Joel Celnikier v Chiswick Plumbing Group Pty Ltd
[2024] FWC 1054
•23 APRIL 2024
| [2024] FWC 1054 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Joel Celnikier
v
Chiswick Plumbing Group Pty Ltd
(C2024/464)
| COMMISSIONER MCKINNON | SYDNEY, 23 APRIL 2024 |
Application to deal with a general protections dismissal dispute – whether dismissed
Mr Joel Celnikier was employed as a Licensed Plumber by Chiswick Plumbing Group Pty Ltd (Chiswick Plumbing) from 13 December 2021 until his resignation on 5 January 2024. In this role, he also performed quoting and estimating work.
On 25 January 2024, Mr Celnikier applied in time for the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). The application alleges that Mr Celnikier was dismissed by Chiswick Plumbing in contravention of the general protections– specifically, due to adverse action in connection with his exercise of workplace rights and temporary absence due to illness or injury as well as coercion.
An application under section 365 of the Act can only be made by, or on behalf of, a person who has been “dismissed”. A person has been dismissed if their employment has been terminated on the initiative of the employer or they resigned but were forced to do so because of conduct by the employer.[1]
The question is whether Mr Celnikier was forced to resign because of conduct, or a course of conduct, engaged in by Chiswick Plumbing, such that he was ‘dismissed’ for the purposes of s.386(1)(b) of the Act.
I find that Mr Celnikier was not dismissed. His employment ended by voluntary resignation on 5 January 2024. These are my reasons for decision.
Was Mr Celnikier dismissed?
Mr Celnikier’s last day of work for Chiswick Plumbing was 22 December 2023. On that day, he was given a verbal warning in relation to two matters that had arisen the day before. The warning was given during a meeting with Chiswick Plumbing’s General Manager, Mr Nathan Broughton and the CEO of Chiswick Plumbing’s parent company, Australian Home Services Group Pty Ltd, Mr Matt Braid. Later that evening, Mr Celnikier wrote to Mr Braid expressing his concerns about the meeting and advising that he could not feel safe returning to the workplace until there was a written resolution.
On 23 December 2023, Mr Celnikier wrote again to Mr Braid and asked for a second meeting to be arranged quickly for the purpose of trying to reach a mutual resolution. He advised that he would not be returning to work until the second meeting took place. Mr Braid responded by indicating that he could arrange a meeting for 5 or 8 January 2024, being the next dates when both he and Mr Broughton were available.
From 23-26 December 2023, Chiswick Plumbing closed for the Christmas shut down. On 27 December 2023, Mr Celnikier commenced a period of personal leave and then annual leave. Over this time, Mr Celnikier and Mr Braid remained in communication by email, dealing with a range of matters including Mr Celnikier’s leave balance, employment contract and the meeting of 22 December 2023.
On 28 December 2023, Chiswick Plumbing confirmed its position in relation to the verbal warning given to Mr Celnikier on 22 December 2023. Mr Braid expressly advised Mr Celnikier in this email communication that his employment was not being terminated as a result of the issues about which he had been warned.
On 29 December 2023, Mr Celnikier made four complaints in relation to his employment. Mr Braid responded to advise that he would investigate the complaints.
On 5 January 2024, Mr Braid wrote to Mr Celnikier to advise that he would have a response to the complaints by the following Monday, 8 January 2024.
Later in the evening of 5 January 2024, Mr Celnikier submitted his resignation by email to Chiswick Plumbing. The email said this:
“Please be I Joel Celnikier will be resigning from Chiswick plumbing as of 05-01-2023.
My 2 weeks noticed [sic] means my ending period is 19-01-2024.
I cannot unfortunately do any overtime in that time or anything out of my role as a quoter and estimator.
Please be advised that unprofessional delay’s in responding to my complaint’s
Are unprofessional and disrespectful I still expect a [sic] outcome by Monday 07/01-2024 as it is still A complaint in process and has not been dealt with in a respectful nor a professional matter [sic] and clearly indicates your respect for your employees and is really sad on your behalf.
I have been so loyal to this business and it’s unfortunate I have to leave because I feel the managing team are making up false allegations that are not true in the 15 year’s of employment I have only worked at 3 organisation’s and can say I have never had a bad experience with a [sic] employer and still are friend’s with my past employer’s which is a reflection of my character and I will not lower my standard’s for such a toxic work environment.
Please also be advised that my privacy has also been breached with why I have been away to employees of Chiswick. I have not spoken to one person which mean’s [sic] it was the leaked through management.
I still expect the delayed and unprofessional complaint resolution on Monday 05-01-2024 before 12:00 Pm as it’s still a [sic] active complaint and a business should have a [sic] efficient process to ensure that are dealt with in a [sic] efficient manner.
Thank you for the opportunity.”
It was subsequently agreed between the parties that Mr Celnikier’s notice period would be paid out and his employment finished on 8 January 2024.
The course of conduct said to have forced Mr Celnikier to resign
Mr Celnikier alleges that over a period of 12-18 months, Chiswick Plumbing engaged in a course of conduct that was bullying and harassment that eventually forced him to resign. The course of conduct relied upon is alleged to involve:
a failure to deal appropriately with difficulties Mr Celnikier was having with another employee of the business group, Mr Matthew Schokman,
spreading rumours about his absence from work for the purpose of seeking psychological treatment in relation to issues with Mr Schokman,
a graphic email sent to Mr Celnikier in October 2022 and his subsequently being targeted after complaining about it, and
aggressive and abusive conduct in a meeting on 22 December 2023 by Mr Braid and Mr Broughton. In the meeting, Mr Celnikier was given a verbal warning for:
a.swearing at a part-owner of the business, Mr Greg McElroy; and
b.refusing to attend a job that had been quoted by Mr Schokman.
Allegation 1 - Failure to deal appropriately with difficulties involving Mr Schokman
The relationship between Mr Celnikier and Mr Schokman has some history. In 2023, I dealt with an application by Mr Schokman for orders to stop bullying at work. Ultimately, the application was dismissed but only after findings were made of relevance to this proceeding. In summary, I found:
In mid-March 2022, Mr Celnikier was not happy at work and was considering resigning because he did not feel liked by his co-workers. After a discussion with Mr Broughton in which he was assured of a support system and that the business wanted him to stay, he changed his mind.
In March 2022, Mr Celnikier formed the view that Mr Schokman was gossiping about him, making things up and talking him down, and complained about it to Mr Broughton.
In April 2022, Mr Celnikier complained again about the behaviour of Mr Schokman toward him.
On 27 May 2022, during a team meeting, Mr Broughton instructed employees, including Mr Celnikier and Mr Schokman, to stop gossiping or talking about people behind their back.
After an incident involving wrongly installed taps, Mr Schokman told Mr Broughton that he was going to “knock his lights out”, referring to Mr Celnikier.
On 1 June 2022, there was a confrontation between Mr Celnikier and Mr Schokman about them talking about each other to other people. This led to them making separate complaints to Mr Broughton. Mr Broughton told Mr Celnikier to deal with it as best he could. He subsequently held another toolbox talk where he said “Enough of the bullshit! Do I need to bring Tampax to these meetings?”
On 21 June 2022, Mr Broughton again directed Mr Schokman to stop the gossiping.
On 24 June 2022, Mr Broughton repeated the direction in a team meeting attended by staff including Mr Schokman. He then asked Mr Schokman and others to stay back in a bid to smooth over differences by a shake of hands and words of encouragement and direction.
In or around August 2022, Mr Celnikier complained to Mr Broughton about the use by Mr Schokman of a WhatsApp group chat to share photos of poor workmanship to embarrass others.
10.On 11 August 2022, Mr Schokman told another employee that Mr Celnikier was ripping people off. Mr Celnikier overheard the exchange and rang Mr Schokman to confront him. In the course of their discussion, Mr Celnikier told Mr Schokman not to come to a planned dinner the following night because “no one wants you there and I will be fucking coming for you”.
11.By August 2022, Mr Schokman had been working to undermine Mr Celnikier since December 2021.
12.Between 12 and 15 August 2022, Chiswick Plumbing counselled Mr Schokman in relation to his actions toward Mr Celnikier and directed Mr Schokman to work in a related business, Killara Plumbing, for three months for the purpose of training and to “put some space” between he and Mr Celnikier.
The allegation now is that Chiswick Plumbing failed to deal appropriately with difficulties Mr Celnikier was having with Mr Schokman, and that this amounted to bullying and harassment of Mr Celnikier. The ‘evidence’ from Mr Celnikier, such as it is, is found in an unsworn witness statement purportedly made by Mr Celnikier on 8 March 2024. Mr Celnikier did not attend the hearing and did not attest to, or affirm, his statement. There was no opportunity for him to be cross-examined in relation to its contents. I have given the statement very limited weight. Where the assertions made by Mr Celnikier are in conflict with other evidence in the proceeding, I have generally preferred the evidence of other witnesses over the untested assertions of Mr Celnikier.
According to Mr Celnikier’s statement, over the course of a year, there were several instances where he would call in sick for mental health days or ask for leave to visit a psychologist, and both Mr Broughton and Mr Schokman would tell other staff members about the psychologist and would laugh at this publicly. The difficulty is that there is simply no evidence to support the allegation. Until December 2023, the documentary evidence shows that when Mr Celnikier took personal leave, the reasons he gave were unrelated to his own mental health.
Secondly, Mr Celnikier asserts that there was constant scorning toward him from his managers and other staff members who were their friends, which he described as “toxic behaviour” primarily from Mr Broughton and Mr Schokman that he tried to ignore. Once again, the allegation is not established by any evidence. It is contradicted by the evidence of Mr Broughton and Mr Braid, and by findings made in earlier proceedings in the Commission, about the nature of interactions between Mr Celnikier and Mr Broughton, which were generally supportive of each other (with some exceptions and one in particular to which I will return).
Thirdly, Mr Celnikier alleges that he was subjected to abuse from Mr Schokman and did not feel comfortable taking his jobs. This allegation is established to the extent that it relies on my earlier finding that in 2022, Mr Schokman threatened to “knock his lights out”, and by the evidence of Mr Broughton and Mr Braid confirming that by December 2023, Mr Celnikier was refusing to perform any work in connection with jobs involving Mr Schokman.
Mr Celnikier relies on undated text message exchanges between he and Mr Broughton as evidence of bullying and harassment including in support of the third allegation above:
In one text message exchange, Mr Celnikier questions the loyalty of Chiswick Plumbing and Mr Broughton, demands a solution so they can move on “from this situation” and says “its just been a week and it’s back”. Mr Broughton responds by referring to “the schokman thing” in the context of it having “nothing to do with what we are talking right now”, asserting that Mr Celnikier’s recollection of events is false and confirming that Mr Schokman would not be at, and could not do, “the job”.
In a second text message exchange between Mr Celnikier and Mr Broughton (which likely occurred on 21 or 22 December 2023), Mr Broughton explained the reason for changing one of Mr Celnikier’s jobs, and Mr Celnikier refused to go to the job. In this exchange, Mr Celnikier wrote:
“Still no communication” hey Joel is it ok if you do this job for Matt “ The person who has caused me physiological mental issues where I have to see someone every fortnight. My physiologist has told me I should be putting this through work Comp and having time off and said I always can and claim back on everything I have paid for upfront. I have been trying to communicate this over to you for over 3 months now and all you care about is if I’m going to take you to court. I am going above and beyond and have worked back this week. How much more loyalty do you need.”
I am not satisfied on the evidence that Chiswick Plumbing failed to deal appropriately with difficulties between Mr Celnikier and Mr Schokman. Plainly, such difficulties existed. But the evidence weighs in favour of the conclusion that Chiswick Plumbing was generally supportive of Mr Celnikier in relation to his difficulties with Mr Schokman. It counselled Mr Schokman about his behaviour and directed him to work away from the business of Chiswick Plumbing for a three‑month period, both to give Mr Schokman some training and to “put some space” between he and Mr Celnikier.
Although Mr Broughton did not support Mr Celnikier’s refusal to perform work that had been quoted by Mr Schokman, his position in this regard was reasonable. It was not correct for Mr Celnikier to assume that he was being targeted when this work was allocated to him. Although Mr Celnikier had decided not to have anything to do with work undertaken by Mr Schokman, it was not a decision Mr Celnikier was entitled to make unilaterally. It was instead a matter that required the agreement of Chiswick Plumbing, and there is no evidence of any such agreement.
Spreading rumours about his absence from work for the purpose of seeking psychological treatment
Mr Celnikier alleges that rumours were spread about his absence from work for the purpose of seeking psychological treatment in relation to issues with Mr Schokman. Mr Broughton’s evidence is that he did not know Mr Celnikier was seeking psychological treatment. I do not accept this evidence in relation to the period after 22 December 2023. It is contradicted by the text message extracted above as well as emails between Mr Celnikier and Mr Braid after this time. Although the text message exchange refers to Mr Celnikier experiencing “physiological mental issues”, his “physiologist” and his need to see someone each fortnight, it would have been readily apparent to the reader that Mr Celnikier was referring to treatment from a psychologist.
As alluded to above, Mr Celnikier’s requests for leave in the period prior to 22 December 2023 were for reasons other than his mental health, including to support his partner during a difficult time and for his own physical illness. To the extent that the allegation relates to the period after 22 December 2023, there is no actual evidence of rumours circulating in relation to Mr Celnikier in this period (apart from his emails to Mr Braid containing the assertion). There is no detail provided about what the rumour was, who it was being shared between, who the information might have originated from, or how Mr Celnikier became aware of the matter. The allegation is not established.
Sending a graphic email sent to Mr Celnikier in October 2022 and subsequent targeting after he complained about it
On 13 October 2022, Mr Celnikier was sent an obscene image of a man’s bare testicle from the “dispatch” or “after hours phone”. The image was sent after Mr Celnikier provided late notice of a request for leave the following day which was not approved. Mr Celnikier alleges that the image was sent by Mr Broughton, but I cannot agree. Mr Broughton was at a wedding at the time with no access to the dispatch phone. This is corroborated by his contemporaneous text messages to Mr Celnikier on 13 October 2022.
There is no evidence that Mr Celnikier was subsequently targeted for complaining about the message and its contents. Plainly, he was well within his rights to complain. The message to Mr Celnikier was unwelcome conduct of a sexual nature toward him, and it was objectively likely to cause offence and/or humiliation. It was sexual harassment for the purposes of the Act. Mr Celnikier was entitled to expect that he would not be subject to such conduct in connection with work.
Mr Celnikier immediately alerted Mr Broughton to the fact that the message was unwelcome and asked for an explanation. Mr Broughton did not treat the complaint by Mr Celnikier seriously either at the time, or later and his response in this regard was utterly inadequate. He initially sought to make light of the message by replying to Mr Celnikier with “hahaha”, describing the message as “obviously a joke” and telling Mr Celnikier not to worry about it. After trying to call Mr Celnikier and receiving no answer, he remonstrated with Mr Celnikier by text message about his poor behaviour in making a late request for leave. He did not otherwise seek to engage with Mr Celnikier about the obscene image or Mr Celnikier’s complaint in that regard.
I reject Mr Broughton’s evidence to the effect that he did take the complaint made by Mr Celnikier seriously, including by speaking to the person who sent the message (allegedly, a former subcontractor to the business). The impression Mr Broughton sought to convey in his evidence was that not only did he take the issue seriously, the action taken by Chiswick Plumbing in response was to cease using the services of the contractor in question. This evidence was self-serving and not supported by any documentary or other detailed evidence. It is in direct contradiction with Mr Broughton’s responses to Mr Celnikier on the day.
It is not at all clear that Chiswick Plumbing is conversant with its duty to take all reasonable steps to prevent sexual harassment in connection with work or that it has taken any such steps. But that is not the issue here. Mr Celnikier asserts that the incident was part of the course of conduct that forced him to resign. A finding of this kind requires a causal connection between the incident and the resignation decision.
The incident occurred more than 13 months before Mr Celnikier decided to resign. There is no evidence that it was ever discussed again between the parties after October 2022, and it was not a matter raised by Mr Celnikier in his letter of resignation. I cannot exclude the possibility that it formed part of the complaints made by Mr Celnikier on 29 December 2023, but the contents of those complaints are not in evidence. On the state of the evidence, I do not accept that the incident had any bearing on Mr Celnikier’s decision to resign.
Aggressive and abusive conduct of Mr Nathan Broughton and Mr Matt Braid during a meeting on 22 December 2023 where he was given a verbal warning
Mr Celnikier relies on the conduct of Mr Broughton and Mr Braid toward him in the meeting on 22 December 2023, during which it was conceded by Chiswick Plumbing that all parties swore. Whether they swore at each other or by using swear words generally during the conversation is less clear. Mr Celnikier asserts that Mr Braid said “fuck you” to him. Mr Braid denies this but admits saying “fucking calm down”. Without having the benefit of direct evidence from Mr Celnikier in this regard, I am not persuaded that his account of the exchange should be preferred. The allegation that Mr Braid said “fuck you” to Mr Celnikier and then doubled down a short time later is not established.
It is necessary to observe that the meeting was doomed from the start. Mr Celnikier entered the meeting with a very different understanding from Mr Broughton and Mr Braid as to its purpose. Although Mr Braid had asked Mr Broughton to set up the meeting to discuss his concerns about how Mr Celnikier had behaved the day before (saying “fuck you” to a part-owner of the business and later refusing to attend a job quoted by Mr Schokman), Mr Broughton did not communicate this message to Mr Celnikier. He invited Mr Celnikier to meet with him and Mr Braid, but when Mr Celnikier asked about the agenda for the meeting, he responded simply that “Its up to you”. Mr Celnikier understood from this message that the purpose of the meeting was to discuss his own concerns.
Shortly after the meeting began, Mr Celnikier realised he had been misled by Mr Broughton. This reinforced his feeling of being targeted and unsupported following on from his blow up with Mr McElroy the day before as well as the change in the work schedule that he saw as deliberately provocative because it involved his working on a job that had been quoted by Mr Schokman. He was then given the verbal warning about his conduct, further exacerbating his concerns.
Importantly, Mr Celnikier did not resign then and there, or even later that day. He calmed down and began communicating with Chiswick Plumbing about taking some time off and having a second meeting to try and resolve his concerns. He invested time and effort in writing four separate complaints in relation to his employment, which he submitted one week later, on 29 December 2023. Chiswick Plumbing responded to these communications by offering potential dates for a second meeting, encouraging Mr Celnikier to take some time for his mental health, confirming that the warning would not lead to termination of employment, and promptly investigating his four complaints. It advised Mr Celnikier that it would be ready to respond to the complaints by 8 January 2024.
For reasons that remain unexplained, Mr Celnikier did not wait for a response to his complaints before deciding to bring his employment to an end by resigning in writing on 5 January 2024. There is a suggestion in the evidence that the timing may have been influenced by his moving out of the area or having other work to go to, but the facts in this regard remain elusive and I make no finding to this effect.
In the circumstances, I am not satisfied that the conduct of Mr Broughton and Mr Braid in the meeting of 22 December 2023, or the giving of a warning to Mr Celnikier, left him with no effective or real choice but to resign from his employment.
Conclusion
In Bupa Aged Care Australia Pty Ltd v Tavassoli[2] a Full Bench of the Commission summarised the approach to dealing with alleged ‘forced’ resignations under section 386(1)(b) of the Act as follows”:
“(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.”[3]
I find no intention on the part of Chiswick Plumbing to bring the employment of Mr Celnikier to an end. Chiswick Plumbing expressly told Mr Celnikier that this was not its intention in connection with the warning of 22 December 2023. There is no reason not to accept this assurance.
I am otherwise not persuaded on the evidence that Mr Celnikier was forced to resign by any conduct, or course of conduct, engaged in by Chiswick Plumbing.
Mr Celnikier was unhappy at work in the week before Christmas 2023 and felt he was being pushed out, but the evidence does not establish this to have been a reasonably held concern. After the meeting of 22 December 2023, Mr Celnikier thought about what to do for 14 days before submitting his resignation in writing. His resignation was given voluntarily. It was not the only choice available to Mr Celnikier to resolve concerns he had in relation to his employment, and there is no reason to consider that Mr Celnikier could not, in the alternative, have decided to remain in employment. There was plenty of work for him to do, and he had been assured of continuity of employment by Mr Braid. He had an interest in knowing the outcome of the investigation into his complaints, and the offer of a second meeting with Mr Broughton and Mr Braid for the purpose of trying to achieve a resolution.
Mr Celnikier was not forced to resign. It follows that Mr Celnikier has not been dismissed. He cannot apply for the Commission to deal with the dispute under section 365.
Order
The application is dismissed.
COMMISSIONER
Appearances:
G Abou Sleiman of Somerville Legal for the applicant.
M Whitbread of Counsel for the respondent.
Hearing details:
2024.
Sydney:
March 20.
[1] Fair Work Act 2009 (Cth), ss 12 and 386.
[2] [2017] FWCFB 3941.
[3] Ibid, [47].
Printed by authority of the Commonwealth Government Printer
<PR773834>
0
1
0