Miguel Pietro Bozina v Tweed Coast Autogroup Pty Limited
[2022] FWC 2449
•14 SEPTEMBER 2022
| [2022] FWC 2449 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Miguel Pietro Bozina
v
Tweed Coast Autogroup Pty Limited
(C2022/2802)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 14 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal – jurisdiction – business manager – whether dismissed – whether resigned – whether forced resignation – whether contractual repudiation – dismissal not found – application dismissed
On 5 May 2022 Miguel Pietro Bozina (Mr Bozina or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (FW Act) alleging contraventions of the FW Act associated with his alleged dismissal.
His former employer, Tweed Coast Autogroup Pty Limited (Tweed, the respondent or the employer) opposes the application. It filed a response on 23 May 2022 raising a jurisdictional issue.
The jurisdictional issue is that Mr Bozina was not dismissed. The employer says that he resigned.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine a dispute about the fact of a dismissal under s 365 of the FW Act before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue for Mr Bozina’s application to proceed further.
I issued directions on 15 June 2022 and further directions on 19 July and 28 July 2022. On these latter dates I declined requests by the respondent to summarily dismiss the matter on the ground of non-compliance.
On 19 August 2022 I granted permission for both parties to be represented.[2]
I heard the jurisdictional matter by video on 23 and 30 August 2022.
I granted permission to both Mr Bozina and Tweed to be represented.[3] Mr Bozina was legally represented during the taking of evidence on the first day of hearing but self-represented when making oral submissions on the second day. The employer was legally represented throughout proceedings.
Evidence
I heard evidence from Mr Bozina.[4]
I heard evidence from six witnesses called by the employer:
· Ryan Harding, Dealer Principal, Cricks Tweed Heads;[5]
· Gavin Schiemeier, General Sales Manager, Cricks Tweed Heads;[6]
· Daniel van Eldik, Business Manager, Cricks Tweed Heads;[7]
· Michael Rudd, former Head of People and Culture, Autopack Pty Ltd;[8]
· Alicia Crichton, Sales and Administration Support, Cricks Tweed Heads;[9] and
· Alana Henderson, Group Business Manager, Autopack Pty Ltd.[10]
All witnesses were examined on statements filed in their name. Documentary material was annexed to statements. An earlier statement of Mr Harding and Ms Crichton were not relied upon by the respondent but were the subject of cross examination.
Although background matters relevant to the jurisdictional question are not in dispute, there are significant disputed facts on critical issues, and in particular what occurred during a meeting between Mr Harding and Mr Bozina on 30 March 2022, and on the day following.
Mr Bozina gave evidence in a firm but non-argumentative fashion. He was generally confident in his recall.
Mr Harding also gave evidence confidently. He was willing to make some concessions but remained firm when pressed on his recall or presented with an alternate narrative.
Although resolving factual disputes between Mr Bozina and Mr Harding is critical in this matter, it is necessary to apply some caution to the evidence of both, especially the lengthy (and different) narratives of what was said during their meeting on 30 March 2022. It was a lengthy meeting (Mr Bozina says it occupied one hour and ten minutes, Mr Harding says it occupied thirty-five minutes). Each agreed that no notes or record of the meeting was taken. Yet each presented a narrative prepared more than four months later with a level of specificity as to content and sequence likely to challenge standard human recall. I make findings in the body of this decision concerning that meeting, but in so doing apply a degree of caution to both versions, given that the recall by each witness is likely to have been conflated somewhat by a reconstruction fitting their litigation narrative. In resolving factual differences, I apply standard tools available to first instance decision-makers, which include plausibility of the narrative together with its consistency and coherence with surrounding circumstances and post-meeting conduct.
For different reasons, I also apply some caution to the evidence of Mr Rudd. It was given somewhat casually, and his recall was frequently imprecise. That said, substantial documentary material surrounding events Mr Rudd deposed to is in evidence, and assists fact-finding despite these reservations.
I also apply some caution to the evidence of Mr Schiermeier. He displayed a negative and somewhat disdainful view of Mr Bozina. His evidence that he did not on 31 March 2022 discuss with Mr Harding the alleged resignation (made the day prior) lacked plausibility. That said, his evidence of the conversation he overheard observed Mr Bozina having with another employee that day was plausible.
The remaining witnesses (Ms Crichton, Mr van Eldik and Ms Henderson) each gave evidence conscientiously. Although limited in scope, their evidence is a reliable basis for fact-finding.
Where there is difference, I prefer the evidence of Ms Crichton and Mr van Eldik over the evidence of Mr Bozina.
There is no reason why Ms Crichton would misrepresent her conversations on 31 March 2022 with Mr Bozina, and her recall was sound. I do not accept the submission by Mr Bozina that because Ms Crichton’s first statement was not relied upon and because she conceded that it contained an incorrect generalisation that her (second) statement admitted into evidence is not reliable. Her second statement was a specific narrative and did not rely upon or advance a generalised summation.
Although Mr van Eldik was the business manager whose appointment to that position Mr Bozina disagreed, I do not consider Mr van Eldik’s evidence to be compromised on that account. Mr van Eldik was precise with good recall concerning his conversation with Mr Bozina on 31 March 2022.
Ms Henderson was clear and plausible in her evidence of the contractual arrangements entered into with Mr Bozina and of company practices within her area of responsibility.
I deal with one final evidentiary matter. In written submissions, Mr Bozina submits that I should not have regard to the post-30 March 2022 emails between Mr Bozina and Mr Harding and between Mr Bozina and Mr Rudd because they involve the parties trying to negotiate terms of his exit from the business.[11] I do not agree. These emails were not sent in contemplation of litigation. They are between a then employee (albeit on leave) and an officer of the company. They form part of the factual narrative leading to the final day of Mr Bozina’s employment. They are relevant for what they say, and also have potential probative value as surrounding circumstances relevant to conversations held on 30 and 31 March 2022. There is no unfairness in having regard to this material.
Given the volume of oral and documentary material before me, I do not deal with every evidentiary dispute or contention lest these reasons be of undue length. However, I have taken all material (evidence and submissions) into account in making findings of fact and drawing the necessary conclusions.
Facts
Tweed
Tweed Coast Autogroup Pty Ltd operates motor vehicle dealerships in Queensland as part of the Autopact group of companies including the dealership ‘Cricks Tweed Heads’ on the New South Wales/Queensland border.
A motor vehicle dealership requires a Dealer Principal. The Dealer Principal has responsibility for management and accountability of the dealership. Ryan Harding is the Dealer Principal of Cricks Tweed Heads.
Mr Bozina’s employment
Following the resignation of its Business Manager, in May 2021 Cricks Tweed Heads advertised for a replacement.[12]
The position advertised was for a “Business Manager – Automotive Finance & Insurance Sales”.
Mr Bozina applied. He had previous experience in similar positions in the retail motor industry. His position immediately prior (in an unrelated business) was as a “Senior Business Manager”.
Mr Bozina was interviewed by Mr Harding (on 2 June 2022) and by the Group Business Manager of Autopact Qld (Ms Henderson) on 3 June 2022.
Mr Bozina was the successful applicant.
A letter of offer dated 7 June 2022 was sent to Mr Bozina setting out twenty-nine conditions of employment. On 8 June 2022 the letter of offer was signed by both Mr Bozina and Mr Harding (“contract’).
Mr Bozina commenced on 28 June 2022.
Remuneration, commission and vehicle
The position was advertised with a remuneration of “$90,000 - $150,000 total salary & comms package”.
Mr Bozina commenced on a base salary of $60,000 plus commission, fringe benefits (a vehicle) and superannuation.
His base was increased to $70,000 in November 2021.[13] A further $5,000 increase (to $75,000) was scheduled on 1 April 2022.
Commission was governed by clause 11.4 of the contract. It provided that commission payments were discretionary and that the scheme “is no guarantee that you will receive any payment or incentive”. A commission structure on new cars and on used cars accompanied the contract. It was titled “Autopact QLD Business Manager Commission Plan”.[14]
Commissions payable to business managers were earned not on the retail value of vehicles sold but on the value of insurance, finance and other products transacted by the business manager on the sale of vehicles.
In addition to base salary, commission and superannuation, Tweed agreed with Mr Bozina to provide him a motor vehicle from its inventory (rather than its past practice of a car allowance).
There is a dispute as to:
· whether Mr Bozina was promised by Mr Harding and/or Ms Henderson that the commission plan would not change; and
· whether Mr Bozina was promised by Mr Harding and/or Ms Henderson that the motor vehicle he was provided would be at least to the retail value of $50,000.
To the extent necessary, I deal with these matters in the body of this decision.
Reporting obligations, support staff and second business manager
The contract provided that Mr Bozina would “report to the Dealer Principal for Cricks Tweed”.
Mr Bozina was not the sole business manager in the Autopact Group. However, at the time of commencing employment, he was the sole Business Manager at the Cricks Tweed Heads dealership.
In the first six months of his employment, two administrative staff worked with and generally under the supervision of Mr Bozina.
Around Christmas 2021 one of the administrative staff was redeployed. Mr Bozina was concerned at the impact this could have on his work (including workload and earning capacity).
In early 2022 Tweed employed a replacement support person to Mr Bozina who was designated as a junior (or trainee) business manager (Mr Marchant). Mr Marchant undertook training offsite and at other dealerships, reducing Mr Bozina’s access to this resource.
Unknown to Mr Bozina, in March 2022 Mr Harding decided to employ a second business manager at Cricks Tweed Heads. Mr Harding did so for operational reasons, believing that the business was coming out of a COVID-19 slump, was projected to enter a busy period and that a second business manager could increase the overall volume of insurance and finance products on sales.
On about 21 March 2022 Mr Harding offered a second business manager position to Mr van Eldik. Mr Harding’s then intention was that Mr van Eldik would commence in that role alongside Mr Bozina from 1 April 2022.
There is a dispute as to:
· whether Mr Bozina was promised by Mr Harding and/or Ms Henderson when first employed that he would be titled ‘Senior Business Manager’; and
· whether Mr Bozina was promised by Mr Harding and/or Ms Henderson that he would be the exclusive (sole) business manager at Cricks Tweed Heads.
To the extent necessary, I deal with these matters in the body of this decision.
Meeting 30 March 2022
In the dealership, managers have rostered days off although, from time to time and depending on business needs, they can be required to work (or deal with work issues) on rostered days off.
Mr Bozina had a rostered day off on 30 March 2022. He was occupied taking a sick pet to the vet.
During the course of the day, Mr Bozina was contacted by Mr Harding who sought a meeting. As Mr Harding was scheduled to be away on subsequent days, he (Mr Harding) considered it urgent that he inform Mr Bozina about Mr van Eldik’s forthcoming role.
Mr Bozina reorganised his private affairs and made himself available for a meeting from his home by zoom that afternoon. Mr Bozina was not advised in advance of the purpose of the meeting.
The meeting was lengthy. Mr Bozina says it occupied one hour and ten minutes. Mr Harding says it occupied thirty-five minutes. Each agreed that no notes or record of the meeting was taken. No other persons were present.[15]
Mr Bozina’s evidence contains almost four typewritten pages setting out a sequential narrative of what he says occurred.[16]
Mr Harding’s evidence contains almost six typewritten pages setting out a sequential narrative of what he says occurred.[17]
Both narratives were prepared from pure memory when preparing witness statements four months later. Both narratives differ in material respects.
I make findings on material issues in dispute concerning this meeting in the body of this decision.
What is generally not in dispute about the meeting, and I so find, is that:
· Mr Harding informed Mr Bozina that he had decided to appoint a second business manager in the dealership;
· the second business manager would be Mr van Eldik;
· both business managers (Mr Bozina and Mr van Eldik) would thereafter report to Mr Schiermeier (General Manager Sales) not the Dealer Principal (Mr Harding);
· the reason for the new appointment as advised to Mr Bozina by Mr Harding was that, in his view, the workload warranted the change and that the business was missing income and opportunities with only one business manager;
· Mr Bozina objected to the decision, claiming that it would halve his commission income;
· Mr Harding claimed that two business managers would mean more work could be written resulting in higher commissions;
· Mr Bozina disagreed saying he would be worse off;
· the subject of Mr Bozina’s resignation (actual or conditional) arose, initiated by Mr Bozina;
· Mr Harding told Mr Bozina that he would prefer Mr Bozina to stay;[18]
· the meeting was not heated in the sense of voices being raised or language being unprofessional, but the disagreement was repeated and debated for a prolonged period; and
· Mr Harding made it clear that a decision to appoint a second business manager had been made and that Mr van Eldik would commence in the role as planned.
What is materially in dispute is:
· whether Mr Harding told Mr Bozina to give the plan a go for at least three months before forming a view that he would be worse off (dialogue asserted by Mr Harding but denied by Mr Bozina);
· whether (dialogue asserted by Mr Harding) Mr Bozina said on multiple (at least four) occasions that “he was out” or “was resigning” or words to that effect; or alternatively (asserted by Mr Bozina) that he (Mr Bozina) simply said that “eventually any business manager would leave”, that he was “being given no choice if you do what you are suggesting” and “if you make these changes you know you would be leaving me with no choice”;
· whether Mr Harding told Mr Bozina that if he “quit now” he would be “leaving us in the lurch” and that it would be a “stupid decision” (dialogue asserted by Mr Harding but denied by Mr Bozina); and
· whether at the conclusion of the meeting there was discussion about notice and an agreement to a smooth departure upon the intended return to the dealership of Mr Marchant (dialogue asserted by Mr Harding but denied by Mr Bozina).
I deal with these matters in the body of this decision.
Text messages evening of 30 March
That evening and shortly following the meeting, in the space of approximately ten minutes, Mr Harding sent individual text messages to four managers.[19]
To Ms Henderson, Mr Harding wrote:
“Miguel has said he will resign and will work with me on an end date that “minimises the challenges for the dealership and maximises his income as he signed up all the income”.
To Mr Schiermeier, Mr Harding wrote:
“Sorry I missed your call, I was on the phone to Miguel. I gave him an ultimatum and he chose to resign. He said he’ll try to make the transition as easy as possible and won’t leave us in the lurch. (But his attitude may sour)”.
To Mr van Eldik, Mr Harding wrote:
“Hi Daniel. I had a long meeting with Miguel this afternoon and laid out some options for him. He has chosen to resign but said he’ll try to make the transition as smooth as possible. Not sure of his finish date yet, but it’s likely mid April when Nathan is back”.
To Mr Marchant, Mr Harding wrote:
“Hi Nathan. I had a long meeting with Miguel this afternoon and laid out some options for him. He has chosen to resign but said he’ll try to make the transition as smooth as possible. Not sure of his finish date yet, but it’s likely/ hopefully mid April when you’re back…”.
Events on 31 March 2022
Mr Bozina attended at the workplace the following day.
During the morning, he had two separate and informal (unsolicited) conversations concerning his position, one with Ms Crichton and one with Mr van Eldik.
The conversation with Ms Crichton was as follows:[20]
Ms Crichton:
“Hey Miguel, what’s going on?”
Mr Bozina:
“You know don’t you?”
Ms Crichton:
“I don’t know anything.”
Mr Bozina:
“Well I’m out.”
Ms Crichton:
“Hang on, what do you mean?”
Mr Bozina:
“Ryan has given me no other option but to resign.”
…
Ms Crichton:
“So, what’s happening?”
Mr Bozina:
“I’m waiting for Ryan to tell me whether I’m finishing up today, or if I’m hanging around to help while Nathan is on maternity (sic) leave. If Ryan had told me that there was going to be two BMs I never would have come here.”
The conversation with Mr van Eldik was as follows:[21]
Mr van Eldik: | “Hi Miguel. Could you do a delivery for me tomorrow? It’s my RDO and I won’t be able to do it.” |
Mr Bozina: | “No I can’t. I won’t be in tomorrow.” |
Mr van Eldik: | “Don’t you also have a delivery to do tomorrow?” |
Mr Bozina: | “Sorry mate. I won’t be able to do any deliveries. I’m out of here.” |
At 12.14pm that day (31 March 2022) Mr Bozina sent the following email to Mr Harding:[22]
“Hi Ryan,
Just further to our discussion yesterday, while I am disappointed that we have ended up where we have, I am still hoping that we can finalise the remainder of my time here to mutual benefit and as smoothly as possible for the business. As you would understand the significant change to my structure with a day’s notice is quite a stressful turn of events for me. I am hoping to work out a suitable date with you for when you feel comfortable for the guys to take over, be that in 2 weeks or potentially month end.
Could I please ask that you reply with a confirmation of our understanding, that I will be remunerated on all the applications that are approved as at COB today (30 March) under my current remuneration structure, as opposed the one you are starting tomorrow, at the time I cease employment with Cricks Tweed. As the $ PRU and penetrations are yet to be confirmed for the months these vehicles are to be delivered, do you feel it is fair that we just use an average of the last 3 months?
Thanks,
Miguel”
Mr Harding replied at 4.06pm:[23]
“Hi Miguel,
When you started at Cricks Tweed you inherited an order bank in excess of 150 cars from the previous BMs. Those comms were paid 100% to you and never split, based on your comm plan.
I can’t and won’t agree to what you are asking below.
You’ll be paid on what you deliver until the finish date, which is normal.
We accept your resignation and we’d like you to stay until Nathan returns from paternity leave. This will ensure the best possible transition for the business and customers.
However if we can’t come to an agreement, then we’ll have to go with a sooner date, whatever that ends up being.
As I said yesterday, it’s your call. Please advise the finish date so that we can plan accordingly.
Cheers
Ryan”
Mr Bozina responded at 4.27pm:[24]
“Hi Ryan,
How do you justify that being a fair and reasonable response, given the circumstances?
As you are well aware, I “inherited” only a very nominal amount of finance deals. The department was on <10% finance penetration going into July, most of them not approved and many of them required a significant amount of work to get them to the point they could be delivered. “I” went back through the missed opportunities and won the majority of those finance contracts myself. You may recall Lynise in tears because of the mess, before I started, please confirm my above summary with her should you feel the need.
Since then, I have built up a huge order bank of over 60 approved finance contracts (34% pen) all approved, income signed off and ready to go as soon as the vehicle is. You will recall my response yesterday to your statement that “I was happy to only earn those small commissions last year”. I knew they would be delivered eventually. I sold them, submitted them and got them approved.
I am disappointed that you feel it is ok to give me a single day’s, verbal notice to cut my agreed remuneration in half, particularly after we discussed my package would not change short of getting a new franchise, when I was coming on board at Cricks.
I am unsure what has changed in a couple of short months, apart from you repeatedly expressing your disappointment that I don’t stay back long after hours (albeit I’m normally one of the first here) and that I no longer take my laptop home to work on my RDO’s from home, except when I was recovering from surgery a couple of weeks ago. I generally have an hour and a half commute home and you were aware of this when I started.
I have cc’d Mick Rudd into this correspondence in a hope that cooler heads may prevail and we can avoid the need to involve legal counsel. I simply am requesting to be paid on the work I was asked to do and in return would ensure a smooth transition for the business. You have stated that is ‘normal’ for BM’s to lose the commissions on what they sell, I assure you it is not. Particularly if they know their rights. I was paid without even asking, when I left my last employer.
This has been the most stressful couple of months I have ever had in my many years in this industry, let alone your actions and comments in the last 24 hours. I will therefore be on stress leave until further notice.
As I said yesterday, I do not consent the adjustment in my remuneration. I will be available on mobile to discuss this with Mick when convenient for him should the need arise.
Regards,
Miguel”
Mr Harding further replied at 4.32pm, this time copying in Ms Henderson and the General Manager of People and Culture Mr Rudd:[25]
“Hi Miguel,
As mentioned previously I have accepted your resignation. It was to be either March 31 (close of business) or a future date if we agreed which we haven’t.
Mick, please review and advise me of our obligations.
Regards
Ryan”
Mr Bozina, feeling stressed by the events, made an appointment to see his general practitioner, left the workplace that afternoon (31 March 2022) and went on personal leave.
Investigation by Mr Rudd
The next day, 1 April 2022, Mr Bozina lodged a workplace grievance with Mr Rudd claiming (in a lengthy email) the following:[26]
“With the above in mind, to be given 24 hours notice that my income will be halved without consideration has come as huge shock. However, when combined with the fact I have been given a 7 year old Commodore with 120K km on the odometer, ($15-$17K) and the way Ryan has chosen to go about this, I can’t help but see this as any other than constructive dismissal without grounds.
The irony is, I have always tendered the opportunity with any employer including Ryan, should they want my resignation they just have to ask. Obviously we are past the point of no return with regards to my role at Cricks Tweed, as I understand Ryan contacted Gavin (GSM) late yesterday in an effort to leave me stranded with out a way home last night. I am glad Gavin agreed the request the take my vehicle from me on the spot, was childish. The way Ryan has chosen to approach this whole matter, is past unprofessional and bordering on becoming embarrassment for the greater company. Unfortunately the shortcomings in my disposition make me the last person, one would want to treat with such contempt.
Please let me confirm for you, that the car, my dealership keys and fuel card will be readily available at your discretion, once you and I reach a mutually agreeable date and conditions for the termination of my employment and that date arrives, in line with the terms of my employment.
Ryan said to me on Wednesday he recently contacted my previous employer (without my consent) to see what I was like there. He then went on to run me down and say he felt I would probably not be welcome back there as the manager he spoke with advised him "I had a big opinion of myself and can be stuck in my ways" (Both of which I could have told him) My partner, who works there has called this morning to ask if I wanted to meet with one of their General Managers next week. So Ryan may have just made it up. Either way, it is not the actions of any DP I have met to date. I have put in significant efforts, both in the office and at home when I was recovering from surgery, to get the amount of finance contracts I have taken, now approved and just waiting on the vehicles to arrive. There are about 55 approved contracts and $140-$150K of total dealership income that I will be seeking remuneration on. That were all approved by COB last night under the only remuneration plan that I have a consented to and a copy of.
As Ryan pointed out, I inherited some half finance deals when I started. Very few were approved and even disregarding the work that I needed to do with them, they would not make up 5% of what I have accumulated there now. Happy for the company to remove the value of those few deals that were actually approved by a previous BM, from what I am owed. It will be an inconsequential amount and are all on the log under the previous BMs name.
I will decompress over the next few days, but I no longer wish to converse with Ryan regarding this matter. I would appreciate if perhaps you would be comfortable to sort things out with me, at some point next week?
Best regards,
Miguel Bozina”
On 4 April 2022 Mr Rudd wrote to Mr Bozina indicating that:[27]
“… I am keen to organise a discussion with yourself to determine any clarification or resolution to the matters you have raised, coupled with finalising your resignation from the company.
I do note reading through the emails between yourself and Ryan, that you have tended your resignation and had requested a final date being negotiated. Please advise if this was not the case…”
Mr Bozina replied to Mr Rudd on 5 April 2022 (9.45am) in which he said:[28]
“… Mick, what I said to Ryan regarding me leaving was that ‘if' he takes the site from our previously agreed structure, to a multi BM site and splits the department income accordingly, it will not be financially viable for me and I will have no choice but to resign.
As you can see, we had not set a date as when that would be, nor have I received anything in writing to outline the changes he was implementing…”
And further:
“…It was only that towards the end of the conversation, I felt Ryan was a little shy about committing to paying me on the deals I have done to date, with him saying “we will discuss it when he returns” and it left me a little dubious…”
Mr Rudd replied shortly thereafter (10.23am):[29]
“…I am agreeable to paying out two weeks’ notice in lieu (legally one is owed) with you finishing as per last Friday 1 April. I can also state that all commissions will be paid for vehicles delivered in the month of March. I am also agreeable to make request to your DP that 50% of commission be paid on vehicles delivered in the Month of April 2022.
I understand these commission payments are not what you are wanting but our company does not believe additional commissions must be paid after a Business Manager ends employment. The 50% of commissions for the following month takes into account another employee will perform the delivery etc.
I also assume you have a company car, which can be returned COB this Friday. Any payments of final monies are of course subject to return of all company property…”
On 7 April 2022 (4.04pm) Mr Rudd wrote to Mr Bozina in which he said:[30]
“…Regarding company vehicle, can I arrange to have this returned to the dealership thanks? Final payments cannot of course be made until all company property is returned. Apologies for bluntness of the message, I just want to ensure you are paid monies owed currently.
Appreciate you may be seeking directions on future commission payments etc – and I will respect this process. I will ensure any monies owed for work completed in March are at minimum paid.
I also appreciate you believe resignation was brought on by other matters, and our company respects employees have the right to seek advice and avenue of dispute should they choose.
I wish you well on your future endeavours and thank you for your service to Autopact…”
Half an hour later, Mr Bozina responded (4.36pm 7 April 2022):[31]
“Hi Mick,
Please again note that I have not resigned my position.
I advised Ryan on the Zoom meeting on 30th, that ‘if’ he makes the changes he was suggesting, with regards to what I am paid on, new administrative tasks expected and who I am report to, that I will have no choice but to resign.
However, I am yet to receive notice or confirmation that he has done, or is doing that, apart from him verbally saying he intended to. I have reiterated this point on multiple occasions.
I have another appointment with my doctor next Tuesday afternoon and will advise the status of my leave after that consultation.
Any company property I have will of course, be made freely available on the cessation of my employment.
Mick, I also apologise if my wording is blunt, but please understand that Ryan may dismiss me at his convenience, but he does not decide when, or if I resign.
Best regards,
Miguel Bozina”
Mr Rudd investigated the matter further by speaking to Mr Bozina and to Mr Harding and Mr Schiermeier.
On Monday 11 April 2022 Mr Rudd wrote to Mr Bozina with the outcome of his investigation:[32]
“Hi Miguel
After review of this matter at the dealership end, and conversations with yourself last Friday, the company is of the belief that you have resigned from your employment.
Statements from employees have confirmed you advised them you had resigned from your employment due to Ryan making operational changes to the Finance and Insurance department (as stated by you).
Email correspondence from you also states remainder of your time etc (as per your email below). I note a number of communications send by you clearly indicate determine of final date and commission payments on termination of your employment.
[Extract of email from Mr Bozina to Mr Harding on 31 March 2022 at 12:14]
In accordance with fairness to you, I will ask the dealership to make your final day 2 weeks from the date of that email, with your last day being 14 April 2022.
Please return all company property to the dealership prior to this date (I acknowledge you have already provided company laptop etc).
Again, final commission payments will be made in accordance with your employment contract and any legislated conditions that may exist.
I wish you well in your future endeavours and thank you for your service.
Regards
Mick Rudd
Head of People and Culture”
Later that day (11 April 2022) Mr Bozina replied to Mr Rudd.[33] Mr Bozina expressed “surprise” that Mr Rudd had concluded that he had resigned and that he stood by his view that he had not resigned either verbally or in writing. Mr Bozina concluded his email:
“…I accept the company’s advice that it has determined to terminate my employment with effect from 14 April 2022. Could you please confirm that the company will:
· Pay all outstanding wages (I note that I was not paid for last week);
· Pay out the balance of my notice period given that the company does not require me to work any further than 14 April 2022; and
· Pay all my commission incentives outstanding on all business written by me, delivered or yet to be delivered as noted in the log on 31st March 2022, including as per your email of 7 April 2022 in which you state that you will ensure any monies owed for work completed in March are at minimum paid…”
On 12 April 2022 Mr Rudd advised Mr Bozina that:[34]
“the company will be processing notice given by you on or around 31 March 2022, with last day being 14 April 2022. The dealership disputes you were terminated, as you advised employees, and indicated in email communication, that you were resigning due to operational changes being made. The company disputes any changes to your employment contract have been made.
Cessation of employment on 14 April
Mr Bozina ceased to be an employee of Tweed effective 14 April 2022.
Final payments were made in the pay runs of 14 April 2022 and 21 April 2022.[35]
Mr Bozina engaged solicitors on 7 April 2022. On 14 April 2022 he advised his solicitors to prepare a claim. The claim was filed on 5 May 2022, twenty-one days after 14 April 2022.
Submissions
Tweed
Tweed submit that Mr Bozina resigned in conversation with the dealer principal Mr Harding on 30 March 2022 and that his resignation took effect on 14 April 2022, at which time his employment ceased.
Tweed submit that the resignation was a consequence of Mr Bozina disagreeing with an operational change Mr Harding advised on 30 March 2022 to the effect that a second business manager in a position broadly equivalent to his had been appointed (Mr van Eldik) and would commence from 1 April 2022.
Tweed submit that Mr Bozina’s employment ended following a period of notice and a subsequent negotiation of the date linked to when a trainee manager returned to the business.
Tweed submit that it was only during the days that followed his resignation, when Mr Bozina was advised that he would receive commission on products for vehicles sold and delivered to customers but not for vehicles yet to be delivered to customers, that he disputed that he had resigned.
Tweed submit that Mr Bozina’s resignation was neither the cause nor probable effect of its conduct, and that Mr Bozina had options to remain in his position and on his contractual terms, but chose not to do so.
Tweed submit that as no dismissal occurred, the application under s 365 of the FW Act is not within jurisdiction and should be dismissed.
Mr Bozina
Mr Bozina submits that he was dismissed from his employment by Tweed by conduct at the initiative of the employer or, in the alternative, by forced resignation.
Mr Bozina’s primary submission is that he did not resign on 30 March 2022 but was incorrectly told by the employer in the days that followed that he had done so and that, despite his protestations, the employer proceeded to close his email account, deny him access to business records and determine the date on which his employment ceased. All of these actions were, according to Mr Bozina, involuntary and at the initiative of the employer.
Mr Bozina says that rather than resigning, he simply informed Mr Harding on 30 March 2022 that if Mr Harding proceeded with his plan to appoint a second business manager it may result in him resigning at a future time. He says that a foreshadowed possible or conditional resignation is not a resignation.
In the alternative, Mr Bozina submits that if he did resign on 30 March 2022 it was not a lawful resignation because his contract of employment required a resignation to be in writing, which he never provided.
In the alternative, Mr Bozina submits that if he did resign, then he was forced to resign as a consequence of conduct or a course of conduct engaged in by Tweed. The conduct was twofold.
Firstly, unreasonable conduct whereby a material operational change with immediate effect was advised as an ultimatum and without notice forcing a resignation in the heat of the moment, and one which ought not have been pressed as a resignation in the days and weeks following.
Secondly, repudiatory conduct whereby the operational change breached material contractual terms of employment (particularly concerning alleged exclusivity of his position, access to commissions and reporting obligations) forcing him to accept the repudiation and terminate his employment.
Mr Bozina submits that either of these circumstances constitute a forced resignation and thus a dismissal within the meaning of s 386 of the FW Act.
Accordingly, Mr Bozina argues that his application is within jurisdiction and must proceed to a conference under s 368 and, if unresolved, the Commission must issue a certificate to that effect enabling further proceedings.
Consideration
Section 365 of the FW Act 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.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.[36] “Dismissal” for these purposes (and other purposes of the FW Act) is defined in s 386(1), which provides:
“386 Meaning of dismissed
(1)A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
A full bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli set out the approach to be adopted under s 386:[37]
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
·where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
·where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)
Having raised the jurisdictional issue, Tweed Autogroup bears the onus of establishing that Mr Bozina was not dismissed.
Termination at the employer’s initiative?
Termination at the initiative of an employer arises where the action of the employer is the principal contributing factor leading to the termination of the employment relationship.[38]
Aside from the question of whether resignation was forced (considered below) I do not find that the conduct of the employer brought the employment relationship to an end.
Having accepted the evidence of Mr Harding on this point, I so find, that Tweed did not want to lose Mr Bozina from its employment and told him this on 30 March 2022.
Whilst subsequent email communications between Mr Bozina and Mr Rudd between 1 and 11 April 2022 (inclusive) reveal that the final date of employment was set by reference to the convenience of the business, it was not a date resisted by Mr Bozina. The final date had become largely academic to both parties given that Mr Bozina was on personal leave and not at work in this period. Mr Bozina did not wish to return to the business on the structure put in place by Mr Harding. On 1 April 2022 he stated to Mr Rudd:[39]
“Obviously we are past the point of no return with regards to my role at Cricks Tweed…”
Mr Bozina relies in part on the fact that Tweed cancelled his computer login and email access once he went on personal leave and prior to his final day of employment. This conduct made it impossible for Mr Bozina to work from home whilst on personal leave. Whilst this was conduct at the initiative of the employer, and could be said to have been somewhat petty, it was not conduct that terminated the employment relationship. It followed the fact of his resignation.
Whilst it is somewhat unusual that an employer cancels logins and the like prior to a resignation taking effect, context matters. Not only had Mr Bozina resigned following a disagreement with the owner about operational matters and then taken leave, Mr Rudd was negotiating his final departure date and Mr Bozina had declared that he did not wish to deal further with Mr Harding. Neither party reasonably expected productive work to be performed by Mr Bozina in this period.
In no direct sense was Mr Bozina dismissed or removed from his employment.
For the sake of completeness, my conclusion (below) that the employer’s conduct was not unreasonable is also relevant to whether Mr Bozina was terminated under s 386(1)(a), had I found that he did not resign on 30 March 2022 (and thus issues under s 386(1)(b) do not arise).
By advising Mr Bozina of a restructure that involved the appointment of an additional and broadly equivalent resource in his department but which also had a potential to impact on his interests (but was not repudiatory) the employer’s conduct had a possible effect of triggering disagreement between owner and manager, but did not have the probable effect of termination, particularly in circumstances where the business contemporaneously advised Mr Bozina that it wanted him to continue in his role.
Forced resignation?
I now consider whether Mr Bozina resigned and, if so, whether the resignation was a forced resignation (and thus dismissal) within the meaning of the FW Act.
Resignation
Whether an employee has resigned from their employment is a question of fact. A resignation can be oral or in writing. Where a resignation exists as a matter of fact, it is a dismissal for the purposes of the FW Act if it was a forced resignation within the meaning of s 386(1)(b).
In this matter, there is no written resignation.
Tweed submit that Mr Bozina resigned orally on multiple occasions during a lengthy discussion with Mr Harding on 30 March 2022.
Mr Bozina submits that he did not resign but simply told Mr Harding that if the business proceeded with the intended restructure it would give him no choice but to resign.
For the following reasons I find that resignation was advised by Mr Bozina during the meeting with Mr Harding on 30 March 2022.
Firstly, whilst Mr Bozina’s evidence is not implausible, Mr Harding’s evidence of the meeting is more plausible and consistent with surrounding circumstances.
I find that Mr Harding did in fact tell Mr Bozina during the meeting that he did not want to lose Mr Bozina from the business. Mr Bozina had been employed for only nine months. The business was entering a busy period. Mr Harding was not seeking Mr Bozina’s resignation. That would have not been in his interests. Mr Harding’s objective was to inform Mr Bozina of the decision to appoint a second business manager and to have that change implemented smoothly in the coming days.
I also find that Mr Harding specifically asked Mr Bozina to give the change a chance to work for at least three months before forming a firm view about its impact on him.
Given these findings, and given the uncontested evidence that Mr Bozina reacted negatively to the news and that he (Mr Bozina) initiated talk of resignation, I find that Mr Bozina said words to the effect that he would resign if the arrangement was put in place. When Mr Harding then made it clear that the decision had been made and would not change, I find that Mr Bozina told Mr Harding that he was resigning.
Hence, I find that resignation was advised at least once towards the end of the meeting and then reaffirmed at least once by Mr Bozina. However, I do not accept Mr Harding’s narrative in full, including his evidence that the oral resignation was made towards the start of the meeting. It is more likely than not that towards the start of the meeting Mr Bozina’s mention of resignation was conditional, but became a firm position once it was apparent that the employer’s decision was equally non-negotiable.
Secondly, Mr Harding’s plan was for two broadly equivalent business managers at the dealership (plus the trainee manager), not one plus the trainee. A resignation by Mr Bozina left the dealership one business manager short and was inconsistent with Mr Harding’s plan. In cross examination, Mr Harding put it this way:[40]
“I was frustrated. My goal was to have two fully qualified business managers operating next door to each other.”
I accept this evidence.
Thirdly, Mr Harding’s conduct immediately following the meeting is consistent with Mr Bozina having resigned. Mr Harding sent four individual text messages to four persons (two of whom were senior in the business). To each, he advised that Mr Bozina had resigned. It is implausible that Mr Harding would expose the business to subsequent confusion and personal embarrassment with his managers by communicating wrong or false information about what had transpired between he and Mr Bozina.
Fourthly, Mr Bozina’s next communication with Mr Harding following the 30 March 2022 meeting is consistent with resignation arising from a disagreement of view with the owner. In the first paragraph of his email to Mr Harding at 12.14pm on 31 March 2022, Mr Bozina advised that:
“… While I am disappointed that we have ended up where we have, I am still hoping that we can finalise the remainder of my time here to mutual benefit and as smoothly as possible for the business. As you would understand the significant change to my structure with a day’s notice is quite a stressful turn of events for me. I am hoping to work out a suitable date with you for when you feel comfortable for the guys to take over, be that in 2 weeks or potentially month end…”
This is the language of a person who is acknowledging that their employment is ending on a date to be settled, albeit ending with some disappointment. It is not the language of a person who is and wants to continue as an employee or expects to do so. It is not the language of a person who is negotiating whether a departure is yet to be advised; only the terms of departure are yet to be settled. I give weight but not undue weight to this consideration. I take into account that it is also somewhat consistent with Mr Bozina’s narrative that his resignation was conditional, not definite.
Fifthly, I find that Mr Bozina told Ms Crichton on 31 March 2022 that “Ryan has given me no other option but to resign” and “I am waiting for Ryan to tell me whether I am finishing up today”. This is the language of a person who has resigned and is leaving, possibly as early as that day.
Sixthly, in telling Mr van Eldik on 31 March 2022 that he was “out of here” Mr Bozina was again using the language of a person who had resigned. Mr Bozina used similar language (“I’m out”) witnessed by Mr Schiermeier when leaving the workplace later that day. Mr Bozina’s evidence that his reference to “I’m out” was simply a reference to going home for the day was not impressive. His conversation with Mr Schiermeier immediately following concerning the return of company property (“I’ve left the computer and all company property in the office”) infers that his departure on that day was permanent in nature.
I take into account that Mr Bozina did, in subsequent email communication with Mr Rudd, assert that he had in fact not resigned, and protested the company proceeding on that basis. I note however that Mr Bozina did not protest to Mr Rudd that his employment was ending, just on whose initiative.
Mr Bozina’s email communications with Mr Rudd claiming that he had not resigned occurred only after he was advised by Mr Harding, and then by Mr Rudd, that he would not be paid commission on business transacted but vehicles not delivered. In these circumstances, Mr Bozina’s protest that he had not resigned was premised on a belief he had about his entitlements upon resignation rather than whether, as a matter of fact, he had done so. His latent claim that he had not resigned was an attempt to secure commission payments on all (not some) sales transacted, not an attempt to remain an employee.
The email communications with Mr Rudd do not alter the finding I make about the fact of resignation any more than the evidence of Mr Rudd that he (Mr Rudd) concluded that Mr Bozina had, on balance, resigned. It matters not to the determination of this matter what the subjective belief of Mr Bozina, Mr Harding or Mr Rudd was on that question.
A further submission by Mr Bozina is that if he resigned orally, it had no legal force or effect because his employment contract required a resignation in writing.
I do not accept this submission. That an employee fails to resign in a manner consistent with their employment contract does not mean that they have not resigned. Termination of employment contracts at common law can be oral or in writing, as can the formation of those contracts. An oral resignation in breach of a contract is no less a resignation than is a dismissal in breach of a contract. A breach may be actionable, but does not alter the existence of the relevant fact.
I find that Mr Bozina resigned orally on 30 March 2022 with his resignation to take effect on a date to be determined between he and his employer.
Forced by repudiation
Where an employer unilaterally makes fundamental changes to an employee’s contractual arrangements, there may be a repudiation of a contract capable of giving rise to termination of employment.
Whether there has been a termination of employment depends on the employee’s response to the repudiation. In contractual terms, in response to repudiatory conduct an injured party may choose to affirm the contract and stay in the contractual relationship or accept the repudiation and bring the contractual relationship to an end.[41]
In this matter, Mr Bozina accepted the alleged repudiation by leaving the employment and lodging an application under Part 3-2 of the FW Act.
In NSW Trains v James a full bench summarised the concept of repudiation:[42]
“The High Court has described repudiation as referring to conduct of a party ‘which evinces an unwillingness or an inability to render substantial performance of the contract’ or ‘which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations’. ‘Repudiation of a contract is a serious matter and is not to be lightly found or inferred’. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.” (citations omitted)
The question whether there has been repudiation of a contract of employment is determined objectively. It is unnecessary to show a subjective intention to repudiate. It is a question of fact not law.[43]
In considering whether Tweed’s conduct was repudiatory in nature, it is necessary to identify the contractual terms between Mr Bozina and Tweed. Relevant to this question are recent decisions of the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [44] and ZG Operations Australia Pty Ltd v Jamsek.[45]
In these decisions, the Court emphasised that the character of the relationship between parties is determined by reference to the rights and duties created by the written agreements which comprehensively regulate those relationships. Where the parties have comprehensively committed the terms of their relationship to a written contract, the validity of which is not in dispute, the rights and obligations established by the contract should be decisive of the character of the relationship (as well as its legal terms).[46]
In this matter, the contractual terms are those contained in the signed letter of offer of 7 June 2022, noting that Mr Bozina contends that additional terms were orally agreed at the time the contract was made (disputed by the employer).
Was Tweed’s conduct repudiatory conduct?
The repudiatory conduct alleged is the appointment of a second business manager and its consequence on Mr Bozina’s commission income and reporting obligations.
I now deal with each of these issues.
Mr Bozina submits that the appointment of a second business manager was in breach of his contract because he was promised that he would be the exclusive business manager unless and until the dealership acquired an additional franchise.
I do not accept this submission.
I do not find, as a matter of fact, that it was a term of Mr Bozina’s contract that he was appointed as the sole and exclusive business manager at Cricks Tweed Heads such that a second business manager could not be engaged by the dealership whilst be remained employed. There is no such term in the written contract. Mr Bozina says this promise was made orally by Mr Harding before the contract was signed. The evidence falls well short of allowing such a finding to be made. On such a significant matter (which would have the effect of constraining otherwise lawful business decisions) it is not plausible that such a term, if made, would not be recorded somewhere or included in the subsequent written document. Further, the written contract signed by Mr Bozina days later expressly provided that it represents “the entire agreement” between the parties.[47] I do not find that the written terms were overlaid by such a promise.
That being so, I do not need to determine whether such a term was breached and, if breached, was repudiatory conduct.
Mr Bozina submits that the appointment of a second business manager was in breach of his contract because it would reduce his access to commission income.
I do not accept this submission for two reasons.
Firstly, whist it was a contractual term between the parties that Mr Bozina was eligible to participate in the commission scheme (clause 11.4 and attached commission structure) and whilst I accept that commissions were an element of his overall remuneration package, the contract expressly provided that commission income was payable at the sole discretion of the employer. Mr Bozina was contractually eligible to participate in the commission scheme but not contractually guaranteed any or any level of commission income even though he had a reasonable expectation that commissions would be paid according to the structure.
Secondly, even if (contrary to this finding) it was a contractual term that commission income according to the structure was to be paid to Mr Bozina, the employer did not alter Mr Bozina’s eligibility or the commission structure itself. There is nothing in the contract or which can be reasonably inferred from its terms that Mr Bozina was to be the sole officer in the position of business manager capable of accessing the pool of commission income during the life of his employment.
That being so, I do not need to determine whether such a term was breached and, if breached, was repudiatory conduct. Determining such questions would involve considering the competing evidence about whether a second business manager would be likely to increase the pool of available commission income such that any contractual entitlement Mr Bozina had (which I have not found) would not be materially diminished.
Finally, Mr Bozina submits that the appointment of a second business manager was in breach of his contract because it involved a unilateral change to his reporting obligations, from reporting to the Dealer Principal to reporting to the General Sales Manager.
In this matter there is no factual dispute. It is agreed that Mr Harding made this decision and simply advised Mr Bozina of it.
I do not consider this change to have been repudiatory conduct. Although the contract included a term that Mr Bozina would report to the Dealer Principal (clause 1), this was one of twenty-nine terms. It was unilateral conduct that changed reporting obligations from the most senior officer in the dealership to a lower ranked but nonetheless senior officer whose oversight of sales was relevant to Mr Bozina’s work (including his capacity to earn commissions). Whilst inconsistent with a term of the contract, it was not conduct of such a material or consequential nature that evidenced an intention on Tweed’s part to renunciate the contract as a whole or a fundamental obligation under it.
That being so, it was not repudiatory conduct.
For these reasons I do not find that Tweed’s conduct was repudiatory conduct.
Mr Bozina’s contention that he was forced to resign on account of repudiatory conduct is not made out.
Forced by unreasonable conduct
Irrespective of whether the conduct was repudiatory conduct, Mr Bozina submits that he was forced to resign because of unreasonable conduct whereby a material operational change with immediate effect was advised as an ultimatum and without notice.
An associated submission is that his resignation, if made, was made in the heat of the moment and ought not have been relied upon by the employer in the days and weeks following to bring about the end of his employment.
I have found that a unilateral decision had been made by Mr Harding and without notice to Mr Bozina that a second business manager would be employed at the dealership. I have also found that this decision was made in mid-March 2022, was advised to Mr Bozina on 30 March 2022 and was to take effect two days later.
That this decision was definite and not negotiable was underscored by the fact that Mr Harding made this clear on more than one occasion in the meeting on 30 March 2022, irrespective of whose narrative of that meeting I adopt.
The decision was likely to directly impact Mr Bozina’s future working arrangements, his work responsibilities and standing, and his reporting obligations. It also raised legitimate questions concerning how it may impact the commission pool or his commission income.
Whilst this was so, Mr Bozina was in a managerial role. It was a decision by the dealer principal to alter a managerial structure. The decision was taken for genuine operational reasons, and these were advised to Mr Bozina.
Consistent with the Commission’s general approach to assessing the reasonableness of decisions or policies by an employer,[48] the decision made by Mr Harding was well within the realm of business or operational decisions reasonably open to the management of the dealership and its owners.
The decision to employ a second business manager, whilst materially impacting an existing manager (Mr Bozina) was not inherently unreasonable in the relevant sense.
Mr Bozina submits that irrespective of reasonableness, the decision was presented as an ultimatum and that this forced his resignation.
It is not in dispute that, following the meeting, Mr Harding used the word “ultimatum” in his text message to Mr Schiemeier about the meeting. Mr Harding said in the text:
“I gave him an ultimatum and he chose to resign”.
There are circumstances where an ultimatum, such as (but not limited to) one where an employer tells an employee ‘resign or you will be dismissed’ can be said to force a resignation and thus constitute a dismissal within the meaning of the FW Act. Whilst this is not the only circumstance where an ultimatum may lead to a forced resignation, the relevant issue is not whether there was an ultimatum but whether the resignation was forced. Context therefore matters.
In this matter, I accept the evidence of Mr Harding[49] that the ultimatum was that the decision had been made and was not negotiable; in Mr Harding’s words in cross examination “this how we were to proceed”.
I do not consider that conveying that fact, even with the inference that its non-negotiability inferred accept it, give it a go for a while, or leave, forced Mr Bozina’s resignation. Relevantly, I have found that in the context of advising the decision, Mr Harding also told Mr Bozina that the dealership did not want to lose Mr Bozina, and that Mr Bozina should give the decision a go for a few months to see if, in fact, he was worse off. Again in cross examination Mr Harding stated:[50]
“I was not going to push him out of the door by any means.”
I accept this evidence.
Given this broader context across the lengthy meeting between owner and manager, I do not consider that an “ultimatum” of this type, can be objectively said to have forced Mr Bozina’s resignation.
Finally, Mr Bozina submits that his resignation, if made, was made in the heat of the moment and ought not have been relied upon by the employer in the days and weeks following to bring about the end of his employment.
The meeting and what was conveyed to Mr Bozina was unquestionably stressful. Objectively considered, Tweed contributed to that stress by conducting it on his rostered day off and not notifying him of the subject matter in advance.
Whilst some managers may well welcome or not protest the appointment of another resource in their department, it ought not to have been unforeseeable to Mr Harding that Mr Bozina may react negatively given the obvious questions about role, seniority and commission sharing.
Mr Harding held the meeting at a time of his choosing to suit his convenience, with little regard to Mr Bozina’s immediate circumstances. For this, Tweed can rightly be criticised.
However, this falls short of a finding that the meeting (either in form or substance) forced Mr Bozina’s resignation.
The meeting was professional, not heated. It was a prolonged debate between owner and manager about the proposal and Mr Bozina’s reaction to it and his options. The debate went around in circles without the parties finding common ground. Although Mr Bozina resigned in the intensity of the moment, he was told by Mr Harding that the company did not want to lose his services. I accept Mr Harding’s evidence that he told Mr Bozina that quitting would be a stupid decision. Despite this, Mr Bozina reaffirmed his view that he would resign.
Mr Bozina could have but did not give himself the chance to think about his position overnight. Whilst this would not have changed Mr Harding’s view on the proposal (it was non-negotiable), it may have allowed more time for reflection by Mr Bozina on Mr Harding’s view that a larger commission pool was a realistic possibility and that the business did not want to lose him.
For a resignation to be “forced” within the meaning of s 386(1)(b), the conduct (or course of conduct) engaged in by the employer must be the principal contributing factor leading to the termination by resignation. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation.[51]
Mr Bozina resigned in the intensity of the moment but was not forced to do so. His security of employment as a business manager in the dealership was not brought into issue by Mr Harding. It was brought into issue by Mr Bozina who raised the issue of resignation. Resignation was not the probable or likely consequence of what Mr Bozina was told about the restructure. He had other options such as to contemplate the implications of the matter for his employment in the days that followed, or to cool-off and consider whether his initial reaction was an overreaction, or to give the plan a go for the next three months as Mr Harding suggested.
After a lengthy but stressful discussion, he allowed to remain entrenched his initial reaction of hostility to the decision and belief that it would reduce his remuneration and breach promises made. He resigned once it became clear to him that this was non-negotiable.
The day following, Mr Bozina did not retract his resignation. His email to Mr Harding at 12.14pm on 31 March did quite the opposite; it contemplated an orderly departure from the business and did not call in any way into question that he would be leaving.
Mr Harding immediately following advised that the company had accepted the resignation.
It was only when it became clear that the dealership would not pay commissions on vehicles sold but not delivered that Mr Bozina’s position about having resigned altered. Once he involved Mr Rudd (indicating that he did not want to further deal directly with Mr Harding), and only once he involved Mr Rudd, did Mr Bozina start to categorically state that he had not resigned. Even then, Mr Bozina did not seek to remain employed; only to try to attribute the ending of his employment to his employer, not himself.
I do not conclude that Mr Bozina was forced to resign by unreasonable conduct on Tweed’s part. He was a manager who disagreed with a restructuring advised by the owner, considered it inimical to his interests, and resigned.
I do not conclude that Tweed ought to have formed a view in the days following that Mr Bozina had not intended to resign on 30 March 2022. I do not conclude that Mr Harding’s emails to Mr Bozina in the day following were part of a course of conduct that forced a resignation or unreasonably allowed a resignation to stand. Whether Mr Harding could have or ought to have taken a different view is not for the Commission to determine.
Conclusion
As Mr Bozina was not dismissed by Tweed on 14 April 2022 or otherwise, his application fails for want of jurisdiction.
That being so, and upon the authority of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[52] further proceedings by the Commission (such as a conference under s 368 of the FW Act) cannot occur.
The application is therefore dismissed. An order[53] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Ms C Mense, with permission, on behalf of Mr M P Bozina (23 August) and Mr M P Bozina, on his own behalf (30 August)
Mr A Vlachos, with permission, with Mr R Harding on behalf of Tweed Coast Autogroup Pty Limited
Hearing details:
2022
Adelaide (by video)
23, 30 August 2022
[1] [2020] FCAFC 152
[2] Email ‘Chambers – Anderson DP’ 19 August 2022 3.40pm
[3] Decision 19 August 2022
[4] MB1Statement 3 August 2022
[5] TCA2 Statement 18 August 2022
[6] TCA4 Statement 16 August 2022; TCA 5 Statement 1 July 2022
[7] TCA6 Statement 11 July 2022; TCA7 Statement 16 August 2022
[8] TCA1 10 June 2022
[9] TCA3 Statement 16 August 2022
[10] TCA8 Statement 18 August 2022
[11] Applicant’s Outline of Position paragraph 2.1.3
[12] RH1
[13] RH6
[14] RH3 pages 12 and 13
[15] Mr Bozina said that his wife overheard part of the conversation. She was not called to give evidence
[16] MB1 paragraph 9
[17] TCA2 paragraph 51
[18] This informs part of Mr Bozina’s evidence “I would prefer you to stay but you do whatever you want to do” MB1 paragraph 9 at item ww
[19] RH8
[20] TCA3
[21] TCA6
[22] MB1 paragraph 11(c); RH10
[23] MB1 paragraph 11(d); RH10
[24] MB1 paragraph 11(e); RH10
[25] MB1 paragraph 11(e); RH10
[26] MB1 paragraph 13
[27] MR1
[28] MR2
[29] MR3
[30] MR4
[31] MR5
[32] MR6
[33] MR7
[34] MR8
[35] MH1 and MH2
[36] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54]
[37] [2017] FWCFB 3491
[38] Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
[39] MH1 paragraph 13
[40] Audio 23.8.22 3.18pm and 3.29pm
[41] NSW Trains v James[2022] FWCFB 55 at [69] citing the High Court in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115, [43]-[58]
[42] [2022] FWCFB 55 at [125]
[43] City of Sydney RSL & Community Club Limited v Balgowan[2018] FWCFB 5 at [18]
[44] [2022] HCA1
[45] [2022] HCA2
[46] Personnel Contracting, [43]; Jamsek, [8]
[47] Clause 29
[48] Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 at [77]
[49] Audio 23.8.22 3.35pm
[50] Audio 23.8.22 3.36pm
[51] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 2017] FWCFB 3491
[52] [2020] FCAFC 152
[53] PR745819
Printed by authority of the Commonwealth Government Printer
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