Matthew Rush v MSS Security Pty Limited
[2022] FWC 32
•12 JANUARY 2022
| [2022] FWC 32 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Rush
v
MSS Security Pty Limited
(U2021/9193)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 12 JANUARY 2022 |
Unfair dismissal application – applicant not forced to resign – application dismissed
This decision concerns an application made by Mr Matthew Rush for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (FW Act). Mr Rush contended that he was forced to resign from his employment as a security manager with MSS Security Pty Limited (MSS), and that his constructive dismissal by MSS was unfair. MSS objected to the application on the basis that Mr Rush was not dismissed, because he chose to resign in exchange for a payment rather than face disciplinary action.
Mr Rush’s unfair dismissal application and MSS’s jurisdictional objection were listed before me for determination on 11 January 2022. I decided to conduct the proceeding as a determinative conference, and to commence by hearing MSS’s jurisdictional objection.
Having heard the jurisdictional objection, and following a brief adjournment, I advised the parties that I had concluded that Mr Rush was not forced to resign, and that his unfair dismissal application must be dismissed. My reasons were given on transcript. An edited version of those reasons is set out at [23] to [34]. To this I have added the summary of evidence and submissions that follows below.
Evidence
Much of the evidence relating to the jurisdictional objection is comprised of correspondence between the parties which speaks for itself, however there are certain factual contests in respect of which findings must be made.
In the course of 2020, MSS received feedback from customers that Mr Rush had not been attending their sites as often as he should. A performance improvement plan was put in place and by the end of 2020 the company considered that Mr Rush’s performance had improved somewhat. However in the first half of 2021, the company received further negative feedback from customers about Mr Rush’s performance. In a letter dated 4 June 2021, Mr Jamie Adams, MSS’s manager for Victoria, advised Mr Rush that he was investigating concerns about his management of client contracts. The letter identified ten concerns and asked for Mr Rush’s response. Mr Rush replied to Mr Adams’s letter by email on 7 June 2021. A meeting took place between Mr Rush and Mr Adams at which the concerns were discussed.
In a letter dated 17 June 2021, Mr Adams advised Mr Rush that, based on the information he had gathered, he considered that the concerns raised by the company about Mr Rush’s performance were substantiated or partially substantiated. Mr Adams stated that, based on Mr Rush’s responses to date, and subject to any further material that might be provided by Mr Rush, MSS had formed the preliminary view that he was not suitable for the role of business manager. The letter stated that Mr Rush was required to show cause in writing as to why his employment should not be terminated.
On 18 June 2021, Mr Rush commenced a period of personal leave, and provided MSS with a series of medical certificates stating that he was not fit for work. On 22 September 2021, Mr Rush’s accrued personal leave expired, and he commenced a period of leave without pay. On 29 September 2021, Mr Rush submitted a further medical certificate stating that he was unfit for work from 4 October 2021 to 15 October 2021.
Mr Rush gave evidence that on 1 October 2021, Mr Adams telephoned him and said that he would not be paid for the month of October. The reason for this was that he had used all of his personal leave accruals. According to Mr Rush, Mr Adams told him that, if he wanted to be paid, there were two options: he could either resign and be ‘paid four weeks’ notice’; alternatively, he could return to work and address the concerns that the company had raised about his performance, but under this option it was ‘most likely’ that he would be dismissed.
Mr Adams’ account of this discussion was quite different. Mr Adams said that he told Mr Rush that he would ordinarily be paid for the entire month of October on the tenth day of the month, but that because Mr Rush did not have any remaining personal leave credits, and because he had not confirmed a return to work date, his absence would be treated as unpaid leave. Mr Rush then asked him what the outcome of the performance management process would be. Mr Adams replied that he was unable to say, because he had not received Mr Rush’s response to the show cause letter. Mr Rush asked whether the company would terminate him, and Mr Adams said that this was a ‘possible’ outcome, given that a show cause letter had been issued, but that the process needed to be finalised before a decision was made. Mr Adams’ evidence was that Mr Rush then asked him if there were any ‘alternatives’, to which Mr Adams responded that Mr Rush could return to work when he was able to do so, and the performance management process would then be finalised, or alternatively, if Mr Rush felt that he was unable to return to work or did not wish to undergo performance management, resignation was an option. Mr Rush then asked what the company’s position would be if he chose to resign, to which Mr Adams replied that he would be ‘paid his notice in lieu’. Mr Adams said in his evidence that by this he meant a payment of four weeks’ pay.
Mr Adams gave evidence that on 5 October 2021, Mr Rush telephone him and asked for confirmation of the payments he would receive if he resigned. Mr Adams said that Mr Rush then told him that he thought it would be best to part ways with the company and that ‘he would be resigning’. Mr Adams asked him if he was sure that this was what he wanted to do, and Mr Rush said that it was. Mr Adams then asked Mr Rush to put that position in writing and confirm that this was the action he wished to take.
On 5 October 2021, Mr Rush sent Mr Adams a text stating: ‘Just to confirm, if I was to resign, I would receive 4 weeks’ notice period and my LSL/AL accrual. Is that correct? Also … would I possibly be able to receive a written reference from you to assist with gaining future employment?’ Mr Adams replied by text, stating: ‘Yes but can’t do a reference. Can do statement of service though.’ Mr Rush then replied: ‘Makes sense. Could a reference possibly be done via phone?’ Mr Adams texted back that he would check, but that his deadline for a decision was 4.00pm that day, in order for the payment to be made in the next pay cycle. Mr Rush replied: ‘I’ll come back to you by eod tomorrow. It’s too much pressure to make an informed decision within the next 30 mins as I haven’t had an opportunity to discuss it with my family’. Mr Adams replied that he understood.
On 6 October 2021, at 5.48pm, Mr Rush sent Mr Adams a text stating: ‘I hereby tender my resignation. I feel I have been left with no other choice. Can you please let me know when I can expect my final pay.’
A short time later, Mr Adams texted back, stating he did not believe that he could accept Mr Rush’s verbal resignation from the previous day or his current written resignation, and stated that he should ‘reconsider your resignation for a further 48 hours and make sure you are making an informed decision in your own best interests’.
Mr Rush then replied, stating: ‘Jamie, I didn’t verbally confirm my resignation yesterday. You advised that if I didn’t resign, the most likely outcome for my return to the office would be termination’.
In response, Mr Adams sent Mr Rush a text, stating: ‘That is incorrect. You contacted me yesterday and advised me you thought it would be best to part ways with the company, following which I asked you to put it to me in writing. On Friday you asked whether termination was a likely outcome from the performance discussions and I advised you it was a possible outcome given you have been issued with a show cause letter. On Friday I suggested if you didn’t want to go through the process of finalising that process that I would consider paying notice to you if you chose to resign. You then asked me for time to consider it and advised me you would give a decision on Monday. To be clear, no decision has been made on the performance management process as you have not responded to the show cause letter. Until that process has been concluded no decision can be made. To be even clearer, you are not being forced to resign your position. Given our conversation appears to have been either misconstrued or misinterpreted, I’d suggest written correspondence will be our future form of communication’.
On 8 October 2021, at 3.31pm, Mr Adams sent Mr Rush an email, in which he stated that the company had asked him to reconsider his position and provide it with his final considered position within 48 hours, and that Mr Rush had not confirmed his position. Apparently assuming that Mr Rush had decided not to resign, Mr Adams asked Mr Rush to confirm his anticipated return to work by midday on 11 October 2021.
On 8 October 2021, at 5.57pm, Mr Rush sent Mr Adams a text stating: ‘Hi Jamie, I hereby tender my resignation. Can you please let me know when I can expect my final pay. Thanks, Matt’. Shortly afterwards Mr Adams replied by text message, stating: ‘Matt if this is your final position can you please send me an email outlining this (and) your intentions in regard to working out your notice period.’ In reference to the possibility of Mr Rush working during the notice period, Mr Adams explained in his evidence that the company did not know when or if Mr Rush wanted to return to work, but that the company did not expect him to work. Mr Adams went on to state in his message that company property would need to be returned, and that Mr Rush’s final payment would be made once this had occurred.
On 11 October 2021, Mr Rush sent Mr Adams an email in which he stated that he had been given two options, and had been told that, if he returned to work, termination was the ‘highest possibility’. He said that he had confirmed his resignation on 5 October 2021, then reconfirmed it again on 8 October. As to working out the notice period, Mr Rush stated that his understanding was that the company did not want him to work, and that he did not want to work for MSS any longer. He stated that he had lost trust in his employer, and that he was confused as to whether he was being requested to work the notice period, given that he was currently unfit for work. Mr Rush then stated: ‘I hereby resign from my position with MSS Security’.
On 11 October 2021, Mr Adams replied to Mr Rush’s email, stating that MSS accepted his resignation, that upon return of company property it would finalise his resignation including ‘payment of notice in lieu’, and that, as a gesture of good will, the company would also pay Mr Rush for the period of unpaid leave between 1 and 15 October 2021. The email reiterated that Mr Rush had not been told that dismissal was the likely outcome if he returned to work, but rather a possible outcome, and that the company had not received any response from him to the show cause letter in order to reach any conclusion as to a disciplinary outcome.
On 18 October 2021, Mr Adams sent Mr Rush a letter stating that his resignation of 11 October 2021 would take effect from 15 October 2021 and that he would be paid the equivalent of two weeks’ pay in lieu of his notice period. Effectively, the company waived his notice period, and agreed to pay Mr Rush for this two week period. Mr Rush was paid this amount. He was not paid for the period of unpaid leave from 1 to 15 October 2021, contrary to Mr Adams’ statement in his email of 11 October 2021 and Mr Adams’ earlier statement to Mr Rush that he would receive four weeks’ pay. However, Mr Adams undertook at the hearing (during his sworn evidence) that this payment would be made, and that he expected that this would occur by the end of the week.
Submissions of the parties
Mr Rush submitted that he was forced to resign, because he was given an ‘ultimatum’ of either resigning and being paid four weeks’ pay, or not resigning but with the likely outcome of being dismissed upon his return to work. He submitted that the company had forced him to make a decision on his employment while he was unfit for work, which was unfair. He said that he was the sole earner for his family, and he was facing the prospect of having no income. Mr Rush said that he had been unfairly pressured, targeted, bullied and harassed into resigning from his employment, while on medical leave, and that he had been constructively dismissed.
MSS contended that Mr Rush freely chose to resign rather than respond to the show cause letter and deal with the performance issues that had been raised with him by the company. It submitted that he was not subjected to any pressure whatsoever. He could have chosen to remain employed and engaged with the disciplinary process but decided instead to resign and receive a payment.
Consideration
A person cannot bring an unfair dismissal application under s 394 of the FW Act unless the person has been ‘dismissed’. Section 386(1) states that a person has been dismissed if the person’s employment was terminated ‘on the employer’s initiative’ (s 386(1)(a)) or 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’ (s 386(1)(b)).
In Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, a Full Bench of the Commission considered the authorities on resignation and their application to s 386 of the Act, and concluded that, in considering whether a resignation is ‘forced’ for the purposes of s 386(1)(b), the test 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.’ (at [47]) The question of whether a person has been forced to resign for the purposes of s 386(1)(b) is one that depends on the relevant factual findings.
I make the following factual findings. First, I accept Mr Adams’ evidence that, during his telephone discussion with Mr Rush on 1 October 2021, he told Mr Rush that termination of employment was a possible outcome of the performance management process. This conclusion is consistent with the fact that the company was still waiting for Mr Rush’s response to the show cause letter. The company had not reached any final decision about Mr Rush’s future employment. Regardless of what was said during the conversation of 1 October 2021, it is clear that Mr Adams later told Mr Rush that dismissal was a possible outcome and that no decision had been made because Mr Rush had not responded to the show cause letter.
Secondly, I find that Mr Rush asked Mr Adams about whether there was an alternative to concluding the performance management process, that Mr Adams then raised the possibility of resignation in exchange for a payment, and Mr Rush took time to consider this alternative. I find that Mr Rush considered it to be an attractive alternative because it meant that he would receive a payment.
Thirdly, I find that during the telephone conversation on 5 October 2021, Mr Rush said that he thought he should ‘part ways’ with the company and that he ‘would be resigning’, however in my view these words suggest that a resignation will or may occur in the future. Further, Mr Adams requested Mr Rush to put his decision in writing. In my view, Mr Rush had not conveyed a final decision to resign at this time.
Fourthly, I find that Mr Rush resigned from his employment by sending his text message to Mr Adams on 6 October 2021. He then reiterated this decision in his text message on 8 October 2021, and again in his email message to Mr Adams on 11 October 2021. I find that Mr Rush’s decision to resign was a considered one, which he then reconsidered and reaffirmed. The fact that the company chose to recognise the resignation from 15 October 2021 does not alter the fact that Mr Rush resigned and did so freely.
Fifthly, and more generally, I prefer the evidence of Mr Adams to that of Mr Rush in relation to their telephone conversations. Mr Adams’ evidence was clear, consistent, detailed, and convincing.
Sixthly, although Mr Rush claimed in his F2 application to have been subjected to pressure, targeting, bullying and harassment, I find these claims to be unsupported by the evidence. They are not substantiated. Further, although I accept Mr Rush’s evidence that he has been through difficult personal circumstances, I do not accept that these created a situation in which the company’s conduct had the effect of placing pressure on Mr Rush to resign.
Seventhly, I accept Mr Adams’ evidence that by 1 October 2021, Mr Rush had exhausted his annual leave and that he was not prepared to grant Mr Rush annual leave in advance because there was no indication of when Mr Rush would be returning to work so as to be able to generate new annual leave accruals.
Eighthly, I find that Mr Rush was not given an ultimatum. He asked Mr Adams whether there was an alternative to the conclusion of the performance management process. There was such an alternative: resignation in exchange for a payment. The description of that payment was perhaps somewhat unclear. When an employee resigns, the employee must give notice to the employer. The employer does not give notice to the employee. Despite this, I find that Mr Rush understood what was proposed: as he said in his F2, he was offered four weeks’ pay. And although Mr Adams asked Mr Rush what his intentions were as to working during his notice period, I find that Mr Adams did not expect or require Mr Rush to work while he was unwell, or to work at all, but was rather ascertaining whether Mr Rush might wish to work during his notice period. Because Mr Rush had resigned, he was required to give the company notice and to work during this period if he was fit to do so, but this was not the deal. The alternative arrangement was that if Mr Rush resigned, he would receive four weeks’ pay, or as Mr Adams described it, ‘payment in lieu of notice’. Mr Rush is yet to receive payment in respect of two of those weeks, but I accept the company’s undertaking, through its Victorian manager Mr Adams, that it will honour this commitment.
The text and email correspondence between the parties does not disclose or suggest any coercion on the part of the employer. Even after Mr Rush sent his text message to Mr Adams on 6 October 2021 stating that he resigned, Mr Adams insisted that he take 48 hours to think about it. On two further occasions Mr Rush confirmed his intention to resign, both by his text on 8 October 2021, and his email of 11 October 2021. Mr Rush now says that it was unfair of the company to require him to make a decision about his future employment while he was unwell and absent from work, but Mr Rush did not raise any concern about this with the company at the time. I do not accept Mr Rush’s statement that he was not in a position properly to consider the alternatives, or that the company should have believed this to be the case.
Mr Rush could have chosen not to resign and engage with the disciplinary process by responding to the show cause letter. He did not do so. He chose to receive a payment from the company and avoid disciplinary action. This was his decision. The alternative arrangement of a resignation was attractive to Mr Rush because it entailed a payment that he would not otherwise receive. The company did not engage in conduct with the intention of bringing the employment to an end, nor was termination of employment the probable result of the company’s conduct. MSS gave Mr Rush an option, after he had asked whether there were any alternatives. Mr Rush freely chose the alternative that involved resignation and receipt of a payment.
Conclusion
Mr Rush resigned of his own accord. He was not forced to resign because of the conduct of MSS, nor was he dismissed on the initiative of the employer. The company’s jurisdictional objection is upheld, and Mr Rush’s unfair dismissal application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
M. Rush for himself
C. Morgos and B. Bharti for the respondent
Hearing details:
2022
Melbourne
11 January
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