Luke Ballantine v Tammar Employment1 Pty Ltd, Larry Kickett
[2024] FWC 2371
•9 OCTOBER 2024
[2024] FWC 2371
The attached document replaces the document previously issued with the above code on 8 October 2024.
The attached decision has been refiled due to an administrative error.
Associate to Deputy President Beaumont
Dated 9 October 2024.
| [2024] FWC 2371 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Luke Ballantine
v
Tammar Employment1 Pty Ltd, Larry Kickett
(C2024/5148)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 9 OCTOBER 2024 |
Application to deal with contraventions involving dismissal
The dispute and outcome
On 24 July 2024, Mr Luke Ballantine (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with Tammar Employment1 Pty Ltd (the Respondent) on 18 December 2023, as a Program Manager and asserts that on 26 June 2024, he was forced to resign from his employment.
The Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Act, but voluntarily resigned.
The Respondent’s objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from his employment within the meaning of s 386(1)(a) or/and (b) of the Act.
Given the factual dispute over whether the Applicant was or was not dismissed, the matter proceeded to hearing on 3 September 2024. Having considered the evidence of the parties and their submissions, I have found that the Applicant was not dismissed and therefore the Commission is absent of jurisdiction to deal with the Applicant’s application under s 365 of the Act.
My detailed reasons follow.
Background
In respect of the broader context leading to the cessation of the Applicant’s employment, evidence was received from the Applicant and on behalf of the Respondent, from Mr Simon Brennan, a Director of the Respondent. Abridged versions of the parties’ background to the matter are set out below.
The Applicant gave evidence that he was based at the Henderson Construction site, managing a team of metal workers who were building the Australian Navy’s offshore patrol vessels for Luerssen Australia Pty Ltd. His manager and primary contact was Mr Brennan, a part owner of the Respondent.
According to the Applicant, whilst working for the Respondent, Mr Brennan engaged in what he considered to be unethical behaviour, including recording the client in meetings absent the consent of the client. The Applicant said that when he raised concerns around this behaviour, Mr Brennan became agitated and told him words to the effect of ‘shut his mouth or else he would live with the consequences’. The Respondent, particularly Mr Brennan, denies that the Applicant raised any concerns or grievances either informally or formally with the Respondent regarding concerns about ethics, values or morals.[3]
The Applicant stated that Mr Brennan continually harassed and bullied him each time he raised concerns with Mr Brennan about his behaviour. The Applicant asserted this was compounded further by the client’s harassment, intimidation and badgering, which ultimately resulted in the Applicant’s admission into hospital ‘for mental wellness under emergency’.[4]
The Applicant said that a meeting was held on 20 June 2024 with Mr Brennan and Mr Larry Kickett to discuss the Applicant’s employment. The Applicant expressed that the meeting had been orchestrated as a catch up, because he had spoken up and exercised a workplace right by raising his concerns about Mr Brennan’s unethical behaviour.[5]
At the meeting, it was explained to the Applicant that there had been multiple complaints about his conduct from both colleagues and the client. The Applicant said when he asked to see the multiple complaints from one particular team member, he was told they were confidential. Examples were, however, given in respect of the Applicant’s conduct toward ‘Keith Roa’ and the way the Applicant had dealt with ‘Wade’.[6]
The Applicant said he was advised that there was going to be a position for him in the business and he was offered the Quality Manager position on the same pay, but he would have to work from the office. The Applicant said he was sent back to site to start in the office the next day. It was the Applicant’s view that this was a ‘set up’ by the Respondent to get rid of him.[7]
According to Mr Brennan, at the meeting on 20 June 2024, he raised with the Applicant the option of changing roles from Program Manager to Quality Manager, because the Applicant’s performance was poor in his current role.[8] Mr Brennan said that the parties discussed recent performance concerns, incidents and complaints, which the Applicant conceded had occurred.[9] At hearing, Mr Brennan elaborated on this, noting that the Applicant’s position as Project Manager had become untenable as the client had made a formal complaint about the Applicant.
According to the Respondent, it was discussed at that meeting that there would be an initial three-month review period, with the Applicant expected to work on positive behaviours and attend a leadership course. The Applicant was asked to think about this option for a transfer and that a meeting would be convened the next week on Monday, 24 June 2024, to talk further about the option.[10]
Mr Brennan gave evidence that difficulties were caused on the ‘Friday’, because the Applicant announced to the team on site that he was no longer the Program Manager and was now the Quality Manager.[11] Mr Brennan said that this had unsettled the team, and given the client was behind on the project, what was required on site at that time was a high degree of leadership.
On 24 June 2024, a meeting was held in the boardroom between the Applicant, Mr Brennan and Mr John Blake. The Applicant claimed that he was advised that the Quality Manager position offered to him the previous week was now unavailable and that Mr Brennan thought it best that they part ways.[12] The Applicant alleged that Mr Brennan indicated that it would be better for all parties if the Applicant resigned as there would be no difference in financials, and if the Applicant resigned, Mr Brennan would give him a good reference.
The Applicant noted that he was not provided the opportunity to have a support person at the meeting and the meeting was called without notification, which left him unprepared. Further, the Applicant said he was ambushed, told to resign, whilst having been belittled and bullied by two powerful personalities, which affected his emotional wellbeing.[13]
Mr Brennan’s recollection of the meeting on 24 June 2024 markedly differed to the evidence of the Applicant. Mr Brennan said he asked the Applicant that given what had happened (that is, the Applicant prematurely informing colleagues on site that he was the new Quality Manager when the role had not been agreed upon), what would the Applicant do in Mr Brennan’s position, to which Mr Brennan said the Applicant replied, ‘I would sack me’. Mr Brennan said the Applicant then offered to resign from his role.[14]
The Respondent further noted that the purpose of the meeting on 24 June 2024 was to provide performance feedback to the Applicant, and at no time did the Respondent intend to impose any form of discipline.[15]
The Applicant submitted that as per Mr Brennan’s instruction, he emailed his resignation to Mr Brennan on 24 June 2024.[16] The Applicant’s email dated 24 June 2024, which set out his resignation, noted that the Applicant would keep working through to 5 July 2024, as agreed.[17] Mr Brennan responded to the Applicant by email that same day, accepting the Applicant’s resignation and thanking the Applicant for the additional notice period.[18]
However, later in the day on 24 June 2024, the Applicant having considered that he had no choice but to act without thinking to protect himself from the Respondent’s negligent behaviour and noting that he was given no choice but to resign, rescinded his resignation by email to Mr Brennan.[19] In that email, the Applicant detailed at length why he considered his resignation was forced and that he had been asked to resign on the count of baseless allegations. The Respondent denies having belittled, bullied or harassed the Applicant, and submits that it did not badger or intimidate the Applicant, and notes that the meeting earlier in the day on 24 June 2024 was calm and non-emotive.[20]
By email dated 24 June 2024, Mr Brennan further responded to the Applicant’s email noting that his recollection of the meeting on that day differed to the Applicant’s account and that the Applicant was stood down on full pay whilst the matter was investigated.[21] Mr Brennan further set out in his email to the Applicant that the Applicant was to advise where the Respondent could collect the company mobile phone, laptop, wireless key and office keys.
It appears that the Respondent attempted on 26 June 2024, 29 June 2024 and 2 July 2024 and 4 July 2024 (see also dates referred to in the Outcome Review Letter of 5 July 2024)[22] to arrange a meeting with the Applicant. However, on each occasion the Applicant declined to attend the meeting on the basis he was unwell.[23]
On 5 July 2024, the Respondent emailed the Applicant, stating, amongst other things:
It is your last day of notice today and since all efforts to communicate have been blocked by yourself over the past few weeks we feel that this leaves the employee/employer relationship with no resolution or opportunity to move forward. As such, and considering that we have accepted your resignation we will part ways today and your final pay will be forwarded in the usual next fortnights pay run.[24]
Consideration
The Applicant essentially asserts that the resignation he provided to the Respondent in writing on 24 June 2024 was involuntary, having been forced to resign by the conduct of the Respondent. Whilst not entirely clear, the Applicant’s evidence appears to suggest that he had provided his resignation in the heat of the moment. It follows that for the sake of completeness both ss 386(1)(a) and (b) are considered.
The Respondent asserts that the Applicant voluntarily resigned in writing on 24 June 2024 and the Respondent accepted that resignation on that same date.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given both the Federal Circuit Court’s[25] and Federal Court’s[26] acceptance that the definition of the word ‘dismissed’ in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word ‘dismissed’ as defined in ss 12 and 386 of the Act reads:
A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
There are exceptions under s 386(2) regarding when a person has been dismissed; however, those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (t/as Bupa Aged Care Mosman) (Bupa),[27] and in Lipa Pharmaceuticals Ltd v Jarouche[28] where the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b). In Bupa it was said:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”[29]
While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan (City of Sydney RSL) considered the operation of s 386(1)(a):
“[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)[30]
The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).[31] This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that the Act had retained the use of the phrase and that the judgment in Mohazab remained good authority as to the connotation of that formula.[32]
While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[33] Furthermore, while a termination of employment may involve more than one action, it is important to ask oneself what was the critical action or actions which constituted a termination of employment.
Whether the Applicant was dismissed requires an objective finding of fact.
I have preferred the evidence of Mr Brennan over that of the Applicant for the following reasons.
Mr Brennan gave evidence that was not particularly favourable to the Respondent’s case and in that respect, he struck me as forthright. For example, first, rather than performance managing the Applicant in his position as Project Manager, Mr Brennan simply opted to suggest or offer another role to the Applicant, namely, Quality Manager. Secondly, whilst Mr Brennan had informed the Applicant in the meeting of 20 June 2024 that there had been multiple complaints about him, at hearing, Mr Brennan conceded that he had not provided any of those complaints to the Applicant to respond to prior to proposing the move into the Quality Manager role. Thirdly, Mr Brennan gave evidence at hearing that the Applicant’s position as Project Manager was untenable – notwithstanding adducing no documentary evidence of written warnings or formal performance management. It struck me that the Respondent had legitimately attempted to retain Mr Brennan in employment notwithstanding feedback from its client, and that the meeting on 24 June 2024 unfolded in the manner so described by Mr Brennan.
Whilst understanding that the Applicant had expressed the difficulties he had endured toward the end of this employment, that his mental health had suffered, and he was upset that no one at the Respondent reached out to ask about his well-being, the Applicant, at times, gave evidence that was speculative, opinion driven and lacking particulars. For example, whilst the Applicant referred in his written witness statement to having been continually harassed and bullied, no particulars of the alleged conducted are provided, with the exception of paragraph 10 of the Applicant’s witness statement. The Applicant said that the meeting on 20 June 2024 was orchestrated as a catchup because of the Applicant ‘speaking up’ and ‘exercising a workplace right’ and that the suggestion or offer of the Quality Manger role, ‘was a clear set up from them to get rid of me for raising concerns around the recordings…’. However, both statements are speculative and are therefore not grounded in evidence.
Further, at hearing it was evident that some of the complaints against the Applicant by the Respondent’s client were open on the evidence provided by both the Applicant and Mr Brennan.
On balance, I therefore find that the Respondent’s account more credible and balanced in its representation.
I accept that at the meeting on 20 June 2024, Mr Brennan raised with the Applicant the option of changing roles from Program Manager to Quality Manager, because the Applicant’s performance was poor in his current role. I further accept that after the meeting on 24 June 2024, the Applicant submitted his resignation to Mr Brennan voluntarily.
The Applicant was provided with approximately two weeks (his notice period) in which to engage with the Respondent (Mr Kickett who had provided the Outcome Review letter to the Applicant) to discuss his resignation, rescinding his resignation, and the complaint he had made about Mr Brennan’s conduct. Whilst appreciative that the Applicant reports that he did not meet with or engage in a telephone conversation with the Respondent during the period of 26 June 2024 until 5 July 2024 as he was unwell, had seen a doctor and had been referred to a psychologist, no medical certificate was provided to evince such incapacity during that period.
I am therefore not persuaded, having considered and weighed the evidence before me, that the Applicant was forced to resign because of conduct, or a course of conduct, engaged in by the Respondent (s 386(1)(b)) or that the Applicant’s employment was terminated at the initiative of the Respondent (s 386(1)(a)). The Applicant spoke of presenting a calm exterior at the meeting on 24 June 2024 until the conclusion of the workday but noted to the effect that the calmness presented did not mirror his true mental state. However, as already observed, it remained open to the Applicant to have engaged with the Respondent during his notice period, when the Respondent was investigating the Applicant’s assertion about the Respondent’s negligent behaviour. However, the Applicant chose not to do so.
Conclusion
I have concluded that the Applicant was not dismissed by the Respondent. It follows that his application does not meet the requirements of s 365 of the Act and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by the Applicant pursuant to s 365 of the Act is dismissed. An Order[34] to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
L Ballantine, Applicant
S Brennan for the Respondent
Hearing details:
2024.
Perth (by video).
3 September.
Final written submissions:
30 August 2024.
[1] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37 (Milford).
[2] Ibid 602 [51].
[3] Form F8A Response (8 August 2024) 3.1 [2] (F8A Response).
[4] Form F8 Application (24 July 2024) 2.2 [12]; Statement of Luke Ballantine [12] (Applicant’s Statement).
[5] Statement of Luke Ballantine [13].
[6] Applicant’s Statement [14].
[7] Applicant’s Statement [17].
[8] F8A Response (n 3) 3.1 [4].
[9] Ibid.
[10]Ibid.
[11] F8A Response (n 3) 3.1 [5].
[12] Applicant’s Statement [16].
[13] Ibid [18].
[14] F8A Response (n 3) 3.1 [6].
[15] Ibid [7].
[16] Form F8 Application [19]; Applicant’s Statement [19].
[17] Applicant’s Statement [19].
[18] Ibid [20].
[19] Ibid [21].
[20] F8A Response (n 3) 3.1 [8].
[21] Digital Hearing Book, 135.
[22] Ibid 21.
[23] Ibid 96.
[24] Ibid 153.
[25] Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589 [117].
[26] Milford (n 1) 603 [54].
[27] (2017) 271 IR 245 (Bupa).
[28] (2023) 324 IR 375.
[29] Bupa (n 27) 268–9 [47].
[30] (2018) 273 IR 126, 129–30 [10]–[11].
[31] (1995) 62 IR 200 (Mohazab).
[32] Mahony v White (2016) 262 IR 221, 228 [23].
[33] Mohazab (n 31) 205.
[34] PR780046.
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