Joshua Kettle v VIP Petfoods Employment Pty Ltd

[2015] FWC 201

[2015] FWC 201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Kettle
v
VIP Petfoods Employment Pty Ltd
(U2014/189)

COMMISSIONER WILLIAMS PERTH, 14 JANUARY 2015

Termination of employment.

[1] This matter concerns an application made by Mr Joshua Kettle (Mr Kettle or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent identified on the application is VIP Petfoods Pty Ltd (the named respondent).

[2] The employer objects to the application on two grounds, firstly that the named respondent was not the employer of the applicant because the true employer of the applicant was VIP Petfoods Employment Pty Ltd and secondly on the grounds that whomever was the employer the applicant was not dismissed but rather resigned providing his employer with a letter of resignation.

Named respondent not the employer

[3] In response to the employer’s first objection the applicant concedes that what the employer has submitted is correct and at the hearing of this application applied to amend the name of the respondent on the application to be that of Mr Kettle’s employer VIP Petfoods Employment Pty Ltd.

[4] The situation here is one where the applicant had made a mistake in the name of the party 1.

[5] The circumstances here are that the employer of the applicant has always been aware of the existence of this application from the outset. The parties are not in dispute as to the true legal identity of the employer. Both the named respondent and the employer are represented by the same individual. Granting the amendment sought by the applicant to alter the name of the respondent to correctly reflect the true legal identity of the applicant’s employer will cause no disadvantage to Mr Kettle’s employer in defending this application 2.

[6] In the circumstances I am satisfied it is an appropriate exercise of the Commission’s power and discretion to amend the named respondent to reflect the true legal identity of the employer which is VIP Petfoods Employment Pty Ltd (the respondent).

Was the applicant dismissed?

[7] With respect to the second objection the Act defines “dismissed” in section 386 as follows:

“386  Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(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.”

[8] In this case there is no dispute that Mr Kettle resigned. He did so by tendering a letter dated 10 January 2014 advising that he was tendering his resignation effective immediately.

[9] The letter said that the resignation was not voluntary but had been forced upon him by the company’s conduct over the last 12 months.

[10] The letter referred to a formal complaint he made in May 2013 and complains that nothing was done to stop the constant bullying and harassment visited upon him by his Manager, Mr Chris Browner (Mr Browner). The letter says that in addition to the incident the subject of his complaint in May 2013 other disturbing behaviours from his perspective included:

• The deliberate failure to invite him to the 2012 company Christmas party.



• The deliberate failure to invite him to company barbecues.



• The removal of staff from his section causing increased work for him.



• Non-provision of a uniform so that he looked different from everybody else.



• Taking three months to provide him with protective personal equipment.



• A Production Manager directing nightshift staff not to do tasks he had set for them.



• Mr Browner taking photos of damaged pallets and showing them to other staff to humiliate him.



• Mr Browner refusing to listen to his side of anything and speaking to him like a child and walking away in the middle of a conversation.



• Mr Browner making adverse comments when Mr Kettle was seen taking a break.



• The installation of an excessively loud siren at the door to his office which was triggered when the freezer door was left open which he had been told was initially selected by Mr Browner.

[11] The letter stated that this behaviour and conduct by the company was intolerable and had impacted upon his health and obviously will not change despite his requests and therefore Mr Kettle said he had no option but to resign.

[12] The respondent’s second objection then will be determined by the Commission deciding whether or not Mr Kettle was forced to resign in circumstances that would fall within section 386(1)(b) of the Act. If Mr Kettle resigned because of conduct or a course of conduct engaged in by his employer then his resignation is deemed to be a dismissal for the purposes of the Act.

The evidence and factual findings

[13] At the hearing of this matter Mr Kettle gave evidence as did Ms Kimberly Bates (Ms Bates), the respondent’s Human Resource Manager, along with Mr Browner, the respondent’s Factory Manager.

[14] Mr Kettle gave his evidence in an open manner and he did not try to embellish upon events to his favour and was a highly credible witness. Mr Browner gave evidence in a manner which at times was defensive, perhaps understandably given he was responding to criticisms of him by Mr Kettle, and his memory of some events was more limited than the memory of Mr Kettle.

[15] Generally Mr Browner did not accept that he had done anything wrong in his overall treatment of Mr Kettle. Ms Bates gave her evidence in an open manner however her knowledge of many relevant events was limited because she is remote from the workplace being based in New South Wales.

[16] Mr Kettle commenced with the respondent on 26 March 2012 and was employed as a Dispatch Supervisor.

[17] He resigned on 10 January 2014 and provided reasons for doing so in a letter that day 3.

[18] Mr Kettle made a written complaint to the respondent’s management in May 2013.

[19] Considering the evidence of Mr Kettle and Mr Browner I find that this complaint concerned an incident on 2 May 2013 when the Manager, Mr Browner, during a discussion with Mr Kettle became angry and raised his voice aggressively towards Mr Kettle. Mr Kettle had also become angry and he had raised his voice to Mr Browner. Mr Browner moved forward into Mr Kettle’s personal space. Mr Browner said words to the effect of, “So what now? Are you going to punch me?”

[20] Mr Kettle’s evidence was that he felt intimidated.

[21] As a consequence of the respondent’s management receiving the complaint Ms Bates contacted Mr Kettle by email explaining to him the process of handling his complaint. On 20 May 2013 Mr Kettle rang Ms Bates and during that conversation Ms Bates explained that she would need to speak with Mr Browner and get his response to Mr Kettle’s complaint.

[22] Some days later Ms Bates spoke with Mr Browner about the incident.

[23] On 17 June 2013 Ms Bates attended the workplace in Perth and conducted staff training which was attended by all staff including Mr Kettle together with Mr Browner. The training dealt with the respondent’s policies on anti-discrimination, bullying, their code of conduct, harassment and victimisation and the respondent’s grievance procedure.

[24] The following day Mr Kettle contacted Ms Bates to discuss his previous complaint and they met that day away from the workplace. They discussed what occurred on 2 May 2013 between Mr Kettle and Mr Browner and Ms Bates expressed the view that both men had behaved inappropriately. Mr Kettle conceded that his behaviour at the time was also not appropriate. Mr Kettle told Ms Bates he just wanted to do his job without feeling he was being picked on.

[25] Mr Kettle raised separate concerns that he had not been invited to the 2012 company Christmas party and was not being invited to barbecues and did not have a uniform. Ms Bates said she would look into those things and get back to him. Ms Bates made it clear to Mr Kettle that if he had further incidents or concerns that he should contact her.

[26] Around 24 June 2013 Ms Bates spoke to Mr Browner and counselled him about the standards of behaviour that were expected of him and discussed with him the concerns Mr Kettle had raised regarding the Christmas party in 2012, not being invited to barbecues and not having a uniform.

[27] On around 31 July 2013 Mr Kettle had a phone conversation with Ms Bates after Mr Kettle prompted her by text message. Contrary to the evidence of Ms Bates I accept the evidence of Mr Kettle that neither during this phone conversation nor at any other time did Ms Bates pass on to him the responses from Mr Browner regarding the concerns he had raised about the Christmas party, barbecues or his uniform. I do accept however that Ms Bates reminded Mr Kettle that because she was not in Perth and was unable to monitor things closely he would need to update her on matters whenever he felt the need to do so.

[28] After May 2013 Mr Browner would at times say to Mr Kettle that he needed to have a witness with him every time he spoke to Mr Kettle in case he reported him.

[29] Prior to May 2013 Mr Browner had not issued Mr Kettle with protective clothing for about three months.

[30] Mr Browner did not speak to Mr Kettle about the concerns he had expressed to Ms Bates about the lack of invitations to the company barbecues and Christmas party. I accept the evidence of Mr Browner that the Christmas party in 2012 was limited to those with formal invitations which was generally long serving staff due to a lack of funds. I find that there was no deliberate action by Mr Browner or others to prevent Mr Kettle attending the regular Friday morning barbecue breakfasts which were open to all staff members and were not the subject of formal invitations.

[31] Mr Kettle had a further concern that he had not been provided with a company polo shirt to wear. I accept the evidence of Mr Browner on this issue that other staff, in different customer facing roles, were provided with company polo shirts but this did not include Mr Kettle’s role. However it seems that there were another form of an older style of polo shirt that were available free to all staff if they wished to wear them in the factory but that Mr Browner never explained this fact to Mr Kettle.

[32] I accept that the siren installed near Mr Kettle’s office was not chosen deliberately by Mr Browner to be an annoyance to Mr Kettle.

[33] Whilst I accept that Mr Kettle was very busy towards the end of 2013 I do not accept that Mr Kettle was deliberately placed under pressure during the lead up to Christmas by Mr Browner unnecessarily directing him to ensure his staff were on leave. The leave policy was well understood and published in advance and applied generally across the factory.

[34] Around 18 December 2013 Mr Browner had an argument with Mr Kettle about Chep dockets for pallets which Mr Browner told Mr Kettle he was doing the wrong thing. They also argued about the production dates on fresh mince.

[35] On 19 December 2013 there was a small informal gathering of some staff members where presents were swapped. This was not organised by Mr Browner and Mr Kettle whilst not invited to participate was not deliberately excluded by Mr Browner.

[36] Mr Kettle chose voluntarily to work through the Christmas period and was not required to or directed to by Mr Browner.

[37] On 8 January 2014 Mr Browner saw Mr Kettle in his office. Mr Kettle told Mr Browner that he had incurred an injury to his finger. Mr Browner did say words to the effect that it could be worse but I find that this was nothing more than a neutral observation by Mr Browner.

[38] Contrary to the denials of Mr Browner I accept that Mr Browner also said to Mr Kettle that he appeared happy since another particular employee had been terminated prior to Christmas. I also accept that Mr Browner was aware that to the contrary Mr Kettle got on well with this employee and so would not have been pleased to see him leave.

[39] I accept that Mr Kettle felt intimidated by this discussion and that there was some implication from Mr Browner that he would also want Mr Kettle to leave.

[40] In terms of how Mr Kettle could deal with what he saw as the ongoing unacceptable conduct of Mr Browner I find that Mr Kettle towards the end of 2013 had formed the view that everything he had raised with Ms Bates had fallen on deaf ears and so he had given up turning to her for assistance.

[41] After his discussion with Ms Bates in August 2013 Mr Kettle did not raise any further concerns with her about what he believed was the inappropriate conduct and treatment of him by Mr Browner nor did he raise these concerns with any other member of the respondent’s staff.

Consideration

[42] In the case of Victorian Association for the Teaching of English Inc v Debra de Laps 4 the Full Bench of the Commission reviewed the question of when an employee’s resignation will be accepted to be a dismissal under the Act.

[43] At paragraph [32] the Full Bench said:

“[32] Section 386(1)(b) of the FW Act was considered by a Full Bench of the FWC in Kylie Bruce v Fingal Glen Pty Ltd (in liq) (Fingal Glen).

[33] In Fingal Glen, the Full Bench said:

“[13] The test of constructive dismissal in the context of the unlawful termination provisions of the Industrial Relations Act 1998 was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v Huxley Marketing Pty Ltd (Rheinberger). The commonly quoted statement of principle in Mohazab is that:

‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is 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. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship’.

[14] It is important that this passage be read in the context of the judgment as a whole. It is clear that the requirements set out by the Full Court in the passage quoted are necessary, but not sufficient, to establish that employer action constitutes constructive dismissal.

[15] These principles of constructive dismissal have been applied to the unfair dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the Australian Industrial Relations Commission in Pawel v Advanced Precast Pty Ltd (Pawel) and ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering), and we accept the Applicant’s submission that those decisions are relevant to any consideration of s.386(1)(b) of the Act...

[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara)...

[19] 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.” [Footnotes omitted]

[34] In their comments below this extract, the Full Bench in Fingal Glen said:

“[21] Assuming for present purposes that the test applied by the Senior Deputy President is materially different to that set out in O’Meara, we are not satisfied that in the circumstances of the present case the Applicant was dismissed. In relation to whether the Applicant had ‘any effective or real choice but to resign’, two points should be noted. First, as referred to by the Senior Deputy President, there were options other than resignation by which the Applicant could have addressed the persistent late payment of her wages. Secondly, we accept that in some circumstances the late payment of wages and/or a failure to pay superannuation may be such as to amount to conduct which has forced an employee to resign. However in the circumstances of the present case we are not persuaded that persistent delays of 1-2 days in payment, with some longer delays, and a failure to pay superannuation, left the Applicant with no effective or real choice other than to resign.

[22] In relation to whether on ‘an objective analysis of the employer’s conduct’ the late payment of wages and failure to pay superannuation ‘was of such a nature that resignation was the probable result’, we note that the Full Bench in O’Meara was drawing from Rheinberger...

[23] The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but ‘would, on any reasonable view, probably have that effect.’ Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. 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.

[24] In the circumstances of the present case, resignation was a possible and foreseeable result of the Respondent’s conduct, and in many respects a reasonable response in the circumstances. However this is not itself sufficient to demonstrate that the Applicant’s resignation was in effect a dismissal. Given the other avenues available to the Applicant to pursue her complaints, and taking into account the nature of the Respondent’s conduct, we do not consider that the Applicant’s resignation was objectively the probable result of the Respondent’s conduct, and therefore that the Applicant was forced to resign because of that conduct. In this regard, we note that although there were delays in the payment of wages, the delays were short and the Applicant was paid her wages in full, and that the Applicant did not take any further steps to pursue her complaints other than raising them with the Respondent.

[25] For all the above reasons, we conclude that even if there is a material difference between the test applied by the Senior Deputy President and that set out in the relevant authorities, the Senior Deputy President’s conclusion in relation to s.386(1)(b) was correct...

[25] It does not appear to us that there is any real question as to the correct principles to be considered in applying s.386(1)(b) of the Act. Section 386(1)(b)reflects the common law principles of constructive dismissal set out in Mohazab, Rheinberger, Pawel and ABB Engineering, and summarised in O’Meara...

[29] Plainly the existence of alternative means to address an employer’s conduct may be relevant to the consideration of whether an employee had ‘no effective or real choice but to resign’ and/or the probability that they would resign as a response to that conduct, but the weight to be given to the availability of such remedies will depend upon the nature of both the employer’s action and the available remedy in a given case. The question of the nature of the employer conduct required to constitute dismissal will likewise vary greatly from case to case and according to all of the facts and circumstances of a particular matter. It follows that any decision on appeal will be of only limited relevance beyond the circumstances of the particular case.” [Footnotes omitted]

[35] Having regard to the terms of s.386(1)(b) of the FW Act, the Explanatory Memorandum in respect of s.386(1)(b), its predecessor in the amended WR Act and the decisions in respect of the common law doctrine of “constructive dismissal”, there may be some question as to whether all of the dicta in the case law to which the Full Bench in Fingal Glen refers are applicable to s.386(1)(b) or whether s.386(1)(b) is narrower than some of that dicta. However, for reasons which will become apparent, we do not need to determine that issue in this matter.” (References omitted)

[44] It is clear that for an extended period of time Mr Kettle believed that the conduct of Mr Browner, his Manager, was such that he was unreasonably targeting Mr Kettle and picking on him.

[45] Mr Kettle believed that some of the actions of Mr Browner very early in his employment where examples of him treating Mr Kettle differently from other employees in a negative way. Viewed objectively however the evidence does not generally support Mr Kettle’s perception of these matters.

[46] Considered objectively there is however evidence that demonstrates Mr Browner had at times acted inappropriately and unreasonably towards Mr Kettle. By his own admission Mr Browner had acted inappropriately during the altercation with Mr Kettle of which Mr Kettle formally complained in May 2013. Mr Browner thereafter appeared to harbour some resentment towards Mr Kettle as evidenced by the fact that on occasions when he spoke to Mr Kettle he would say words to the effect that he needed to have a witness present in case Mr Kettle again complained about him. Certainly this conduct of Mr Browner was, for a Manager, both unprofessional and inappropriate.

[47] Mr Kettle also believed that a number of events that occurred in the last few months of 2013 were examples of Mr Browner deliberately making things difficult for Mr Kettle and/or unnecessarily and unreasonably taking him to task about issues in a confrontational manner.

[48] Viewed objectively however the evidence does not support Mr Kettle’s perception of these events.

[49] Separately Mr Kettle believed that the assistance and support provided to him by his employer, specifically that provided by Ms Bates, was limited and ineffective.

[50] Considered objectively what is clear is that in response to the complaint Mr Kettle made about Mr Browner in May 2013 there was an investigation, after this Mr Browner was counselled about his inappropriate behaviour and then Ms Bates came to Perth specifically to conduct training for all staff that amongst other things dealt with bullying and intimidation in the workplace. These were reasonable responses by Mr Kettle’s employer in the circumstances.

[51] There were some practical constraints on the day-to-day support provided to Mr Kettle because Ms Bates was remote from the workplace being based in New South Wales. This lack of day-to-day support for Mr Kettle was further exacerbated by the fact that the person about whom he was complaining was his Manager, Mr Browner, and he was the most senior Manager in Western Australia. There simply was nobody in Western Australia to oversee Mr Browner’s conduct on a day-to-day basis in the workplace.

[52] Mr Kettle towards the end of his employment apparently formed the view that raising any of the ongoing concerns he had about Mr Browner’s conduct would not be useful because his complaints would fall on “deaf ears” presumably meaning no useful action would be taken to assist him.

[53] Objectively though the situation was that on the one occasion Mr Kettle had actually complained to his employer about the conduct of Mr Browner his employer had taken significant steps to deal with the issue. From Mr Kettle's perspective I accept that everything had not been resolved the way he wanted it to be but objectively it was not correct to say that his employer had ignored his complaints and done nothing about it. This was not a situation where an employee had repeatedly complained to his employer and little or nothing had been done in response, to the point where the employee could reasonably conclude that any future complaints would be similarly futile.

[54] In Mr Kettle’s case there were options other than resigning that could potentially have addressed the concerns he had about the conduct of Mr Browner. Mr Kettle could have again complained to Ms Bates and sought assistance but chose not to. This is not to suggest that this would have been an easy course of action from Mr Kettle to follow or to assume that all his problems he perceived he had with Mr Browner would have been resolved by raising them with Ms Bates but obviously his employer can do nothing to resolve problems they are not told about it. I am not persuaded that in the circumstances that Mr Kettle had no effective or real choice other than to resign.

[55] There is no evidence to support the conclusion that the conduct of Mr Browner or Ms Bates was intended to cause the resignation of Mr Kettle. Further on an objective analysis of the conduct that was occurring, being both the actions of Mr Browner and from Mr Kettle’s perspective the inaction of Ms Bates to assist him, it cannot be said that this conduct was of a kind where the resignation of Mr Kettle was the probable result.

[56] Whilst it is accepted that Mr Kettle had at times been treated poorly in this workplace by his Manager and the support he received was less than he had hoped for this was not a circumstance where Mr Kettle was forced to resign from his employment because of the conduct or a course of conduct engaged in by his employer.

[57] Mr Kettle was not dismissed within the meaning of section 386 of the Act and consequently is not able to make this application. This application for an unfair dismissal remedy will be dismissed and an order to that effect will be issued.

COMMISSIONER

Appearances:

P Mullally of Workclaims Australia for the applicant.

F Reid on behalf of the respondent.

Hearing details:

2014.

Perth, Brisbane and Sydney (video hearing):

August 28.

2014.

Perth and Brisbane (video hearing):

September 2.

 1 [2011] FMCA 28 at paragraphs 97 to 99.

 2 [2011] FMCA 1033 at paragraphs 24 to 35.

 3   Exhibit A3.

 4   [2014] FWCFB 613.

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