John Bellam v AFG Corp Transport Pty Ltd
[2020] FWC 419
•3 MARCH 2020
| [2020] FWC 419 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
John Bellam
v
AFG Corp Transport Pty Ltd
(U2019/11804)
COMMISSIONER HUNT | BRISBANE, 3 MARCH 2020 |
Application for an unfair dismissal remedy – jurisdictional objection – applicant resigned – not forced to do so because of conduct, or a course of conduct, engaged in by the employer – application dismissed.
[1] Mr John Bellam has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which his employment ended with AFG Corp Transport Pty Ltd T/A Daltrans (Daltrans) constituted a dismissal, and was harsh, unjust or unreasonable.
[2] Mr Bellam commenced employment with Daltrans as a truck driver on 3 June 2018. The employment came to an end on 6 October 2019. Daltrans is a small employer, employing only four employees. Mr Bellam has met the minimum employment period of 12 months to bring a claim of unfair dismissal. The application was filed on 22 October 2019, 15 days after the purported dismissal and within the 21 day time limit.
[3] Daltrans raised a jurisdictional objection to Mr Bellam’s application on the basis that he was not dismissed, submitting that he voluntarily resigned with immediate effect on 6 October 2019.
Determinative Conference
[4] The matter was listed for hearing before me on 28 January 2020. Mr Bellam appeared on his own behalf. Mr Alan Birchley, Chief Executive Officer appeared for Daltrans, together with Mr Dallas Kropp, Director and part-owner. After obtaining the views of the parties, I decided to hold the matter as a determinative conference.
Overview of Mr Bellam’s evidence
[5] Mr Bellam worked for Daltrans on a full-time basis from 3 June 2018 until 6 October 2019. He reported to Mr Kropp, communicating via phone, in-person and by text messages. It is Mr Bellam’s evidence that his relationship with Mr Kropp was reasonable until such time as Mr Bellam met his now-partner, and did not want to work as many weekends as he previously did as a single man.
[6] Mr Bellam agrees that he resigned his employment via a text message on 6 October 2019. He states that he was forced to do so because of conduct, or a course of conduct engaged in by Mr Kropp. He stated that Mr Kropp endeavoured to make Mr Bellam’s employment uncomfortable, and Mr Kropp set out a course of action to humiliate and belittle him.
[7] Mr Bellam spent a considerable sum of money making improvements to the Daltrans truck he typically drove, including chrome add-ons. He was very proud of the truck and took good care of it.
[8] A large number of text messages between Mr Bellam and Mr Kropp was admitted into evidence. I have taken all of them into consideration, even if they are not included below. Mr Bellam identified the following text messages as particularly demonstrative of Mr Kropp’s endeavours to humiliate and belittle him. All other relevant text messages have been included in the evidence below:
(a) Sunday, 2 June 2019:
Kropp: | Where is your paperwork |
Bellam: | In the blue folder |
Kropp: | Copy No love for the 90. Times are changing |
Bellam: | Nothing has changed.. Except goin a bit later on a Sunday |
(b) Unknown date:
Kropp: | Yes they are |
Bellam: | Copy big day working on her then [thumbs up, sunglasses emoji] |
Kropp: | Remember I’m knocking you off early All weekend to wash Or are you above that now? |
Bellam: | Your confused me |
Kropp: | Your the one has the meltdown on the wash because you think you own the right when it suits you There is a fleet of trucks brbin the yard today/tomorrow This is why I Fuckn hate Fridays Much prefer to load you all to tip Saturday |
(c) Friday, 12 July 2019:
Kropp: | I have told I have told I have told you Stay off FB Oh let’s go advertise I’m carting passengers in the truck |
Bellam: | Aye I didn’t even know it was posted until 6am this morning!!! And said something |
(d) 27 August 2019:
Kropp: | Put the cross locks in power divider Lock it all up Bog cog If it takes 2 hrs to crawl up so be it |
Bellam: | The cross locks were already in.. was in low gear These fucking air leaks in the trailers |
Kropp: | Tow truck coming from Gatton Pull you up to parking Bay Fleet Towing |
(e) Unknown date:
Bellam: | Can I have the weekend 12th and 13th of October off? |
Kropp: | Other than possibly next weekend you’ve had every week end off this year *marked the diary [tick emoji] |
Bellam: | Haha gota love how y try and wind me up |
Kropp: | No wind up Truth |
Bellam: | Hmmm tipping nearly every Saturday this year and going Sunday arvo… |
Kropp: | Sure is |
Bellam: | Hahaha |
Kropp: | Being away in the truck Having a 24Hr break for 2 or 3 weeks at a time is not having a weekend off Be grateful |
Bellam: | Did that for months on end… I am grateful now |
Kropp: | I’ve got the calendar marked end of the Month for some concert Is that still happening |
Bellam: | Was thinking.. don’t worry about the 12th 13th off.. |
Kropp: | Ok |
(f) Unknown date:
Kropp: | How things have changed |
Bellam: | You no like me being happy [happy face] Love me truck 100 Love me job Love me family Not going to say I love you but that shits just gay [happy face x 2] |
Kropp: | 24/7 Go go truckn 12 mths ao |
(g) Unknown date:
Bellam: | I haven’t been well the last couple of days. That’s why I never come to the depot |
Kropp: | You right to go to work?? |
Bellam: | Yeah.. |
Kropp: | [thumbs up] Get you in the big 90 Get you dried out & launching |
Bellam: | I haven’t even been drinking aye |
Kropp: | You know who your talking to right |
Bellam: | Yep.. I’m not an alcoholic f@#$kwit ay |
Kropp: | Be careful Happy for you pack ya shit with words like that I can’t sack [name] But you right in the firing line calling me a fuckwit!! |
Bellam: | I called myself a fuckwit |
(h) Friday, 20 September 2019:
Kropp: | Thought you would stopped grab fuel use the hose all arvo |
Bellam: | I’m onloading today They waiting back because they like and respect me |
Kropp: | Holy shit Friday it is Where did you get fuel? |
Bellam: | Always got to see a negative in me [smiley emoji] Puma.. Wad nearly empty… Tare weight to load |
Kropp: | Clearly you don’t listen when I say use depot fuel And then hold it flat |
Bellam: | Look Dallas..it really doesn’t bother me if I top today..tomorrow whenever.. The fuel [gauge] reads whatever it feels like..it was a bit over half going past Toowoomba..then dropped away to nothing And I rang when I was loaded and they said they will unload me this arvo Geez I’m just doing the job |
(i) Saturday, 21 September 2019:
Bellam: | I am washing my truck tomorrow.. when no one is there |
Kropp: | Copy Trailers are done I will drop time sheet off today I will stop at Danes Ad blue on Tuesday on your way out [thumbs up] |
Bellam: | Copy thanks |
(j) Sunday, 22 September 2019:
Kropp: | Have you washed & done your hours? |
Bellam: | No Not yet… stood on a bloody nail.. 68 hrs last week |
Kropp: | Is it happening today ? |
Bellam: | Can I wash after service at Danes before I go.. |
Kropp: | I’m sure Dane will Be highly pissed off No time sheet No pay I paid for the wash last weekend, Truck sits in the yard dirty this weekend Seems we need to review |
Bellam: | Dallas..can you please stop giving me a hard time all the time… My truck has only been to the wash at the most 5 times.. it will be washed |
Kropp: | Johnny… Can you do what I ask when I ask !!! You know the deal I over Asking |
Bellam: | I do as ya ask.. I stood on nail me foot is faarrkt |
Kropp: | Disliked “I am washing my truck tomorrow.. when on one is there” |
Bellam: | My apologies.. I didn’t plan on stepping on the nail.. Truck will be washed |
(k) Monday, 23 September 2019:
Kropp: | Choke her up full fuel & ad blue [tick emoji] Emerald tonight [thumbs up] |
Bellam: | Not feeling well |
Kropp: | Are you in our out? I’m not sending you north to sleep in the truck for 2 days |
Bellam: | Ok don’t then |
Kropp: | Righto I will get someone sorted to get in it |
Bellam: | Been throwing up everywhere |
Kropp: | Copy. Park it up at depot. Head home Will send truck |
Bellam: | [thumbs up] didn’t plan on getting sick |
Kropp: | All good Leave your keys in it |
(l) Thursday, 26 September 2019:
Kropp: | Hey Johnny Moving forward are signing on or off? |
Bellam: | G day.. I’m still not feeling the best.. will get DR certificate.. (Signing on or off)? I’m not leaving |
Kropp: | Copy Sunday Rev it up [thumbs up] |
Bellam: | [thumbs up] |
(m) Friday, 27 September 2019:
Kropp: | [details of job commencing Sunday] |
Bellam: | Yeah thanks will be in Brisbane to unload Monday |
Kropp: | Booking is made for Sunday You gave me a thumbs to to rev it up ?? You are a no show on Sunday? |
(n) Saturday, 28 September 2019:
Kropp: | Truck is going to bris Sunday I will make other plans |
(o) Monday, 30 September 2019:
Bellam: | Lyn sent the medical certificate I would just like to say… with all due respect… I have felt that I have put so much passion into daltrans looking after your truck + spending in excess of $4000 on chrome in which was my choice .. Yes I was single when I started but hey things change and I found a awesome missus and kids.. I really think it is disrespectful how you say I come to you as a single bloke. And plan in my eyes so I work nearly every weekend now I found someone who loves me.. I still love my trucking but constantly being belittled in everything I do is when my work ethic drops.. I look at the 909 like she’s mine even though it’s not.. but all of this has sent me back into a depression that I never wanted to be in after my brother died…. And it’s not cool telling the other drivers that I’m just having a sook… So in saying that I’m not human garbage.. I like daltrans.. and move forward |
Kropp: | Are you signing on Sunday…? Or not |
Bellam: | That’s just about showing how much of a heartless cunt you are…… But yes |
Kropp: | Best off not bother calling me that ! |
Bellam: | Mate I have so much respect daltrans I love working there… you should know what I been threw… I got [taught] respect off clubs when I was 18… just respect me please |
Kropp: | Works both ways !! All you have achieved is fucking me around for 2 weeks straight |
Bellam: | Mate that is your fault for making me so sick that I couldn’t even drive.. STOP belittling me I’m a fucking loyalty employee.. Pick on the kunts that’s don’t give a shit about your gear But with all due respect I like the company |
(p) Thursday, 3 October 2019:
Bellam: | Good morning Dallas… I’m starting to feel better now… I will be right to stooge Sunday |
Kropp: | Ok |
(q) Friday, 4 October 2019:
Bellam: | Gday.. Is there a load plan or you still busy? |
Kropp: | Home in 10 [load plan details] |
Bellam: | [thumbs up] |
(r) Saturday, 5 October 2019:
Bellam: | Copy.. jo where or what happened to all the chrome on my truck? No fuel key.. Inside is an absolute mess |
Kropp: | Gear stick knob is in the Eaton box in the bunk Side things on the doors in the container Fuel key is on IOR tag Graham had the dash apart yesterday to fix the scales Happy trucking [thumbs up] |
Bellam: | Copy… thanks.. Will chuck it back on as I go |
Kropp: | You won’t!! I don’t want it put back on Be very clear |
Bellam: | Ease up mate.. |
Kropp: | It’s my truck My rules !! |
Bellam: | Righto.. I didn’t know you didn’t want it on there |
Kropp: | I’ve never liked it The way I bought the truck was the way I want it I allowed you to put stuff on whilst you were the one driving it |
(s)Sunday, 6 October 2019:
Bellam: | Dallas I all prepared to go back to work but the state the 909 was left in was disgraceful considering it’s daltrans.. the amount of money and time I have spent on that truck treating it was my own.. I have removed some of the chrome I paid for and left you some chrome that couldn’t be easily removed without damaging the truck. Decided to move on and give 2 weeks notice I left my exhaust pipes on the truck..for you to replace with original ones and Bevan will drop mine to me… I have left my pressure cleaner in container for Bevan to use and he will bring it to me when he is done |
Kropp: | Are you going to work 2 weeks or not? |
Bellam: | No mate.. it was a pleasure working for you.. but it is time for me to move on |
Kropp: | Are you going to work 2 weeks or not? |
Bellam: | It just would not work.. you always saw the negative in me instead of the positive.. There is no need to be angry at each other.. I just can’t handle the belittling text you send to me anymore Kind regards johnny So in saying all that.. I have left the chrome around the side windows and air vents. Door handles and locker boxes.. Mudflat..and a heap of nut covers. So I worked it out would be $300.. plus the $500 for the tow truck in which I never had to pay for but did. In total plus what I’m owed in pay.. |
[9] It is Mr Bellam’s evidence that around the period 23 September 2019 until early October 2019, he was suffering from depression as a result of Mr Kropp’s conduct towards him. The medical certificate provided, certifying him unfit for work between 30 September 2019 and 4 October 2019 cited a “medical condition” without nominating the medical condition. It is his evidence that Mr Kropp ought to have known that he was suffering from depression at this time. Mr Bellam’s text message to Mr Kropp of 30 September 2019 nominated that he was suffering from depression.
[10] Mr Bellam’s evidence is that he didn’t want to return to work, but did so because he needed to pay rent and provide food for his family, and pay household bills. He considered that he faced constant ridicule on a daily basis; he was made to feel like he was incapable of doing the job.
[11] Relevant to the tow truck that was required on or around 27 August 2019, Mr Bellam did his best given the prevailing conditions to attempt to get the vehicle up the range. The conditions did not assist, and the vehicle needed to be towed. He considered that Mr Kropp belittled him by providing instructions (at [8(d)]) on how best to get up the range. He had already taken the actions Mr Kropp was directing him to do, and he considered it belittling when being told by Mr Kropp what to do.
[12] Mr Bellam attended upon Mr Kropp’s home residence later that evening and provided to him $500 for the cost of the tow truck, as he considered that he did not want this held over him by Mr Kropp. Mr Kropp kept the $500.
[13] In answering questions from me, Mr Bellam agreed that if the chrome had not been removed from the vehicle on 5 October 2019, and the interior of the vehicle had not been a mess, he would have continued working at Daltrans on 6 October 2019. It is his evidence that some event or statement may have arisen in the next two to four weeks which would likely have resulted in him being forced to resign his employment. But for his disappointment on 5 October 2019, and the text messages from Mr Kropp informing him he was not to reattach the chrome to the vehicle, he would not have resigned when he did; it would have required some other event or conversation to cause him to resign, but he considered it to be an inevitable event.
Overview of Daltran’s evidence
[14] Mr Kropp’s evidence is that Mr Bellam’s performance as a driver was solid. At times he would not follow precisely Mr Kropp’s direct instructions and established procedures regarding re-fuelling, washing the truck and adhering to driver haulage schedules. It was Mr Kropp’s evidence that these issues were addressed directly with Mr Bellam at the time they occurred.
[15] The Respondent requires drivers to, where possible, fuel the trucks at the depot where the bulk fuel cost is lower. Trucks are washed every weekend, preferably Saturday. On occasions the Respondent allows the trucks to be put through a truck wash at the Respondent’s expense.
[16] Mr Kropp stated that his communication with drivers, including Mr Bellam is direct and immediate. He stated that it was never his intention for Mr Bellam’s employment to end by way of dismissal by the employer.
[17] Relevant to the text messages on 22 September 2019, it is Mr Kropp’s evidence that the vehicle was due for maintenance on 23 September 2019, and vehicles should always be cleaned before they are serviced. Mr Bellam should have washed the vehicle on Saturday, 21 September 2019, and his failure to do so, and then being injured presented as a problem.
[18] When Mr Kropp received Mr Bellam’s text on 26 September 2019, he considered that he would likely be well enough to work on the following Sunday, as he had texted, “I’m not leaving”. Mr Kropp understood that to mean that he would be working the next week. He sent him a text message which stated, “Copy Sunday Rev it up [thumbs up]”.
[19] In light of Mr Bellam response, indicating he wouldn’t be returning until Monday, Mr Kropp made other plans for the vehicle on Sunday.
[20] Mr Kropp received Mr Bellam’s medical certificate on 30 September 2019. He also received Mr Bellam’s text message discussing him suffering from depression and discussing his brother’s death. He took the last part of the message, Mr Bellam saying that he wished to move forward, as Mr Bellam’s assurance that he wished to work the following week. He was not pleased with the insult to him from Mr Bellam that he was a “heartless cunt”, but noted that the message finished with, “But yes”, meaning that Mr Bellam would be working next week. He also noted that Mr Bellam’s text also included, “But with all due respect I like the company.”
[21] On 3 October 2019 Mr Bellam indicated that he was well enough to attend for work on Sunday, 6 October 2019 and requested a load plan.
[22] Relevant to the chrome additions Mr Bellam had made to the vehicle which were removed, it is Mr Kropp’s evidence that some of the relief drivers had complained of being unable to have full vision due to the size of the chrome additions. Mr Kropp had the chrome removed, together with Mr Bellam’s extended gear stick knob. Mr Kropp wanted relief drivers to be able to use the vehicle in future, without it being encumbered with Mr Bellam’s additions. It is his evidence that he did not intend to upset Mr Bellam by having these items removed.
[23] In answering questions from me, Mr Kropp confirmed that when Mr Bellam attended his home after having the vehicle towed up the range, Mr Bellam gave to him $500 in cash. He did not return the cash to Bellam at any time. Mr Birchley undertook to the Commission to, by 29 January 2020, pay to Mr Bellam $500 into his bank account as a reimbursement. The payment to Mr Bellam was confirmed by the Respondent on 29 January 2020.
[24] Regarding Mr Kropp’s text message to Mr Bellam on 30 September 2019 where he stated, “Works both ways !! All you have achieved is fucking me around for 2 weeks straight”, Mr Kropp agreed, when asked by me, that it had only been one week since Mr Bellam had declared that he was unwell and could not attend for work. Mr Kropp’s evidence is that he was also taking into account the further week that Mr Bellam had certification that he would not attend for work. Mr Kropp considered it inappropriate that Mr Bellam had earlier indicated that he would attend for work, to then notify his unavailability.
Mr Bellam’s submissions
[25] During the determinative conference, Mr Bellam maintained that Mr Kropp’s conduct had resulted in him being forced to resign his employment. He stated that on account of the depression that he was experiencing, he could not continue to work there.
Daltran’s submissions
[26] The Respondent submitted that the text messages between Mr Bellam and Mr Kropp do not demonstrate that Mr Bellam suffered daily harassment, ridicule or belittling as submitted by Mr Bellam. To the contrary, it was submitted that there was some colourful language and banter exchanged between the two men, together with examples of a respectful, acceptable employment relationship.
[27] The Respondent submitted that Mr Bellam had some form in self-deprecation, including calling himself a “fuckwit” and a “lazy fat fucking slob.”
[28] It was acknowledged that Mr Bellam might have been upset with the condition of the truck that he was required to drive, but that did not correlate to providing to him no real choice but to resign.
[29] It was submitted that Mr Bellam’s resignation was not made in the heat of the moment. Mr Bellam considered his position overnight from 5 October to 6 October, and by 9:04am on Sunday, 6 October 2019 he had taken action regarding his personal items and had sent a text of his resignation.
[30] The Respondent submitted that it must be demonstrated that the Respondent took action with the intent to bring the relationship to an end, or that was the probable result, and that could not be demonstrated in this matter. 1
Legislation
[31] Section 386 of the Act states:
“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.”
[32] Mr Bellam does not submit that the termination of his employment came to end pursuant to s.386(1)(a), but does submit that he resigned from his employment and was forced to do so because of conduct, or a course of conduct engaged in by Mr Kropp, pursuant to s.386(1)(b).
Applicable case law
[33] The Full Bench in Mohazab described when a constructive dismissal occurs, and stated, “...industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.”2
[34] The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred;3 Mr Bellam in this matter. Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”4
[35] The decision in O’Meara v Stanley Works provides a useful summary on constructive dismissal, as follows:
“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”
[36] Additionally, in Australian Hearing v L Peary,5 it was stated that:
“[29] The first ground of appeal is that the Commissioner did not give proper effect to s.642(4) of the Act. It was submitted that the use of the word “forced” indicates a legislative intention that in cases of resignation there will be no termination at the initiative of the employer unless the resignation was an intended consequence of conduct or a course of conduct engaged in by the employer. On that basis, the Commissioner’s finding that the resignation resulted from the employer’s conduct is not sufficient to attract the operation of the section. The element of intention is missing. It was further submitted that there was no evidence of such an intention in any event.
[30] We cannot accept this construction of the section. The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer’s intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied.”
[37] In Ashton v Consumer Action Law Centre,6Commissioner Bisset considered whether an employee was forced to resign due to supervisory requirements placed on the employee, which he claimed were so onerous that it made his job impossible to do. However, it was stated in that decision that even where an employee believes supervisory requirements to be harsh, it does not mean they are so. Further, it was determined:
“[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.
[60] That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Mr Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.
[61] In this matter, viewed objectively, the actions of the employer in investigating Mr Ashton’s grievance and/or in instigating higher level supervisory requirements and/or in providing him with a letter outlining specific areas of concern with his performance were not designed to force Mr Ashton to resign.
[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.”
[38] Further, it has been found that where an employee is subject to disciplinary procedures, this is not in itself sufficient to demonstrate that a resignation was forced by actions of the employer.7
Consideration
[39] Turning to the present matter, it is apparent that Mr Kropp and Mr Bellam regularly sent text messages to each other. Some of the messages were transactional, some affectionate, and at times, some unpleasant. It is helpful that the text messages are in existence, and able to be reviewed objectively by the Commission.
[40] Having considered the evidence and submissions before me, I accept Mr Kropp’s evidence that there was no intention for the employment relationship to end on or around 6 October 2019. He wished for Mr Bellam to return to work after his absence and drive the vehicle. Following Mr Bellam’s resignation he wished for him to drive during the two week notice period.
[41] While it is understandable that Mr Bellam was likely to be disappointed, and was disappointed with the removal of the chrome add-ons he had made to the truck, I am not satisfied that Mr Kropp undertook that course of action to the vehicle owned by the Respondent to deliberately disappoint or upset Mr Bellam. I am satisfied that Mr Kropp took the opportunity, while the vehicle was being repaired, to remove the chrome add-ons on account of returning the vehicle to its standard settings. He did not wish for the vehicle to look the way it did, and he was not responsible for the way that Mr Bellam reacted to such news. If Mr Bellam was not going to be the only driver of the vehicle, it was Mr Kropp’s view that the vehicle should be returned to a standard look, so that other drivers did not complain about obstruction of their view while driving. I accept Mr Kropp’s reasons for this as genuine and necessary.
[42] Mr Bellam cited numerous text messages from Mr Kropp to him as belittling or humiliating. He claimed that Mr Kropp’s conduct, both in messages and in person was an effort to belittle and humiliate him, and to make him feel that he did not deserve the role or that he was not good enough.
[43] Respectfully, I consider that Mr Bellam has overstated any hurt he may have experienced as a result of Mr Kropp’s text messages. He was unable to provide any material evidence of things said to him at the workplace that would cause me to believe that Mr Kropp’s conduct was inappropriate at the workplace. He did lead evidence that others had reported to him that Mr Kropp had been calling him a ‘sook’, but neither named those employees or called them to give evidence.
[44] I consider that Mr Bellam was feeling particularly sensitive towards late September 2019 – early October 2019. He stated that he was suffering from depression, caused in part by Mr Kropp’s workplace conduct.
[45] Having reviewed the text messages between the men over the last few months of the employment, whilst the messages between the two are not one would expect of professionally-engaged employees, they appear to me to be reasonably appropriate for the relationship; that of a truck driver and his manager. Mr Kropp’s instructions to obtain fuel at the depot, wash the truck on particular days, not take passengers in his vehicle (of if he did, not publicly broadcast it), all seem to me to be reasonable and lawful instructions. I do not accept that Mr Kropp was overly critical of Mr Bellam when these issues arose, or that the language and tone used was inappropriate in the circumstances.
[46] Mr Bellam’s criticism of Mr Kropp offering instructions on 27 August 2019 when the vehicle could not travel up the ridge is evidence of his sensitivity over what appears to me to be appropriate and considerate suggestions. The texted suggestions were:
“Put the cross locks in power divider
Lock it all up
Bog cog
If it takes 2 hrs to crawl up so be it”
[47] Simply because Mr Bellam had already tried the things suggested by Mr Kropp does not make Mr Kropp’s directions to Mr Bellam belittling, or suggestive that Mr Bellam does not know what he is doing.
[48] I accept that Mr Bellam did not appreciate Mr Kropp’s suggestion at [8(g)] that on his return from annual leave he would need to be ‘dried out’. It was not Mr Kropp’s place to suggest that Mr Bellam would have over-indulged in alcohol during Mr Bellam’s annual leave. It was an unnecessary and hurtful statement, particularly in light of Mr Bellam’s personal circumstances relevant to his brother’s passing.
[49] I also accept that Mr Kropp’s text message to Mr Bellam on 30 September 2019 of “Works both ways !! All you have achieved is fucking me around for 2 weeks straight” was entirely inappropriate. At the time of sending this text message, Mr Bellam had taken one week personal leave, and had indicated a further week’s leave was necessary. While I understand Mr Kropp was annoyed that Mr Bellam had indicated a preparedness to return to work and this had not been met, he was on paid personal leave, and it was his right to access the paid personal leave. Mr Kropp’s message was intemperate. In mitigation, I appreciate that it was sent in the same group of messages where Mr Bellam had called him a “heartless cunt”.
[50] On 3, 4 and 5 October 2019 Mr Bellam gave every indication that he was returning to work on Sunday, 6 October 2019. There was no indication from Mr Bellam that he held any continued upset from earlier text messages between the men. During the determinative conference, Mr Bellam confirmed that if he had not come across the truck on 5 October 2019 in the state that it was in, dirty and with the chrome removed, he would have driven the truck on 6 October 2019. Mr Bellam’s evidence is that he formed a view on 5 October 2019, after being at the yard with his partner, that he was not respected, and he would not continue to drive for the Respondent.
[51] It is clear from the text message sent by Mr Bellam on 6 October 2019 that it was the condition of the truck and the removal of the chrome add-ons that caused him to communicate to Mr Kropp that he would no longer work for the Respondent. His text message stated that he was “all prepared to go back to work but the state the 909 was left in was disgraceful considering it’s daltrans..”
[52] Mr Bellam explained what he had done with the chrome and finished his text, “Decided to move on and give 2 weeks notice”.
[53] At this stage Mr Bellam did not cite any workplace incident, other than the state of the truck and the removal of the chrome add-ons as the reason for his resignation. Further, when asked by Mr Kropp if he would work out his two weeks’ notice or not, Mr Bellam responded, “No mate.. it was a pleasure working for you.. but it is time for me to move on”.
[54] Mr Kropp responded, “Ok”, and Mr Bellam replied, “It just would not work.. you always saw the negative in me instead of the positive.. There is no need to be angry at each other.. I just can’t handle the belittling text you send to me anymore. Kind regards johnny”
[55] Mr Bellam’s evidence is that he was pleasant in the text messages to Mr Kropp because he wanted to be paid his termination entitlements and reimbursements. Mr Bellam then made his unfair dismissal application, considering that he had been forced to resign on account of Mr Kropp’s conduct.
[56] While I accept that Mr Kropp’s conduct to Mr Bellam was not always exemplary, it was, in my view, largely reasonable in all of the circumstances. I consider that Kropp did not address Mr Bellam appropriately, or deal with him appropriately in-person on the following occasions:
• Suggesting Mr Bellam needed to ‘dry out’ after returning from annual leave;
• Accepting $500 in cash from Mr Bellam to pay for the tow truck; and
• Telling Mr Bellam he had been fucking him around for 2 weeks straight.
[57] The criticisms Mr Bellam had of Mr Kropp’s other text messages and conduct are, respectfully, not accepted. Mr Bellam’s concerns have been overstated, and he appears to me to be overly sensitive to direct communication and reasonable and lawful instruction given by text message. Mr Bellam’s evidence that he would have continued working if the vehicle had not been in the condition it was on 6 October 2019 is compelling; he would have required some other event or incident in the future to have resigned his employment on account of Mr Kropp’s behaviour towards him.
[58] Taking into account all of the circumstances and the totality of the evidence in this matter, I am not satisfied that the Respondent’s conduct or course of conduct forced Mr Bellam to resign.
[59] Accordingly, I find that there was not a dismissal pursuant to s.386(1)(b) of the Act.
Heat of the moment resignation
[60] It is an established principle, that an employer is generally able to treat a clear and unambiguous resignation as a resignation.8
[61] However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise such that an employer may be required to allow a reasonable period of time to pass before accepting the resignation.9 Further, the employer may have a duty to confirm the intention to resign, if put on notice during that reasonable period that the resignation was not intended.10
[62] Mr Bellam has not suggested that his resignation was made in the heat of the moment. In the circumstances, I find that Mr Bellam’s resignation by text message was an unambiguous resignation from his employment with the Respondent, and was not a resignation given in the heat of the moment such that the employer would have a duty of confirming Mr Bellam’s intention to resign, before accepting the resignation.
[63] Conclusion
[64] On the evidence before the Commission, I find that Mr Bellam voluntarily resigned from his employment with Daltrans on 6 October 2019.
[65] I find that Mr Bellam was not dismissed in accordance with subsection 386(1) of the Act.
[66] Accordingly, I must dismiss the application and I do so.
COMMISSIONER
Appearances:
J Bellam, Applicant.
A Birchley, CEO of Respondent.
Hearing details:
28 January 2020, Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR716205>
1 O’Meara v Stanley Works Pty Ltd [2006] AIRC 496
2 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at p. 206.
3 Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].
4 Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
5 [2009] AIRCFB 680, 28 July 2009 (Giudice J, Kaufman SDP, Larkin C).
6 [2010] FWA 9356.
7 See for example Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.
8 Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12]; citing Minato v Palmer Corporation Ltd (1995) 63 IR 357 at pp. 361‒362; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).
9 Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12],; citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 at p. 191.
10 Ibid.
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