Kristopher Cameron v Terex Australia Pty Ltd

[2025] FWC 1508

[2025] FWC 1508 [Note: An appeal pursuant to s.604 (C2025/5552) was lodged against this decision.] 

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kristopher Cameron
v

Terex Australia Pty Ltd & Ors

(C2024/6566)

COMMISSIONER ALLISON MELBOURNE, 5 JUNE 2025

General protections dismissal dispute – jurisdictional objection relating to no dismissal – section 386 meaning of dismissed – whether dismissal or voluntary resignation – whether resignation ineffectual because expressed in the heat of the moment – whether forced resignation

1. On Friday 13 September 2024, Mr Christopher Cameron tendered his resignation to Terex Australia Pty Ltd (Terex) after several tumultuous months where the relationship between Mr Cameron and his employer had become increasingly strained. Two days later Mr Cameron filed an application in the Fair Work Commission alleging he had been adversely treated in contravention of Part 3-1 of the Fair Work Act 2009 (the Act), including being unlawfully dismissed by Terex. He named Mr Andrew Howe, his direct manager and Ms Christine Richeux, National Human Resources Manager, as additional respondents, alleging they were involved in Terex’s contraventions of the general protections provisions.

1. Mr Cameron’s application is made under s.365 of the Act and is dependent on Mr Cameron being dismissed. Terex has raised a jurisdictional objection to the application, namely that Mr Cameron was not dismissed, but voluntarily resigned.

1. This decision considers whether Mr Cameron was dismissed within the meaning of the Act.

Hearing, Arguments before the Commission and Evidence

1. I conducted a hearing in this matter on 11 and 12 February 2025. Mr Cameron represented himself.  I granted permission to the Respondents to be represented.

1. It was clear from written submissions prior to the hearing that the parties were running very different arguments.

1. Mr Cameron sought to rely on behaviour of Terex dating back to February 2024, which he argued culminated in a resignation in the heat of the moment or a forced resignation on 13 September 2024.

1. Terex, in comparison, contended that the Commission’s inquiry should be limited to the last few weeks of employment, and predominantly, to 12 and 13 September 2024. Terex submitted evidence about matters prior to or after these dates was not relevant.[1] Terex also submitted Mr Cameron should choose either to argue heat of the moment or forced resignation.

1. I indicated to the parties I would have a particular focus on the last two weeks before the termination, as even if Mr Cameron could establish there had been prior unreasonable behaviour by Terex, he would still need to establish that prior behaviour led to resignation in the heat of the moment or a forced resignation on 13 September 2024.[2] However, it was open to Mr Cameron to run an argument that behaviour over a number of months culminated in his termination, and I accordingly allowed evidence of prior behaviour to be admitted. The Respondent chose not to lead any evidence regarding matters prior to the last few weeks of Mr Cameron’s employment.

1. On the material before me, both heat of the moment and forced resignation were arguments reasonably open to Mr Cameron, and I allowed evidence relating to both matters.

1. During the hearing, I directed both parties’ attention to a decision of Deputy President Anderson in Patterson v Re-Engage Youth Services Incorporated T/A Re-Engage Youth Services.[3] In this decision the Deputy President found that an employer who had unilaterally shortened a notice period following an employee’s resignation, had dismissed the employee.[4] I asked the parties to address me on whether this case had any relevance to the current application and granted both parties leave to file further written submissions addressing this issue after the hearing.

Witness Evidence

1. Mr Cameron relied on his own witness evidence and the evidence of Mr Mark Tanner, National Service Manager of Terex.[5] Mr Howe and Ms Richeux attended the hearing as witnesses for the Respondents. Mr Sameer Sharma, Terex Service Technician, was a third witness for the Respondents, but was not required for cross-examination nor required to attend the hearing.

1. In relation to Mr Cameron’s evidence, there were several key events or discussions that occurred on Mr Cameron’s last days of employment with Terex that Mr Cameron could not recall clearly, or at all.  For example, he could not recall the detail of a “work expectations” document he received in a meeting on 12 September 2024, or what he did with it. He could not recall sending his resignation email, a follow-up teams meeting with Mr Howe and Ms Richeux to discuss his resignation, and a conversation with Mr Sharma on 13 September at all. Mr Cameron gave evidence that he could not recall the events because he was distressed[6] and his mind was “jumbled.”[7]

1. Terex submitted that I should find that Mr Cameron was an unreliable witness and not credible on the basis Mr Cameron has “a hazy memory when it suits him”.[8]  In particular, Terex submitted that Mr Cameron gave false evidence in relation to his written statement in reply to Mr Sharma given he also gave evidence he could not recall the conversation.

1. I found Mr Cameron a credible witness. In the witness box he came across as sincere and frank. Mr Cameron answered in a clear, direct voice with good eye contact. He was not defensive in his responses, and on numerous occasions gave evidence that was not self-serving, and indeed detrimental to his own case.

1. Mr Cameron does not deny the events he cannot recall occurred. While arguably there may be some small benefit to Mr Cameron in not recalling his discussion with Mr Sharma, in general it is not obvious how Mr Cameron’s inability to clearly recall all matters from his last days assists his case. In some respects, it is detrimental to his case. In any event, I have decided to accept Mr Cameron’s evidence that as a result of a stressful situation he does not have clear recollection of some events on his last days. This is consistent with contemporaneous written evidence in the form of an email Mr Cameron sent to his union representative on 13 September 2024 (set out further below at [52]). Unless otherwise stated, I have accepted the Respondents’ evidence in relation to events that Mr Cameron cannot recall. 

November Independent Medical Examination

1. Mr Cameron sought to tender an Independent Medical Examination dated 25 November 2024[9] (the Goyal IME). Terex submitted that the Goyal IME should not be admitted into evidence because it was an hour long telehealth examination conducted over two months after Mr Cameron’s resignation, and therefore not illustrative of Mr Cameron’s mental state on the day of his resignation. Terex further noted that the medical examiner, Dr Goyal, was not called as a witness.

1. Mr Cameron argued that the Goyal IME was relevant because he was not able to obtain a psychiatrist report any earlier than 25 November 2024 given the waiting period to see psychiatrists.  He also submitted the report was considered relevant in relation to a Workcover claim.

1. I ultimately determined to admit the report but have taken the Respondent’s submissions into account regarding the weight to be given to it. I have accorded the IME little weight in relation to Mr Cameron’s mental state at the time of termination given the report occurred 2 months after the termination of employment. However, I have considered the report as circumstantial evidence that Mr Cameron has not worked since 13 September 2024, and he had been seeing a psychologist weekly since March 2024.

Relevant Background

Mr Cameron’s Background Prior to Engagement with Terex

Mr Cameron is an American war veteran. He had an extensive career in the United Sates Army serving for over 25 years, including three Active-Duty deployments to Afghanistan.[10]  Mr Cameron has two disabilities arising from his time in the army. This includes sleep apnoea and post-traumatic stress disorder (PTSD).[11] 

Mr Cameron receives treatment for both of these conditions.

1. Mr Cameron now lives in Australia with his Australian wife and their two primary-school aged daughters. One of his daughters has a disability which impacts on her “fine motor skills, self-care skills, emotional regulation” amongst other things and means she requires ongoing support.[12]

Engagement with Terex

1. Terex is a multinational company, with a head office located in the United States. Terex has a site in Dandenong, Melbourne, which services cranes and other large machines and equipment.

1. On 11 August 2023, Mr Cameron accepted a position with Terex as a Service Technician at the Dandenong site. Before accepting the position, Mr Cameron had indicated to Terex that that he wanted to work minimal overtime to allow him to balance his work/life commitments. Mr Mark Tanner, National Service Manager, acknowledged and agreed to this condition.[13] Despite this, Mr Cameron’s written employment contract contained a standard term relating to reasonable overtime requirements.[14]

1. On 16 August 2023, Mr Cameron completed a pre-employment medical check.[15] As part of the check, Mr Cameron disclosed both of his disabilities, including anxiety and depression arising from his PTSD. His general practitioner provided a medical certificate confirming his treatment.[16]

Mr Howe, Employment February 2024 – June 2024

1. Mr Andrew Howe commenced with Terex in late October in the position of Branch Service Manager, Terex Dandenong. From late January 2024, Mr Howe commenced asking Mr Cameron to work overtime on a regular basis. Mr Cameron would sometimes accept these requests if it fitted in with his “health and carer’s appointments”[17] but would often refuse.

1. On 22 February 2024, Mr Howe sent Mr Tanner an email relating to Mr Cameron’s refusal to perform overtime and other performance concerns. The email was Cc’d to Ms Christine Richeux, Human Resources Manager. The email relevantly states:[18]

“As you are aware, kris has made it clear that he is only interested in doing 7.6 hours per day. There are odd occasions when he will stay back and help finish jobs if they flow into overtime, but not often…

There is no motivation to help our team beyond 3.06pm – this is becoming an issue and causing tension when other TMS have to step up and finish jobs.”

…

Reliability is becoming a problem as I need TMs who I can count on to get the job done. I’m aware he has discussed with you during onboard process and has set boundaries regarding overtime but this makes it very hard given my already stretched resources.”[19]

1. In a further email to Mr Tanner, Mr Howe stated he would sit down with Mr Cameron and express his expectations moving forward, identifying that there were some other performance issues to discuss.[20] Mr Howe then asked whether it was possible to extend Mr Cameron’s probationary period. In response to this Mr Tanner replied:[21]

“Extending the probationary period is not possible, it would need to be a performance management process from here.”

1. However, before any conversation could occur between Mr Howe and Mr Cameron, on 23 February 2024, Mr Cameron’s wife suffered an unexpected and debilitating stroke.  Mr Cameron became the primary carer for his entire family while his wife recovered. 

1. On 13 March 2024, Mr Cameron returned to work after a period of leave to provide care for his wife. At this stage, while Mr Cameron had returned to work, his wife continued to require ongoing support and care.

1. From Mr Cameron’s return through to June 2024, there are a range of interactions between Mr Cameron, Mr Howe and Mr Pavitt, the Floor Supervisor, which Mr Cameron takes issue with and claims were inappropriate. These matters are outlined later at [88]. Terex continued to regularly request that Mr Cameron perform overtime. Mr Cameron commenced working increased regular weekly overtime hours from April 2024.[22]

First Complaint

1. On or about 29 May 2024, Mr Cameron made a complaint to Ms Richeux regarding Mr Howe’s behaviour towards him, and raised issues regarding how it was impacting his PTSD and mental health.[23] Ms Richeux then arranged a meeting with Mr Cameron, Mr Howe and Mr Pavitt.[24] The meeting occurred on or about 7 June 2024. At the meeting there was a broad ranging discussion where they all spoke about their past experiences, what motivated them, goals and ways to improve work functions at Terex Dandenong.[25] During the discussion, Mr Cameron raised his PTSD.[26] He also raised his ongoing carer’s duties in relation to his wife, and the continuing impact of the stroke upon her.[27] At the end of the meeting Mr Howe outlined his ongoing expectation that Mr Cameron would perform overtime, unless it was “absolutely not an option.”[28]

1. After the meeting, Terex continued to be request that Mr Cameron perform overtime.[29]

Second Complaint

1. On 27 June 2024, Mr Cameron was late for work. Mr Howe sent Mr Cameron a text stating “Do you plan on coming to work today?”[30] When Mr Cameron arrived at work, Mr Howe and Mr Cameron had an interaction where Mr Howe said words to the effect of “this is the behaviour I would expect from an apprentice, not a grown man.”[31] (Apprentice Comment).

1. Later that day Mr Cameron emailed Ms Richeux to complain about this interaction and raise concerns regarding overtime and fatigue. The email relevantly stated:[32]

“I would like to address an issue that occurred yesterday due to ongoing stress that has been impacting myself and my family since February. I woke up very late and was then obviously late for work. It was completely aggravating for me, and it appeared that Andy was equally aggravated and made it clear that is how he felt.

After being in the Army for my whole adult life and performing a task at the exact right second timeliness has been ingrained so deeply that being late to anything actually causes me distress. Being on time was a life or death issue. So if I am late, that's usually a sign that something isn't ok with my life or my health.

….

a large majority of Veterans have been diagnosed and are treated for sleep apnea. I am one of these Veterans. It is a health issue that I disclosed on my Medical when starting at Terex.

When I started, I EXPLICITLY stated I would not work overtime unless absolutely required. In an emergency.”

1. Mr Cameron attached various documents to this email, including, most relevantly, a report from the Department of Veteran Affairs, Veterans Benefit Administration Regional Office (the VA Report).[33] The VA Report is a 7 page report dated 22 February 2023 which refers to a number of service-related medical conditions Mr Cameron suffers from. In particular, it refers to Mr Cameron’s sleep apnoea being evaluated as “100 percent effective” and states Mr Cameron is entitled to special monthly compensation as a result. 

1. On 29 June 2024, Ms Richeux emailed Mr Cameron in response.[34] Ms Richeux Cc’d Mr Howe into the correspondence chain on the basis that she wanted to encourage transparency in communication between Mr Cameron and Mr Howe. The email acknowledges Mr Cameron’s health concerns including PTSD and his carer’s duties, and notes “two recent occasions” when Mr Cameron has been late for work. In relation to overtime, the email states: 

Friday, 28, 7:33 AM

“There is a requirement for all team members to undertake a reasonable amount of overtime. I understand previous discussions with your line manager have resulted in a mutual arrangement on your preferred days and amount of overtime. If your availability has changed, please communicate this with Andy and Aaron.

Kris, the business is sympathetic to your carers responsibilities and will continue to accommodate where practical to do so. Similarly, the business has commitments to our customers to ensure we deliver to their expectations of timeliness and quality. I trust moving forward we can continue to achieve the needs of you and your family, the Franna business and the customers. If we are not able to achieve these goals, we will need to discuss alternatives. “

Third Complaint

1. After receiving this response from Ms Richeux, on 2 July 2024, Mr Cameron submitted a complaint against Mr Howe and Ms Richeux on Terex’s international Human Resources reporting system “EthicsPoint.”

1. In the complaint Mr Cameron claimed he has been harassed and verbally abused by Mr Howe, and that Ms Richeux had breached his confidence by Cc’ing Mr Howe into an email chain which included a complaint made against Mr Howe. The EthicsPoint Complaint relevantly stated:[35] 

“…My mental health has taken a very serious turn these past few months… I no longer suffer from extreme PTSD, but having a manager yell at me all the time, and having no power, is extremely triggering. I feel that this is going to cause another mental health crisis now that HR have violated my trust.

…

Working overtime puts my health at risk, it impacts on my family responsibilities, and it was something I was firm about when discussing being hired for this job…

I don’t go about life living in stress, jumping at loud noises, being scared of crowds. What affects me, is being yelled at continually and having no chance to have a calm and civil conversation, as I will inevitably respond by yell as well. I have gone through enough therapy to avoid that outcome and refuse to let Terex destroy all the work I have done.”

1. Following this complaint, Terex continued to request that Mr Cameron work overtime and Mr Cameron worked overtime.[36]

9- 11 July 2024,

1. On 9 July 2024, Mr Cameron performed overtime after work. Driving home from work Mr Cameron almost had a car accident. On 10 July 2024, Mr Cameron did not attend work as he slept in and felt exhausted. Later that day Mr Cameron made a further complaint regarding overtime to EthicsPoint. That complaint relevantly stated:[37]

“… I told a manager (Aaron) yesterday that I was “exhausted”. He dismissed my comment, and I was then asked to work Overtime. Due to my military background, I struggle to say “no”, so I agreed…

Again, Sleep Apnea was disclosed upon being hired as well as the wish to do minimal OT

…        

So, it is a health issue that can be managed but I have no support and HR have insisted that I am required to work OT.

I am not sure what else to do. The workshop is severely understaffed and there is no plan to fix this issue beyond making the two remaining staff work beyond their means.”

1. On 11 July 2024, Mr Cameron attended work and was called in for a brief meeting with Mr Howe. Mr Howe then sent Mr Cameron home for further rest.

1. Later that day Mr Tanner sent Mr Cameron a letter standing him down from duties. The stand down letter refers to the VA Report that Mr Cameron provided to Terex on 27 June 2024. The stand down letter raises concerns regarding medical matters set out in the VA Report and relevantly provides:[38]

“It does not appear that the VA Report was disclosed by you for the purposes of your pre- employment medical evaluation on 16 August 2023.

Given the contents of the VA Report, Terex has reasonably held serious concerns that you may not presently have capacity to perform the inherent requirements of the Position without further risk to your own health and safety and that of your work colleagues. It is for these reasons that you have been directed to stand down from duties.”

Independent Medical, EthicsPoint response, Return to Work

1. On 1 August 2024, on Terex’s request, Mr Cameron attended an independent medical examination performed by Dr Robert McDonald (the MacDonald IME). The MacDonald IME concluded that Mr Cameron could perform the inherent requirements of the service technician role on a full time basis but that he was not fit to undertake overtime.[39]

1. On 21 August 2024 Mr Cameron received a response to his EthicsPoint complaint in relation to Mr Howe, Ms Richeux and performing overtime. The response stated that an investigation had occurred into Mr Cameron’s 2 July complaint. Allegations that Mr Howe harassed or verbally abused Mr Cameron had not been substantiated and Ms Richeux’s actions in forwarding the email complaint to Mr Howe were not retaliatory in nature. In relation to Mr Cameron’s overtime complaint the response stated:[40]

“With respect your allegations concerning overtime, you acknowledge that you were given the option to decline overtime but elected not to do so. In addition, you have since been relieved of any obligation to perform overtime work, pending a fitness for work evaluation.”

1. The EthicsPoint response encouraged Mr Cameron to raise any further concerns he had about his employment status with the local team.

1. Mr Cameron’s returned to work on 28 August 2024. On his return day, Mr Cameron and his union representative attended a meeting with Mr Howe and Ms Richeux. During the meeting, the parties confirmed that Mr Cameron would not perform overtime and set out an action plan to assist Mr Cameron’s return to work.[41]  

Shooting Range

1. On 2 September 2024, Mr Howe emailed Mr Cameron details of a team building activity to take place after work on 5 September 2024 at the Springvale shooting range.[42] Mr Cameron attended the activity, but did not participate. He was unable to wear close toe shoes because of an ingrown toenail operation.

12 September 2024 – Day before resignation

1. On 12 September 2024, Ms Richeux attended the worksite with other human resources managers for a safety inspection and presentation. After the presentation Mr Howe asked Mr Cameron to attend an “impromptu catch up” meeting with him and Ms Richeux[43] (the First Meeting). Mr Howe did not ask Mr Cameron to bring a support person, and Mr Cameron did not seek a support person.

1. The First Meeting occurred about an hour later at approximately 12pm. There is some dispute about the content, tenor and length of this meeting, which I discuss further below. There was a review of Mr Cameron’s return to work, and a number of performance issues were raised.

1. Following the First Meeting, Ms Richeux and Mr Cameron had a further one-on-one meeting (the Second Meeting). Again, the parties are in dispute regarding the content and tone of the meeting and how physically upset Mr Cameron appeared. It is uncontested that Mr Cameron told Ms Richeux that he “despised” working for Terex. Ms Richeux gives evidence that Mr Cameron spoke about pursuing other jobs.

1. After meeting with Ms Richeux, Mr Warren Ross, the training manager, met with Mr Cameron to discuss the requisite training to become a Product Support Specialist.

13 September 2024 – Resignation

1. On 13 September 2024 at 10:34 am Mr Cameron sent an email to Mr Howe, Ms Richeux and Mr Tanner. The email stated:[44]

“As I sure some of you are aware and possibly happy, I am submitting my 3 week resignation at this time with a final work day of 4OCT24. I know only 2 weeks is required, but I have a scheduled week off during this time, so it only seemed appropriate to give two working weeks notice.

While Terex is the OEM, we operate like some 13th century cave dwellers, not like a proper OEM, and honestly it is embarrassing to be associated with it anymore. I totally understand as a field service you can't carry everything and sometimes have to get creative OEM or not. But working out of an OEM workshop, I should never be wanting for tools, as the OEM we should literally have every special tool under the sun. I shouldn't need to borrow basic workshop tools from other companies nearly daily. I shouldn't need to get creative in order to make basic jobs that we do regularly possible. We only work on a few models with tons of commonality, yet we are the dictionary definition of inefficient.

All this coupled with the disgustingly inept management, and completely toxic working environment has made it this job unbearable.

I am happy to articulate and expand on the reasons why in am resigning if anyone is interested, though I did cover a few things yesterday with Christine.”

1. At 12:34pm Mr Cameron wrote to his union representative. The email relevantly stated:[45]

“There was a big incident at work yesterday. I can’t quite remember what happened as I was completely pushed to my limit and I had zero control of my reaction after everything happened.”

…

The team building exercise was at a shooting range in Springvale… No joke, they took the Veteran who they just discriminated, to a shooting range.

…

Yesterday I was invited to an impromptu meeting with Andy and Christine from HR. Neither offered to have my union rep there as a support person.

I was given some BS document about work expectations and some other stuff that I don’t remember because I essentially disassociated due to the amount of anger I was experiencing. I think I threw away the paperwork.
I was then invited into a meeting with Christine from HR where I proceeded to completely lose it and tell her everything on my mind.

…

By the end of it I was crying, enraged, and didn’t hold back.”

1. At approximately 1pm, Mr Cameron, Ms Richeux and Mr Howe attended an online meeting (the Third Meeting). In the Third Meeting, Ms Richeux advised Mr Cameron that his resignation had been accepted and that it would take effect immediately, with Terex paying out the remainder of Mr Cameron’s notice.

1. At 2.10pm Ms Richeux emailed Mr Cameron, stating:[46]

“As discussed this afternoon and based on previous conversations, it is in the best interested (sic) of both parties that your employment finishes today, 13th September 2024 and Terex will pay you 2 weeks in lieu of working your required notice period”

1. At some stage on 13 September 2024 Mr Cameron had a discussion with Mr Sameer Sharma, Service Technician at Terex and one of Mr Cameron’s co-workers. Mr Sharma gives evidence that Mr Cameron told Mr Sharma that he had resigned and accepted a job with a security company.   

1. Mr Cameron filed his general protections application two days later, on 15 September 2024.

1. Mr Cameron has not worked since 13 September 2024. He has been seeing a psychologist weekly since March 2024.

Relevant Legislation and Legal Principles

1. As noted above, this decision considers whether Mr Cameron was dismissed within the meaning of the Act or whether the Applicant voluntarily resigned. An application under s.365 of the Act requires that “a person has been dismissed” as a threshold matter. An actual dismissal must occur – a mere allegation that a person has been dismissed is not sufficient.[47]

1. Section 386 of the Act relevantly provides that:

(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.

1. The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli considered the application of s.386(1) of the FW Act in detail and provided the following guidance in applying the section when there has been an ostensible resignation:[48]

[47]     …

(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 probably (sic) 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.

1. Having outlined the key legislative provisions and legal principles, I will now turn to consider the following questions to determine whether Mr Cameron was “dismissed” pursuant to s.386(1):

1. Did Mr Cameron resign “in the heat of the moment” pursuant to s.386(1)(a)?

1. Was Mr Cameron forced to resign pursuant to s.386(1)(b)?

1. Was Terex’s decision to shorten the notice period from 3 weeks to immediate termination, an action to terminate employment “at the initiative of the employer” pursuant to s.386(1)(a)?

1. Did Mr Cameron resign “in the heat of the moment?”

1.1      Mr Cameron’s Submissions

1. Mr Cameron submits that his resignation tendered on 13 September 2024 was made “in the heat of the moment,” when he “clearly wasn’t in the right mind to be resigning.”[49]

1. Mr Cameron claims that Terex’s treatment of him in the months leading up to his resignation contributed to a taxed emotional state, which culminated in him experiencing an extended period of high stress and subsequent breakdown on 12 – 13 September 2024. Mr Cameron’s submissions regarding Terex’s conduct overlaps with his submissions in relation to forced resignation and are set out in detail at paragraphs [81] – [96] below.

1. Mr Cameron asserts that during and after the First Meeting and Second Meeting on 12 September 2024, he was visibly upset and withdrawn. He claims that in the Second Meeting he was “very upset and crying”[50] and “crying so hard I had tears streaming down my face and could hardly control my breathing.”[51] He believes that he was “in such a heightened and detached emotional state” that he did not recall everything that he said and could not think properly.[52]

1. Mr Cameron contends that Ms Richeux downplayed his physical and emotional reactions in those meetings, and his behaviour was consistent with him having “adopted a kind of inward collapse.”[53] He contends that the way he presented should have “triggered for the most senior HR professionals an immediate cool-down approach, such as ‘Please take overnight to think this through.’”[54]

1. In response to Terex’s claim that Mr Cameron made a calculated decision to resign evidenced by his discussions of a potential new job with Mr Sharma and Ms Richeux, Mr Cameron states he does not recall talking to Mr Sharma or Ms Richeux about any new job. Mr Cameron claims that if either Mr Sharma or Ms Richeux’s evidence is correct and he did have such a conversation with either of them, this should be considered a further indication that Mr Cameron was not in the right state of mind on 12 – 13 September 2024, as he “most certainly did not have the capacity to interview for, or accept any job at that point.”[55]

1.2      Terex’s Submissions

1. Terex submits that Mr Cameron’s resignation cannot be considered to have been tendered “in the heat of the moment.” Rather Terex contends that the evidence supports a finding that Mr Cameron voluntarily resigned. In this regard Terex points to the fact that Mr Cameron had time to consider his next steps following the 12 September 2024 meetings, and that his eventual resignation the next day was consistent with discussions he had had with Ms Richeux about resigning to pursue other work. It also relies on Mr Cameron’s evidence that he drafted the resignation email on the night of 12 September 2024 but chose not to send it at that time. Terex argues this is a further indication that Mr Cameron’s resignation was “clear, unambiguous and considered conduct on Mr Cameron’s behalf to terminate the employment relationship.”[56]

1. Terex further argues that the reasons set out in Mr Cameron’s resignation email, which lists many grievances with Terex (but nothing specifically about Mr Howe or Ms Richeux’s conduct in the First Meeting), are not indicative of it being given in the heat of the moment. 

1. Terex also submitted that there was no conduct of Ms Richeux or Mr Howe in the leadup to Mr Cameron’s resignation which could be considered as “jostling” by Terex.[57] It emphasises that there is no clear evidence before the Commission of any incidents in which Mr Howe yelled at Mr Cameron, and that Mr Cameron did not cross-examine Mr Howe regarding any such events. Terex submits that I should accept the evidence of Ms Richeux and Mr Howe in this regard. It asserts that if either Ms Richeux or Mr Howe had engaged in inappropriate conduct on 12 September 2024, Mr Cameron would have mentioned this conduct in either his resignation letter, or the email to his union.

1. Finally, Terex submits that its actions after the resignation letter do not establish that it acted upon the resignation without confirmation of Mr Cameron’s intention within a reasonable time, as contemplated by the Full Bench in Bupa. Terex arranged a Teams meeting between Mr Cameron, Ms Richeux and Mr Howe on the same day and confirmed Mr Cameron’s intentions in that meeting. It highlights that Mr Cameron did not seek to retract his resignation, either in the Teams meeting or in response to Ms Richeux’s follow-up email to him at 2:49PM after the meeting. This, it contends, is a further indication that Mr Cameron’s resignation was considered, voluntary, and not given “in the heat of the moment.”

1.3       Consideration – Heat of the moment

1. On the evidence before me, I find that Mr Cameron was highly emotional and distressed following the First Meeting. I make this finding taking into account the following matters:

1. First, Mr Cameron, who presents as confident and articulate, clearly withdrew in the First Meeting. Mr Howe states that after disputing a performance issue, Mr Cameron “shut down.”[58] Ms Richeux found Mr Cameron “quite quiet” with the conversation being “60 or 70 percent Mr Howe and 30 percent Mr Cameron.”[59]

1. Secondly, I find that Mr Cameron was physically and emotionally distressed in the Second Meeting with Ms Richeux. There are significant differences between Mr Cameron’s and Ms Richeux’s evidence of the Second Meeting. Mr Cameron states that he “broke down” while Ms Richeux recalls that “I think … he had some tears in his eyes.” However, my conclusion that Mr Cameron was physically upset is consistent with both witnesses’ testimony. In addition, Mr Cameron’s usage of emotive language such as “despise,” uncontested by both parties, is a clear indication that he was emotional at the time.

1. Thirdly, I accept Mr Cameron’s witness evidence that he was so distressed, it impacted on his ability to recall events. This is consistent with contemporaneous written material in a form of an email to his union on 13 September 2024 which in relation to the First Meeting states:

“I can’t quite remember what happened as I was completely pushed to my limit…

I was given some BS document about work expectations and some other stuff that I don’t remember because I essentially disassociated due to the amount of anger I was experiencing.”[60]

1. Given the above, I am of the view that at the time of Mr Cameron’s resignation he was experiencing emotional stress and mental confusion. However, it is not unusual for an employee to experience heightened emotions leading up to resigning, and ultimately there is not enough evidence before me to be satisfied that Mr Cameron was in such a state of “emotional stress or mental confusion” that he could not “reasonably be understood to be conveying a real intention to resign”. In this respect I have had particular regard to the following matters:

1. Firstly, Mr Cameron did not tender his resignation during or immediately after the First or Second Meeting. Mr Cameron’s evidence is that he drafted his resignation email on the night of 12 September 2024, and then sent the email the following day, a few hours after his shift had commenced. This reveals that Mr Cameron had a period of time to contemplate his resignation, and did not do it immediately after becoming upset during the First Meeting.

1. Secondly, while the language used in Mr Cameron’s resignation email is emotive and reflective of an upset person, I find it is also coherent and considered. When preparing his resignation, Mr Cameron was clearly in a requisite state of mind to consider his notice period and how it interacted with his pre-approved week of leave in September 2024.

1. Thirdly, Mr Cameron did not make any attempt to withdraw his resignation, either at the Third Meeting on 13 September 2024, or in response to Ms Richeux’s email confirming his resignation.

1. Finally, I accept Ms Richeux’s and Mr Sharma’s evidence that Mr Cameron discussed alternative work opportunities with them. This evidence reveals that Mr Cameron was contemplating leaving Terex at the time, and weighs against a heat of the moment resignation.

1. For the reasons given above, while I find Mr Cameron was distressed leading up to the tendering of his resignation, I do not find that he resigned in the heat of the moment.

1. Was Mr Cameron forced to resign?

2.1      Mr Cameron’s Submissions

1. Mr Cameron’s position is that Terex’s conduct throughout his employment caused his position to become “untenable.”[61] He rejects Terex’s submissions that only Terex’s behaviour in the last two weeks of his employment is relevant, stating that the stressors had “been building for many months” and that it is “disingenuous to attempt to package the last two weeks for the convenience of the Respondents.”[62]

1. Mr Cameron’s submissions may be summarised as three interrelated contentions outline below. Firstly, Terex repeatedly and unreasonably requested and pressured Mr Cameron to perform overtime. Secondly Terex, and in particular Mr Howe, engaged in bullying and inappropriate behaviour towards Mr Cameron. Thirdly, Terex inadequately or inappropriate responded to Mr Cameron’s formal complaints, including discriminating against him due to his status as a US veteran by suspending him for 7 weeks pending a medical investigation.

1. Firstly, Mr Cameron submits that Terex repeatedly and unreasonably requested and pressured Mr Cameron to perform overtime.

1. Mr Cameron relies on both his and Mr Tanner’s evidence to establish that when he commenced employment with Terex, there was a mutual understanding that he would work no, or very little, overtime. Mr Cameron states he was “explicit from day zero” that he would not perform overtime because he knew he would find it hard to refuse overtime requests. This is because of his military background where “saying ‘no’ is insubordination.”[63]

1. Mr Cameron gave further evidence that notwithstanding this agreement, from February 2024 Mr Howe repeatedly asked him to perform overtime and gave him jobs that “could not be physically accomplished in [his] work day, but they were expected to be completed and returned to the customer that day.”[64] Mr Cameron states that he was “constantly asked over and over and over again.”[65]

1. Mr Cameron attempted to voice his concerns with working unreasonable overtime, noting his mental health concerns, his carer’s responsibilities, and Terex’s fatigue management policies but these concerns were dismissed by Terex.[66]

1. Mr Cameron further asserts that Terex refused to grant him a pay raise in 2024 due to his refusal to work overtime.

1. Secondly, Mr Cameron contends that Terex, and more particularly Mr Howe (and to a lesser extent, Mr Pavitt) engaged in inappropriate and unreasonable behaviour towards him. These occasions included:

a.On 14 March 2024, Mr Howe was “very heightened and yelled in an unprofessional manner” when Mr Cameron made a mistake by failing to install a safety pin at work;[67]

b.On 15 March 2024, Mr Pavitt provided him a written warning and “demanded [he] sign it and walked off.”[68]

c.On 18 March 2024, Mr Howe used language to the effect of “are you taking the piss with the modified hours?” in an angry tone.”[69]

d.On 3 May 2024, Mr Howe sent Mr Cameron an aggressive text message saying “Is it that hard to close Roller Door 3 when you are the last to leave?”[70]

e.In the first week of May 2024, Mr Howe loudly berated Mr Cameron for taking too long to perform a task “that is generally completed by two to three people.”[71] Mr Cameron felt unable to speak, that he was “starting to walk on eggshells” around Mr Howe as he was unsure when he would be “verbally accosted,” and that Mr Howe’s behaviour was then starting to impact his PTSD.[72]

f.Also in the same week, Mr Howe loudly and aggressively scolded Mr Cameron and a co-worker.[73]

g.In the second week of May 2024, Mr Howe yelled at Mr Pavitt, Mr Cameron and Mr Sharma simultaneously following a safety mistake.[74]

h.On 17 May 2024, Mr Pavitt, acting on Mr Howe’s instructions, directed Mr Cameron to clean the worksite’s air hoses until they were “completely red, without black marks or discoloration.” Mr Cameron found this instruction both unreasonable in consideration of the messy nature of the work performed on site, and highly degrading, as the task was far below his skill set.[75]   

1. On 27 June 2024, Mr Cameron was late for work. Mr Howe sent him a text message stating “Do you plan on coming to work today?”. When Mr Cameron arrived at work Mr Howe berated him, commenting words to the effect of “this is the behaviour I would expect from a boy that is an apprentice, not a man.” This triggered Mr Cameron’s mental disability and caused him to disassociate.[76]

j.On 29 August 2024 and in early September 2024, Mr Howe continued to nitpick and micromanage Mr Cameron and the other Service Technicians, including by using unnecessary verbal insults.[77]

k.On 29 August 2024, Mr Howe berated Mr Cameron for using a ladder instead of a scissor lift. Mr Cameron followed Mr Howe’s direction to use a scissor lift but found that the scissor lift presented a greater health and safety hazard to the ladder. He felt that Mr Pavitt and Mr Howe were imposing unreasonable rules to target and upset him.[78]

1. In addition to the above alleged incidents, Mr Cameron submitted the team bonding activity held on 5 September 2024 at a shooting range after hours was unreasonable. Mr Cameron found the team bonding activity “highly insensitive”[79] and states “I genuinely believe they did this to mess with me and to make me even more paranoid.”[80]

1. Mr Cameron also submitted that the First Meeting on 12 September 2024 was inappropriate and unreasonable. He contends that Mr Howe and Ms Richeux surprised him with an impromptu performance meeting and provided him an “expectations” document, notwithstanding that Mr Cameron had, by that stage, made formal complaints against both individuals.[81] They did not offer Mr Cameron a union representative or support person.

1. Mr Cameron further claims that at the First Meeting, Mr Howe berated Mr Cameron for a range of issues, raising his voice or yelling at Mr Cameron. Mr Cameron felt disrespected and that he had no voice or agency during this meeting, and states that the meeting was “the final psychosocial hazard that [he] had been exposed to that finally broke [him].”[82]

1. Thirdly, Mr Cameron claims Terex inadequately or inappropriately responded to his formal complaints, including discriminating against him due to his status as a US veteran by suspending him for 7 weeks pending a medical investigation.

1. In relation to the 27 June 2024 complaint, Mr Cameron submits that it was inappropriate and unprofessional for Ms Richeux to include Mr Howe in her email response. He claims that the email complaint was confidential and for it to be shared with Mr Howe, the subject of the complaint, was a breach of confidentiality.[83]

1. Mr Cameron further submits that Terex’s actions in handling his Veterans’ Affairs report submitted on 27 June 2024 - which resulted in a 7 week suspension pending a medical examination – were discriminatory and unreasonable. Mr Cameron submits that Terex ignored safety concerns that he had raised, but used the VA Report as “an opportunity to deal with [him] instead”[84] by standing down Mr Cameron and requiring him to attend an IME.

1. Regarding Mr Cameron’s EthicsPoint complaint about Mr Howe and Ms Richeux, Mr Cameron submits that Terex’s actions were insufficient to address his concerns. He submits that the email response on 26 July 2024, which finds Mr Cameron’s complaints are unsubstantiated, was “a slap in the face” and an indication that his concerns “were being completely overlooked.”[85]

1. Mr Cameron contends that the above reasons, in isolation or in conjunction with each other, forced him to resign. In closing statements, Mr Cameron summarised his position as follows:[86]

“It is the combination of these items – the shouting, management’s indifference to my personal circumstances and duties, lack of expected confidentiality from HR, the failure to correct an entrenched leadership behaviour and deliberate misapplication of a misunderstood form – that combined to a working reality that wasn’t going to change, and was expressed multiple times by me, focused on my removal.

My position felt completely untenable and absolutely absent of support.”

2.2      Terex’s Submissions

1. Terex ultimately chose to not lead any evidence regarding the events prior to Mr Cameron’s return to work on 28 August 2024. The majority of Terex’s submissions address the two weeks leading up to and including the meetings on 12 and 13 September 2024 and Mr Cameron’s resignation. Terex relies on the evidence of Ms Richeux, Mr Howe, and the uncontested evidence of Mr Sharma, to establish that Mr Cameron voluntarily resigned.

1. Conduct prior to 28 August 2024

1. Terex argues that conduct that occurred prior to 28 August 2024 is not relevant to the determination of this matter. Terex contends that Mr Cameron’s complaints and concerns prior to 28 August 2024 had already been effectively addressed by Terex by the time of his resignation. It is therefore inappropriate for Mr Cameron to further rely upon them in support of his claim that he was forced to resign.

1. First, with regards to Mr Cameron’s allegation that Terex repeatedly directed him to work overtime, Terex points to Mr Cameron’s written employment contract which provides for reasonable overtime and refers to evidence given by Mr Cameron in cross-examination that there was no written agreement between Mr Cameron and Terex that he would not be required to work overtime.[87]

1. In any event, Terex contends, following 28 August 2024, Mr Cameron was not required to perform any overtime. This, Terex submits, indicates that Mr Cameron’s overtime complaint had been dealt with at the time of his resignation.[88]

1. Secondly, in regard to Mr Cameron’s complaint regarding Mr Howe and Ms Richeux, Terex notes that Mr Cameron’s EthicsPoint complaint was investigated by Terex’s United States branch, of which Terex Australia had no involvement.[89] 

1. Thirdly, in relation to Mr Cameron’s complaints regarding his 7 week suspension, Terex contends it acted reasonably. Terex contends that the VA Report provided by Mr Cameron on 27 June 2024 was one of multiple concerning documents that led Terex to stand Mr Cameron down and direct him to attend an IME to determine his fitness for work.[90] It argues that it took steps to keep Mr Cameron safe at work by requiring him to take paid leave while they investigated his health condition.

1. Therefore, Terex contends that Mr Cameron’s complaints relating to conduct prior 28 August 2024 had “effectively been closed off and addressed” and that they could not have been “bubbling along… when the resignation was given.”[91] The employment relationship, in Terex’s view, was “reset” when Mr Cameron returned to work.[92]

1. Conduct after 28 August 2024

1. Terex submits that its conduct after 28 August 2024 was reasonable and could not be characterised as conduct with either the intention or the probable result of bringing Mr Cameron’s employment to an end.

1. In response to Mr Cameron’s issue with being invited to a team building exercise at a shooting range, Terex argues that on the materials provided to Terex at the time the event occurred, Mr Cameron had disclosed that loud noises were not likely to trigger his PTSD. Terex also points out that Mr Cameron did not make a complaint about the event being at a shooting range, either when he was invited or at the event itself, and that attendance was voluntary. It submits that, given Mr Cameron’s previous inclination to make complaints, if he had been affected by an event at a shooting range he would have raised it. Accordingly, it submits, this invitation was not conduct which had the probable result that Mr Cameron would resign.[93]

1. Terex further submits that the behaviour of Mr Howe and Ms Richeux at the meetings on 12 and 13 September 2024 was entirely appropriate and could not be characterised as conduct with either the intention or the probable result of bringing Mr Cameron’s employment to an end.[94] Terex relies upon similar submissions and observations of the evidence as were set out at [69] above regarding Mr Howe’s and Ms Richeux conduct in the First Meeting. In particular Terex submits that if there had been any inappropriate behaviour, it is implausible that Mr Cameron would have failed to mention this in his resignation email, or email to his union.

1. Terex submits, that contrary to Mr Cameron’s submissions, its actions show it intended the employment relationship to continue. The fact Mr Cameron met with Mr Ross in the afternoon of 12 September to discuss training, demonstrated a company who did not want to get rid of Mr Cameron, but was providing him with training opportunities.[95]

1. Ultimately, Terex submits that Mr Cameron’s reasons for resignation were entirely voluntary. It relies on the evidence of Ms Richeux, who states that Mr Cameron told her he expected to receive a job offer “the next day” on 12 September 2024, and Mr Sharma, who states that Mr Cameron told him he had accepted a job with a security company on 13 September 2024, to support its contention that Mr Cameron resigned because he intended to commence work at another company. Terex denies that any conduct on its behalf was done either with the intention of making Mr Cameron resign, or with the probable result that he would do so.

2.3      Consideration – Was Mr Cameron Forced to Resign?

2.3.1    Relevant Principles

1. Where an employee ostensibly resigns, they face a high bar in establishing that there was a forced resignation. There is a good reason for this as provided by the Full Bench in ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering)[96]:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.”

1. The onus is on the employee to establish a resignation is forced. The employee must show conduct (or a course of conduct) engaged in by the employer was the “principal contributing factor” leading to the termination.[97] However, it is not simply a question of whether an act of the employer resulted directly or consequentially in the termination of the employment. The employer must have engaged in conduct that intended to bring the employment relationship to an end, or had that probable result such that “the applicant had no effective or real choice but to resign”.[98]

1. The employer’s conduct must be weighed objectively, with all the circumstances, not just the act of the employer, examined.[99] As the Full Bench in ABB Engineering further noted:[100]

“Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perception and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

1. I adopt the above principles in considering whether Mr Cameron was forced to resign.

2.3.2    Terex’s Conduct

1. The reasonableness of the conduct, in an objective sense, can be relevant when considering whether the conduct forced the employee to resign. [101] On the evidence before me, I find that Terex engaged in a range of unreasonable conduct towards Mr Cameron. 

1. Repeated requests to perform overtime

1. Section 62(1) of the Act provides that an employer “must not request or require” an employee to work unreasonable overtime. Section 62(3) provides a list of factors that must be considered in determining whether overtime is reasonable or unreasonable. I consider each of the factors in s.62(3) below.

1. In relation to s.62(3)(a) and (b), I find that Mr Cameron’s personal circumstances, including his disabilities and carer’s duties, impacted on his availability and capacity to work additional hours and meant overtime posed a risk to his health and safety. In reaching this conclusion I have considered Mr Cameron’s complaints to Ms Richeux and on EthicsPoint which highlight his mental health and his exhaustion, as well as the fact that Mr Cameron almost had a car accident on 9 July 2024 after being exhausted from performing overtime. I also find that Terex was aware, or should have been aware, of Mr Cameron’s personal circumstances even before the written complaints, noting that Mr Cameron disclosed his disabilities in his pre-medical check before commencing employment and advised Terex of his wife’s stroke when it occurred.

1. In considering s.62(3)(c), I accept that Terex had operational needs which required overtime to complete work. I have some sympathy for Mr Howe, as the evidence before me shows that Mr Howe was in a particular difficult situation due to a staff shortage for most of Mr Cameron’s employment. This is reflected in Mr Howe’s email on 22 February 2024 in which he notes his “already stretched resources.”[102]

1. For the purposes of s.62(3)(d) and (e), it is uncontested that Mr Cameron was entitled to, and received, overtime payments for the overtime worked. It is also uncontested that Mr Cameron was asked at the start of shifts during toolbox meetings whether he could work overtime and was told that he was expected to work overtime unless he had specific reasons not to.[103]

1. Whether Mr Cameron had given notice to Terex of his intention to refuse to work additional hours, pursuant to s.62(3)(f), is a substantial consideration in this matter. I find that Mr Cameron made his expectations regarding minimal overtime clear to Mr Tanner when he commenced his role, and Mr Tanner accepted Mr Cameron’s position. I also find that Mr Howe was aware of Mr Cameron’s expectations regarding minimal overtime.[104] Throughout his employment, Mr Cameron was obviously reluctant to work overtime. Furthermore, Mr Cameron’s written complaints to Ms Richeux and via EthicsPoint on 27 June and 2 July 2024 make it abundantly clear that Mr Cameron did not want to work additional hours.

1. There is no evidence before me to suggest that factors s.62(3)(g), (h), or (i) were relevant in this matter.

1. Section 62(3)(j) allows the Commission to consider any other relevant matter in respect of whether the overtime was unreasonable. I have had regard to the following matters:

• Mr Cameron often refused daily overtime. Objectively, Mr Cameron did not work excessive amounts of overtime. From the pay period ending 30 April until his suspension Mr Cameron worked approximately 4.3 hours overtime per week.[105]

• There was clear pressure from Terex for Mr Cameron to work overtime. Mr Cameron gave uncontested evidence he was regularly given jobs that could not physically be accomplished in the work day, but were expected to be returned to customers that day[106] and was asked to work overtime on a daily basis. In addition, on the evidence before me management had an expectation that employees would work overtime and refusal of overtime was seen as a performance issue.[107]

• Mr Cameron’s evidence that because of his military background he found it hard to say no to requests from management and this is why he had alerted Terex about his expectation to work no or minimal overtime prior to engagement. I accept this evidence.

1. Having considered the above matters, I have concluded on the material before me that Terex repeatedly requested Mr Cameron to work unreasonable overtime. Mr Cameron had accepted the role at Terex on the basis of verbal assurances that he would perform no or minimal overtime because of personal circumstances. Despite this, from February 2024 Terex consistently and repeatedly pressured Mr Cameron to perform overtime.

1. Terex failed to consider what was reasonable overtime in Mr Cameron’s circumstances. Given Mr Cameron’s personal circumstances, overtime posed a real risk to Mr Cameron’s health and safety. There appears to have been a complete lack of regard for Mr Cameron’s personal circumstances both in relation to his sleep apnoea disability and in relation to his significant carer’s duties following his wife’s stroke. Mr Cameron was treated “in the same way as the rest of the team; [who are] all fathers.”[108] His personal circumstances required that he was treated with more care. 

1. Even after Mr Cameron explicitly raised concerns in writing regarding his health and overtime from 27 June 2024, Terex continued to request that he work overtime. In this regard Terex’s actions appear to ignore their own Fatigue Management Policy.[109]

1. I find Terex’s conduct in repeatedly requesting Mr Cameron to perform overtime unreasonable.

1. Response to Mr Cameron’s complaints.

1. I acknowledge that Mr Cameron’s written complaints are not concisely written and cover a range of topics and personal history. However, I find that both his email to Ms Richeux on 27 June 2024, and his EthicsPoint complaint of 2 June 2024 clearly raised issues concerning overtime, his health, safety and fatigue (safety complaints).

1. I have serious concerns about Terex’s handling of Mr Cameron’s safety complaints. It is not apparent on the evidence that Terex investigated these safety complaints. The Australian Terex team clearly did not, as Ms Richeux’s response to the 27 June 2024 email simply stated that Mr Cameron was expected to undertake reasonable overtime and that he needed to discuss the matter with Mr Howe. Mr Tanner, as National Services Manager, gave evidence that he assumed a safety complaint would be raised with the Pacific manager and then investigated by the safety committee and the human resources department.[110] In regard to Mr Cameron’s safety complaints Mr Tanner stated:[111]

“I’m not sure how those reports of exhaustion and excessive overtime were investigated or handled.”

1. Nor is it apparent that the US team investigated the safety complaints after the EthicsPoint complaint. There does not appear to be any assessment conducted of whether the overtime requests were reasonable or safe. Rather, after receiving the MacDonald IME confirming Mr Cameron should not be working overtime, Terex responded to Mr Cameron’s safety complaints by stating “you were given the option to decline overtime but elected not to do so.”

1. At the very least, after Mr Cameron’s 27 June email, Terex should have stopped overtime requests until an assessment had been made regarding Mr Cameron’s safety and the reasonableness of the overtime requests. Notably, when Terex stood Mr Cameron down pending further medical information, it was not to facilitate an investigation into Mr Cameron’s safety complaints. Rather, Terex had become aware of the VA Report, and believed it may have impacted on Mr Cameron’s ability to perform the inherent requirements of the job.

1. For the above reasons I find Terex’s response to Mr Cameron’s safety complaints unreasonable.

1. I also have some concerns regarding how Terex responded to Mr Cameron’s complaints about Mr Howe’s conduct (conduct complaints). Ms Richeux does not appear to have investigated the conduct complaints. While it appears the US team conducted some sort of investigation after the EthicsPoint complaint, interviewing at least Ms Richeux and Mr Cameron, Mr Cameron was not provided with any details regarding the investigation procedure or outcome, with the exception of a short email confirming that none of his allegations were substantiated.[112] Any other steps taken to investigate the matter, if they occurred, occurred in an opaque manner.

1. Holding a team building activity at a local shooting range

1. In my view, it was also unreasonable for Terex to hold a team building activity at a shooting range when one of the approximately five employees in the team, had been medically diagnosed with PTSD as a result of military service.

1. Ms Richeux’s evidence is that the team members selected the activity, rather than Mr Howe, and that the activity was voluntary. I observe there were only five employees in Terex’s Dandenong team and it is clear that Mr Cameron, who only found out about the activity three days before it occurred, was not involved in this selection process. Even if the other team members had selected the shooting range, I consider that Terex, and Mr Howe as the responsible manager, had an obligation to ensure that company-endorsed activities were appropriate and safe for those attending. At the very least, Mr Howe should have contacted Mr Cameron to discuss whether he felt comfortable attending the activity.

1. I reject Terex’s argument that it was reasonable for the activity to be held at a shooting range because Mr Cameron had not explicitly identified “attending a shooting range” as a potential trigger for his PTSD, and that he had stated in his EthicsPoint complaint that he does not get triggered by loud noises. I also reject the argument that the shooting range was reasonable because Mr Cameron did not complain about the activity or apparently have his PTSD triggered while attending. Both submissions, in my view, fail to acknowledge that Mr Cameron had previously disclosed his veteran status and his disabilities, and that Mr Howe and Terex as a whole had an ongoing responsibility to reasonably accommodate Mr Cameron’s circumstances.

1. Regardless of whether Mr Cameron was actually triggered, it is self-evident that holding a team building activity at a shooting range when a team member has PTSD is not only highly insensitive but potentially puts that team member’s safety at risk.

1. Terex’s conduct in the First Meeting on 12 September 2024

Performance management meeting

1. The parties fundamentally disagree on the nature of the First Meeting between Mr Cameron, Mr Howe, and Ms Richeux on 12 September 2024. Mr Howe and Ms Richeux described the meeting as an “impromptu catch up.”[113] Mr Cameron described it as an unexpected performance meeting.

1. Having reviewed each witnesses’ account of the First Meeting, I find that it was a performance management meeting. In coming to this conclusion, I reject Terex’s submissions and Mr Howe’s evidence that the First Meeting was “purely a catch up, [to] see how its going.”[114]

1. I find that the meeting commenced with a short discussion reviewing actions from the return to work meeting.[115] However, after that discussion concluded, Mr Howe then began raising several performance issues with Mr Cameron. These performance issues, as recorded in Mr Howe’s notes, include notice of absenteeism, safety issues relating to Mr Cameron’s use of a step ladder, use of correct eye protection, and an alleged near-miss incident involving a hydraulic press.[116] Mr Cameron contested several of these allegations.[117] I find that these were clearly performance management-related allegations and entirely inconsistent with the First Meeting being just a catch-up meeting.

1. I also accept Mr Cameron’s uncontested evidence that he was presented with a document on “work expectations” at the meeting. A pre-prepared document being presented to Mr Cameron further runs counter to the idea of an impromptu catch up.

1. Mr Cameron was not given any notice of performance management or asked whether he wanted a support person. I reject Terex’s argument that Mr Cameron failed to ask for a support person; Mr Cameron was under the impression that the meeting was a catch-up and not a performance management meeting.

1. I further observe that Mr Howe’s characterisation of the First Meeting as an impromptu catch up fits a pattern of Mr Howe downplaying the significance of performance management processes. For example, on 15 March 2024, Mr Pavitt presented Mr Cameron with a written document detailing performance issues which Mr Cameron was required to sign and provide written comment.[118]

1. Mr Howe’s evidence was that this document was “purely acknowledgement” that the conversation happened, and was not formally filed but kept on his desktop. In my view this document was clearly a type of written warning. It can be problematic when an employer does not acknowledge they are engaging in performance management, because they may also fail to implement procedural fairness in relation to the process.

Mr Howe’s conduct at the First Meeting

1. The parties’ evidence regarding Mr Howe’s conduct during the meeting differs substantially. Mr Cameron gives evidence that Mr Howe “raised his voice”[119] or was yelling, displayed “aggressive and heated behaviours,”[120] and was “so heightened, that [Mr Cameron] could barely get a word in edgewise.”[121] As a result Mr Cameron says he went quiet and emotionally shut down.[122] In contrast, both Mr Howe and Ms Richeux in oral evidence denied that Mr Howe raised his voice.[123]

1. On the evidence before me, I find it is more likely than not that Mr Howe was confrontational and domineering during the First Meeting. I consider this conclusion to be consistent with the following evidence and observations of the witnesses before me:

• Ms Richeux’s evidence that during the meeting, the conversation was 60-70% Mr Howe and 30% Mr Cameron.

• Mr Cameron’s evidence that he “withdrew” during the meeting.

• Evidence from Mr Howe and Ms Richeux that Mr Cameron “shut down”[124] or was “quite quiet.”[125]

• Mr Howe’s presentation as a witness, and his own evidence that he has an “abrupt personality.”[126]

• Evidence regarding Mr Howe’s confrontational, and at times, disrespectful performance management style over the previous months, including the Apprentice Comment;[127] various text messages[128], and uncontested witness evidence from Mr Cameron regarding Mr Howe’s confrontational management style.[129]

1. Noting the opposing evidence from both Ms Richeux and Mr Howe, I cannot be satisfied on the evidence before me that Mr Howe yelled at Mr Cameron. However, I do find on the balance of probabilities that Mr Howe spoke in a confrontational manner at the First Meeting.

Terex Conduct in the First Meeting was Unreasonable

1. Mr Cameron was not given any notice that he was attending a performance meeting. He was told it was just a “catch up”. Nor was he given any opportunity to invite his union representative or another support person. Instead, Mr Cameron found himself in a performance review meeting with two managers he had recently made formal complaints against, with no support. He was given a document on work expectations and Mr Howe proceeded to raise contentious performance issues with Mr Cameron in a confrontational manner.

1. I find Terex’s conduct in regard to the meeting unreasonable. I make this finding even before I account for Mr Cameron’s anxiety/PTSD disability.

1. However, given Mr Cameron’s diagnosed mental health the conduct is even more unacceptable. At the time of the First Meeting, Mr Cameron had explicitly stated to Terex that his PTSD was triggered by confrontational management situations.[130] Mr Howe’s gave evidence that Mr Cameron had told him that his PTSD was triggered by abrupt management styles.[131] With this added context, I find Terex’s conducting of the First Meeting to be highly irresponsible, with no regard or consideration given to Mr Cameron’s mental health condition or circumstances.

1. Terex is of course entitled to performance manage its employees, including employees who have mental health disabilities. But this must be done in a reasonable way, having regard to an employee’s safety. In relation to Mr Cameron having a diagnosed mental health condition, and in the context of Mr Cameron having made a complaint against the two managers in the performance management meeting, at the very least the company should have ensured proper notice and the opportunity to obtain a support person.

2.3.3 Did Terex’s conduct force Mr Cameron to resign?

1. It is abundantly clear that Mr Cameron was deeply unhappy with management conduct at Terex, and not, in my view, without reason. However, as made clear in ABB Engineering, this in itself, does not establish a forced resignation.  I need to consider objectively whether the conduct of management intended to bring the employment to an end or had the probable result of bringing the employment to an end. I need to consider whether Mr Cameron had no choice but to resign.

1. I do not believe that Terex intended to bring Mr Cameron’s employment to an end, at least not on 13 September 2024.  I think there is ample evidence to suggest that Mr Howe intended to performance manage Mr Cameron.[132] This performance management may have at some stage led to a termination. However, the fact that an employer is seeking to performance manage an employee, and that termination may be an outcome, does not meet the requirements for a forced resignation.

1. I also accept Terex’s submission that the Company would not have organised for the senior trainer Mr Ross to see Mr Cameron on 12 September 2024 if they intended him to resign.

1. The question before me then is whether the conduct of management had the probable result of bringing the employment relationship to an end.

1. Ultimately, having regard to all the submissions and material before me, I have come to the conclusion that Mr Cameron was forced to resign because of Terex’s repeated unreasonable conduct towards him. This conduct includes repeated unreasonable overtime requests, failure to adequately respond to safety complaints, holding a team building activity at a shooting range, and the performance management meeting on 12 September 2024.

1. While this conduct, individually considered, may not have warranted a forced resignation, when I consider the cumulative effect of this conduct, I am of the view Mr Cameron’s employment had become untenable. In particular I find that Terex has repeatedly ignored Mr Cameron’s personal circumstances including his carer’s duties and disabilities and failed to take into account Mr Cameron’s safety.

Were things “reset” after 28 August?

1. Terex submitted that Mr Cameron’s complaints regarding overtime and bullying behaviour were dealt with prior to his return-to-work on 28 August 2024, and the relationship was effectively “reset” at that time. I reject this argument.  While Terex no longer required Mr Cameron to perform overtime after receiving the MacDonald IME, there was neither acknowledgement by Terex that its approach to requesting overtime needed to be reviewed to assess what is “reasonable,” nor any apparent investigation into Mr Cameron’s safety complaints. Mr Cameron had no reason to believe any safety issues he raised in the future would be taken seriously.

1. In addition, following Mr Cameron’s return to work, Terex continued to act unreasonably towards him and not take his safety into account. This included arranging a team building exercise at a shooting range and finally ambushing him in a performance review meeting.

No choice but to resign?

1. I have considered whether Mr Cameron had other choices rather than resigning.

1. I do not think an internal complaint was a realistic option for Mr Cameron. Both local management and national Human Resources were involved in the unreasonable conduct towards Mr Cameron. Mr Cameron’s previous complaints to national Human Resources had been referred back to local management. Mr Cameron had also already made a complaint to Terex US head office through EthicsPoint. As stated above, it does not appear that Mr Cameron’s safety complaint was actually investigated by EthicsPoint. There is certainly no acknowledgement that overtime requests were being reviewed. It is also unclear what steps were taken to investigate his complaint regarding Mr Howe’s conduct. In relation to further concerns regarding his employment status Mr Cameron was referred back to the “local team.”

1. In addition, I do not believe that an external complaint to the Commission or another body was a realistic option in this instance given the immediate health and safety risks facing Mr Cameron. Mr Cameron’s health was already put at risk in relation to unreasonable requests to work overtime, the team building exercise and the performance management meeting. Even an urgent external complaint would have taken some time to be heard and potentially led to an unsafe situation for Mr Cameron.

Evidence that Mr Cameron was actively considering resigning

1. The evidence establishes that Mr Cameron was actively considering other job opportunities. Both Ms Richeux and Mr Sharma gave evidence that they separately had conversations with Mr Cameron on 12 or 13 September 2024 regarding a new job.

1. I accept that evidence that an employee is considering other job opportunities tends to suggest that the employee is contemplating voluntarily resigning. However, this is not a determinative factor in and of itself. Clearly when the employment relationship is becoming increasingly untenable, it will not be unusual for an employee to be considering alternative employment. Whether, at the end of the day, the termination of employment is voluntary or forced will be a matter to determine on all the facts before the Commission.

1. In the matter before me it does not appear that Mr Cameron resigned for a new job, despite any conversation he had with Ms Richeux or Mr Sharma, because he has not worked since the termination. Ms Richeux and Mr Sharma’s evidence does not assist Terex in this regard.

Resignation email

1. I reject Terex’s argument that the wording of the resignation email supports a finding against forced resignation. Mr Cameron’s resignation email refers to grievances with Terex’s operations, tool supply, and “disgustingly inept management and completely toxic work environment.”  Such reasons can be indicative of both a voluntary and forced resignation. The wording of the resignation email is inconclusive in this regard.

1. Did Terex end Mr Cameron’s employment by shortening his notice period?

1. For completeness, I note that if I had found that Mr Cameron voluntarily resigned, I would not have found that Terex brought the employment to an end by shortening his notice period. There is no evidence to suggest that Mr Cameron objected to the shortening of the notice period, or that the shortening of the notice period would significantly disadvantage Mr Cameron.

Conclusion

1. My decision is limited solely to the threshold jurisdictional issue of whether Mr Cameron was dismissed pursuant to the Act. For the reasons given, I have determined on the material before me that Mr Cameron was dismissed pursuant to s 386(1)(b).

1. I will now list this matter for conference to give the parties an opportunity to try to reach an agreed resolution through a thorough conciliation process. If the matter does not resolve, I will issue a certificate and if Mr Cameron wishes to pursue the matter, he will need to make an application to the Federal Court or Federal Circuit Court (unless the parties agree to a hearing in the Commission).

1. I am aware that in coming to my conclusion I have touched on a number of matters that may go to the substantial hearing. This Decision has been made on the material before me and as previously noted, there was not extensive evidence in relation to some matters. It may be that if the substantial matter progresses to hearing, a Court may have a different view on some of the matters I have touched on in this Decision with the benefit of other material, and submissions specifically dealing with those issues.

COMMISSIONER

Appearances:

K Cameron, the Applicant
T Spence, for the Respondents

Hearing details:

2025
11 February, 12 February
Melbourne

Final written submissions:

2025
5 March

[1] Transcript PN78 – 80.

[2] Transcript PN91 – 93.

[3] [2018] FWC 20.

[4] Ibid, [70] – [84].

[5] I note Mr Cameron intended to seek orders for Mr Tanner to attend, but ultimately Mr Tanner voluntarily attended the hearing.

[6] Transcript PN440.

[7] Transcript PN191.

[8] Transcript PN1155.

[9] Exhibit 1, Digital Hearing Book (‘DHB’), page 371.

[10] DHB page 123.

[11] DHB page 199.

[12] DHB page 69.

[13] Transcript PN 536 – 539.

[14] DHB page 176.

[15] DHB page 89 – 98.

[16] DHB page 89.

[17] DHB page 125.

[18] DHB page 227.

[19] Ibid.

[20] DHB page 225.

[21] Ibid.

[22] DHB pages 232 – 234.

[23] DHB page 131.

[24] Transcript PN774.

[25] Transcript PN775, PN780 and DHB pages 131 – 132.

[26] Transcript PN781.

[27] DHB page 131, Transcript PN776 – PN777.

[28] Transcript PN780.

[29] DHB page 233.

[30] DHB page 240.

[31] DHB 132, PN802

[32] DHB page 241.

[33] DHB pages 148 – 160.

[34] DHB page 263.

[35] DHB pages 266 – 269.

[36] DHB page 234.

[37] DHB page 260.

[38] DHB page 278.

[39] DHB page 310.

[40] DHB page 251.

[41] DHB page 12.

[42] DHB page 117.

[43] DHB page 483, paragraph [6].

[44] DHB page 11.

[45] DHB page 359.

[46] DHB page 10.

[47] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, [54].

[48] [2017] FWCFB 3941, [47].

[49] Transcript PN418.

[50] Transcript PN1132.

[51] DHB page 114.

[52] Ibid.

[53] Transcript PN1133.

[54] Transcript PN1134.

[55] DHB page 114.

[56] DHB page 497, paragraph [20].

[57] Transcript PN1184 – PN1187.

[58] Transcript PN822.

[59] Transcript PN1022.

[60] DHB page 359.

[61] Transcript PN1093.

[62] Transcript PN1136.

[63] DHB page 123.

[64] Transcript PN156.

[65] Transcript PN158.

[66] DHB page 132, Transcript PN1095.

[67] DHB page 127.

[68] DHB page 127.

[69] DHB page 127.

[70] DHB page 129.

[71] DHB page 129.

[72] DHB page 129.

[73] DHB page 129.

[74] DHB page 130.

[75] DHB page 130.

[76] DHB page 132.

[77] DHB page 143.

[78] DHB page 143.

[79] DHB page 143.

[80] DHB page 147.

[81] DHB page 413.

[82] DHB page 414.

[83] DHB page 133.

[84] Transcript PN1122.

[85] DHB page 138, paragraph [16].

[86] Transcript PN1127 – PN1128.

[87] Transcript PN284, PN1252.

[88] Transcript PN1250, PN1253.

[89] Transcript PN1270.

[90] Transcript PN1254.

[91] Transcript PN1266.

[92] Transcript PN1273.

[93] Transcript PN1275 – PN1276.

[94] DHB page 481, paragraph [30] – [32].

[95] Transcript PN1206.

[96] AIRC Full Bench 9 December 1996 Print N6999 at p7.

[97] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200.

[98] Bupa Aged Care Australia Pty Ltd ta/a Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3941 at [47].

[99] As discussed in O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (PR973462) at [21].

[100] ABB Engineering at p7.

[101] As the Full Bench found in Australian Hearing v Peary [2009] AIRCFB 680 the reasonableness of the conduct, in an objective sense, might be relevant when considering whether the conduct forced the employee to resign.

[102] DHB page 227.

[103] Transcript PN157.

[104] DHB page 227.

[105] DHB pages 231 – 234.

[106] Transcript PN156.

[107] See for example email chain between Mr Howe and Mr Tanner on 22 February 2024 (DHB page 227), and email from Richeux to Mr Cameron dated 29 June 2024 (DHB page 263).

[108] Transcript PN748.

[109] DHB pages 342 – 354.

[110] Transcript PN650.

[111] Transcript PN649.

[112] DHB page 274.

[113] DHB page 483, paragraph [6], and DHB page 484, paragraph [7].

[114] Transcript PN817.

[115] Exhibit 2, Email from Mr Howe to Ms Richeux on 10 October 2024.

[116] Ibid.

[117] Transcript PN822.

[118] DHB page 235.

[119] DHB pages 144, 458, 459.

[120] DHB page 144.

[121] DHB page 459.

[122] DHB pages 144 and 459.

[123] Transcript PN825 (Mr Howe), PN1023 (Ms Richeux).

[124] Transcript PN822.

[125] Transcript PN1022.

[126] Transcript PN790.

[127] See [32] above, and Mr Howe at Transcript PN802.

[128] See [88] d and i above and DHB pages 239 and 240.

[129] See [88] a, c, e, f, and g above.

[130] DHB page 266.

[131] Transcript PN785.

[132] See for example the email exchange between Howe and Tanner dated 22 February 2024 at DHB 225; the written warnings dated 15 March 2024, and the performance management meeting on 12 September 2024, and Exhibit 2.

Printed by authority of the Commonwealth Government Printer

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