Michael William Dunn v Serco t/a Serco Traffic Camera Services (Vic) Pty Ltd
[2020] FWC 3888
•28 JULY 2020
| [2020] FWC 3888 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael William Dunn
v
Serco t/a Serco Traffic Camera Services (Vic) Pty Ltd
(U2019/14020)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 28 JULY 2020 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application by Mr Michael Dunn for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth)(Act), in relation to his alleged dismissal from Serco Traffic Camera Services (Vic) Pty Ltd (Serco).
[2] I have determined that Mr Dunn was not “dismissed” within the meaning of s.386 of the Act and accordingly the application is dismissed. The reasons for this decision follow.
Procedural context
[3] The application was filed on 13 December 2019. It stated that Mr Dunn had notified Serco that his contract of employment was “null and void” on 22 November 2019 and this was effective 20 December 2019. It claimed Serco had fundamentally damaged the employment relationship and that Mr Dunn had “no choice but to leave”. A remedy of compensation was sought.
[4] On 6 February 2020, Serco filed its initial response in which it denied the various allegations and objected to the jurisdiction of the Commission because it alleged that Mr Dunn was not dismissed but rather had voluntarily resigned.
[5] On 13 February 2020, Commissioner Bissett determined that the application was made prematurely and waived that irregularity pursuant to s.586(b) of the Act. 1 Accordingly, and as initial attempts to resolve the matter at conciliation (on 30 January and 31 March 2020) were unsuccessful, the matter proceeded to hearing before me.
[6] Submissions and witness statements were filed in relation to both the jurisdictional objection and the merit of the claim. Consistent with the Commission’s response to the COVID-19 pandemic, and by consent of the parties, the hearing was convened by telephone on 7 April 2020. At the hearing, Serco sought permission to be represented by a lawyer which was not opposed and was granted pursuant to s.596 of the Act. Mr Dunn was represented by his wife. At the hearing, Mr Dunn as well as a Ms Andrea Caldow (People & Capability Senior Advisor) and a Ms Elizabeth Riley (Detection Services Manager since November 2019 and previously Operations Manager, Traffic Camera Services) gave evidence. The parties declined to file submissions in closing.
Factual context
[7] Serco’s Traffic Camera Services business unit provides road safety camera services to the Victorian Department of Justice and Community Safety and Victoria Police. 2 The Detection Services department is responsible for traffic camera operations, administrative and technical support and management of those operations.3
[8] Mr Dunn was employed by Serco since June 2009. 4 In July 2014, Mr Dunn was appointed Service Delivery Manager. On 1 July 2018, he was redeployed to the role of Regional Manager - West following the redundancy of his prior role.5 The terms and conditions of Mr Dunn’s employment were governed by a contract of employment dated 4 July 2014 together with a variation dated 11 June 2018 to confirm his appointment to Regional Manager - West and reporting line to the Operations Manager, Traffic Camera Services (with all other terms and conditions remaining unchanged). A “success profile” outlined the key accountabilities of this role.6 In this role, three Area Managers reported to Mr Dunn and a number of Mobile Road Safety Camera Operators (MRSCOs) reported to those Area Managers.
[9] From October 2018, the business was preparing to tender for renewal of the Traffic Camera Services contract. A review was conducted and operational efficiencies identified including a proposal to restructure traffic camera operations from two to four regions and remove the Area Manager roles. 7 Ms Riley’s evidence was that she had regular discussions with Mr Dunn and his counterpart (the Regional Manager – East) about the proposal.8 On 23 October 2018, Mr Dunn emailed Ms Riley (to whom he reported) and attached his thoughts on the proposed restructure in a document which, on its face, refers to a four region structure.9
[10] After the tender was submitted in December 2018, departures in the Detection Services department were not replaced pending the outcome of the tender. Ms Riley said there was a small number of resignations in this period. 10 Mr Dunn’s evidence was that the impact on his role included a requirement to act in an Area Manager role with support from a colleague. He also said his workload had been excessive since taking on the role in July 2018 due to Ms Riley’s “unprecedented strategy of assigning me downward relief tasks and roles” and her failure to monitor the on call roster.11 In her evidence, Ms Riley disputed these allegations. Ms Caldow’s evidence was that it is common place for a senior manager such as Mr Dunn to “chip in” to perform some additional duties in the absence of another manager (whether due to resignation or leave) and it is expected that managers will step up and lead the team in those instances. 12 In evidence, Ms Caldow did not accept that a senior manager providing support to their team in this way is appropriately characterised as “downward relief”.
[11] On 24 June 2019, Mr Dunn emailed Ms Riley and attached his recommended deployment for additional MRSCOs. On its face, that document refers to options for a four and five region structure. 13
[12] On 1 July 2019, Mr Dunn lodged an internal complaint about Ms Riley with Mr Simon Guy (General Manager, Traffic Camera Services). The complaint alleged that Ms Riley had proposed a restructure that made his role redundant. Mr Dunn also complained of a demotion, excessive workload and alleged discrimination on the basis of gender and lack of education. Mr Dunn sought the removal of a disciplinary note and “for the reinstatement of my working conditions and the opportunity to do my job as Regional Manager West”. 14
[13] Also on 1 July 2019, Mr Dunn was medically certified as unfit for work and commenced a period of personal leave. He did not return to work again from that time. 15
[14] On 2 July 2019, Mr Dunn lodged a claim with the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) in which he named Serco as the respondent. 16
[15] Mr Dunn’s evidence is that, from around this time, he was “cut off” from management communications on the email server. 17 Ms Caldow accepted that there were technology issues with Mr Dunn’s remote access at this time. She acknowledged the technology issue was not able to be rectified immediately but steps were taken to ensure Mr Dunn had access to necessary information such as payslips and essential communications, via his personal email. Ms Caldow also said that care was taken by Serco in its communications as not to exacerbate Mr Dunn’s medical condition.18 Ms Riley said she was directed not to contact Mr Dunn pending the outcome of the investigation into his complaints about her.19
[16] On 10 July 2019, the proposed restructure was presented by the General Manager of Traffic Camera Services to the potentially affected employees. 20 It was communicated to Area Managers that their roles were “at risk” and consultation was invited over the period 11 to 17 July 2019. On 18 and 19 July 2019, the changes to the structure were to be finalised including modifications arising from the consultation. It is not disputed that Mr Dunn was not included in these communications over the period 10 to 19 July 2019. Ms Riley gave evidence of her explanations for this namely Mr Dunn’s absence from work on medical leave. Mr Dunn took issue with the process including that it was not raised in an off site meeting about his return to work with Mr Guy and Ms Caldow on 19 July 2019.21
[17] On 21 July 2019, Ms Riley emailed the Traffic Camera Services managers including Mr Dunn to confirm the final structure. The former two regions (East and West) were replaced with four geographically smaller regions (Metro, North East, South East and West). There was a Regional Manager for each region and the former roles of Area Manager, which had previously reported to the Regional Manager East and Regional Manager West, were removed. 22 MRSCOs now directly reported to the Regional Managers. The 21 July 2019 email provided affected employees with information about the final structure, updated role descriptions for Regional Manager and Training and Compliance Officer roles (“success profiles”), timelines and redeployment opportunities. Affected employees were requested to complete a redeployment opportunities and preference form.23
[18] On 22 July 2019, Mr Dunn emailed Mr Guy in which he stated that he did not understand why he was included on the 21 July 2019 email because he had not been included in the process to date. 24 On 23 July 2019, Mr Guy replied including to say “I had intended to discuss the Camera Ops re-structure at our meeting on Friday but it didn’t seem appropriate, so I didn’t, based on how you were feeling. I did see the e-mail Liz had sent you and had intended to contact you. Are you okay if I give you a call to discuss this?”. A face to face meeting was also offered.25
[19] On 24 July 2019, Mr Dunn responded to all recipients of the 21 July 2019 email in which he expressed concerns with the restructure process including that he had been excluded. The response raised some questions, requested an organisational flow chart and additional role description, raised concerns about workload and safety, and concluded by stating “should the restructure go ahead on July 26 2019, I declare my provisional preference for the Regional Manager – West role subject to consideration for the above”. 26 Mr Dunn’s evidence was that, at the time of writing this email, he feared losing his job.27
[20] On 31 July 2019, VEOHRC convened a conciliation conference attended by Mr Dunn, Ms Caldow, Mr Guy and Ms Lisa Tran (Senior Legal Counsel - Employment). The outcome of the conciliation was an agreement that Serco would engage an independent investigator to investigate Mr Dunn’s complaints. Mr Dunn accepts that Mr Guy said on that occasion that there was no redundancy option available to him. 28 Ms Caldow’s evidence was that she had a discussion with Mr Dunn on that occasion about his return to work and some options for how that might be facilitated.29
[21] On 6 August 2019, Mr Dunn was informed that an investigator (an external law firm) had been appointed to investigate his complaints. 30
[22] On 15 August 2019, Mr Dunn was notified that under the new structure he would retain the position of Regional Manager – West. 31 Mr Dunn’s wife then exchanged correspondence with Ms Tran regarding Mr Dunn’s views about the restructure.32 The announcement of appointments to the new structure (which had initially been planned to “go live” on 12 August 2019) was delayed pending those communications.33
[23] Around late August or September 2019, monitoring of the on call area management roster commenced and a new fatigue management policy was introduced. Serco said this was to address any concerns, including those raised by Mr Dunn, regarding fatigue management. 34
[24] On 27 September 2019, Ms Caldow emailed Mr and Mrs Dunn in response to matters raised about the restructure. 35 This correspondence included assurances that Mr Dunn’s role was not redundant, had not fundamentally changed and the revised Regional Manager - West role was not a “demotion”. It attached the new structure and invited Mr Dunn’s feedback.
[25] On 7 October 2019, Ms Riley emailed the Traffic Camera Services department announcing the new structure which was effective that day. In that email, Mr Dunn’s role as Regional Manager – West was confirmed. That email was forwarded to Mr Dunn by Ms Caldow with a note referencing their discussion of the previous week. 36 Ms Caldow’s evidence was that she did not receive a direct response to that email.37 According to Ms Caldow, Mr Dunn’s role was still required and was not demoted or redundant, including because Mr Dunn retained the role of Regional Manager – West; there was no change in Mr Dunn’s work location; there was a reduced geographical spread in the four region structure, and a greater number of direct reports but additional support from training and compliance officers who were now allocated to each region.38 There was no change to Mr Dunn’s salary or reporting line and no proposal to vary Mr Dunn’s contract of employment. Serco had taken steps to address Mr Dunn’s feedback through introduction of the fatigue management policy and denied that the proposed new structure would result in non-compliance with safety. Ms Riley’s evidence was that Regional Managers were responsible for investigating and escalating any such concerns (ie. with the on call roster) as appropriate. Serco also denied that the new structure did not provide for management relief or succession planning.39
[26] On the morning of 17 October 2019, Mrs Dunn responded to the 27 September 2019 correspondence on behalf of her husband. Among other things, she referred to a previous restructure in 2018 when Mr Dunn was offered an “at risk” letter and also stated: “It looks like Serco is arguing with itself. Michael’s role has been made redundant. Michael has been demoted.” She also alleged that one of the Regional Managers was offered a higher salary. 40
[27] On the afternoon of 17 October 2019, Mrs Dunn emailed Ms Caldow to lodge a workcover claim. 41 On 25 October 2019, Serco’s workers’ compensation insurer advised Mr Dunn that his injury claim had been lodged and attached a return to work program for discussion with his doctor. The plan recorded the “return to work goal” as “return to pre injury duties and hours” and proposed suitable duties (stage 1) commencing on administrative duties and graduated return to full hours, with an option to perform those administrative duties across two sites.42
[28] On 29 October 2019, Mr Dunn was advised that the investigation had concluded that Mr Dunn’s allegations were all unfounded except for one. The substantiated allegation involved an incorrect deduction of annual leave in a genuine circumstance of personal leave, which was recredited as a result. 43 Mr Dunn ultimately disputed the independence of the investigation and the accuracy of the particulars of the allegations.44
[29] On 31 October 2019, Mr Dunn emailed a further certificate of capacity to Mr Harris (the return to work officer) which was valid until 29 November 2019. 45 On 31 October 2019, a further return to work program was provided by the workers’ compensation insurer.46
[30] On 4 November 2019, Ms Caldow responded to the 17 October 2019 email. In her response, Ms Caldow acknowledged the previous restructure in 2018 and reiterated that on this occasion Mr Dunn’s position was not redundant, and he was not demoted in the new structure. Ms Caldow also provided an assurance that Mrs Dunn was not correct in her assertion about the Regional Manager salaries, however declined to provide further details of salaries for reasons of confidentiality. 47
[31] On 8 November 2019, Ms Caldow emailed Mr and Mrs Dunn in which she confirmed receipt of a medical certificate for the period 1 to 29 November 2019. She also confirmed Mr Dunn’s remaining personal leave balance (41.83 hours) and annual leave balance (115.72 hours) and advised that Mr Dunn’s personal leave would be exhausted with the remainder of the month to be allocated as leave without pay. Ms Caldow concluded by noting she had left a telephone message and requested contact to discuss the November pay and leave arrangements. 48
[32] Also on 8 November 2019, Mrs Dunn responded to Ms Caldow by email. Mrs Dunn stated that they recognised that Mr Dunn’s personal leave had been exhausted and requested that the balance of the month be processed as annual leave. That email also stated that Mr Dunn was preparing a formal written response to address his “forced redeployment”. 49
[33] On 22 November 2019, the workers’ compensation insurer notified Mr Dunn by telephone and letter that his workcover claim had been rejected. 50 Mr Dunn ultimately disputed the accuracy of evidence submitted by Serco to the insurer particularly as it related to allegations about his performance.51
[34] Also on 22 November 2019, Mr Dunn emailed Ms Caldow and the Operations Director State & Territory Government, Serco Citizen Services as follows:
“As you know, I was injured in my workplace on July 1 2019 and have been incapacitated for work ever since.
I immediately made Serco aware of the circumstances that led to my injury at the hands of my line Managers (Ms Riley). I went on to expose myself to further negative health impacts in an attempt to protect myself and my colleagues from similar mistreatment at her hands. Serco has chosen to defend her actions in every regard. My attempt to address my concerns directly with Sodexo management failed. I then sought the assistance of the VEOHRC. I chose this pathway because it was confidential and voluntary, however in retrospect I realise it was a soft option for Serco. Serco agreed to conduct an investigation, however my allegations were altered by the appointed investigator. I could not and did not reach agreement on the ‘particulars of my allegations’. Notwithstanding, Serco determined to commence the investigation and subsequently cleared Ms Riley of the majority of my claims. In my view, Serco has effectively called me a liar and removed any scope of a return to work.
In addition, on July 10 2019, Serco initiated a restructure in my absence and failed to directly advise me of the detail of same until I was inadvertantly (sic.) copied into a Serco communication during stage 4 of the restructure process (21 July 2019). Serco proposed that I be redeployed to a new role but denied that my role had changed, denied me a redundancy and denied that I had been demoted.
I refer you to the extensive correspondence between myself and Serco or your agents (lawyers) since that time (22 July to 8 November 2019).
In my view, Serco was not a safe workplace when I was injured and it remains unsafe today. I now formally advise that I do not accept the new role or forced redeployment under the TCS Transformation 2019. Serco has not proivded (sic.) a variation to my contract nor has it adequately addressed my repeated concerns relating to, but not limited to:
• the matters set out in my email to Simon Guy (July 1 2019)
• the matters set out in my various complaint documents to VEOHRC
• proposed changes to the terms and conditions of my role/contract
• redundancy of existing role
• demotion from existing role
• excessive workload in new role;
• lack of fatigue management in new role;
• OHS non-compliance in new role;
• lack of management relief support structures in the event of absences in new role;
• lack of succession planning in new role
I loved my job at Serco. I loved the road safety program. I loved going to work. I joined Serco as a camera operator in 2009. I became a trainer shortly afterward and worked my way to Service Delivery Manager in 2014. I was Serco Camera Operations employee of the year in 2013. I am a recipient of a Pulse Award. I accumulated 10 years of performance reviews that rated me up to and including ‘exceptional’. I devoted myself to the protection of our roads through the road safety program and protection of my colleagues. I never envisaged that my workplace would fail to protect me. The past 2 years 2 months with Ms Riley at the helm as Operations Manager has seen a complete departure of the Serco values of trust, care, innovation and pride at the Tullamarine facility, to a toxic culture that breaches current workplace requirements, lacks humanity and breaks people. My doctor is recommending that I cease my employment with Serco in order to assist my recovery and I am in agreement.
Serco has not honoured my contract of employment and a return to work is untenable in any capacity. Whilst I regard my contract of employment as null and void, I give 4 weeks notice in accord with same and resign my role as Regional Manager West as appointed on July 1 2018.
Yours sincerely,
Michael Dunn” 52
[35] Ms Caldow’s evidence was that Mr Dunn’s resignation “took her by surprise”. Whilst Ms Caldow was aware of Mr Dunn’s concerns about the restructure, she said she had acted on his 24 July 2019 preference to continue in the Regional Manager – West role and there was no prior indication that Mr Dunn considered his contract to be null and void and she had been operating on the basis that Mr Dunn would return to work when he was fit to do so. 53
[36] On 29 November 2019, Ms Caldow responded to acknowledge Mr Dunn’s email of 22 November 2019. A letter was attached, on Serco Traffic Camera Services (Vic) Pty Ltd letterhead, which included the following:
“We refer to your email of Friday, 22 November 2019 informing Serco Citizen Services Pty Ltd (Serco) of your resignation with 4 weeks’ notice (Email). This means that your resignation will take effect on 20 December 2019 (Employment End Date).
Serco does not agree with the contentions outlined in your Email. These have been the subject of prior correspondence and discussions with you and therefore it is not necessary nor appropriate to seek to respond to them in this letter.
[…]” 54
[37] On 5 December 2019, Mr Dunn returned the Serco motor vehicle, mobile phone and computer that had been in his possession. 55
[38] On 9 December 2019, Mr Dunn received a letter from the workers’ compensation insurer which advised that following a review of its decision to reject the claim, the original decision remained unchanged. 56
[39] On 13 December 2019, Mr Dunn lodged this application with the Commission.
[40] It should be noted that Mr Dunn alleged that there were many lies and false statements that served to breach the employment contract, which he found offensive and difficult to read. However, much of the evidence relevant to the matters in issue contains objective facts supported by source documentation. I have wherever possible had regard to the source documents including the volume of emails and attachments which Mr Dunn and Serco have presented in my consideration below.
Statutory and legal context
[41] A threshold issue to determine is whether the Applicant has been dismissed from his employment.
[42] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[43] The above provision operates subject to certain exceptions at s.386(2) which are not presently relevant.
[44] A termination is at the employer’s initiative when the employer’s action directly and consequentially results in the termination of employment and the employment is not voluntarily left by the employee. That is, had the employer not taken this action, the employee would have remained employed. 57 Circumstances of a dismissal within the first limb (s.386(1)(a)) may include where an employer has repudiated the contract, and an employee accepts the repudiation thereby exercising their right to terminate the contract.58 The test for repudiation is whether the party’s conduct is such as to convey to a reasonable person, in the position of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.59 For example, it may be repudiatory for an employer to reduce wages without the employee’s consent or where there is a serious intrusion on the employee’s status or responsibilities in a way which is not permitted by the contract and as such evinces an employer’s intention to no longer be bound by the contractual terms.60 The issue turns upon objective acts and omissions and not on uncommunicated intention.61
[45] An ostensible resignation may attract application of the first or second limb of s.386(1). In this context, a Full Bench of the Commission summarised the position with regard to the long line of authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, 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 probably 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.” 62
[46] In considering s.386(1)(b), an objective assessment of the employer’s conduct is required. 63
Has the Applicant been dismissed?
[47] It is not disputed that Mr Dunn’s email to his employer of 22 November 2019 brought his employment contract to an end. However Mr Dunn contended that, by changing his role and responsibilities, it was Serco that had ended the employment relationship at its initiative and, or in the alternative, Serco’s course of conduct left him no choice than to resign. Serco argued that this was plainly a case of voluntary resignation and there is no basis to conclude that, by its conduct, Serco intended to bring the employment relationship to an end or could be said to have forced Mr Dunn to resign.
[48] By his 22 November 2019 email, in plain words, Mr Dunn resignedhis role as Regional Manager – West and gave four weeks’ notice in accordance with his contract of employment. However the word “resign” is prefaced by Mr Dunn’s assertion that Serco had not honoured Mr Dunn’s contract of employment, which he regarded as “null and void”.
[49] In support of his contention that the termination was at Serco’s initiative, Mr Dunn asked the Commission to accept that his role as Regional Manager – West came to an end on 7 October 2019 when the restructure was ultimately announced. 64
[50] Serco said it acted in accordance with Mr Dunn’s expression of preference for the Regional Manager – West role if the new structure went ahead. That preference was plainly subject to some reservations as expressed in the 24 July 2019 email. I accept that Serco then engaged in further correspondence with Mr Dunn about his reservations, and that Mr Dunn did not then retract or withdraw this preference. Indeed, he did not clearly refuse to accept the role in the new structure until 22 November 2019 (that is, some six weeks after the final announcement). However I do not consider these factors alone sufficient to conclude that there was no termination at the initiative of the employer.
[51] To the extent Mr Dunn contended that the 7 October 2019 announcement was a repudiation of his employment contract, I do not discern a basis for finding that a reasonable person, in the position of Mr Dunn, would consider Serco’s conduct to convey a renunciation of a fundamental contractual obligation or the contract as a whole. Relevantly, Mr Dunn’s contract expressly provided for:
a) Remuneration by way of an annual salary;
b) Location, with express provisions for regular travel in effectively carrying out the duties and temporary or permanent change of work locations within reasonable distance;
c) Hours of work at an average of 38 hours per week plus reasonable additional hours;
d) Responsibilities, with a position description and express provisions that Serco may revise and update the position description from time to time and that Serco may require Mr Dunn to undertake different work assignments or job responsibilities during the course of his employment with no reduction in remuneration;
e) Termination with and without notice;
f) Any variation to the offer of employment of no force and effect unless reduced to writing and signed by the parties; and
g) Although there were none specified in the contract, any applicable laws or industrial instruments to apply as a matter of law and do not form part of the employment contract, and Serco’s employment policies and procedures to be binding on Mr Dunn but agreed as not incorporated in the contract and not intended to have contractual effect.
[52] On the evidence before the Commission, the changes to the Regional Manager – West role arising from the new structure do not impinge on or alter an essential term or condition of Mr Dunn’s contract of employment:
a) Remuneration was the same;
b) Location at which work was to be performed was the same, with the only variance being a smaller geographic region within which Mr Dunn would be required to travel to perform his duties;
c) Hours of work as expressly agreed in the contract were the same. Mr Dunn’s concerns about whether the hours required to deliver the role would be excessive in practice were not borne out in the evidence;
d) A line by line comparison of the July 2019 success profile with the previously applicable July 2018 success profile confirms that:
• There were variations to the structure and reporting relationship to reflect the change to direct reports (MRSCOs as direct reports in place of the Area Managers), however the Regional Manager would continue to report to the Operations Manager and remain in the Traffic Camera Services business unit. Serco’s evidence was and I accept that, whilst the seven Area Manager roles were removed, the responsibilities were balanced including by increasing the number of Regional Managers to four, reducing the geographic regions within the responsibility of each Regional Manager and increasing training and compliance support resources.
• The key accountabilities were substantially the same. Participation in the on call roster as required and more specificity about the health and wellbeing accountabilities were new additions. The specific number of camera hours per month was removed in place of a requirement to work in partnership with the workforce management team to meet an unspecified number of contracted camera hours each month. These accountabilities were not substantially different to the requirements of the role of Regional Manager – West under the previous structure. Acknowledging that the key accountabilities now operate in the new structural context with adjusted resources, and that the change to the contracted camera hours may result in more hours, on balance I do not consider the changed accountabilities amount to a fundamental alteration to the contract or its terms.
• The Regional Manager – West role is accountable for ensuring a healthy and safe working environment and is required to attend and participate in the Traffic Camera Services OHS Committee. Mr Dunn’s concerns about the new structure may be characterised as related to matters of safety (excessive hours, fatigue management, management relief). He had proposed in his 24 July 2019 email that a meaningful management monitoring system would ensure measurement and response to fatigue and safety matters under the new structure. On the evidence, this sort of initiative was within the scope of the Regional Manager - West role to propose, escalate and/or implement as part of the role, including through participation on the Traffic Camera Services OHS Committee.
e) No contractual variation was proposed and was not required in light of the above.
f) There was no suggestion by either party before the Commission that any industrial instrument applied. To the extent of any relevant policies and procedures (noting none were in evidence before the Commission), the parties had expressly agreed that these did not form part of the contract or create contractual obligations. Whether Serco complied with its policies and procedures in the restructure process (about which I make no finding), does not alter the essential terms or otherwise intrude on the relationship in a way that is not permitted by contract.
[53] Accordingly, by confirming Mr Dunn’s role as Regional Manager – West and associated changes to the role, I find that Serco did not deny Mr Dunn his contractual rights or convey an intention to fulfil the contract in a manner substantially inconsistent with its obligations.
[54] In my view the 22 November 2019 email is described as, and is, a resignation. Mr Dunn reflected his consideration of his decision and understanding of its implications by specifying the provision of four weeks’ notice and articulating his reasons. Those reasons are consistent with the position that Mr Dunn maintained before the Commission and include his agreement with his doctor’s recommendation that he cease employment with Serco in order to assist his medical recovery.
[55] This is not a case of, and there was no suggestion that, the resignation was legally ineffective on account of any jostling by Serco, because Mr Dunn acted in “the heat of the moment” or was of unfit state of mind. Serco accepted the resignation, in writing and after waiting an appropriate period of seven days. Mr Dunn returned his company property around two weeks after sending the resignation email. At no stage did Mr Dunn seek to withdraw or revoke his resignation, nor was this alleged during the course of these proceedings.
[56] The onus is then on Mr Dunn to prove that he was “forced” to resign. In his 22 November 2019 email, Mr Dunn detailed that he refused to accept the new role or “forced redeployment” because Serco had not adequately addressed his various concerns. Ms Caldow gave evidence of her surprise. This is irrelevant. What is required is an objective assessment of the employer’s conduct and course of conduct.
[57] The sequence of events establishes that Mr Dunn first sought to have his issues addressed through his complaints (the internal complaint of 1 July 2019 and the VEHORC claim of 2 July 2019). In materials submitted to the Commission, Mr Dunn said that he chose the VEHORC “pathway” because it was confidential and offered mediation but “deferred any action until after he had met with the respondent”. 65 The process was delayed and there was further discussion with Serco but ultimately the restructure proceeded. I consider Serco’s conduct in engaging an external investigator to investigate Mr Dunn’s complaints supportive of an intention to continue the employment relationship. For completeness, it is noted that the outcomes of that investigation were outside of Serco’s control and I see no proper basis to conclude, on the materials before the Commission, that the external investigator (an Australian legal practitioner) was influenced by Serco to contrive the investigation outcomes.
[58] After Mr Dunn’s role in the new structure was announced on 7 October 2019, despite Serco’s repeated assurances to the contrary, his wife declared their view that Mr Dunn had been demoted and his role was redundant. On the face of that 17 October 2019 email, Mr Dunn was clearly dissatisfied with the outcomes of the restructure process. It is understandable that Mr Dunn felt aggrieved about not being included in the announcement of 10 July 2019 and the process from then until the email of 21 July 2019. I accept Mr Dunn’s evidence to the effect that he considered Ms Riley’s requests for his input to designing the new structure prior to his injury on 1 July 2019 to have been cursory or superficial. However, it is not credible to suggest that Mr Dunn was not included in the restructure process prior to his receipt of the email of 21 July 2019. Mr Dunn’s complaint and his VEOHRC claim predated the 10 July 2019 announcement, referred to his knowledge of the restructure and described the perceived impact on his role. Further, Mr Dunn’s emails of 23 October 2018 and 24 June 2019 attached his contributions to the detail of what was proposed. In any event, the restructure process was not finalised for more than two months after the email of 21 July 2019, during which time there were many exchanges with Mr and Mrs Dunn about their views and responses to those views. Consideration was given to Mr Dunn’s feedback about fatigue management and new processes were adopted prior to the commencement of the new structure. Mr Dunn expressed his (albeit provisional) preference for the role as early as 24 July 2019 and continued engaging with Serco about the restructure before clearly saying on 22 November 2019 that he did not accept the position in the new structure. Regardless of whether Serco did in fact comply with any obligations to consult (about which I make no finding), when all of the efforts of Serco are considered objectively, I do not consider that the short failure to engage with Mr Dunn about the restructure between 10 July and the email of 21 July 2019 could properly underpin a conclusion that this was intended to end the relationship or left Mr Dunn with no choice than to resign.
[59] After disputing the restructure process on 17 October 2019, later that day Mr Dunn requested lodgement of his workers’ compensation claim. The conduct of the workers’ compensation insurer is not to be confused with the conduct of Serco in considering whether Mr Dunn was “dismissed” within the meaning of s.386 of the Act. The insurer is a third party and Serco had no control over its decisions. The insurer’s proposals for a graduated return to work on light duties in the location where those duties were available does not represent any decision by Serco to permanently change Mr Dunn’s role or that Serco did not intend to be bound by the contract of employment.
[60] Then there is the matter of Serco’s communications with Mr Dunn since his absence from work due to injury on 1 July 2019. The sum of these issues reflects that communications could have been managed better given Mr Dunn was absent from work on personal leave whilst the restructure was being rolled out. However, having regard to the nature of the complaints, I consider that Serco properly sought to ensure that communications with Mr Dunn were appropriate during his absence including that Ms Riley did not interact with him. This explains at least some of the communication that Mr Dunn was aggrieved about not receiving whilst on personal leave. The technology issues were less than ideal but a suitable work around was implemented. When regard is had to the context of Mr Dunn’s absence from work on personal leave, and the numerous examples of communications that were exchanged about essential matters during that time, I do not consider Serco’s communication (or lack thereof) to establish an intention by Serco to sever the relationship.
[61] As at 22 November 2019, Mr Dunn was not physically at work due to his medical incapacity but remained employed on the same terms and conditions (as considered above). Although he had almost exhausted all of his accrued entitlements to paid personal and annual leave, in its most recent correspondence to Mr Dunn of 4 November 2019 Serco had offered unpaid leave which would have enabled Mr Dunn to continue in his employment. I consider this objectively supports a view that Serco intended for the relationship to continue.
[62] The sequence of events also establishes that the insurer conveyed its decision to reject the claim for workers’ compensation on 22 November 2019, the same day that Mr Dunn submitted his resignation email. The insurer’s decision was outside of Serco’s control, and properly subject of a review process which Mr Dunn subsequently invoked. Over two weeks prior, Serco had offered Mr Dunn the option to take unpaid leave once his paid entitlements were exhausted. The insurer’s decision did not require him to act immediately to bring his employment to an end, nor is there evidence that he was pressured to do so.
[63] A dissatisfied employee has the option to resign from their employment and this is a relatively common occurrence. That an employee was not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign. When viewed objectively and whether as individual occurrences or a collective course of conduct, Serco’s conduct was not designed to force Mr Dunn to resign.
[64] For the above reasons, I find that there was no termination at the initiative of the employer and that Mr Dunn was not forced to resign because of conduct, or a course of conduct, engaged in by his employer. Accordingly, his departure was not a “dismissal” within the meaning of s.386(1). Accordingly, the application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR721254>
Appearances:
Mrs D. Dunn for the Applicant.
Ms P. Noakes of Seyfarth Shaw Australia for the Respondent.
Hearing details:
2020
7 April 2020.
1 [2020] FWC 748 and by Order in PR716700.
2 First Witness Statement of Andrea Caldow at 8.
3 First Witness Statement of Andrea Caldow at 11.
4 F2 Application filed 13 December 2019; F3 Employer’s Response filed 6 February 2020.
5 First Witness Statement of Andrea Caldow at 16.
6 Attachments to F2 Application filed 13 December 2019; Witness Statement of Michael Dunn at Annexure MD-2; First Witness Statement of Andrea Caldow at Annexure AC-2.
7 Witness Statement of Elizabeth Riley at 17–18 and 24.
8 Witness Statement of Elizabeth Riley at 20.
9 Witness Statement of Elizabeth Riley at Annexure LO-1.
10 Witness Statement of Elizabeth Riley at 26-27; First Witness Statement of Andrea Caldow at 14.
11 Witness Statement of Michael Dunn at 22, 24, 27 and 34; see analysis at Annexure MD-3.
12 Second Witness Statement of Andrea Caldow at 12 and 15.
13 Witness Statement of Elizabeth Riley at Annexure LO-2.
14 Witness Statement of Michael Dunn at Annexure MD-4.
15 Witness Statement of Elizabeth Riley at 35.
16 Witness Statement of Michael Dunn at Annexures MD-9 and MD-5.
17 Witness Statement of Michael Dunn at 20.
18 Second Witness Statement of Andrea Caldow at 8-11.
19 Witness Statement of Elizabeth Riley at 39.
20 Witness Statement of Elizabeth Riley at 28.
21 Witness Statement of Elizabeth Riley at 31; Witness Statement of Michael Dunn at Annexure MD-9.
22 First Witness Statement of Andrea Caldow at 14; Witness Statement of Elizabeth Riley at 30.
23 Witness Statement of Elizabeth Riley at 30 and Annexure LO-4.
24 Witness Statement of Michael Dunn at Annexures MD-9 and MD-10.
25 Witness Statement of Michael Dunn at Annexure MD-10.
26 Witness Statement of Elizabeth Riley at Annexure LO-4
27 Witness Statement of Michael Dunn at Annexure MD-9.
28 Witness Statement of Michael Dunn at Annexure MD-9.
29 First Witness Statement of Andrea Caldow at 26.
30 Witness Statement of Michael Dunn at Annexure MD-9.
31 First Witness Statement of Andrea Caldow at 29(b) and Annexure AC-7.
32 First Witness Statement of Andrea Caldow at 29(b).
33 Witness Statement of Michael Dunn at Annexure MD-11; Witness Statement of Elizabeth Riley at 30(h) and 47(i).
34 Witness Statement of Michael Dunn at 29; Witness Statement of Elizabeth Riley at 47(d).
35 First Witness Statement of Andrea Caldow at Annexure AC-4.
36 First Witness Statement of Andrea Caldow at Annexure AC-8.
37 First Witness Statement of Andrea Caldow at 29(b).
38 Second Witness Statement of Andrea Caldow at 5 and 18.
39 Witness Statement of Elizabeth Riley at 47(e), (f) and (g).
40 First Witness Statement of Andrea Caldow at Annexure AC-4.
41 Witness Statement of Michael Dunn at Annexure MD-14.
42 Witness Statement of Michael Dunn at Annexure MD-16.
43 Witness Statement of Elizabeth Riley at 36.
44 First Witness Statement of Andrea Caldow at Annexure AC-4; Witness Statement of Michael Dunn at 10; Applicant’s Outline Argument of Objections.
45 Witness Statement of Michael Dunn at Annexure MD-9.
46 Witness Statement of Michael Dunn at Annexure MD-17.
47 First Witness Statement of Andrea Caldow at Annexure AC-4.
48 First Witness Statement of Andrea Caldow at Annexure AC-3.
49 First Witness Statement of Andrea Caldow at Annexure AC-3.
50 Witness Statement of Michael Dunn at Annexure MD-9.
51 Witness Statement of Michael Dunn at 30.
52 First Witness Statement of Andrea Caldow at Annexure AC-4.
53 First Witness Statement of Andrea Caldow at 23 and 24.
54 First Witness Statement of Andrea Caldow at Annexure AC-5.
55 Witness Statement of Michael Dunn at Annexure MD-9.
56 Witness Statement of Michael Dunn at Annexure MD-9.
57 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at p.205.
58 Visscher v The Honourable President Justice Guidice [2009] HCA 34, per the majority at [81].
59 Adami v Maison de Luxe Pty Ltd (1924) 35 CLR 143, 153 – 154 (Isaacs ACJ); Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 658 (Deane and Dawson JJ) as cited in Mr Michael Gelagotis v Esso Australia Pty Ltd T/A Esso; Mr Michael Hatwell v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 at [119] (Esso).
60 Simon v NGS Group Pty Ltd ATF NGS Discretionary Unit Trust [2019] FWC 3442 at [56] citing Rigby v Feredo Ltd [1988] ICR 29 and Brockton Holdings No V Pty Ltd v Kara Kar Holding Pty Ltd (1994) 57 IR 288 and Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at [41] – [46], [68] and Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1, [126]; Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd & Anor (2007) 233 CLR 115.
61 Esso at [119].
62 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosmanv Shahin Tavassoli [2017] FWCFB 3941 at [47] (Bupa).
63 O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [23] and Bupa at [32].
64 Witness Statement of Michael Dunn at 16.
65 Witness Statement of Michael Dunn at Annexure MD-9.
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