Kerr Forbes v Johns Lyng Services Pty Ltd, Nick Carnell
[2024] FWC 721
•11 JUNE 2024
| [2024] FWC 721 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kerr Forbes
v
Johns Lyng Services Pty Ltd, Nick Carnell
(C2023/7637)
| DEPUTY PRESIDENT BELL | MELBOURNE, 11 JUNE 2024 |
Application to deal with contraventions involving dismissal – jurisdiction objection – whether applicant dismissed or voluntarily resigned – jurisdictional objection dismissed
Mr Kerr Forbes has applied under s 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. From November 2022 up until his employment ended a year later, Mr Forbes was employed as Chief Information Officer by Johns Lyng Services Pty Ltd, reporting to its Chief Executive Officer, Mr Nick Carnell (the respondents).
The respondents raised a jurisdictional objection to the application on the ground that Mr Forbes had not been ‘dismissed’ as is contemplated in s 365(a) of the Act. The respondents say Mr Forbes resigned – voluntarily – and there was no dismissal at the initiative of the employer or forced resignation.
In summary, the respondents say the resignation event occurred at a meeting between Mr Carnell and Mr Forbes on 17 November 2023 where, following a discussion about the performance and direction of Mr Forbes’ area of responsibility, the respondents say that Mr Forbes and Mr Carnell mutually agreed Mr Forbes would resign.
In the present case, the dispute as to whether or not there was a dismissal arose from a difference in perspective about the key meeting just described. In that meeting, Mr Carnell suggested that it would be in Mr Forbes’ best interests to resign. There is no doubting the sincerity of that belief but, for the reasons that follow, there was a dismissal at the initiative of the employer.
The parties were directed to file evidence and submissions in support of their positions. Mr Forbes filed a witness statement on behalf of himself. The respondents filed a witness statement by Mr Carnell. Both witnesses were cross-examined. As a threshold matter, I record my observation that both witnesses gave their evidence truthfully to the best of their ability. Mr Forbes was represented at the hearing before me by Mr Hooper of counsel instructed by Kelly Workplace Lawyers; the respondents were represented by Mr Hickey, in-house legal counsel for the employer.
Factual findings
It is unnecessary to describe in detail much of the evidence concerning events occurring prior to 17 November 2023. It is sufficient to note that Mr Forbes’ broader general protections claim asserts he was dismissed for reasons, or reasons including, various complaints about the employer’s decision to not make an ‘Executive Incentive Plan’ (EIP) payment for the financial year ending 30 June 2023.
The respondents acknowledge that Mr Forbes raised his EIP grievance on multiple occasions but state that Mr Carnell (being the relevant decision-maker) was not influenced by them. Forensically, I accept at a general level that if Mr Carnell or any other relevant person from the employer was sufficiently agitated by Mr Forbes repeatedly raising his contention about the EIP, that would supply a plausible motive for dismissal and would be supportive of the applicant’s case on the jurisdictional issue as to whether there was a dismissal. I do not consider there was an actuating motive of the kind described on the evidence before me.
It is useful to provide my observations about Mr Carnell. Mr Carnell was CEO of the employer. As might be expected in such a role, he deals with an array of issues on a continual basis and is expected to make decisions and judgment calls promptly. On my assessment of Mr Carnell, it shone through loud and clear that he had no difficultly in doing so and, moreover, approached that task dispassionately if not always sensitively.
So in the case of the EIP issue, Mr Carnell’s view of that matter was that a final view had been expressed in late August 2023 and that was the end of the matter. While Mr Forbes had not moved from that issue (and continued to reagitate his request for an EIP payment), Mr Carnell plainly had. While Mr Forbes reagitating that issue was an irritation for Mr Carnell, it was nothing more than that.
By contrast, Mr Carnell had been developing concerns about the scope of Mr Forbes’ strategy for a ‘Digital Plan’ for the employer, for which primary responsibility resided with Mr Forbes in his capacity as CIO. In short, Mr Carnell’s concern can be summarised with his assessment that Mr Forbes’ proposals to date were too broad, too expensive and were beyond the appetite of the business to fund.
There is some dispute as to the extent that Mr Carnell’s concerns about the Digital Plan were raised with Mr Forbes but I have no hesitation in accepting Mr Carnell held them. Consistent with my observations above regarding a plausible motive for dismissal, the presence of Mr Carnell’s developing concerns regarding the Digital Plan are consistent with an intention to dismiss Mr Forbes.
Various meetings and communications took place in the lead up to the meeting on 17 November 2023. It is unnecessary to summarise them, because the events of 17 November 2023 are in my view sufficiently clear. Mr Carnell describes them as follows:
“16. On 17 November 2023, I met with Kerr in person, to continue discussions
regarding Kerr’s digital plan (17 November Meeting). By this stage, the delivery of Kerr’s strategy had extended some five (5) months beyond when he was initially supposed to present it. During our meeting it became apparent to both Kerr and I that, based on our respective expectations of Kerr’s role and the fact we were vastly misaligned on investment required to fulfil his proposed strategy, we had reached an impasse.
17. Kerr and I recognised that we were not on the same page, and it was mutually
agreed that he would resign from his role with Johns Lyng Group (Resignation). I advised Kerr that I would be happy to provide him with a written reference to advocate for him and support his transition. Our meeting ended amicably on the understanding that the Resignation was in his best interests, as he was evidently frustrated in his role with Johns Lyng Group and was not receiving the support he required to implement his vision. On the basis of our mutual understanding, Kerr returned his Johns Lyng Group property (i.e. laptop, mobile phone, credit card and access pass) prior to departing the office.”
The assertion that it was “recognised” that Mr Forbes and Mr Carnell were “not on the same page” and that it was “mutually agreed” that Mr Forbes would resign are clearly conclusionary statements that do not address the detail of what was actually said. Mr Forbes’ account is far more detailed. It is unnecessary to set that out because much of that was put to Mr Carnell in cross-examination, who readily agreed with many matters put.
For example, the following propositions were put to Mr Carnell, which I consider accurately reflect the reality of the meeting on 17 November 2023:
At PN 283 “So you felt he had to go, didn't you? As of 17 November? Mr Forbes had to go?‑‑‑Yes, yes, I did. Yes, and to be candid, I started the meeting that way.”
At PN 286 “Yes?‑‑‑And that's when the continuation of the discussion went to a place where, in my view, Kerr was going to resign over that weekend, we were going to support his next phase, I was going to give him a reference, because it wasn't him professionally, it was the fact that his intent around the investment required we needed an appetite for.
At PN 287 “Yes. So, just to clarify again; he had to go, didn't he? As of 17 November. That was your view?‑‑‑That was my view.”
At the meeting on 17 November 2023, Mr Carnell suggested that Mr Forbes resign. He did so, because in Mr Carnell’s view it was in Mr Forbes’ interest to resign rather than being dismissed. But if he did not resign, it was tolerably clear that his dismissal was imminent. Mr Carnell stated that “there was no other way for us to continue together, yes”.[1]
At the meeting, Mr Forbes did not explicitly state he would resign and I find he did not do so. What appears to have occurred is that Mr Carnell, having made clear (to him at least) his own views that the parties were not on the same page, necessarily assumed matters were sufficiently clear that Mr Forbes also shared that view. As I accept from Mr Forbes, Mr Forbes did not want to resign and at the very least, wanted to think about what he had just been confronted with. So much is understandable. Further, in circumstances where the contractual notice period was six months, it is improbable that Mr Forbes would forego that period.
As I indicated above, however, it shone through loud and clear that Mr Carnell was adept at making decisions and, once made, moving on. In Mr Carnell’s view, the only plausible outcome of the meeting was that Mr Forbes would no longer be continuing as CIO. On the assumption that there was a resignation (in the sense he understood it) and that was in the best interests of everyone, he issued instructions immediately following the meeting to his staff to put in place the administrative steps that accompany the end of employment, such as the retrieval of the corporate credit card, security pass, telephone, laptop and exiting from the premises.
Consideration
Section 365 of the Act provides that a person can apply to the Commission to deal with a general protections dismissal dispute if the person has been “dismissed”. A jurisdictional condition of that application is that the person was “dismissed”.[2]
By s 12 of the Act, the term “dismissed” has a meaning defined by the criteria in s 386. Section 386 is 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.”
There are exceptions to s 386(1) but none are presently relevant.
In the present case, I am readily satisfied that there was a termination at the initiative of the employer, in accordance with the events of the meeting on 17 November 2023 and those that immediately followed, which I have described above. There was no resignation (forced or otherwise).
Disposition
It follows that the respondents’ jurisdictional objection must be dismissed and I do so.
As a result of my determination, this matter will now be listed for conciliation to deal with the dispute under s 368. An Order[3] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
J Hooper of Counsel, instructed by J. Kelly of Kelly Workplace Lawyers for the Applicant
M Hickey from the Respondent
Hearing details:
2024.
Melbourne:
March 21.
[1] Transcript PN 424.
[2] Coles Supply Chain Pty Ltd v Milford and Another (2020) 279 FCR 591.
[3] PR775855.
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