Kevin Townend v Toll Transport Pty Limited T/A TRGL Equipment

[2016] FWC 4011

[2016] FWC 4011

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Townend
v
Toll Transport Pty Limited T/A TRGL Equipment
(U2016/4701)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 23 JUNE 2016

Application for relief from unfair dismissal – employee not dismissed at the initiative of the employer – resignation.

[1] On 19 February 2016 Mr Townend lodged an application, pursuant to s.394 of the Fair Work Act 2009 (the FW Act), with respect to what he asserted was his constructive dismissal from Toll Holdings Ltd T/A Toll Mining Services.

[2] The Employer’s Response to this application confirmed that Mr Townend was employed by Toll Transport Pty Ltd T/A TRGL Equipment (Toll). This response confirmed that Toll objected to the application on the basis that it asserted that Mr Townend resigned his employment and was not dismissed.

[3] The question of whether Mr Townend was dismissed was the subject of a hearing in Perth on 15 June 2016. In this hearing, Mr Townend was represented by Mr Marouchak, of counsel, pursuant to a grant of permission made under s.596(2)(a) and (c) of the FW Act. Toll was represented by its Manager, Group Employee and Industrial Relations, Ms McCutcheon. Both parties provided written closing submissions which I have taken into account in reaching my conclusions. I note that, after the hearing, Mr Townend advised that he was no longer being represented by Mr Marouchak and that he provided his own closing submissions

[4] At the commencement of this hearing I exercised the discretion available in s.586 of the FW Act so as to amend the application such that it referred to the employer as Toll Transport Pty Limited T/A TRGL Equipment. There was no objection made to this amendment.

[5] The background to Mr Townend’s application is simply set out. Mr Townend worked for Toll from October 2012. At the time of the termination of his employment, he was a diesel mechanic. Mr Townend forwarded an email to the Toll Human Resources Manager on 14 February 2006 which detailed various complaints he had regarding actions taken by Toll and concluded on the basis that he could no longer work under those circumstances and would not be returning to Toll, effective immediately. 1

[6] Mr Townend has identified various issues that arose in the course of his employment, including concerns about management approaches from 2015. He particularly asserts that he was forced to resign because of actions taken by Toll from mid-January 2016. He asserts that Toll’s actions were intended, and had the probable result, of bringing the employment relationship to an end and that these actions were undertaken in a malicious manner intended to force him to resign. Further, that the resignation he was forced to provide to Toll on 14 February 2006 was given whilst he was under extreme pressure and stress such that Toll should have allowed him time to review this impulsive decision.

[7] The Toll position is that Mr Townend voluntarily resigned and that its conduct was neither intended, nor had the probable result, of causing that resignation.

The Evidence

[8] In his application, Mr Townend referred to a number of alleged incidents which occurred in 2015. He provided further information about these incidents in his evidence. Mr Townend’s evidence went to detail a verbal warning given to him on, or around, 29 April 2015. In the hearing I was advised that Mr Townend did not rely on these 2015 incidents as a basis for his assertion that he was forced to resign, and that he relied only on incidents that occurred in January and February 2016. In terms of the January 2016 matters that he asserts gave rise to the termination of his employment, his evidence was that he was stood down from work on 13 January 2016 on the basis that an investigation was to be undertaken into an incident involving a truck upon which he had worked, but that he was advised, on the following day that the investigation had concluded and that he could return to work. Mr Townend then took some days sick leave. He advised that, after returning to work from sick leave he was told, on 29 January 2016, that he was required to have “a chat” with the Toll Project Implementation Manager, Mr Lawrence, and that whilst he was told he could have a support person present, his requests to change the time so that someone could attend as his support person were not granted. Mr Townend asserts that, over the following weekend he searched the Toll computer system and found disparate statements made out by another employee, Mr White in relation to the incident being investigated.

[9] Mr Townend’s evidence went to meetings he had with various Toll Managers on 1 and 2 February 2016 where he asserts that he was repeatedly asked about various issues as part of an investigation and disciplinary process relating to two truck repair incidents. Mr Townend’s partner was involved in the 2 February 2016 meeting as his support person. Mr Townend’s evidence was that he unsuccessfully sought to defer that first meeting. His evidence went to the conduct of the meetings and the extent to which he did not think that any allegations about him should have been further investigated. Mr Townend also asserts that in the second meeting with Toll management, Mr Lawrence was aggressive and abusive toward him. Further, that some of the issues raised with him went to the Toll tagging and isolation procedures but that despite repeated requests, he was not given a copy of those procedures and ultimately obtained them himself. 2 He further asserted that a copy of a Workers Compensation claim form which he had recently made on the basis of work related stress from 2014 was visible on the table at this meeting.

[10] Mr Townend was also concerned that photographs of his personal safety tag on a truck on which he had been working had been taken by his Leading Hand and stored on the Toll computer system. He concluded that these photographs were to be used against him.

[11] Mr Townend elected not to tell Toll management in the meetings on 1 and 2 February 2016, that, he had seen statements prepared by another employee about one of the matters being investigated because he wanted the process to proceed normally. 3

[12] Mr Townend’s evidence was that on or around 3 February 2016 he became aware that his name was not on a list which included all of the other Toll mechanics at that site who were enrolled for a First Aid course. He was concerned that this was related to his on-going employment but did not raise a concern about it with Toll. 4 Mr Townend took further sick leave from 8 February 2016 and did not return to work or further contact Toll.5 His evidence was that:

“16. On 13 February 2016 I had not received any reply from the Respondent or my managers about the investigation discussed on 1 and 2 February 2016, and was very concerned about Tony Lawrence’s inconsistent answers given to my questions raised previously, and the fact that I was not booked on the First Aid course which had been organised prior to this date. I prepared a detailed letter to Human Resources, and sent that to them on this day. Attached hereto and marked ‘KT1’ is a copy of this letter.” 6

[13] Mr Townend confirmed that this resignation email he sent to his manager, Mr Barron, to a senior Human Resources Manager within Toll, and to Ms Rogers and other Toll personnel on 14 February 2016 referred to allegations against him for two isolation breaches on 12 January 2016 and asserted that he did not consider that he was responsible for those breaches. In this email, Mr Townend asserted that he had provided a reasonable explanation of the circumstances and that the Toll investigation process was inappropriate and unfair. Mr Townend asserted that he had been “setup” by another employee and that Toll management were wilfully misrepresenting facts. In this email, Mr Townend asserted that the Toll approach raised issues of credibility, integrity and trust and represented an abuse of power. He asserted that Toll managers were aware of his medical situation, had bullied him and had not provided him with information he had requested. He advised that:

“I can no longer continue to work under these conditions. I will not be returning to Toll Mining Services, effective immediately.” 7

[14] Mr Townend provided further background to his resignation email in the following terms:

“63. On 13 February 2016, I reached the view that there was an ongoing risk of unreasonable management behaviour toward me and was under a lot of stress, that I had no alternative but to leave Toll. My reasons to leave my employment at Toll are summarised as follows:

(a) The false statements of Raymond White, which I mentioned at paragraph 37(a) above. In my view, I believed someone conducting the investigation against me encouraged Mr White to amend the statement to add the words “when arrived @ the breakdown, POS1 brake booster found to be leaking internally from part to service side” to his witness statement. I believed this was done to insinuate poor performance against me.

(b) The unreasonable manner in which I was interrogated and questioned and the conduct of the meetings on 1 and 2 February 2016. Senior managers were not prepared to accept my explanations.

(c) I was approached for a “chat” for both meetings which undermined the serious nature of the meetings. I was not advised at any time that the meetings could result in disciplinary action.

(d) I was excluded from the First Aid course which was in place on 15 January 2016, was not rescheduled around sick leave, was not approached at anytime to attend up until my departure on 14 February 2016.

(e) The fact that in my view, I completely followed all procedures and did not breach any of the Respondent’s procedures, as there are no procedures in place for breakdowns. The Tagging Isolation Procedures SWI 006 (KN12) are only relevant to TRGL premises.

(f) The relevant employees of the Respondent should have known, that very early on, it should have been apparent to everyone involved that I did not do anything wrong.

(g) Mr Lawrence also told me at the meeting on 2 February 2016 that “had you fixed the fault at Boddington Mine Site, the incident at Coogee Chemicals would not have occurred and we wouldn’t be here. This was unfair and unreasonable to make this accusation as I was not provided with an equipped breakdown vehicle including communications such as a cell phone with adequate coverage.

(h) I was of the opinion that I was going to get fired by the Respondent because the Respondent wanted someone to blame for the incident that happened at Coogee Chemicals site and to place responsibility on an innocent employee and to save face with the Coogee Chemicals client.” 8

[15] In more general terms, Mr Townend expanded on his reasons for concluding that Toll was attempting to force him to leave in the following terms:

“58. I believe that Respondent was attempting to force me out of Toll because of the following reasons:

(a) I had just attended a meeting on 1 and 2 February 2016 where Mr Lawrence and other employees were casting blame on me that I had done everything wrong and were not prepared to accept reasonable explanations.

(b) I was the only person out of everybody who was not approached to attend a First Aid course, which I should have been approached and scheduled upon returning from sick leave.

(c) From reading the above email I knew the first aid course ran months ahead, up until May 2016, and I still was not approached to attend the course up until I left Toll on 14 February 2016.

(d) The statements relating to Raymond White and his involvement with the breakdown were “amended” to show my inability to diagnose the fault at Boddington Mine Site, whilst Mr Lawrence alleged the fault was found immediately without the need to swap trucks or use of equipment.

(e) Photographs viewed on the workshop phone of my tagged trailer on 12 January 2016 at 4.07pm and read by Mr Lawrence on 14 January 2016 at 1.22pm however were not discussed or presented prior to the alleged disciplinary meeting on 2 February 2016.

(f) The issues of failing to place a personal danger tag and Live Testing tag on the truck (80717) whilst at Boddington breakdown were not discussed as being in issue prior to the meeting on 2 February 2016.

(g) I was not advised at anytime prior to the meeting on 2 February 2016 of the seriousness of that meetings or that they might result in disciplinary action.

(h) Mr Lawrence misrepresenting and changing the facts of what had occurred on 13 January 2016 at Coogee Chemicals at the meetings on 1 February and 2 February 2016 was a breach of my employment contract and the Code of Conduct by not acting in good faith or with integrity.” 9

[16] Mr Townend agreed that he did not seek to clarify his concerns after the 2 February 2016 meeting. He advised that over this time he was stressed and had suicidal tendencies as a consequence of Toll’s behaviour towards him. He also confirmed that, after forwarding his resignation email on 14 February 2016, he did not seek to further discuss his concerns with Toll.

[17] Mr Lawrence is the Toll Project and Implementation Manager, Toll Resources and Government Logistics Equipment. Mr Lawrence advised that in his normal day-to-day role he generally had no interaction with Mr Townend but that he was involved in managing Mr Townend while the Workshop Manager, Mr Barron was on leave in January 2016. His evidence went to a truck breakdown on 12 January 2016 and the consequent investigation into this matter. His evidence was that he advised Mr Townend on 13 January 2016 that he was stood down with pay pending this investigation and that this reflected a standard practice within Toll. Mr Lawrence’s evidence was that after a preliminary review it became clear that there were going to be a range of issues which contributed to the incident and the incident could not be attributed solely to Mr Townend. Accordingly, it was decided that Mr Townend should return to work. Mr Lawrence advised him of this on 14 January 2016 and informed him of the continuing investigation. Mr Lawrence’s evidence was that Mr Townend did not return to work on 15 January but provided a medical certificate confirming that he was unfit for work until 28 January 2016. Mr Lawrence advised that the investigation of the initial truck incident and concerns over Mr Townend’s actions in the repair of another truck continued over this time but that Toll did not seek to interrupt Mr Townend’s period of sick leave.

[18] On Mr Townend’s return to work on 29 January 2016, Mr Lawrence advised him of both an incident investigation meeting and a separate disciplinary discussion planned for the following week and confirmed that he could bring a support person to this disciplinary meeting.

[19] Mr Lawrence’s evidence went to the manner of the conduct of the investigation meeting on 1 February 2016 and to the conduct of the disciplinary meeting convened on 2 February 2016. Mr Lawrence denied being aggressive or abusive toward Mr Townend at these meetings. 10 He confirmed that the 1 February 2016 meeting was part of the normal Toll incident investigation process. Mr Lawrence advised that he was aware that Mr Townend requested a copy of the Toll “tagging procedures” but that he overlooked providing it to him. Mr Lawrence’s evidence was that the 2 February 2016 meeting concluded on the basis that Toll advised that it would consider the information provided and advise him of the outcome. As part of the investigation, Mr Lawrence requested a report on a truck fault from the mechanic who worked on it, Mr White. He subsequently requested a more detailed report.11 Mr Lawrence’s evidence also confirmed that Mr Townend’s Leading Hand made him aware of a further potential issue on 12 January 2016 and that he instructed the Leading Hand to photograph the relevant safety tag.12

[20] Mr Lawrence advised that, after it concluded the investigation, Toll determined that it was appropriate to issue Mr Townend with a written warning which related to various issues, including tagging, but that this was not ultimately issued to him because Mr Townend took further sick leave from 9 February 2016 and then resigned.

[21] In terms of the first-aid course from which Mr Townend asserts he was excluded, Mr Lawrence advised that he had initially been booked to attend this course but that this booking was withdrawn because of uncertainty over the duration of Mr Townend’s sick leave absence.

[22] Mr Lawrence advised that the investigation also resulted in Mr Townend’s Leading Hand being demoted back to an operational position. 13

[23] Mr Barron was Mr Townend’s manager. His evidence primarily went to matters relating to Mr Townend in 2015 and to the operation of tagging procedures in the Toll workshop.

[24] Mr Wellman is a Toll Health and Safety Advisor. His evidence confirmed the regularity of the standard safety investigation process applied to the investigation process. Mr Wellman was present in the meeting on 1 February 2016. He confirmed that he did not regard Mr Lawrence’s behaviour in that meeting with Mr Townend as aggressive and that, while the matters put to Mr Townend may have had an element of repetition about them, this reflected the dual safety investigation process requirements and the separate disciplinary process. Mr Wellman also confirmed that Mr Townend had initially been booked to attend first aid training but that this had been cancelled when he went on sick leave and was not rearranged as discussions with Mr Townend over a suitable time and place could not occur before Mr Townend resigned.

[25] Mr MacPherson is the Toll Maintenance and Supply Manager. His evidence went to his attendance at the disciplinary meeting on 2 February 2016 and his recollection that this meeting was conducted in a normal and respectful manner. 14 He confirmed that Mr Lawrence made it clear at the outset that this second meeting was to consider disciplinary issues as distinct from the previous day’s safety investigation. Mr MacPherson advised that he did not become aware of Mr Townend’s workers compensation claim until after the 2 February 2016 meeting.15 He confirmed the nature of the questions put to Mr Townend at this meeting and the extent to which the matters raised at the meeting were the subject of further investigation by Toll management. Following those investigations, Mr MacPherson instructed the Human Resources Officer, Ms Rogers, to prepare a warning letter for Mr Townend.

[26] Mr White is another Toll mechanic. He was the author of the reports about one of the truck incidents which Mr Townend accessed through the Toll computer system in early February 2016. His evidence confirmed that he was sent to attend a breakdown involving a truck which Mr Townend had earlier worked on. He reported to Mr Lawrence on the nature of the breakdown but, having scanned his report into the computer system, he then made a minor addition to it. He advises that in response to a request for more detail made by Mr Lawrence, he provided a further report. His evidence went to the degree of difficulty associated with determining the breakdown cause.

[27] Ms Rogers is a Human Resources Adviser for Toll. Her evidence went to her limited involvement into the investigation which commenced on 13 January 2016 and to telephone discussions she had with Mr Townend about the investigation meetings. Ms Rogers received an email from Mr Townend on 14 January 2016. In that email Mr Townend asserted that he was being targeted for dismissal and expressed concerns about the investigation process. Also in that email, Mr Townend sought a copy of the Toll procedures relative to tagging procedures for vehicles. Ms Rogers’ evidence was that she understood that Mr Lawrence had subsequently spoken with Mr Townend about those issues and replied to his email on 15 January 2016 so as to reference the discussion with Mr Lawrence and confirm that she could clarify any outstanding matters when Mr Townend returned from sick leave.

[28] Ms Rogers then had a telephone discussion with Mr Townend on 29 January 2016 with respect to the proposed disciplinary meeting. In response to the concerns he expressed about the investigation process, she advised him that this was a normal investigation process. She subsequently returned Mr Townend’s call and advised him that the meeting set for the following Monday could possibly be changed to a later time on that day or to the next day to accommodate his preferred support person. Ms Rogers advised that she was aware that the investigation process being applied to Mr Townend could be stressful and that she had accordingly referred him to the Toll employee assistance programme. Ms Rogers acknowledged that Mr Townend sought a copy of the Toll tagging procedure before the 1 February 2016 meeting and that she eventually obtained this and forwarded it to Mr Lawrence at a generic Toll workshop email address. 16 Ms Rogers also acknowledged that she received a workers compensation claim from Mr Townend and that she forwarded this to the Toll workers compensation personnel and to at least some of Mr Townend’s managers involved in the investigation process.

[29] Ms Rogers confirmed that Mr MacPherson asked her to write a warning for Mr Townend at some time after 2 February 2016 and that she did so, but it was not given to Mr Townend because of his absence. 17

[30] Ms Rogers’ evidence was that, on 8 February 2016, Mr MacPherson asked her to prepare a written warning relating to Mr Townend’s behaviour on 12 January 2016. She was aware that this warning was not issued because Mr Townend went on sick leave on 9 February 2016 and subsequently resigned.

[31] Ms Rogers’ evidence went to the resignation email she received from Mr Townend on 14 February 2016 and the extent to which she did not follow up his concerns with him but sent that email on to her manager.

Findings

[32] Section 385 of the FW Act states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[33] Section 386 defines a dismissal in the following terms:

“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.”

[34] The concept of termination at the employer’s initiative has been an essential characteristic of the concept of dismissal in workplace relations legislation for many years. In Mohazab v Dick Smith Electronics Pty Ltd (No2) 18 the Court summarised this concept in the following terms:

“On the finding of fact that the respondent directed the appellant to resign or have the police “called in”, it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee's initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee.”

[35] There can be little doubt that this approach remains apposite to the current legislative provision as it was referenced in the Explanatory Memorandum.

[36] The position adopted by the Court in Mohazab was further endorsed by a Full Bench of the Commission in O’Meara v Stanley Works Pty Ltd 19 in the following terms:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[37] In Barkla v G4S Custodial Services Pty Ltd a Full Bench of the Commission further summarised the approach which has been applied to consideration of termination at the initiative of the employer. 20

[38] I have applied these concepts to Mr Townend’s circumstances.

[39] I accept Mr Townend’s evidence indicates that he was most distressed about the investigation undertaken in February 2016. Notwithstanding this, I am obliged to consider the evidence before me on an objective basis. Notwithstanding this, I am not satisfied that any of the matters about which Mr Townend complains about, were matters that could be said to be actions on the part of Toll which were either intended to bring Mr Townend’s employment to an end or had the probable result of doing so. There is nothing before me that explains how issues of that nature forced his resignation in February 2016.

[40] I have set out my reasons for reaching this conclusion in the following terms.

[41] In terms of the overall investigation process commencing on 13 January 2016, I am satisfied that Toll management applied a normal, and perfectly understandable, approach to that investigation. I cannot discern any form of overall strategy which represents an intention to bring Mr Townend’s employment to an end or that had the probable result of doing so. The approach adopted by Toll differentiated between the fact finding safety investigation and the disciplinary investigation. In reaching my conclusions I consider that the evidence of Mr Lawrence was substantially more credible than that of Mr Townend. I am not satisfied, that the manner in which Toll investigated concerns about safety issues was either unfair or was directed at bringing an end to Mr Townend’s employment. I am not satisfied that the manner in which Toll conducted its investigation has any of the characteristics of bullying behaviour asserted by Mr Townend. It is simply the case that there was a safety issue that was investigated and acted upon by Toll.

[42] Notwithstanding that overall conclusion, I have considered the specific allegations made by Mr Townend. Whilst I am satisfied that a number of these are indicative of failings on the part of Toll personnel, I am not satisfied that they can be objectively regarded as meeting the tests articulated in Mozahab and in O’Meara such that Mr Townend’s decision to resign should be regarded as a dismissal at the initiative of Toll. The failings I refer to in this respect relate to Mr Townend’s requests for a copy of the Toll tagging procedures. That failing reflects poorly on Toll’s operational managers and on Ms Rogers. It may have given rise to a dispute or a grievance but it falls well short of an action which left Mr Townend with no alternative than to resign, even before he was aware of the disciplinary action which was proposed. In this regard the extent to which the warning that was never given to Mr Townend also addressed other issues, is significant. Secondly, I think it should have been clear to Toll, and particularly to Ms Rogers, that Mr Townend was distressed even before the meetings of 1 and 2 February 2016. That no real action was taken to address that is surprising, but again, it does not establish a termination circumstance.

[43] To the extent that Mr Townend asserts that, because Toll did not properly act on the complaints that he made to Ms Rogers from 14 January 2016 and that this failure to properly act in accordance with its own policies and procedures forced him to resign, I am not satisfied that Toll did breach its policies and procedures, or that, in any event, that this left Mr Townend with no alternative other than to resign.

[44] A range of Mr Townend’s other concerns are simply not sustainable on the evidence before me. I am not satisfied that Mr Lawrence’s behaviour in the 2 February 2016 meeting was inappropriate. In this respect I have accepted the evidence of the other Toll personnel in preference to Mr Townend’s position. I also note that Mr Townend’s support person could have given evidence in this respect but did not do so. I am not satisfied that the evidence establishes that the workers compensation claim made by Mr Townend was considered in any way as part of the disciplinary investigations being undertaken by Toll. I am not satisfied that Mr Townend’s concerns about the reports prepared by Mr White are validly founded. In this respect I have accepted the evidence of Mr White about his preparation of those reports. Further, had Mr Townend wanted to challenge those reports, he could have done so in the 2 February 2016 meeting, but he elected no to do that. Mr Townend’s conclusion that he was omitted from planned first aid training because he was targeted for dismissal is simply not supported by the facts. I have accepted that Mr Townend was initially included on this training list but was removed from it when he was away on sick leave and he was not returned to this list pending discussions with him about the timing and location of that training. Toll proposed to give Mr Townend a written warning but did not do so because he was absent on sick leave. This first aid training issue represents an unfounded assumption on Mr Townend’s part.

[45] Mr Townend resigned following an investigation process that had not been completed in that no action had been taken by Toll in relation to him. Whilst Toll had decided to give him a warning, that was quite appropriately delayed because of his absence on personal leave. In this context it is simply impossible to conclude that the Toll behaviour was part of some form of strategy designed to give effect to the termination of his employment or that it could be reasonably construed as having that effect.

[46] A further factor is relevant. It is a matter of conjecture about whether, had Mr Townend disclosed his state of mind to Toll personnel before he chose to resign, or had he taken up the offer of assistance through the Toll employee assistance programme, his concerns may have been able to be addressed. However, I consider that the absence of any detail about his health limited the capacity for more comprehensive consideration of his concerns.

[47] I am not satisfied that the evidence confirms that the somewhat emotive allegations made by Mr Townend in his resignation email represent a basis for a conclusion that Toll dismissed Mr Townend. Nevertheless, as it appears that Mr Townend was concerned about the Toll actions, other responses, apart from resignation were clearly open to him. He could, for instance, have raised some form of grievance or he could have again taken the matter up with Ms Rogers. His state of health may have influenced his actions in this respect but this does not establish that Toll’s actions left him with no alternative other than to resign.

[48] Mr Townend contends that Toll was, in some manner, remiss in accepting Mr Townend’s resignation without giving him an opportunity to review it. Mr Townend’s resignation was categoric. His resignation was not issued in the heat of an argument and cannot be said to be a spur of the moment decision. Mr Townend went into the worksite on 13 February 2016, dropped off his access card and collected his belongings. 21 He prepared his resignation over two days. I accept that this resignation was provided during a time when Mr Townend was on personal leave. Mr Townend made no effort to withdraw that resignation.22 There is nothing that establishes that Mr Townend was unable to rationally decide to resign. Notwithstanding that the resignation was unusual in terms of the extent to which it detailed specific concerns on the part of Mr Townend, it was undoubtedly a resignation. Further, there is nothing before me that indicates that Mr Townend sought to withdraw his resignation or that such a request to withdraw it was refused by Toll. The standing of a resignation was considered by a Full Bench in Canh K Ngo v Link Printing Pty Ltd23 in the following terms:

“12 We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd (1995) 63 IR 357 at 361-362 as follows:

“The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise …

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.

Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:

If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as ‘special circumstances’. Where ‘special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.””

[49] I do not consider that the circumstances here provide a basis upon which I should depart from those approaches. Consequently, I am not satisfied that Toll was under an obligation to either refuse to accept Mr Townend’s resignation or to ensure that he meant to resign.

Conclusion

[50] I have concluded that Mr Townend was not dismissed on the employer’s initiative. He was not forced to resign his employment because of Toll’s conduct or course of conduct. It follows that, for the purposes of s.395 of the FW Act he was not dismissed and his application must be refused on this basis. An Order (PR581843) to this effect will be issued.

Appearances:

N Marouchak counsel for the applicant.

C McCutcheon for the respondent.

Hearing details:

2016.

Perth:

June 15.

 1   Exhibit A2, Attachment KT1

 2   Transcript, Audio Recording, 15 June 2016, 10.50 am

 3   Transcript, Audio Recording, 15 June 2016, 11.20 am

 4   Transcript, Audio Recording, 15 June 2016, 10.57 am

 5   Transcript, Audio Recording, 15 June 2016, 10.48 am

 6   Exhibit A2, para 16

 7   Exhibit A2, Attachment KT1

 8   Exhibit A3, para 63

 9   Exhibit A3, para 58

 10   Transcript, Audio Recording, 15 June 2016, 11.54 am

 11   Transcript, Audio Recording, 15 June 2015, 13.15 pm

 12   Transcript, Audio Recording, 15 June 2016, 13.35 pm

 13   Transcript, Audio Recording, 15 June 2016, 13.46 pm

 14   Transcript, Audio Recording, 15 June 2016, 13.19 pm

 15   Transcript, Audio Recording, 15 June 2016, 13.26 pm

 16   Transcript, Audio Recording, 15 June 2016, 14.26 pm

 17   Transcript, Audio Recording, 15 June 2015, 14.37 pm

 18 (1995) 62 IR 200 at 206

 19   (2006) AILR 100

 20 (2011) 212 IR 248 at para 24

 21   Transcript, Audio Recording, 15 June 2016, 10.31 am

 22   Transcript, Audio Recording, 15 June 2016, 10.35 am

 23 (1999) 94 IR 375

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