Justin Kritzinger v WEG Australia Pty Ltd
[2023] FWC 3396
•19 DECEMBER 2023
| [2023] FWC 3396 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Justin Kritzinger
v
WEG Australia Pty Ltd
(C2023/6898)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 19 DECEMBER 2023 |
Application to deal with contraventions involving dismissal
Dispute and outcome
Mr Justin Kritzinger (the Applicant) applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal. The Applicant submitted that WEG Australia Pty Ltd (the Respondent) contravened one or more of the general protections provisions under the Act.
Whilst the Applicant concedes he resigned on 27 October 2023, his argument is that the actions of the Respondent during his employment, particularly the exploitation of his visa status, persistent bullying, discrimination, and victimisation, left him with no alternative but to resign. It is on that basis that the Applicant contends he was dismissed.
The Respondent objected to the application submitting the Applicant voluntarily resigned and was therefore not dismissed within the meaning of s 386 of the Act. That objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act to, for example, conduct a conference.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from his employment within the meaning of s 386(1)(b) of the Act. That is, did the Applicant resign from his employment because he was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Shortly stated, the Applicant resigned of his own accord. He was not forced to resign because of the conduct of the Respondent, nor, as far as it is relevant, was he dismissed on the initiative of the Respondent. The Respondent’s jurisdictional objection is upheld, and the Applicant’s application under s 365 of the Act is therefore dismissed.
For the sake of fulsomeness, it is noted that the Applicant did not contend that his employment had been terminated at the initiative of the Respondent (s 386(1)(a) of the Act).
Background
The background to this matter was provided in the form of the Applicant’s written statement in which he had conflated submissions with evidence, in addition to him having provided supporting documents. The Respondent relied upon the written statements of Ms Demi Capaul, HR Advisor, and Mr Kirk Moss, WA State Manager, in addition to supplementary documents. Both parties were self-represented, therefore necessitating the provision of guidance at hearing in respect of cross examination.
The Applicant commenced employment with the Respondent on 17 October 2022 in Melbourne,[3] in the role of Electrical Engineering Technical Officer reporting to Mr Renato Gaulda, Western Australian State Manager of the Respondent.[4]
Prior to obtaining the role, the Applicant interviewed with Mr Gaulda and Sales Director, Mr Rodrigo Centareski.[5] The Applicant said that he was advised:
a) by Mr Gaulda that finding the correct person to fit the team dynamic had more weight than actual experience with the Respondent’s products;[6] and
b) one of the Respondent’s Applications Engineers would help him with learning the product and assist where possible.[7]
The Applicant said he explained to the Respondent that he was on a ‘482 Work Visa’ and required sponsorship, and that he sought to fill a position in Queensland as that was where he was based.[8] However, the Applicant was offered employment in Western Australia and was asked to relocate to Western Australia from Queensland to fill the role.
The Applicant stated that on the first day of his employment he was informed that the Automation Business Unit Manager, Mr Spiro Fkiaras, was the final ‘yes’ in him securing employment.[9]
In the first week of his employment, the Applicant said he was instructed to do research on three of the Respondent’s customers with whom the business had lost traction and was also encouraged to deal with Mr Darwin Tamio, an Applications Engineer – albeit he was advised that Mr Tamio may be unwilling to assist the Applicant as he had applied for the job that the Applicant had now filled.[10]
In his second week of employment, the Applicant commenced research on the three of the Respondent’s customers in accordance with the request of Mr Fkiaras.[11] However, on having approached Mr Fkiaras about technical information about the review process for products (presumedly related to the three customers), the Applicant said Mr Fkiaras reprimanded him for asking questions about the clients and trying to identify new strategies to approach the three clients.[12]
The Applicant said that he received a subsequent call from Mr Fkiaras advising him that the WA Business Development Manager, Ms Katarina Creasey, was now upset that he was poking his nose into her customers.[13] According to the Applicant, he approached Ms Creasey at a later point, who clarified that Mr Fkiaras’ representation was a lie.[14]
The Applicant noted that the abovementioned events unfolded within his first fortnight of being employed, which made him doubt his decision regarding his new employer. However, due to his visa conditions and needing to be employed by his sponsor to legally stay in Australia, he said that he had no choice but to proceed with employment and relocate from Queensland to Western Australia.[15]
The Applicant moved to Western Australia on 16 December 2022 and noted that on his arrival, Mr Tamio was upset with him and ignored him. The Applicant stated that eventually Mr Tamio resigned in early to mid-2023.[16]
The Applicant referred to communications between him and Mr Fkiaras that happened prior to, and during, a sales conference in Queensland in February 2023.[17]
The Applicant said that on the Friday before the sales conference, Mr Fkiaras called the Applicant on his mobile phone and advised that he would be having difficult conversations with Mr Gaulda regarding the Applicant’s handling of ‘Colterlec WA’, specifically in relation to training, support, and services that the Applicant and the Western Australian team had provided to the customer.[18]
On 28 February 2023, the Applicant sent an email to the Respondent’s Human Resources (HR) function regarding the conversation that took place between the Applicant and Mr Fkiaras during the sales conference.[19]
The email dated 28 February 2023 to HR outlined, amongst other things:
a) on 22 February 2023, whilst the Applicant was in a session listening to a presentation, Mr Fkiaras informed the Applicant that he would like to talk to the Applicant about the ‘DOL deal’ the Applicant was working on with Colterlec;
b) later that evening, shortly before dinner, Mr Fkiaras questioned why the Applicant had sold this product to Colterlec, which he advised was a national account and that the sale fell outside the agreement of supply to them;
c) Mr Fkiaras further proceeded to inform the Applicant that the product sold was not suited to the Australian market, without advising the Applicant why it was not suited;
d) the Applicant had requested pricing from Mr Fkiaras’ department regarding these products and was never told that these products were not suited to the Australian market, but was instead advised on pricing and how to proceed with stock ordering as long as the customer was happy to purchase bulk;
e) Mr Fkiaras sent out an email on Friday, relaying the abovementioned message, essentially reaffirming to 14 other contacts what he had discussed with the Applicant;
f) the Applicant explained that he felt Mr Fkiaras’ email was directed toward him and his dealings with Colterlec, as Mr Fkiaras had said nearly everything to the Applicant prior to sending the email. This left the Applicant feeling confused with regard to what he was meant to be doing, as he had been informed that Colterlec was an Automation Partner, and not ‘limited to Low Voltage Drives, Soft Starters and Motor/Drive, Motor/Soft Starter packages’;
g) Mr Fkiaras spent a large portion of his presentation introducing the company and Business Partners to Colterlec and encouraging ‘us all to deal with Colterlec’ as often as possible – in the Applicant’s view the tone of the message was one of frustration and aggression directed toward the Applicant;
h) the Applicant detailed how Mr Fkiaras identified issues with ‘Kirk’, ultimately reprimanding the Applicant for bothering ‘Kirk’ and informing the Applicant that he would ‘rather lose a sale than have you bother Kirk with LV’;
i) whilst the Applicant attempted to explain the actions of Kirk as being passionate about sales, Mr Fkiaras responded, ‘[i]t is not passion, it is an arrogance that us South Africans need to do away with’;
j) the conversation with Mr Fkiaras left the Applicant completely dumbstruck and he left the conference demotivated and confused regarding his objectives; and
k) the Applicant had spoken to Mr Gaulda, who had reassured the Applicant that his concerns were valid and understandable.[20]
The Applicant stated that on 16 March 2023, he was contacted by HR asking if he was available to chat in a private place and he was assured that the matter would be handled in a serious manner and that once resolved, he would be provided with an outcome.[21] The Applicant noted, to date, this had not happened.[22]
During the period 15 May 2023 to 18 May 2023, the Applicant travelled to Melbourne having been advised by Mr Gaulda he would have the opportunity to discuss his grievance with HR and Mr Fkiaras to attempt to mediate a resolution.[23] The Applicant said that Mr Gaulda further informed him that his dealings with Colterlec would be discussed.[24]
The Applicant stated that on 17 May 2023, he was told that a meeting had been arranged to discuss Colterlec between him, Mr Gaulda, Mr Centareski and Mr Fkiaras, amongst others. The Applicant said that the Colterlec account was discussed at length with regard to challenges, obstacles, and a strategy moving forward. However, during the meeting he sent Mr Gaulda a text message stipulating that this meeting was pointless as Mr Fkiaras did not have the correct information regarding the Western Australian market or day-to-day functions of the Western Australian Colterlec operations.[25]
The Applicant noted that the trip to Melbourne did not resolve the issue with Mr Fkiaras and there was no resolution provided by HR, no mediation between parties provided by HR, and once again, nothing to date regarding the subject.[26]
The Applicant gave evidence that on 23 May 2023, he received a phone call from Mr Fkiaras, during which Mr Fkiaras told him that the Western Australian Colterlec account was not doing well because of the Applicant and his skill set, and that he was not ‘technical enough’ to service the account correctly or to a high enough standard.[27]
Subsequent to the phone discussion with Mr Fkiaras, the Applicant said he emailed Mr Gaulda on 23 May 2023, stating:
Hi Renato,
Further to our conversation earlier today, I just wanted to follow up with this email.
My original grievance filed with HR against Spiro was because of discrimination, as per my original email to Demi.
Today's phone call has now escalated and is now a direct attack on my integrity, my ethics and professional behavior towards clients and my role within the company.
As mentioned to you, the phrase " don't take offense to what I'm about to say", doesn't give Spiro license to say whatever he likes, especially considering the nature of my grievance against him and the formal process that is ongoing.
During our trip to Melbourne, where he had enough time to express his concerns and thoughts in a controlled environment with the Directors of WEG and you as my state manager, he did not take the opportunity to address this. Instead, he has waited until our return to Western Australia, and addressed this on a private phone call where none of the above-mentioned people are present.
His continued actions towards me, and my role within the company, are increasingly negative and impactful on me, personally and professionally and I would again ask you to please escalate this matter to Rodrigo and Richard on my behalf.
After today's actions, I no longer feel safe in my dealings with or around Spiro.
Please feel free to give me a call if anything is unclear, or if you would like me to elaborate on this topic.
Cheers,[28]
On 24 May 2023, Mr Gaulda asked that the Applicant clarify what he meant by stating he felt ‘unsafe’ and advised him that his email dated 23 May 2023, had been escalated to HR.
The Applicant emailed Mr Gaulda on that same day responding:
Hi Renato,
Thanks for the call this afternoon.
I appreciate all the communication regarding this matter.I would like to clarify what I meant when saying, "I no longer feel safe in my dealings with or around Spiro".
I firstly want to say that you and Richard have addressed my concerns regarding my job security and position within the company.
I feel completely at peace with this and don't carry any stresses or concerns about losing my employment with WEG Australia.I have been encouraged to deal with Spiro and his team in Melbourne regarding continued growth of the LV Automation product range as well as putting the past behind us and focusing on the positives and achieving success for the greater good of the company. I am employed to perform certain tasks on a day-to-day basis, and I would like to achieve success in these tasks.
I, however, feel unsafe to do so, as the actions of Spiro have put to light that when we are in a controlled environment, where his concerns are meant to be discussed, they will instead be brushed aside and dealt with in private. Having these conversations in the manner that Spiro does, makes me feel like I am being victimized and bullied. I feel that my voice is taken away during these conversations and my input or skills are continuously called into question.
During my interview process, I mentioned that I was not an expert in WEG LV Automation products, however I am willing to learn and grow each and every day, promising that the knowledge I have today will be improved and bettered in the future. I would like to honor that commitment to you Renato, contrary to Spiro's opinions of my skills, ethics and support capabilities.
I also want to take the opportunity to apologies to you, Richard, Rodrigo and Demi. It feels like all I am doing is complaining and causing issues. However, I have learnt that keeping quiet regarding matters of this nature only leads to the continuation of such actions and behavior. I hold myself to a high standard and take any actions that question these standards very seriously.
Sincerely,[29]
The Applicant stated that he had not received any response from the Respondent’s management regarding his emails of 23 May 2023 and 24 May 2023.[30]
The Applicant further stated that during his employment with the Respondent there had been no formal performance management plans or development plans to try and resolve perceived shortcomings or his lack of skill set – and that he had sought assistance from the State Manager with regard to a potential solution regarding the lack of sales from Colterlec Western Australia on 17 August 2023.[31] Whilst advised that his potential solution regarding the lack of sales from Colterlec would be discussed in the office, this did not happen as Mr Gaulda resigned shortly thereafter.[32]
The Applicant stated that the catalyst for his resignation was both Mr Gaulda’s resignation in August 2023 – his mentor, protector and person defending him was leaving, and a conversation had with Mr Centareski over dinner on 5 September 2023.[33] Regarding the conversation with Mr Centareski, the Applicant states that Mr Centareski exploited his visa status and engaged in ‘coercive measures to compel [him] to remain with the company and in [his] existing role’.[34]
The Applicant said he gave notice of his resignation on 24 October 2023, and his last day was on 27 October 2023.[35]
The Respondent relied upon a letter of resignation from the Applicant dated 25 October 2023, which stated:
Dear Kirk,
Following our conversation earlier today, I would like to formally submit my resignation, with a notice period of one week in accordance with the terms stipulated in my employment contract.
Sincerely,
Justin Kritzinger.
On 27 October 2023, two meetings were held with the Applicant. The first involved Mr Moss, the Applicant and Ms Capaul, in which the conditions of the Applicant’s resignation were discussed. In respect to this, Ms Capaul gave evidence that whilst the Applicant was required to provide a notice period greater than one week, the Respondent allowed him to conclude his last day of employment on 27 October 2023, as according to the Respondent, the Applicant was to start a new job on 31 October 2023.
Also discussed at a meeting on 27 October 2023 was a repayment plan, which the Applicant appears to argue he did not agree to. According to the Applicant he had accrued approximately $10,000.00 of personal expenses on the Respondent’s credit card after both his and the Respondent’s credit cards were fraudulently used in a scam. However, no direct evidence was adduced at hearing to support the Applicant’s contention of fraudulent activity, such as a report to his bank and that of the Respondent’s bank, reporting the unauthorised activity. According to Ms Capaul, the repayment plan required the Applicant to repay the Respondent a set amount on a regular basis to repay the unauthorised expenditure. The letter from the Respondent to the Applicant of 27 October 2023, confirming acceptance of his resignation, set out:
This letter is to confirm your acceptance of your written resignation on 25/10/2023 from employment with WEG Australia (“Company”).
For the avoidance of doubt, your final day with the Company will be 27/10/2023.
As you owe WEG Australian the sum of $9,403.68 for personal transactions on the corporate card, it is with mutual agreement that $7149.13 will be deducted from your final pay (resulting in your final pay being $0.00). The remaining amount of $2,254.55 has been agreed upon by you to be paid as per the following schedule:
Payment Schedule….[36]
Relevant principles
Central to the consideration in this case is the operation of s 386(1) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given the Commission’s acceptance that the definition of the word ‘dismissed’ in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word ‘dismissed’ as defined in ss 12 and 386 of the Act reads:
(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.
There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.
As noted, the definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa),[37] and in Lipa Pharmaceuticals Ltd v Jarouche[38] the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b). In Bupa it was said:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[39]
While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1)(a), and in doing so expressed the following about s 386(1)(b):
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[40]
It is of course to be appreciated that where there is a termination of employment by way of resignation, there is a need to objectively assess the circumstances surrounding the termination. In Bupa, the Full Bench cited the decision of the Federal Court in Koutalis v Pollett, where Rares J observed:
The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances.[41]
Consideration
It is uncontroversial that the resignation of the Applicant was clear and unambiguous – having been provided to the Respondent in writing on 25 October 2023.
Essentially, the Applicant contends his resignation from employment with the Respondent was due to several events or circumstances, which included:
a) him not having heard from HR or the directors of the Respondent in respect of his complaints about Mr Fkiaras;
b) the lack of professionalism that management and HR of the Respondent demonstrated, such that they condoned the behaviour he had been subject to;
c) a failure by the Respondent to follow their own HR policies and guidelines;
d) the resignation of Mr Gaulda who was his mentor and ‘protector’; and
e) a conversation with Mr Centareski over dinner on 5 September 2023,[42] where Mr Centareski purportedly exploited the Applicant’s visa status and engaged in ‘coercive measures to compel [him] to remain with the company and in [his] existing role’.[43]
It is uncontroversial that prior to resigning the Applicant had secured employment with an alternative employer and that as of 31 October 2023, his working visa would be ‘decoupled’ from the Respondent and ‘coupled’ to his new employer. It is also not in dispute that the Applicant had held discussions with his prospective employer (current employer) prior to resigning from the Respondent.
I make the following factual findings. The evidence does not support a finding that the Respondent did not take the Applicant’s complaints about Mr Fkiaras seriously. The Applicant was flown to Melbourne for three days (ultimately two days, as the Applicant had identified a personal issue and was flown home earlier to address the personal issue) to discuss the grievance.
The Applicant gave evidence that upon his arrival to Melbourne on 16 May 2023, ‘Richard’ (presumedly Mr Richard Walker, General Director) spent the majority of the first day talking with him in an informal setting, trying to reassure him that he was handling the situation with care and respect for both parties and that the Respondent had sought legal advice regarding this matter. The Applicant added that Mr Walker had advised him that he was handling Mr Fkiaras and his actions, and that Mr Walker and Ms Capaul had informed him that should he take this matter further with ‘Fair work Australia’, the Respondent as well as management stood to lose a lot, hence his seriousness in involving outside legal aid.
When questioned about whether the Applicant had been informed that Ms Capaul and Mr Walker had investigated the complaint, interviewed witnesses and that Mr Walker had given advice on corrective action that was being taken to achieve a resolution, the Applicant did not challenge this was not the case.
The Applicant further states that on 17 May 2023, a meeting was held to discuss the Colterlec account at length with regards to challenges, obstacles, and strategy. Present at the meeting were Mr Gaulda, Mr Centareski, Mr Walker and Mr Fkiaras. The Applicant noted that during the meeting, he sent Mr Gaulda a text message stipulating that this meeting was pointless as Mr Fkiaras did not have the correct information regarding the WA market or day-to-day functions of the WA Colterlec operations.
I find that on raising the first complaint about Mr Fkiaras to management and HR of the Respondent, the Respondent acted by flying the Applicant to Melbourne to discuss the grievance with him. This demonstrates both responsiveness to the complaint and that the matter was being taken seriously by the Respondent.
The Applicant gave evidence that when he returned to Perth, Mr Fkiaras contacted him on 23 May 2023 and informed him that the Colterlec account was not doing well because of the Applicant’s skill set and that he was not sufficiently technical to service the account correctly or to a high enough standard. According to the Applicant, Mr Fkiaras commenced the discussion with, ‘I hope you don’t take offence to this’.
Based on the evidence before me, I do not consider that Mr Fkiaras’ purported communication, as detailed by the Applicant in this respect, demonstrated victimisation, bullying, or unlawful discrimination. The communication in question was arguably blunt and therefore lacking tact, but it was no more unprofessional than the Applicant’s text message to his line manager in the Melbourne meeting on 17 May 2023, undermining the capability of the Automation Business Unit Manager by referring to Mr Fkiaras’ lack of information about the Colterlec operations. That the Applicant held animosity toward Mr Fkiaras is evident; that such animosity was well founded is difficult to find in this instance.
However, the focus is on the Respondent’s response to the Applicant’s complaints about Mr Fkiaras. I find that the Respondent once again was responsive to the Applicant’s second complaint about Mr Fkiaras, with Mr Gaulda calling the Applicant to discuss the complaint and querying why the Applicant felt ‘unsafe’. The Applicant noted that he had not received a response to his second complaint from the Respondent’s management or its HR after having heard from Mr Gaulda.
There are a couple of observations to make at this point. The Applicant willingly admits to having had a positive work relationship with Mr Gaulda and that the Perth site of the Respondent was absent any ‘toxicity’ whilst working under Mr Gaulda. Having made the second complaint toward the end of May 2023 to Mr Gaulda and noting that Mr Gaulda did not depart the Respondent business until August 2023, the evidence does not suggest that the Applicant followed up with Mr Gaulda in respect of soliciting an outcome in respect of the complaints. Further, the evidence is not suggestive that the Applicant checked with HR to see the progress made with the first and second complaint. In circumstances where the Applicant held Mr Gaulda in high esteem, reported to him, and reported to him the complaints – which the Applicant considered serious in nature, it is highly irregular that the Applicant did not follow up with Mr Gaulda in respect of an outcome.
I find that on both occasions that the Applicant raised a complaint about Mr Fkiaras’ conduct, the Respondent’s management was responsive albeit that the Applicant’s expectation that a mediation might be conducted as indicated by HR was not met. I also find that the Applicant did not receive a formal outcome in respect of the complaints, and this was undoubtedly a shortcoming in the Respondent’s processes. However, such shortcoming needs to be considered in context. That context being one in which the evidence does not persuade me that the Applicant appeared to have raised with the Respondent the lack of resolution in respect of his grievances prior to taking the step to resign.
As to Mr Gaulda’s resignation proving, in part, to be a catalyst for the Applicant’s departure, that departure ultimately was a personal choice exercised by the Applicant that was not brought about by conduct of the Respondent. The motivation for Mr Gaulda’s resignation is unknown and therefore the evidence does not suggest that the Respondent can be held responsible for it or for what the Applicant did thereafter. That the Applicant perceived that Mr Gaulda was somehow his ‘protector’ seems at odds with the contention that the Respondent’s management, Mr Gaulda forming part of that management team as the Applicant’s line manager, were unresponsive to his complaints. I note, however, that the Applicant appears to level his complaint, in part, against the directors of the Respondent notwithstanding that the Applicant appears to have occupied a position in the business that did not report into a director. Further, it is evident that at least one director of the Respondent assumed involvement in managing the Applicant’s complaint about Mr Fkiaras – namely, Mr Walker.
The Applicant, in addition, refers to a conversation with Mr Centareski over dinner on 5 September 2023,[44] where Mr Centareski purportedly exploited the Applicant’s visa status and engaged in ‘coercive measures to compel [him] to remain with the company and in [his] existing role’.[45] It is not apparent from the evidence led to whom this conduct was reported or whether the Applicant sought to follow up with the Respondent’s management in respect to an investigation into his complaint.
Ultimately, the Applicant could have chosen not to resign and engage with the Respondent to obtain outcomes in relation to his complaints. He did not do so. Instead, he chose to approach an alternative employer and secured employment and visa sponsorship with them, prior to resigning. This was his decision. Since his resignation the Applicant has also chosen not to repay the balance of the monies purportedly owed on the Respondent’s credit card and, according to Ms Capaul, has yet to provide evidence of reporting the card’s fraudulent misuse to the bank or authorities – albeit the Applicant appears to contend to the contrary.
Conclusion
As noted at the beginning this decision, the Applicant resigned of his own accord. He was not forced to resign because of the conduct of the Respondent, nor, as far as it is relevant, was he dismissed on the initiative of the Respondent. An Order[46] dismissing the application is issued concurrently.
DEPUTY PRESIDENT
Appearances:
J Kritzinger, Applicant
D Capaul for the Respondent
Hearing details:
2023.
Perth (by video):
14 December.
[1] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37.
[2] Ibid 602 [51].
[3] Witness Statement of Justin Kritzinger (Exhibit A1), (Kritzinger Statement).
[4] Employment Contract dated 27 September 2022 (Exhibit A2).
[5] Kritzinger Statement (n 3).
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Ibid
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] Email from Justin Kritzinger to Renato Gaulda dated 24 May 2023 (Exhibit A5).
[29] Ibid.
[30] Kritzinger Statement (n 3).
[31] Ibid.
[32] Ibid.
[33] Ibid.
[34] Ibid.
[35] Form F8 General protections application involving dismissal (Exhibit A9); Letter from Kirk Moss to the Applicant dated 27 October 2023 (Exhibit R2) (Resignation Confirmation Letter).
[36] Resignation Confirmation Letter (n 35).
[37] (2017) 271 IR 245 (Bupa).
[38] [2023] FWCFB 101.
[39] Bupa (n 37) 268–9 [47].
[40] (2018) 273 IR 126, 129–30 [10]–[11].
[41] (2015) 253 FCR 370, 379 [43].
[42] Kritzinger Statement (n 3).
[43] Ibid.
[44] Ibid.
[45] Ibid.
[46] PR769569.
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