also adopted the principles outlined by the Full Bench in Tavassoli set out above and have considered:
· Whether ANZ engaged in conduct intended to bring the employment to an end; and
· Was the termination of Mr Kiss’ employment the probable result of ANZ’s conduct such that he had no effective or real choice but to resign?
I have not been persuaded that ANZ engaged in conduct intended to bring Mr Kiss’ employment to an end.
I consider that ANZ’s concerns about Mr Kiss’ performance were legitimate. For instance, there was evidence that the last time Mr Kiss actually contributed a code or configuration to the central repository was in mid-June 2021[27] Further, there was at one point 17 business days during which Mr Kiss did not raise a single ‘pull request’,[28] which was in stark contrast to other engineers. Finally, Mr Kiss’ behaviour in interactions with a contractor and some colleagues and his attitude following them had raised issues for ANZ. In such circumstances, it is unsurprising that Mr Kiss did not qualify for a performance bonus and not unreasonable for ANZ to have decided to put a hold on any possible transfer for Mr Kiss until his performance improved. Further, I do not consider it unreasonable for the ANZ to have requested daily updates from Mr Kiss because it needs to be borne in mind that due to the consequences of the COVID-19 pandemic, Mr Kiss almost exclusively worked remotely. Therefore, his managers needed to gain understanding of what he was spending his working time doing somehow when they were working in different locations. Ultimately however, ANZ was unable to assist Mr Kiss with task prioritisation because he resisted submitting daily plans. In addition, proposed weekly catch-ups were not able to proceed on occasions when he declined meeting requests.
I draw no adverse inference from the contact ANZ made with Mr Kiss during his periods of personal leave. The purpose of such contact was legitimate, and the tone was not inappropriate. It was reasonable for ANZ to request that Mr Kiss apply for and record his absences and similarly, ANZ seeking details that might help it understand whether there were issues preventing Mr Kiss from delivering in his employment was reasonable. It was Mr Kiss’ prerogative not to give his doctor authority to respond to ANZ requests for information about his condition, and I note that once this was conveyed to ANZ by Dr Pliatsos, such requests ceased. Ultimately however, ANZ could only work with the information it had in seeking to manage Mr Kiss. More broadly, ANZ regularly offered Mr Kiss access to its EAP services and gave him opportunities to have a support person present at meetings, while being at pains to point out the meetings were not of a disciplinary nature.
I observed the testimony of Mr McKeown and consider he was frank, answered questions directly and was prepared to make concessions where appropriate. I accept Mr McKeown was genuine in trying to understand Mr Kiss’ circumstances and get the best out of him. His approach is well illustrated in the following evidence:
“…throughout the whole process I was just - I'd really - what I wanted was just to find out how we could support Jeremy. Did he need technical training or did he need us to adjust expectations to put accommodations in place? So if Jeremy provided any indication as to why he wasn't delivering on a signed ticket then I would have 100 per cent taken that into account. But the problem I had was that every single bit of feedback was rejected. He was adamant that he was a strong engineer and that he just didn't have the time to work on the tickets. But unfortunately for Jeremy his accounts of time just didn't add up and it was just getting more and more dubious.”[29]
“…So, Jeremy, like, once again, like your wellbeing was front of mind for me throughout this entire process, and obviously that started from as soon as you joined when, you know, obviously you have issues with your landlord and the mould in the property over Christmas and, you know, some of your relationship stuff and getting a new apartment in May. So, we were always communicating and, honestly, that's why when we had that first conversation in July around performance, I spent that first 10 minutes, you know, making sure you're doing okay.
On multiple occasions, I checked in on you and, yes, sometimes I did say, 'Jeremy, is there a diagnosis that you're happy to share?' because, once again, was it a skill gap, was it prioritisation, or was there something going on outside of work? I asked for that medical clearance, I asked ER to converse - if you were happy for ER to converse with your doctor, and I also, you know, put a letter together with ER that you could take to your doctor to share medical information, because I just had no idea what was going on.
I had no information to work with as to what might be the case and, like I said, you mentioned at times your back, a few times, you mentioned your tummy, ENT, like there was a couple of different sort of, I guess, off the cuff, you know, remarks around what it might have been, and I imagine you made those because you didn't want to disclose the information, and that's fine, that's your right, but what it meant, though, is obviously I could only work with the information that I had, Jeremy, and that was to continue to accommodate personal leave, so we obviously adjusted expectations, moved dates out, et cetera, and, so, yes, I did enquire.”[30]
“We are all behind you bud and want nothing more than for you to do well delivering for platform. If there is anything at all I can do to help you to progress your ticket plse reach out.”[31]
Ultimately, while it is clear ANZ did not consider Mr Kiss was performing to the level it required and believed he could, it was engaging with him in an attempt to achieve this end.
I am satisfied that Mr Kiss’ employment was under no immediate threat from the perspective of ANZ[32] and that Mr Kiss would have been given the time and opportunity to improve. I also accept Mr McKeown was genuinely surprised to receive the resignation of Mr Kiss. The “slack” messages he sent just prior to Mr Kiss emailing his resignation indicate this.[33] Mr McKeown remained supportive and encouraging of Mr Kiss throughout and had maintained the belief that Mr Kiss could be a valuable contributor to ANZ.
At no time was Mr Kiss the recipient of a formal warning or the subject of disciplinary action. While Mr Kiss asserts he was told by Mr McKeown on 14 September 2021 that even if he had performed above and beyond from 1 September 2021, he would still have been performance managed, this is not borne out in the events that followed. Formal performance management of Mr Kiss was never commenced. Prior to his resignation, ANZ did not even get the opportunity to start the coaching plan it had devised for Mr Kiss.
Accordingly, I am also not persuaded that the termination of Mr Kiss’ employment was the probable result of ANZ’s conduct such that he had no effective or real choice but to resign on 9 December 2021.
Conclusion
I am not satisfied Mr Kiss’ employment was terminated on the initiative of ANZ and nor am I satisfied that Mr Kiss was forced to resign because of conduct, or a course of conduct, engaged in by ANZ. I am therefore satisfied that neither s.386(1)(a) nor s.386(1)(b) of the Act apply to Mr Kiss. My determination is that Mr Kiss was not dismissed from his employment with ANZ and the consequence of this is that there is no jurisdictional basis for him to pursue a general protections application involving dismissal because the requirement in s.365(a) of the Act is not satisfied. It is therefore not necessary for me to otherwise deal with the fact that an allegation has been made by Mr Kiss that “the dismissal” was in contravention of a provision of Part 3-1 of the Act.
As a result of my determination, the application made by Mr Kiss pursuant to s.365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Kiss on his own behalf.
Ms L Anderson on behalf of Australian and New Zealand Banking Group Limited.
Hearing details:
2022.
Melbourne
3 May.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67].
[2] Transcript PN 88-96.
[3] DCB at 85 and 86.
[4] DCB at 232 and 233.
[5] DCB at 236.
[6] DCB at 237.
[7] DCB 89 and 94-99.
[8] There appears to have been approved COVID Leave on 28 and 29 October 2021.
[9] DCB at 128.
[10] DCB at 123.
[11] DCB at 125.
[12] Exhibit A2-see notes of Dr Pliatsos for 9 December 2021.
[13] DCB at 147.
[14] DCB at 52.
[15] DCB at 277.
[16] The entire contents of the email are not reproduced for the reasons discussed above at [4].
[17] DCB at 281.
[18] DCB at 144.
[19] Ibid.
[20] DCB at 283.
[21] DCB at 145.
[22] Ibid
[23] [2020] FCAFC 152
[24] Ibid at [67].
[25] [2017] FWCFB 3941.
[26] Ibid at [35].
[27] Transcript PN 261.
[28] Transcript PN 300.
[29] Transcript PN 301.
[30] Transcript PN 360-362.
[31] Email from Mr McKeown to Mr Kiss dated 8 September 2021 - DCB at 237.
[32] Transcript PN 313.
[33] DCB at 277.
Printed by authority of the Commonwealth Government Printer
<PR742947>
0
1
0