Mark Sullivan v The Baptist Union of Queensland - Carinity

[2024] FWC 3142

[2024] FWC 3142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Mark Sullivan
v

The Baptist Union of Queensland - Carinity

(C2024/5722)

DEPUTY PRESIDENT LAKE BRISBANE, 4 DECEMBER 2024

Application to deal with contraventions involving dismissal – forced resignation – jurisdictional objection – no dismissal – jurisdictional objection upheld – application dismissed.

1. Mr Mark Sullivan (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 16 August 2024. The Applicant claims that adverse action was taken against him by the Baptist Union of Queensland - Carinity (the Respondent) under ss.340, 341 and 343 of the Fair Work Act 2009 (Cth) (the Act).

1. The Respondent raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant resigned from his employment on 5 August 2024. The Applicant contests the objection on the basis that he was constructively dismissed and forced to resign under s.386(1)(b) of the Act.

1. Directions were issued and the matter was listed for hearing on 1 November 2024. Both parties were self-represented. Ms Margaret Darwin, Executive Manager of Human Resources, appeared for the Respondent.  

Background

1. The Applicant commenced full-time employment with the Respondent as a Cook in a school kitchen on 9 April 2024.[1]

1. The Applicant’s claim of forced resignation primarily arises from conflict with his colleague, the VET trainer and also the Respondent’s alleged failure to address the Applicant’s safety concerns. 

1. The VET trainer no longer works for the Respondent and was not named as a Respondent in the matter. The VET trainer was not called to give evidence in the hearing. The Applicant states that the Respondent was aware that the VET Trainer was
   “difficult” prior assigning him to work with the VET Trainer.

18 July 2024 incident

1. The Applicant describes an incident with the VET Trainer on 18 July 2024.

1. There was a disagreement over whether 2 kilograms of minced beef was still useable.[2]

1. The meat had been donated to the school by a local farmer. The School Principal had expressed concern that the meat had not come from an approved supplier and formed the view that it should be discarded.[3]

1. The Applicant agreed with the School Principal, to the chagrin of the VET Trainer.

1. The VET Trainer then accused the Applicant of having, the week prior, made hamburgers with mince that had been left out for five days.[4] The Applicant said that the VET Trainer had told him not to throw the meat out.[5]

1. The Applicant decided to use other meat to make hamburgers.

1. Following the disagreement, the VET Trainer apparently yelled at the Applicant through an open window as she was leaving the building, saying, “As a qualified cook, you know that meat’s unsafe to cook! It’s wrong to use it!”[6]

1. The Applicant states that he felt like he had been publicly humiliated. The Applicant’s upset following the incident caused him to make mistakes. The Applicant burnt 10 hamburger rolls and burnt his hand while cooking the hamburger patties.[7]

1. At the end of the Applicant’s shift, the Applicant noted an email from his supervisor stating that he needed to use different meat for the hamburgers, as the meat had been left out too long.[8] The Applicant suggested that this was an allegation against him.[9] The Applicant replied that the meat he had used had been cooked the day before and left in the freezer overnight. The Applicant suggested that he and the VET Trainer should “sit down with a mediator to discuss and resolve” their issues.[10]

1. The following day, on 19 July 2024, the Applicant had a meeting with the School Principal, Mr Dale Hansen and the Respondent’s Manager, Ms Vanessa Starr-Nolan. The Applicant wrote of this meeting in his submissions:

   I confirmed that the stress had made me unwell. There was no doubt that I could not safely perform my duties at the school. I would be available to attend the school to discuss and elaborate on any issues they needed.[11]

“Refusal to meet” to discuss safety concerns

1. On 22 July 2024, the Applicant scheduled a meeting on 25 July 2024 with the Principal and Ms Starr-Nolan to discuss his safety concerns.[12]

1. On Wednesday 24 July 2024, Ms Starr-Nolan stated that the Principal was in Brisbane for a conference. The meeting on 25 July 2024 was cancelled. Ms Starr-Nolan told the Applicant:

In case you are wondering, when any staff member is off on sick leave/stress leave we are not meant to contact that staff member, ensuring they rest up and reduce stress.

However, I do hope that you are going ok.   As soon as I have any updates, I will let you
know.[13]

(emphasis added)

1. A meeting was organised for 29 July 2024 from 1:00pm to 1:30pm. Early in the morning on 29 July 2024, the Applicant sent a medical certificate from a psychiatrist, noting that the Applicant was unfit for work.  The certificate was dated from 22 July 2024 to 2 August 2024 inclusive. The Applicant attended the school for the meeting anyway and was informed by the front office that the meeting could not take place because the Applicant had sent a medical certificate. The Applicant responded with words to the effect:

“You are creating an environment where I either work in an unsafe environment or resign. That is an impossible situation for me. You need to discuss this with your HR department about your legal obligations.”[14]

1. I note that the Applicant had been told by Ms Starr-Nolan on 24 July 2024 that the Respondent’s policy was not to contact employees while they were on sick leave. This is a prudent approach, given the Applicant had said he was suffering from work related stress. Contacting the Applicant to have a meeting while he was on leave could risk worsening the Applicant’s injury. The Respondent has a duty of care to its employees and it should not call its employees in to discuss a matter while they are on sick leave.

1. On 2 August 2024, Ms Starr-Nolan emailed to the Applicant to touch base and confirm whether he would be returning to school on Monday, 5 August 2024. I note 2 August 2024 was the last day covered by the Applicant’s medical certificate.

1. The Applicant said this email confirmed his view that “Carinity would not meet with me unless I returned to work, despite my safety concerns”.[15] The Applicant formed a view that “the School’s repeated refusal to meet with me to discuss workplace safety left me in an impossible position and was the sole reason for my resignation”.[16]

1. On 2 August 2024, the Applicant was advised by the Respondent’s HR Business Partner that they would set up a mediation between the Applicant and the VET Trainer.[17] The Respondent reached out with the Applicant to set up a time for the mediation.

1. On 5 August 2024, at 2:13am, the Applicant emailed Ms Starr-Nolan and resigned. The email starts by noting that the Applicant is scheduled to meet with the VET Trainer when he returns to work, and asking whether the Respondent has a plan so that that does not occur. The email then states:

   My last day will be Friday 16th August.

   There is a possibility that Glendyne will face an adverse action claim for up to three weeks after the termination of employment. I’ve included what in theory would have been my adverse action claim. (I only spent a couple of hours putting it together. So it’s a bit rough) Send it through to your HR department. There’s nothing there to action now because I’m leaving anyway. But its helpful to have in your back pocket if you or Dale are ever accused of being unfair.

   From my point of view there is absolutely nothing that can’t be shared with relevant staff.  That’s particularly the case if rumours spread that you have been unfair. In reality, you were simply responding to a complaint.[18]

1. Ms Christine Hill, Executive Manager of Education Services for the Respondent, replied to the Applicant’s email, stating:

Prior to accepting your resignation, I would like to provide you with 24 hours, to reconsider your resignation, while Carinity proceed with mediation and investigating your concerns. Therefore, please take this time to reconsider your resignation. Please advise the outcome of your decision in writing by close of business Thursday, 8th August 2024.[19]

(emphasis added)

1. The Applicant replied on the same day:

I confirm that I’m happy to engage in facilitation with [the VET Trainer]. I’ve complied with your demand that I return to duties to facilitate this. Please advise the date and time for this.

I also confirm that my decision to resign was not in the heat of the moment and it will not change. Carinity’s decision to cancel scheduled meetings and/or offer support is
perplexing.[20]

1. Subsequently, the VET Trainer advised the Respondent that she did not wish to proceed with mediation. The Respondent contacted the Applicant on 13 August 2024 advising that mediation was not able to take place, but that the Respondent would still be investigating the concerns the Applicant had raised.[21] The Applicant was advised to respond by close of business, 14 August 2024 with dates and the details of incidents which had occurred.[22] The Applicant did not respond.

1. The Applicant’s last day was Friday, 15 August 2024.

1. The VET Trainer, who was the subject of the Applicant’s complaints, also resigned and her last day was on 15 August 2024. 

Was the Applicant forced to resign under s.386(1)(b) of the Act?

1. Section 386(1) of the Act relevantly provides that 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.[23][24]

1. The Applicant’s main contention is that he was dismissed within the meaning of s.386(1)(b) of the Act as he was forced to resign.

1. The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[25][26] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[27][28]

1. While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[29][30] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[31][32]

1. All the circumstances – including the conduct of both the employer and employee – must be examined.[33][34] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”[35][36]

1. The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:

“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.

The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively.

The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”[37][38]

1. Furthermore, in Pawel v Australian Industrial Relations Commission,[39][40] the Full Bench noted:

“Mere “causation” or “motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”

1. Forced resignation has been interpreted by the Commission in the following ways:

• the actual conduct of the employer forced to do so, such that there was an element of compulsion present;[41][42]

• a ‘critical action’ or ‘critical actions’ of the employer which was intended to bring the employment relationship to an end;[43][44]

• as a result of some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect;[45][46] and

• the employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[47][48]

1. I note the Applicant prepared his adverse action claim prior to resigning. He had formed the view that the school was refusing to meet with him to discuss safety concerns and such, he was being made to “choose between resignation and ongoing risk to my health”.[49]

1. I note that there were some discrepancies in the Applicant’s submissions and testimony about which dates the meetings were scheduled for and on which dates the Applicant attended the school.

1. I find that the first meeting was scheduled for 24 July 2024. This was cancelled, as the School Principal was at a conference in Brisbane.

1. The meeting was re-scheduled for 29 July 2024, and an invitation was sent for that meeting on 25 July 2024.

1. The meeting on 29 July 2024 was cancelled as the Applicant had sent a medical certificate early that morning. The Applicant arrived at the school anyway and was informed that the meeting was cancelled.

1. The Respondent did not reach out to the Applicant again until 2 August 2024, to confirm whether the Applicant would be returning to work the following Monday.

1. The Applicant’s claim that the Respondent was refusing to meet with him to discuss safety concerns is not made out. The Respondent was simply rescheduling the meeting for when the Applicant returned from leave. The Applicant had provided a medical certificate from a psychiatrist stating that he was unfit for work until 5 August 2024. It was reasonable for the Respondent to reschedule the meeting until after the Applicant returned from leave.

1. The evidence suggests that the Respondent was willing to listen to the Applicant’s safety concerns.

1. On 19 July 2024, the Applicant had attended a meeting with the School Principal and Ms Starr-Nolan in which he initially raised concerns about his role.

1. The Respondent’s submission is that the Applicant resigned before the process had been completed. I agree with this assessment.

1. In relation to the incident with the VET Trainer, the Respondent provided a series of emails from the School Principal discussing the incident between the Applicant and the VET Trainer. The School Principal indicated that the VET Trainer’s behaviour was an “unprofessional outburst” and would need to be raised with her in a meeting.  There seemed to be no indication that the Respondent was condoning the VET Trainer’s behaviour in yelling at the Applicant.

1. Further, I note that the Applicant declined to respond to the Respondent’s invitation to provide details of the complaint by 14 August 2024.

1. Contradictory evidence was presented in the hearing about whether the Applicant was aware that the VET Trainer with whom he had an issue had tendered her resignation. The Respondent’s argument appears to be that if the Applicant was aware that the VET Trainer was leaving, then there was no prospect of working with her and therefore the forced resignation argument is not supported. The Applicant states that he was not aware that the VET Trainer had resigned.

1. The Applicant’s safety concerns were broader than just a concern about working with the VET Trainer. He was concerned that his role was not clearly defined, he had not accessed the hazard plan and he was struggling to complete tasks. I note the Applicant admits that he was making mistakes. The Respondent contends that a hazard plan was available on the intranet for the Applicant to access.

1. I find that the Applicant exercised a choice when resigning and his resignation was not forced.

1. It is not reasonable for the Applicant to contend that the Respondent should have met with him while he was on leave.

1. The Applicant was the one who had proposed the idea of mediation with the VET Trainer. It was open to him to opt for that route, rather than proceed to resignation.

1. Additionally, the Respondent had not indicated that the safety issues would not be addressed, they had merely indicated that a meeting would not be held while the Applicant was on leave and unfit for work, as indicated in his medical certificate. It was open for the Applicant to ventilate the safety issues on 5 August 2024. The Respondent did not force the Applicant to choose between safety and resignation. I find it probable that if the Applicant had decided to stay, the Respondent would have been amenable to rescheduling a meeting to discuss the Applicant’s concerns. As it was, the Applicant resigned by email at 2:00am on his first day back from leave.

1. As a result, I do not find the Applicant’s resignation to meet the threshold of a forced resignation per s.386(1)(b) of the Act. Therefore, the Applicant is not eligible to lodge an application under s.365 of the Act. The jurisdictional objection is upheld, and the Application is dismissed.

I Order accordingly.

DEPUTY PRESIDENT

Appearances:

M Sullivan appearing for himself as the Applicant
M Darwin appearing for the Respondent

Hearing details:

1 November 2024
Brisbane
Hearing via Microsoft Teams

[1] Form F8.

[2] Applicant Submissions [10]

[3] Ibid [12].

[4] Ibid [15].

[5] Ibid [16].

[6] Ibid [20].

[7] Ibid [27], [30].

[8] Ibid [37].

[9] Ibid [38].

[10] Email from the Applicant dated 18 July 2024.

[11] Applicant Submissions [39].

[12] Applicant Submissions [40].

[13]Applicant Submissions [41].

[14] Applicant Submissions [44].

[15] Applicant Submissions [47].

[16] Applicant Submissions [46].

[17] Letter from Ms Christine Hill to the Applicant dated 5 August 2024

[18] Email from the Applicant to Ms Starr-Nolan.

[19] Letter from Ms Christine Hill to the Applicant dated 5 August 2024

[20] Email from the Applicant to Ms Chantelle Brookes dated 6 August 2024.

[21] Email from Ms Chantelle Brookes to the Applicant dated 13 August 2024

[22] Ibid.

[23] Fair Work Act 2009 (Cth) s 386(1)(b).

[24] Fair Work Act 2009 (Cth) s 386(1)(b).

[25] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

[26] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

[27] Ibid

[28] Ibid.

[29] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

[30] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

[31] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [31].

[32] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [31].

[33] Whirisky v DivaT Home Care[2021] FWC 650 at [77].

[34] Whirisky v DivaT Home Care[2021] FWC 650 at [77].

[35] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [28].

[36] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [28].

[37] (1996) PRN6999.

[38] (1996) PRN6999.

[39] (1999) FCA 1660 at 58.

[40] (1999) FCA 1660 at 58.

[41] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.

[42] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.

[43] Boulic v Robot Building Supplies[2010] FWA 6905, [16].

[44] Boulic v Robot Building Supplies[2010] FWA 6905, [16].

[45] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (1995) 62 IR 200, 205-206.

[46] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (1995) 62 IR 200, 205-206.

[47] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].

[48] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].

[49] Form F8.

Printed by authority of the Commonwealth Government Printer

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