Jonathan Anthony Stay v R. & K.M. Jordin Pty. Ltd
[2024] FWC 2898
•18 OCTOBER 2024
| [2024] FWC 2898 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jonathan Anthony Stay
v
R. & K.M. Jordin Pty. Ltd.
(U2024/4112)
| COMMISSIONER CRAWFORD | SYDNEY, 18 OCTOBER 2024 |
Unfair dismissal application – jurisdictional objection alleging no dismissal –– alleged forced resignation - employee was not forced to resign - jurisdictional objection upheld – application dismissed.
BACKGROUND
On 11 April 2024, Jonathan Stay filed a Form F2 unfair dismissal application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). Mr Stay claims he was unfairly dismissed from his employment with R. & K.M. Jordin Pty. Ltd. (Jordin).
Jordin operates a sports construction business. Mr Stay commenced full-time employment with Jordin on around 25 July 2022 as a court painter based at Alderley in Queensland.
Mr Stay provided a resignation letter to Jordin on 22 March 2024. The letter indicated Mr Stay was forced to resign due to the ongoing conduct of Jordin and identified an effective date of 18 March 2024.
On 7 May 2024, Jordin filed a Form F3 employer response to Mr Stay’s application. The Form F3 identified two jurisdictional objections to the application.
The first jurisdictional objection was that Mr Stay’s application was not filed within 21 days of his dismissal taking effect and that there were no exceptional circumstances to justify the granting of an extension of time. Whether or not Mr Stay required an extension of time turned on whether Mr Stay’s resignation took effect on the day it was communicated to Jordin, which was 22 March 2024. If the 22 March 2024 date was found to be the date of dismissal, Mr Stay’s application was filed within 21 days of the dismissal taking effect. Alternatively, if Mr Stay’s resignation operated retrospectively from 18 March 2024, the application was not filed within 21 days of that date. In a decision issued on 11 July 2024, I dismissed Jordin’s first jurisdictional objection on the basis that a resignation cannot operate retrospectively, and that the resignation took effect when it was communicated to Jordin on 22 March 2024.[1] That finding meant Mr Stay did not require an extension of time.
Jordin’s second jurisdictional objection is that Mr Stay was not forced to resign within the meaning of s.386(1)(b) of the FW Act. I issued directions for the filing of material and listed a hearing of the second jurisdictional objection for 8 October 2024 via video.
At an earlier Mention/Directions proceeding on 31 May 2024, I granted permission for both parties to be represented in relation to the application on the basis that this would enable the application to be dealt with more efficiently. Brett Stowers from Workhorse Advisory represented Mr Stay. Jordin was represented by Ashley Mak from Irwell Law Pty Ltd.
Neither party opposed the holding of a hearing in relation to Jordin’s second jurisdictional objection.
MATERIAL FILED
Mr Stay
Mr Stay provided a statutory declaration dated 25 August 2024 which had a significant number of documents attached. The following documents were included as part of Attachment A to Mr Stay’s declaration:
· Figure 1: A screenshot of text messages between Mr Stay and Mark Boardman (Construction Manager) dated 1 November 2023. The messages concern Mr Boardman changing an online work schedule without notice. Mr Stay queried the work location of an employee and Mr Boardman stated: “He’s with you, gather you need a hand??” Mr Stay queries when this decision was made and Mr Boardman states: “Are you doubting deputy?? Or is Chaz not reading deputy?” Mr Stay then indicates he had “planned my day working solo” and asks: “Is labour being used efficiently?”
· Figure 2: A screenshot of text messages between Mr Stay and Mr Boardman on 3 November 2023. The messages concern operational matters including a direction issued by Mr Boardman to Mr Stay. The messages demonstrate increasing tension between Mr Stay and Mr Boardman about how work is being managed.
· Figure 3: A screenshot of text messages between Mr Stay and Jayne Bates (General Manager) on 3 November 2023. Ms Bates requests that Mr Stay stops texting Mr Boardman until their issues can be resolved with her assistance and suggests that the three of them attend a meeting the following Monday.
· Figure 4: An email from Mr Stay to Ms Bates dated 9 November 2023. Mr Stay raises various concerns with the working relationship between he and Mr Boardman as requested by Ms Bates during a meeting on 6 November 2023. Mr Stay also refers to a telephone call with Ms Bates on 2 November 2024 during which allegations were put to Mr Stay that he had been bullying Mr Boardman.
· Figure 5: Emails exchanged between Mr Stay and Ms Bates on 20 November 2023. The emails refer to an upcoming meeting between Mr Stay and Ms Bates to discuss the issues between Mr Stay and Mr Boardman. Mr Stay seeks confirmation regarding bullying allegations against him ahead of the meeting and Ms Bates responds by stating all the issues can be discussed at the meeting.
· Figure 6: Messages from a group chat exchanged between Mr Stay, Ms Bates and Mr Boardman on 27 November 2023. The messages refer to a customer complaining about work on a tennis court not commencing, following which Mr Stay and Mr Boardman disagree about who is responsible.
· Figure 7: An email from Ms Bates to Mr Stay dated Monday, 27 November 2023. Ms Bates refers to being concerned about Mr Stay after a brief meeting in the morning. Ms Bates tells Mr Stay to rest up for the week and indicates they will reconvene at a meeting on Friday, 1 December 2023 with Ross Jordin (Director).
· Figure 8a: Emails sent by Mr Boardman to Mr Stay on 6 December 2023 seeking an update on a job at Bray Park.
· Figure 8b: Text messages between Mr Stay and Brianna Hutchinson (Accounts Manager) on or around 8 December 2023 regarding information about the Bray Park job. Ms Hutchinson raises that Mr Stay has not responded to Mr Boardman’s emails. Mr Stay responds by attaching the text message exchange he had with Ms Bates on 3 November 2023 (figure 3 above) in which he was told not to communicate with Mr Boardman.
· Figure 9: A further email from Mr Boardman to Mr Stay dated 7 December 2023. Mr Boardman requests a progress report for the Bray Park job so an invoice can be issued.
· Figure 10: Emails between Mr Stay and Ms Bates dated 11 December 2023. Mr Stay requests that Ms Bates stops communicating with his relatives and former employers about his business affairs. Ms Bates responds that she has noted the request and seeks to clarify that any conversations have been for the purpose of trying to understand Mr Stay’s concerns.
· Figure 11: An email from Mr Stay to Ms Bates and Mr Jordin dated 21 December 2023 regarding a letter containing an invitation to attend a disciplinary meeting that was sent to Mr Stay on 19 December 2023. Mr Stay’s email also refers to a short meeting held on 21 December in relation to allegations raised against Mr Stay. Mr Stay explains that Ms Bates terminated the meeting after Mr Stay indicated he intended to record the conversation. Mr Stay then responds to the allegations contained in the letter dated 19 December 2023. Mr Stay denied seven of the allegations. Mr Stay admitted using inappropriate language towards Mr Boardman but states he was provoked.
· Figure 12: Text messages between Ms Bates and Mr Stay on 22 December 2023. Ms Bates refers to making sick and annual leave payments to Mr Stay.
· Figure 13: Text messages between Ms Bates and Mr Stay on 8 January 2024 regarding the scope of works for the Bray Park job.
· Figure 14: A screenshot of messages on a work group chat sent on 9 January 2024. Concerns are raised about mechanical issues with a trailer. This leads to an exchange between Mr Boardman and Mr Stay about what should have occurred with the trailer. Ms Bates intervenes and states the trailer will be fixed and it was nobody’s fault.
· Figure 15: A screenshot of text messages between Mr Stay and Ms Bates on 9 January 2024. The messages include the following exchange:
Mr Stay: “If you don’t pay my Miami wet day today as per schedule and Mark’s incompetence. I’m done… Mark refused to apologise for blaming his responsibilities on everyone else, your really should pull him in line it’s been 3 and a half months with ‘20+ years experience’ the crap he’s producing and failing to do is unprofessional and amateur. I’m one comment away from leaving.”
Ms Bates: “Miami wet day isn’t an issue… If you want to leave I’ll sadly accept your resignation if that’s what you want to do. You are also once again assuming you know everything about discussions between Mark/myself and Ross with regards to his performance…”
Mr Stay: “You also have me banned from entering the warehouse and no access to office …”
Ms Bates: “I’ll accept your resignation effectively immediately then. Sadly but if it’s what you clearly want then I cannot do anything else.”
Mr Stay: “I haven’t resigned, if I do you will receive a formal letter of resignation. I’ve clocked off for the day. Texts can be misinterpreted so I will be on stress leave till we can have a discussion to sort these issues. If you intend to fire me do it formally. Will have to organize a meeting. Continue talks about a meeting tomorrow.”
· Figure 16: A screenshot of text messages between Mr Stay and Ms Bates on 9 February 2022. Mr Stay claims he is owed money. Ms Bates responds: “Receipts will be paid. Stop being a twat. It’s not all about you…”
The following documents were also attached to Mr Stay’s declaration:
· Attachment B: A letter to Mr Stay from Ms Bates dated 19 December 2023. The letter raises the following eight allegations against Mr Stay:
i.Accessing the office inappropriately on 3 November 2023.
ii.Failing to follow reasonable management directions from Mr Boardman.
iii.Photographing confidential information in the office without approval on 23 November 2023.
iv.Swearing at Mr Boardman in front of two other staff members on 17 October 2023.
v.Failing to perform duties appropriately on a Moreton Bay College job.
vi.Directing staff to lock Mr Boardman out of a site on 17 October 2023 and to place panels in a space where Mr Boardman normally parks.
vii.Working overtime without approval on various dates.
viii.Bringing alcohol onto work sites despite being warned not to do this on 22 May 2023.
The letter invites Mr Stay to a disciplinary meeting to respond to the allegations on 21 December 2023.
· Attachment C: An email sent by Ms Bates to Mr Stowers on 18 March 2024. Ms Bates’ email indicates that WorkCover has no medical certificates regarding Mr Stay’s fitness for work from 29 January 2024. Ms Bates indicates she has heard from three separate parties that Mr Stay is working elsewhere. Ms Bates indicates she acknowledges Mr Stowers has been engaged to negotiate an exit strategy for Mr Stay but states: “We can’t in good conscience reward this substantial negative impact his unprofessional behaviour has had on the company and it’s staff.” Ms Bates ends the email by proposing that the employment relationship ends, and that Mr Stay can work as a subcontractor or an employee of his uncle if he wishes.
· Attachment D: Mr Stay’s resignation letter dated 22 March 2024. The resignation letter relevantly states:
“I am writing to you to resign from my role with R and KM Jordin Pty Ltd trading as Jordin Sports Constructions (Company).
My resignation is not voluntary but is due to the ongoing conduct of the Company. This conduct includes:
·Requiring me to provide supervision to labour without training or payment of entitlements.
·Failure to pay the correct amounts I was entitled to under my employment contract and the relevant award.
·Sustained harassment from my direct manager including unreasonable reporting requirements.
·Lack of management support to resolve reported issues with my direct manager.
·Unsubstantiated allegations of misconduct followed by an unfair and unreasonable disciplinary process.
The conduct of the Company was so detrimental to my mental health that I took stress leave from 15 January 2024 to 19 February 2024. I also appointed a legal representative to discuss my position with the Company and attempt to resolve the issues described above, as I knew that dealing with them myself would cause me further distress. From 19 February 2024 until the date of this letter, I have taken leave without pay as agreed with the Company.
Following an email from Jayne to my legal representative on 18 March 2024, I understand now that a resolution is not possible. Subsequently, I feel that my position is untenable, and I am forced to resign effective from that date.
All further correspondence on this matter is to be directed to my legal representative, Brent Stowers at Workhorse Advisory.
I reserve all my rights under the Employment Agreement and at law.”
· Attachment E: A letter sent from Workhorse Advisory to Mr Jordin on 28 March 2024 which alleges Mr Stay is owed a total of $54,794.99 in unpaid wages and entitlements and $5,901.23 in superannuation.
· Attachment F: A response letter from Employsure Law to Workhorse Advisory dated 25 June 2024. The letter denies Mr Stay is owed any wages, entitlements, or superannuation.
I marked Mr Stay’s declaration and the attached documents Exhibit A1.
A further duplicate copy of Mr Stay’s email to Ms Bates and Mr Jordin dated 21 December 2023 was unnecessarily marked Exhibit A2. This is the same document as Attachment A, Figure 11 of Mr Stay’s declaration.
Mr Stay was cross-examined on his evidence during the hearing on 8 October 2024.
Mr Stay also relied on an outline of submissions filed 26 August 2024 and reply submissions filed 27 September 2024. Mr Stowers made oral submissions at the end of the hearing. I have considered all the submissions.
Jordin
Jordin relied on a witness statement from Ms Bates dated 20 September 2024. The statement had the following documents attached:
· Annexure A: An email from Ms Bates to Mr Stay dated 22 May 2023. Ms Bates’ email warns Mr Stay about drinking alcohol on worksites and states he must take a 30-minute break during the day.
· Annexure B: An email from Ms Bates to Mr Stay dated 24 July 2023. The email is a follow-up to a discussion earlier that day. The email refers to Mr Stay needing to understand he is an employee not a sole trader and that he needs to comply with reasonable directions, including in relation to his working hours.
· Annexure C: Text messages between Mr Stay and Ms Bates on 25 August 2023. Ms Bates requests photos from a site. Mr Stay’s response includes: “Sure, but you need to get serious about resourcing me with the right gear ASAP… Need to stop fucking around and get things done.”
· Annexure D: Text messages between Mr Stay and Ms Bates on 19 September 2023. Ms Bates requests that Mr Stay provides a logbook in Excel. Mr Stay’s response includes: “Sounds like you don’t trust my hours and I’m not gonna do the hard yards and be treated like this.”
· Annexure E: An email from Ms Bates to Mr Stay and Mr Jordin dated 6 November 2023. Ms Bates requests that Mr Stay puts his concerns about Mr Boardman in writing. Ms Bates indicates she wants to try and resolve the issues between Mr Stay and Mr Boardman. Ms Bates states: “Please note I have put on hold the issues we discussed last Thursday to firstly resolve this concern. We will need to address these issues at a later date…”
· Annexure F: A text message from Ms Bates to Mr Stay on 23 November 2023. Ms Bates provides a copy of Mr Stay’s signed confidentiality agreement and states: “A gentle reminder mate.” This correspondence was sent after Mr Stay was allegedly seen taking photos of confidential information.
· Annexure G: An email from Mr Boardman to Mr Jordin and Ms Bates dated 30 November 2023. Mr Boardman raises various concerns with Mr Stay’s behaviour towards him and its impact on his health.
· Annexure H: An email from Ms Bates to Mr Stay dated 6 December 2023. Ms Bates’ email raises concerns about Mr Stay behaving in an unsafe manner at the warehouse earlier in the day.
· Annexure I: An email from Ms Hutchinson to Ms Bates and Mr Jordin dated 8 December 2023. Ms Hutchinson’s email raises various concerns with Mr Stay’s behaviour.
· Annexure J: A statement signed by Ms Hutchinson dated 12 December 2023. The statement raises concerns about Mr Stay accessing the office on 3 November 2023.
· Annexure K: A statement signed by Ms Hutchinson dated 12 December 2023. The statement states Ms Hutchinson saw various beer bottles and beer caps at a Moreton Bay College site on 23 October 2023.
· Annexure L: A statement signed by Chaz Green (Jordin Employee) on 20 December 2023. Mr Green refers to Mr Stay’s involvement in locking Mr Boardman out of a site, requesting him to buy end of job beers, and other allegedly inappropriate conduct by Mr Stay.
I marked Ms Bates’ statement and the attached documents Exhibit R1. Ms Bates was cross-examined during the hearing on 8 October 2023.
Jordin relied on an outline of submissions filed 20 September 2024. Ms Mak made oral submissions at the end of the hearing. I have considered all the submissions.
STATUTORY PROVISIONS
A person can only be found to have been “unfairly dismissed” within the meaning of s.385 of the FW Act if the Commission is first satisfied the person has been “dismissed”.
The definition of “dismissed” is in s.386 of the FW Act and reads:
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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
Mr Stay accepts that he resigned from his employment but argues he was forced to resign and hence “dismissed” within the meaning of s.386(1)(b) of the FW Act.
AUTHORITIES
In Kylie Bruce v Fingal Glen Pty Ltd (in liq)[2013] FWCFB 5279, the Full Bench endorsed, with one point of clarification, an earlier summary of the principles applicable to assessing whether an employee was forced to resign from a Full Bench of the Australian Industrial Relations Commission (AIRC). The Full Bench stated:
“The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:
‘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... 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.’
Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act…
First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.”[2]
The onus on proving that a resignation was not voluntary lies with the employee alleging constructive dismissal occurred.[3] 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]
CONSIDERATION
Mr Stay’s resignation letter states he was forced to resign because of the following conduct by Jordin:
-“Requiring me to provide supervision to labour without training or payment of entitlements.
-Failure to pay the correct amounts I was entitled to under my employment contract and the relevant award.
-Sustained harassment from my direct manager including unreasonable reporting requirements.
-Lack of management support to resolve reported issues with my direct manager.
-Unsubstantiated allegations of misconduct followed by an unfair and unreasonable disciplinary process.”
I do not consider there is sufficient evidence to find that Mr Stay was required to supervise employees without receiving appropriate training or payment. I also do not consider there is sufficient evidence to determine whether Mr Stay was underpaid during his employment. Jordin contests these issues with reference to the loaded rate paid to Mr Stay. In any event, I do not consider these issues demonstrate Jordin intended to force Mr Stay to resign, or that resignation was a probable result of Jordin’s conduct. These are issues that could have been addressed while Mr Stay remained employed by Jordin.
The remaining conduct identified by Mr Stay is primarily connected to the breakdown of his working relationship with Mr Boardman. I consider there is ample evidence that demonstrates Mr Stay did not respect Mr Boardman’s position as Construction Manager. For example:
i.On 1 November 2023, Mr Stay questions Mr Boardman’s decision about having Mr Green work with Mr Stay the next day. Mr Stay states in messages: “I’ve already planned my day working solo” and “Is labour being utilised efficiently.”[5]
ii.On 9 November 2023, Mr Stay sent an email to Ms Bates and Mr Jordin which states: “Mark has not shown to me that he wants to learn nor is he listening to the 10+ years experienced staff” and “I am getting criticised for disputing a demand not only that may not be in the interest of the company but a lack of judgement due to his inexperience in the sports construction industry.” Mr Stay also states that Mr Boardman “shows immaturity and instead of learning or even listening to the team disregarding that he may be the least experienced to dealing with the issue at hand.”[6]
iii.In messages sent on 27 November 2023, Mr Stay states “sounds like a Mark problem”, “where is your accountability”, and “I expect an apology, or I’m done.”[7]
iv.I accept Ms Bates’ evidence that Mr Stay yelled aggressively at her on 27 November 2023 regarding why she was favouring Mr Boardman.[8]
v.On 9 January 2024, Mr Stay sent a message to Ms Bates stating: “Mark refused to apologise for blaming his responsibility on everyone else, your really should pull him in line it’s been 3 and a half months with ‘20+ years experience’ and the crap he’s producing and failing to do is unprofessional and amateur” and “I am one comment away from leaving.”[9]
It is evident from the conduct identified above that Mr Stay resented an outsider in Mr Boardman being brought into the position of Construction Manager as a superior to him. Mr Stay clearly thought he had greater experience and knowledge in the sports construction industry than Mr Boardman and resented taking directions from Mr Boardman. While I can understand those emotions and it is conceivable there was some substance to Mr Stay’s complaints, the reality is that Jordin had the right to decide to hire Mr Boardman as the Construction Manager and Mr Stay was obligated to follow lawful and reasonable directions from Mr Boardman. Mr Stay’s refusal to accept Mr Boardman’s authority triggered the breakdown in his employment relationship with Jordin.
I do not consider Ms Bates can be reasonably criticised for providing a “lack of management support”, given how she handled Mr Stay’s behaviour. I consider Ms Bates was generous and understanding towards Mr Stay and that she genuinely wanted Mr Stay to remain employed by Jordin. This is demonstrated by the following behaviour:
i.Ms Bates sent a text to Mr Stay on 3 November 2023 stating: “No more texting with Mark until we 3 sit down and resolve these issues once and for all. I’ll be back Monday and sort out a time.”[10] Ms Bates is clearly trying to de-escalate the issues between Mr Stay and Mr Boardman.
ii.Following Mr Stay’s outburst in front of various people on 27 November 2023, Ms Bates expressed concern at his state of mind and allowed him to take the rest of the week off.[11] Many employers would have not been this understanding and may well have summarily dismissed Mr Stay for this behaviour.
iii.Ms Bates’ response to Mr Stay taking a photograph of Jordin’s confidential information was only to send a message with his signed confidentiality agreement and stating “A gentle reminder mate.” Many employers would have not been this understanding and may well have summarily dismissed Mr Stay for this behaviour.
iv.Ms Bates did not take any action against Mr Stay in relation to him attempting to record a meeting on 21 December 2023 after she had directed him not to. [12]
v.Despite all of Mr Stay’s behaviour, Ms Bates sends a message to Mr Stay on 9 January 2024 stating: “If you want to leave I’ll sadly accept your resignation if that’s what you want to do.”[13]
I also do not accept Jordin engaged in conduct described by Mr Stay as “unsubstantiated allegations of misconduct followed by an unfair and unreasonable disciplinary process.” I consider there were ample reasons for Jordin to commence a disciplinary process given Mr Stay’s behaviour. It is correct that the allegations were “unsubstantiated” because the disciplinary process was never completed. Mr Stay resigned before Jordin had an opportunity to hear Mr Stay’s response and make findings in relation to the alleged conduct. Ms Bates was seeking legal advice about how to conduct a proper process and there is no evidence before me that establishes she had a fixed view about the outcome. In any event, 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.[14]
While Ms Bates did refer to accepting Mr Stay’s resignation during text messages on 9 January 2024, those messages must be viewed in context. Mr Stay was referring to being “done” if a payment was not made to him and being “one comment away from leaving.” In that context, I consider Ms Bates was reasonably exploring whether Mr Stay was communicating that he wanted to resign. Similarly, although Ms Bates proposed that Jordin and Mr Stay “sever ties immediately” in an email to Mr Stowers on 18 March 2024, that proposal was in the context of back-and-forth negotiations about exit arrangements for Mr Stay. I also note that Mr Stowers referred to earlier “without prejudice” negotiations. If that is the correct characterisation of the negotiations, it is highly likely Ms Bates’ email was sent on the same basis. I do not consider the communications from Ms Bates on 9 January 2024 or 18 March 2024 demonstrate that Jordin intended to force Mr Stay to resign.
Given Ms Bates is the General Manager of Jordin, Ms Bates’ conduct in repeatedly trying to resolve the issues between Mr Stay and Mr Boardman above clearly demonstrates Jordin did not intend to force Mr Stay to resign. Jordin wanted to resolve the issues between Mr Stay and Mr Boardman so they could both continue working for the business. Mr Stay was clearly very well regarded and valued as an employee prior to the issues emerging with Mr Boardman and Jordin wanted to continue utilising his skills and experience.
I am not satisfied that Jordin intended to force Mr Stay to resign.
I also do not accept that resignation was the probable result of Jordin’s conduct, or course of conduct. Mr Stay’s refusal to accept Mr Boardman’s authority as Construction Manager triggered the gradual end of the employment relationship. Ms Bates made repeated, albeit unsuccessful, attempts to resolve the issues between Mr Stay and Mr Boardman so they could both remain employed. Mr Stay’s ongoing behaviour unsurprisingly prompted Ms Bates to commence a disciplinary process on 19 December 2023. Mr Stay briefly returned to work in 2024 but further issues with Mr Boardman arose. Mr Stay commenced a period of leave on 15 January 2024 and eventually started performing casual work elsewhere. Mr Stay engaged Mr Stowers to try and negotiate a resolution, of which one option was an exit arrangement. When Ms Bates refused to agree to an additional payment as part of the exit arrangements, Mr Stay pivoted to arguing he was forced to resign so he could commence this legal proceeding. Mr Stay was not forced to take any of these steps due to the conduct of Jordin. Mr Stay ultimately took these various steps because he did not want to work under the direction of Mr Boardman.
I am not satisfied resignation was the probable result of the conduct, or course of conduct, engaged in by Jordin.
I find that Mr Stay was not forced to resign within the meaning of s.386(1)(b) of the FW Act.
CONCLUSION
I find that Mr Stay was not “dismissed” by Jordin within the meaning of s.386(1) of the FW Act. This finding means Mr Stay cannot establish he was unfairly dismissed, and a remedy cannot be awarded to him.
Mr Stay’s application is dismissed.
COMMISSIONER
Appearances:
Mr Stowers from Workhorse Advisory representing Mr Stay.
Ms Mak from Irwell Law Pty Ltd representing R. & K.M. Jordin Pty. Ltd.
Hearing details:
2024.
Sydney (by video via Microsoft Teams).
8 October.
[1] Jonathan Stay v R. & K.M. Jordin Pty. Ltd. [2024] FWC 1799.
[2] [2013] FWCFB 5279 at [18], [19] and [23].
[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] Exhibit A1, Attachment A, Figure 1.
[6] Exhibit A1, Attachment A, Figure 4.
[7] Exhibit A1, Attachment A, Figure 6.
[8] Exhibit R1 at [20].
[9] Exhibit A1, Attachment A, Figure 15.
[10] Exhibit A1, Attachment A, Figure 3.
[11] Exhibit R1 at [20].
[12] Exhibit R1 at [30].
[13] Exhibit A1, Attachment A, Figure 15.
[14] See for example Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.
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