[2021] FWC 2824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew William Grinblat
v
Australian Portable Camps Services Pty Ltd
(U2020/11867)

DEPUTY PRESIDENT LAKE

BRISBANE, 17 MAY 2021

Application for unfair dismissal remedy – applicant resigned – if the applicant did not resign, there were valid reasons to dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] On 2 September 2020, Mr Andrew Grinblat (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he was unfairly dismissed from his employment with Australian Portable Camps Services Pty Ltd (APC/the Respondent).

[2] The Applicant was employed by the Respondent as a casual maintenance plumber, working across the Respondent’s various campsites. The Applicant was employed from 27 May 2019, until his employment came to an end on 12 August 2020.

[3] In its Form F3 – Employer Response and subsequent submissions, the Respondent objected to the application on the grounds that:

(a) the Applicant had not completed a period of employment with the Respondent of at least the minimum employment period under the Small Business Code and therefore is not protected from unfair dismissal pursuant to s 382(a) of the FW Act; or

(b) in the alternative, the Applicant had resigned; and

[4] The application was allocated to me for hearing of the matter, and I issued directions for filing of materials in relation to the jurisdictional objections and merits.

[5] The matter was listed before me for a telephone conferences on 26 November 2020 and 3 December 2020, but the matter proceeded to an arbitration hearing on 16 February 2021. The parties were then invited to provide final closing submissions, which they both did by 9 March 2021.

Background

[6] The Respondent develops, manufactures, supplies and maintains camp facilities and infrastructure solutions, mainly in the mining and resources industries.

[7] In about 2018, the Respondent was engaged by Santos to manufacture, supply and maintain several portable camps for a GLNG Gas Field Development Project near Roma near Roma (the Project). The Respondent works alongside other subcontractors including Eurest Support Services (subsidiary of Compass Group PLC) (ESS) in managing and maintaining the various campsites for the Project.

[8] The Respondent manages several camps within the Project, which vary in size and are all within an area of approximately 200km. The Applicant worked at these sites as a casual maintenance plumber.

The Hearing

[9] Both parties sought permission to be legal represented. I was satisfied that the assistance of legal representation for each party would enable the matter to be dealt with efficiently and effectively and granted each party’s representative permission to appear.

[10] In an email sent to my Chambers and the Applicant on the evening before the hearing, the Respondent indicated that it would not be pursuing the jurisdictional objection in relation to the Respondent being a small business, which was confirmed again by the Applicant’s representative at the commencement of the hearing. Accordingly, the questions before me were narrowed to whether the Applicant had resigned and if not, whether he had been unfairly dismissed.

[11] There were several witnesses called at the hearing, namely, the Applicant, his wife, Ms Sally Anne Dwyer, Russel Young Watson, Paul Francis Broodbank, Clinton Patrick John O’Donnell and Stephen Leslie Baker.

Relevant Law

[12] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[13] The meaning of “dismissed” is provided at s.386 as follows:
             “(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.
             (2) However, a person has not been dismissed if:
   (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
   (b) the person was an employee:
   (i) to whom a training arrangement applied; and
   (ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
   and the employment has terminated at the end of the training arrangement; or
   (c) the person was demoted in employment but:
   (i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
   (ii) he or she remains employed with the employer that effected the demotion.
             (3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[14] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

SUMMARY OF EVIDENCE AND SUBMISSIONS

Respondent’s evidence

Statement of Mr Paul Broodbank

[15] Mr Paul Broodbank, the Respondent’s former National Asset & Facility Manager, filed a witness statement in these proceedings.

[16] Mr Broodbank states that the Respondent develops, manufactures, supplies and maintains camp facilities and infrastructure solutions, mainly in the mining and resources industries.

[17] Mr Broodbank said that while he was the National Asset & Facility Manager he was based in Queensland and one of his main roles was to oversee and manage the Respondent’s facilities at the Roma Project, which was approximately six hours West/North-West from Brisbane.

[18] Mr Broodbank states that in about 2018, the Respondent was engaged by Santos to manufacture, supply and maintain several portable camps for the Project. The Respondent worked alongside other subcontractors including ESS in managing and maintaining the various campsites for the Project. Mr Broodbank’s evidence is that Santos, ESS and the Respondent have a close working relationship.

The Applicant’s commencement and training

[19] Mr Broodbank states that on 27 May 2019, the Applicant commenced work for the Respondent as a casual maintenance plumber, working across the various campsites in the Project. On commencement, the Applicant signed a letter of offer which Mr Broodbank annexed to his statement. 1 Mr Broodbank states that in signing the letter of offer, the Applicant agreed to abide by the Respondent’s policies and procedures, which included:

a) APC’s Cardinal Rules;

b) APC’s Occupational Health and Safety Policy;

c) APC’s Code of Conduct;

d) APC’s Employment Policy;

e) APC’s Bullying and Harassment Procedure; and

f) APC’s Working Alone Procedure.

[20] Mr Broodbank annexed copies of the relevant policies and procedures to his statement. 2

[21] Mr Broodbank states that the Applicant is an experienced plumber with trade qualifications and decades of industry experience. He notes that the Applicant’s experience was mainly in wastewater treatment.

[22] As to the Respondent’s policies and procedures, Mr Broodbank states that the APC’s Ethics and Standards of Business Conduct and APC’s Bullying & Harassment Procedure sets out the Respondent’s expectations of workplace behaviour and the consequences of failing to comply with the policies and procedures. He further states that the Respondent’s WHS Procedures and Policies set out the Respondent’s expectations about WHS obligations and the consequences of non-compliance.

[23] Mr Broodbank’s evidence is that all the Respondent’s employees are comprehensively trained in the policies and procedures, including their workplace and occupation health and safety obligations. He states that all employees are fully inducted into the Project and that the induction and training is conducted through the Respondent’s health and safety team. Mr Broodbank’s evidence is that the Applicant completed the induction program on 25 May 2019. He annexed a copy of the Applicant’s Certificate of Completion of the Respondent’s induction to his statement. 3

[24] Mr Broodbank states that the Applicant was employed as a casual employee and was initially paid at a rate of $500 while on site. He says that from October 2019, the casual day rate was increased to $550 gross and the Applicant was also paid for travel and training days at $250 per day. Mr Broodbank annexed copies of Payroll Transactions for the Applicant. 4

The Applicant’s Employment at the Project

[25] Mr Broodbank states that the management of the campsites at the Project by the Respondent is part of a collaborative project with Santos and ESS. His evidence is that the relationship with Santos, especially in relation to the Project, is a very important relationship to the Respondent.

[26] Mr Broodbank states that as part of the contractual relationship between the Respondent and Santos, there are strict reporting and occupational and workplace health and safety obligations and requirements on both the Respondent and Santos. Mr Broodbank states that both Santos and the Respondent take worker health and safety very seriously, and that under the contract between them, any failure on part of the Respondent or its employees to comply with its occupational and workplace health and safety obligations can form a basis for Santos to terminate the contract. Mr Broodbank states that the management of safety is a joint effort between the Respondent and Santos and other third parties involved in the Project. He confirms his evidence that all the Respondent’s employees are comprehensively trained in their health and safety obligations and requirements while on site.

[27] Mr Broodbank’s evidence is that in addition to the relevant policies and procedures, the Respondent has a comprehensive suite of Safe Work Method Statements (SWMS) which are constantly reviewed and reissued to all maintenance employees, including the Applicant. Mr Broodbank notes in particular, the following SWMS were issued or reissued to maintenance employees via email, including to the Applicant:

a) Working and Travelling Alone, issued 10 February 2020; and

b) General Maintenance, issued 26 February 2020.

[28] Mr Broodbank annexed copies of the relevant correspondence to his statement. 5

[29] Mr Broodbank states that the Respondent’s safety advisors perform weekly phone contact with maintenance employees at remote sites, including the Applicant. Further, he sates that Santos provides training to those on site including general safety training and heat stress training, which was provided to the Applicant in or about November 2019.

[30] He states that employees, including the Applicant, were rostered for an employment period (referred to as a ‘swing’) of a three-week block of 21 days, and each shift is rostered for 10 hours. He states that the Respondent then provided employees with a period off work of at least nine days before the next swing of shifts.

[31] As to casuals, Mr Broodbank’s evidence is that the Respondent would periodically assess the projected business requirements and then offer or not offer as relevant, an employment period to employees as required. Mr Broodbank states that each period was offered a couple swings in advance to ensure that the logistics of getting the workers to site could be managed, however no further swings were guaranteed in advance and this was periodically assessed against business requirements.

[32] Mr Broodbank states that the Applicant was one of the more experienced maintenance employees on site, along with a maintenance electrician, Mr Kym Ryder. Mr Broodbank states that generally the Applicant and Mr Ryder would assist in rostering arrangements. He viewed the two men as being good friends.

Past issues with the Applicant

[33] Mr Broodbank states that when the Applicant commenced with the Respondent, and in the first few months of his employment, Mr Broodbank was “generally impressed” with his proactive approach. He notes that the Applicant came to the Respondent’s business with particular expertise and experience in wastewater management and he demonstrated an eagerness to take control of the wastewater management systems in place at the Respondent’s campsites.

[34] However, Mr Broodbank states that over time he noticed a pattern develop whereby the Applicant would return to site following his time away and blame workers on the previous other swings for issues that he said he would have to then deal with and fix. Mr Broodbank received “general feedback” from other people about the Applicant’s general aggressiveness and combative behaviour onsite. Mr Broodbank understood from those conversations that it appeared to be a “clash of personalities”.

[35] Mr Broodbank states that he had also received phone calls from the Applicant relating to “emergency” work that needed to be conducted outside of rostered shifts. Mr Broodbank’s evidence is that, at first, he trusted the Applicant’s judgment due to his experience and expertise, but that over time, he noticed a pattern of emergencies only occurring when the Applicant was on shift and not at other times.

[36] Mr Broodbank says that in early to mid-2020, he counselled the Applicant several times about his general demeanour around the campsites and about “emergencies” that kept occurring. He says that he discussed with the Applicant the workplace safety implications of working overtime and alone, and expressly directed the Applicant not to perform any work outside of a rostered shift unless it was a genuine emergency. Mr Broodbank says he told the Applicant he needed to inform someone about the emergency and obtain authority to perform the work outside of rostered hours and alone.

[37] Mr Broodbank said that this was an ongoing issue with the Applicant, and he says that it came to his attention that:

a. in or around early June 2020, the Applicant worked a full day shift as rostered and then proceeded to perform a full night shift that same night;

b. no other person was rostered on for that night shift and the Applicant was working alone;

c. there was no safety assessment checklist on file that the Applicant completed relating to the work performed alone on that night shift;

d. the Applicant did not inform anyone in APC or Santos about performing the night shift; and

e. the Applicant claimed for hours and was subsequently paid by payroll for both the day and night shift without the prior authorisation.

[38] Mr Broodbanks’ evidence is that working a shift after a full 10-hour shift poses significant risk not only to the Applicant’s health and safety due to fatigue and working alone, but also the health and safety of other people who use the camp. Mr Broodbank notes it is well known that fatigue has a significant impact on a persons’ ability to perform work safely and without error.

Allegations of bullying

[39] Mr Broodbank states that on or about 16 June 2020, he had a telephone discussion with Mr Clinton O’Donnell, one of the Respondent’s maintenance electricians on the Project, and, at the time, one of the Respondent’s newer employees. He states that Mr O’Donnell was clearly upset on the phone and said words to the effect of “I don’t know if I can handle the abuse from Andrew anymore”, further to which he told Mr Broodbank about the Applicant’s behaviour towards him. Mr Broodbank’s evidence is that Mr O’Donnell reported the Applicant had yelled and screamed at him, given him the “silent treatment” and informed him that he – being Mr O’Donnell – was not experienced enough to be in his role. These matters are jointly referred to as ‘the bullying complaint’.

[40] Mr Broodbank said that he was taken aback by this information. He knew the Applicant had a generally aggressive demeanour around the campsite but did not know that it was that bad. He said that Mr O’Donnell informed him that he was sick in the stomach and felt ill and was very upset.

[41] Mr Broodbank states that he considered the alleged behaviour amounted to bullying and constituted breaches of the Respondent’s policies and procedures. He notes that as set out in the Bullying & Harassment Procedure and the Ethics and Standards of Business Conduct, the Respondent takes bullying and harassment very seriously. Mr Broodbank notes he was particularly concerned by the way the applicant’s behaviour made Mr O’Donnell feel.

[42] His evidence is that following this phone conversation, he contacted Mr Frank Martino, owner and Managing Director of the Respondent, and discussed the bullying complaint. His evidence is that they agreed the bullying complaint should be investigated further and the Applicant should not be working while the investigation took place.

16 June 2020 telephone conversation

[43] Mr Broodbank states that on or about 16 June 2020, following his conversations with Mr O’Donnell and Mr Martino, he contacted the Applicant by phone. He says that his primary intention was to inform the Applicant of the bullying complaint, discuss the Applicant’s ongoing issue of working unauthorised overtime and advise the Applicant that he was not to perform any shifts while the Respondent properly investigated these issues. Mr Broodbank’s evidence is that the Applicant said words to the effect of: “Look, I do not need this stuff. I’ll just move on then, if this is the way you feel”, “what a load of crap” and “this is bullshit”. Mr Broodbank’s evidence is that he took these comments to mean the Applicant would move on to other employment and would not accept any further shifts offered by the Respondent and was in effect resigning from his employment by terminating the casual contract.

[44] Mr Broodbank’s evidence is that over the next week or two, he discussed the Applicant several times with Mr Ryder and asked whether he had heard from him. He says that Mr Ryder told him the Applicant was “pretty upset” and was “not coming back”. Mr Broodbank says that this confirmed his belief that the Applicant had resigned and did not intend on coming back to work for the Respondent.

[45] However, Mr Broodbank states that he received an email from the Applicant on or about 24 June 2020, which said, “Hi, enquiring about whats happening, thanks Andrew” and ten minutes later received a further email from him adding “with my termination”.

[46] Mr Broodbank’s evidence is that after receiving these emails he again discussed the matter with Mr Ryder and that Mr Ryder informed him that he did wanted to stay out of it. Mr Broodbank said he did not enquire further, however the change in Mr Ryder’s demeaner and responses confirmed to him that his understanding the Applicant’s intentions were disingenuous and that he may be seeking recourse through claiming an unfair dismissal.

Correspondence following the Applicant’s resignation

[47] Mr Broodbank says that on or about 6 June 2020, he received a letter from Lewis and McNamara Solicitors on behalf of the Applicant, stating the Applicant was unsure of his employment status.

[48] Mr Broodbank instructed the Respondent’s solicitors, Dentons Australia, that day to provide a response on the Respondent’s behalf stating that the Respondent considered the Applicant had resigned, but that if the Applicant resiled from that position then the Respondent would resume the investigation into the complaints.

[49] Mr Broodbank states that on 6 July 2020, Dentons wrote on the Respondent’s behalf to the Applicant’s solicitors, setting out allegations of conduct and seeking the Applicant’s response to them.

[50] He states that on 7 and 9 July 2020, Dentons received separate responses from the Applicant through Lewis and McNamara. He says that from 9 July 2020 to about 24 July 2020, he, along with the Health and Safety and Human Resources teams conducted further investigations into the allegations based on the responses received from the Applicant. He described the investigation process as follows:

a. “reviewed documents and interviewed relevant people relating to the scope of works performed by the Applicant on the overnight shift. This confirmed that the Applicant performed general cleaning duties and that the duties performed on the overnight shift did not have any urgency to be performed;

b. reviewed documents and records relating to the Applicant’s training and knowledge of his workplace and occupational health and safety obligations and interactions with APC and Santos’ safety practices. These documents demonstrated that the Applicant was notified and trained in the APC and Santos’ policies and procedures and the SWMS;

c. reviewed documents and records and interviewed people relating to past counselling the Applicant had received regarding failure to inform APC when he had previously stayed back for works on other occasions. These documents demonstrated to me that he was well aware of his obligations to inform APC of any emergency work or if he intended to stay back to complete any work following the conclusion of his rostered shift;

d. interviewed Mr O’Donnell regarding the Applicant’s response to the bullying allegation seeking further information from Mr O’Donnell. Mr O’Donnell provided me with further and specific details about the Applicant’s behaviour towards him. In this conversation, Mr O’Donnell also described to me a further workplace incident where the Applicant injured himself whilst performing work. This injury caused the removal of the skin on his shin and blood to run down the Applicant’s leg. Mr O’Donnell informed me that the Applicant got angry and yelled at him when he mentioned the incident to a co-worker and that is why he did not raise the matter with anyone;

e. discussed generally with other persons that worked with the Applicant who corroborated the Applicant’s general bullying behaviour;

f. reviewed relevant documents and interviewed relevant people which identified that the Applicant did not inform anyone at APC or Santos about his work place incident nor sought any medical attention from the onsite paramedic based at the camp.”

[51] Mr Broodbank’s evidence is that based on the investigation, the Respondent was satisfied that:

a. “the Applicant was well aware of his occupational and workplace health and safety obligations, including APC’s and Santos’ strict expectations in that regard;

b. due to the policies and procedures, training and prior counselling, the Applicant was well aware of the requirement to inform APC and Santos of any work that was required to be performed outside of a rostered shift and the requirement to conduct a safety assessment checklist and inform APC and Santos when working alone as per APC’s policies and procedures;

c. the maintenance worked performed by the Applicant on the night shift related to cleaning and that was not urgent nor required to be performed that night, and the suggestion by the Applicant that it was urgent was an attempt to deceive the actual circumstances;

d. the working of the night shift back to back to the performance of the day shift without informing anybody and alone was a substantial breach of APC’s policies and procedures and had the potential to jeopardise the relationship with Santos and ESS;

e. that the Applicant broke APC’s Cardinal Rules in not reporting a workplace incident and injury;

f. the account from Mr O’Donnell was credible and the general bullying behaviour of the Applicant was generally corroborated by other persons;

g. that bullying of any sort was not what APC stands for and in breach of APC’s clear policies and procedures relating to the standards of behaviour required.”

[52] Therefore, he says that on 27 July 2020, Dentons wrote on the Respondent’s behalf to the Applicant’s solicitors setting out the outcomes of APC’s further investigations. Namely, that APC found that the allegations previously put to him were substantiated and that APC’s preliminary decision was to terminate the Applicant’s employment for serious misconduct based on the allegations. The letter raised a third allegation, relating to a further workplace health and safety incident and invited the Applicant to respond to the third allegation and show cause why APC should not terminate his employment based on the other allegations.

[53] Mr Broodbank notes that on 4 August 2020, the Respondent received a response from the Applicant’s solicitors.

[54] On 12 August 2020, Dentons wrote on behalf of the Respondent to the Applicant’s solicitors, stating that the Applicant did not put forward any reasons for his conduct found in two of the allegations and that the Respondent had found these allegations to have occurred. Mr Broodbank states that the Applicant’s employment was therefore terminated on grounds of serious misconduct.

Statement of Mr Clinton O’Donnell

[55] Mr O’Donnell, maintenance electrician for the Respondent, filed a witness statement in these proceedings.

[56] Mr O’Donnell states that he is a qualified electrician, and prior to starting with the Respondent he had some experience working in remote mining camps. He states that on or about February 2020 he commenced employment with the Respondent as a casual maintenance electrician, based at campsites at the Project. He says that on the first swing of shifts, he spent the first week at Summer Hill campsite with Mr Ryder who showed him around. After this, Mr O’Donnell was allocated to the Burnt Gully campsite by himself, however he was able to discuss any issues with Mr Ryder.

The Applicant’s behaviour

[57] Mr O’Donnell notes that the Applicant was also at the Summer Hill campsite on his second swing of shifts. He confirms that the Applicant had been working for the Respondent longer than he had.

[58] Mr O’Donnell’s evidence is that during his first swing of shifts at Summer Hill, there were occasions where he would ask the Applicant questions about how to do certain tasks or how the camps and the Respondent generally operated. He notes that most of the questions related to plumbing or the operation of the wastewater treatment plant, even though he had worked with waste water treatment plants before, each plant is slight different. His evidence is that whenever he sought guidance or advice from the Applicant, he would respond aggressively or tell Mr O’Donnell to “shut up”. Mr O’Donnell says that he was taken back by the way the Applicant would respond to him.

[59] Mr O’Donnell gives evidence that the Applicant’s “aggressive outbursts” happened daily. He describes the outbursts like a “two year old throwing a tantrum”. Mr O’Donnell states that the Applicant’s outbursts were usually directed at him, and the Applicant would often raise his voice and yell words to the effect of “I am not paid to share my knowledge or assist others”, “go read a book about it”, “you are not smart enough” and “I am not helping you”. Mr O’Donnell says the Applicant would also use swearwords or other derogatory words like “you dickhead”.

[60] Mr O’Donnell says the Applicant would constantly say to him that he did not have enough experience to be doing the job and these comments were ongoing and formed the basis of the Applicant’s interaction with him on a daily basis. Mr O’Donnell states “It was relentless”.

[61] Mr O’Donnell states that after one of the Applicant’s outbursts, he told the Applicant his behaviour was childish. He says this made things worse and the Applicant became more aggressive towards him. Mr O’Donnell says that on other occasions the Applicant has completely ignored him, including on car journeys where the Applicant would ignore him for a whole trip.

[62] Mr O’Donnell says that on one car trip, he picked the Applicant up from Wallumbimba to drive to Summer Hills at the end of his swing of shifts. Mr O’Donnell says that on arrival the Applicant “abused him” for being late, and for the rest of the trip back simply ignored Mr O’Donnell. He says that he tried to make conversation about the weather, which the Applicant ignored. This trip lasted 20 minutes.

[63] Mr O’Donnell also recalls an occasion where he had an issue with the Balance Tank having a high-water level. He said that while he felt he knew what to do, he wanted to double check and seek confirmation from someone with more experience. Mr O’Donnell notes that Mr Ryder was on his time off and had indicated he did not want to be disturbed and he had therefore been instructed to call the Applicant.

[64] Mr O’Donnell says that when he called the Applicant and explained the issue, the Applicant raised his voice and said words to the effect of “do I need to come back to work?” and “I am the only person who can fix anything”. Mr O’Donnell says he therefore called the Respondent’s main site at Monarto and spoke to plumbers there to get feedback on his proposed solution. Mr O’Donnell’s evidence is that following this incident he avoided contacting the Applicant whenever he had questions and would instead call the plumbers in Monarto.

[65] Mr O’Donnell states that the Applicant’s comments and treatment of him made him feel humiliated and unsupported. He says the Applicant made him feel not worthy of being on the job, and while he tried to concentrate on the work, the Applicant’s behaviour would “play on his mind” all day. He states that the Applicant’s constant harassment and/or silent treatment caused him stress and he dreaded going back to work if he knew the Applicant was going to be at the camp he was rostered at.

[66] Mr O’Donnell gives evidence that he had spoken with some of his colleagues about the Applicant’s behaviour, including Mr Ryder, and that Mr Ryder had said “that’s just how he is” and to try and ignore him.

[67] Mr O’Donnell states that he has not had any issues with other employees or people at the camps.

[68] Mr O’Donnell states that in about June 2020, he had a discussion with his line manager, Mr Broodbank. Mr Broodbank had asked why he was calling the plumbers in Monarto and not the plumbers on site. Mr O’Donnell says that he told Mr Broodbank about the abuse he was receiving and the Applicant’s general behaviour on site. Mr Broodbank asked for examples, which Mr O’Donnell says he provided. He says that he also explained how the Applicant’s behaviour made him feel, and Mr Broodbank called back later that day to say the Applicant’s behaviour was “not on” and that the Respondent would deal with his behaviour.

Safety incident

[69] Mr O’Donnell says that on or about May 2020, he was working with the Applicant in the Wastewater Treatment Plant at the Summer Hill campsite. He says that the Applicant started talking about the stains from the anoxic tank bleed valves on the other tanks and asked Mr O’Donnell to get the fire hose and hand it to him so he could clean the tanks. Mr O’Donnell confirms that he did as directed.

[70] Mr O’Donnell says that while the Applicant was cleaning the tanks, he could not complete the job from the position he was in so decided to jump from the tank he was standing on, on to the lid of the adjoining MBR tank. Mr O’Donnell notes the lid of the MBR tank was not screwed down which caused the Applicant to slide into the MBR tank. Mr O’Donnell says as a result, the Applicant had taken the skin off his shin and had blood running down his leg. The Applicant then went back to his room at the camp and Mr O’Donnell did not see him much in the following three days.

[71] Mr O’Donnell says that a colleague asked whether he knew why the Applicant was at the chemist in Wallumbimba and Mr O’Donnell told him about the incident at the MBR tank at the Summer Hill Campsite and the injury he suffered. Mr O’Donnell says that “some days after”, the Applicant started yelling at him asking why he said anything about the injury.

Statement of Mr Russell Watson

[72] Mr Watson, gardener with ESS as part of Santos’ Project in Queensland, provided a witness statement in these proceedings.

[73] Mr Watson said that in his role he looks after 12 different campsites and while he is employed by ESS, he works closely with Santos and often receives directions and instructions directly from Santos. He notes that ESS works alongside other subcontractors on the Project, such as the Respondent.

[74] For the purposes of these proceedings, Mr Watson confirms that he is familiar with the Applicant and has had several interactions with him in the past through his work with ESS and the Project.

Maintenance tasks

[75] Mr Watson states that his first interaction with the Applicant was following the performance of maintenance tasks at each of the campsites Mr Watson managed. Mr Watson says that he was instructed by Santos to conduct some brush cutting and mowing in and around all irrigation fields of the campsites, as well as a general review of each irrigation field for any maintenance issues. Mr Watson understood from Santos that this was further to requests from the Santos environmental authority.

[76] Mr Watson states that he performed the work with two other employees without any issues. He says that the work involved brush cutting and mowing in and around all irrigation fields and reporting any maintenance issues. Mr Watson notes the last campsite was the Summer Hill campsite.

[77] Mr Watson’s evidence is that they did not get enough time to complete all tasks at the Summer Hill campsite. He therefore took and sent through photos and a summary of the relevant maintenance issues that were outstanding, to the relevant contacts at Santos. Mr Watson says that there were a few minor issues, such as broken sprinkler heads, but nothing different as compared to the other campsites. Mr Watson annexed a copy of this correspondence to his statement. 6

Phone call

[78] Mr Watson gives evidence that after he had sent the email, he received a call from the Applicant. Mr Watson notes that ESS’s Regional Manager for the Project, Mr Adam Cliff, was present for the phone call.

[79] Mr Watson’s evidence is that the Applicant was “overly aggressive” and went into a rant for approximately 10 minutes. He says it appeared the Applicant had taken offence to the maintenance issues he had recorded for the Summer Hill camp and the fact that Mr Watson had not come to see him beforehand.

[80] Mr Watson says that he and Mr Cliff tried to explain to the Applicant the context of the general maintenance works and that in all the circumstances, it was practically impossible to consult with everyone about the maintenance works prior to performing them. He says that the Applicant was not able to see reason and proceeded to say “bullshit” and “you do not just go into someone else’s camp” and called Mr Watson names including “a liar” and “unprofessional”.

[81] Mr Watson says that Mr Cliff managed to calm the Applicant down, but this was at the end of the phone call that had lasted 10 minutes.

Second interaction

[82] Mr Watson says that about a month later, he attended the Summer Hill campsite and started talking to someone from the Respondent’s business. He says that they had a friendly and pleasant chat for approximately five minutes and that at that time he did not realise it was the Applicant. He notes he had not met the Applicant in person before.

[83] Mr Watson says that they then had the following interaction:

“Mr Watson: ‘at least you’re quite nice, not like the other bloke here’.

Mr Grinblat: ‘that was me you fucking cunt’.”

[84] Mr Watson says the Applicant then went on another rant, and it was “like turning on a switch”. Mr Watson then removed himself from the conversation.

Statement of Mr Stephen Baker

[85] Mr Stephen Baker, the Respondent’s Work Health Safety and Environment (WHSE) & Training Coordinator, filed a witness statement in these proceedings.

[86] Mr Baker gives evidence that he has been employed by the Respondent since June 2019 and had a history of 10 to 15 years’ experience in the delivery of education across various fields and holds relevant certificates, including in Workplace Health and Safety.

[87] Mr Baker states that his team is based at the Respondent’s head office in Monarto, South Australia. He states that during a construction phase of a portable camp on a remote site, the company stations their own WHSE advisory/coordinator onsite. He says that with some exception, the company usually does not station a WHSE advisor/coordinator onsite if a site has been constructed and is in an operational phase. Mr Baker says at that stage, WHSE on that site is then coordinated from the Respondent’s head office in Monarto in conjunction with the site owner/operator who have their own WHSE advisors and who regularly liaise with the Respondent.

Santos’ GLNG Project – Roma

[88] Mr Baker gives evidence that regarding the Project, WHSE management onsite is a joint and collaborative effort between Santos, the Respondent and other contractors.

[89] Mr Baker states that as a contractor the Respondent is subject to thorough and rigorous oversight by Santos on all WHSE matters and reports monthly to Santos’s WHSE team regarding the site. He says that Santos takes the lead on whole-site WHSE compliance.

[90] Mr Baker’s evidence is that as the Respondent has a small team on Santos’ Project, its employees are required to attend safety meetings and briefings (such as toolbox meetings) through Santos or bigger contractors onsite (such as ESS).

The Applicant’s Training and WHSE Management

[91] Mr Baker’s evidence confirms that the Respondent has a thorough WHSE induction program, which all employees and relevant contractors are required to complete prior to working for the company. He confirms that the program is interactive and completed online, consisting of a 45-minute video which sets out the Respondent’s workplace and occupational safety systems in place. Mr Baker gives evidence that this includes employee work times, the Respondent’s relevant policies and procedures, occupation and work health and safety act and regulations, compliance with the same including individual obligations and responsibilities and duties of care. Mr Baker says the program also involves a quiz of 40 questions.

[92] Mr Baker refers to the certificate, which certifies that the Applicant completed the induction program on 25 May 2019, as filed in the Commission.

[93] Mr Baker states that, additionally, the Respondent’s employees are inducted into Santos’s WHSE systems and have access to all of Santos’s safety briefings/updates. Mr Baker states that in November 2019, Santos launched a new WHSE program, Life Saving Rules, which the Applicant attended training in. Mr Baker annexed to his statement:

1. an email from Santos to Mr Grinblat outlining the Life Saving Rules program and training on 26 November 2019;

2. a copy of the current version of the HSE Requirements for Contracts which forms part of Santos’ Life Saving Rules Learning Module; and

3. a certification of Mr Grinblat completing Santos training for the Life Saving Rules module amongst other Santos WHSE training. 7

[94] Mr Baker further states that in late 2019 to early 2020, the Respondent rolled out ‘SkyTrust Software’ across its sites, which is a cloud-based program designed for health and safety management and compliance. He states that this program is widely used across a number of industries, including in the construction and manufacturing industries.

[95] Mr Baker states that the SkyTrust program contained all the Respondent’s relevant policies and procedures, SWMS, safe operating procedures as well as other relevant workplace and occupational health and safety information and documentation. Mr Baker’s evidence is that all employees were trained in this program throughout the rollout.

[96] Mr Baker notes that on 10 February 2020, the Applicant was provided with a reissued Working Alone Procedure, Working Alone Checklist and Travelling Alone Checklist. He states the Applicant “read” the email on 10 February 2020 at 2.45pm.

[97] Mr Baker states the Applicant was provided on 26 February 2020 with a draft General Maintenance SWMS for feedback, and further the safety team implemented a process of consultation with employees, including the Applicant, regarding the draft and other WHSE documents. Mr Baker says that his recollection was that the Applicant did not provide any specific feedback or have questions.

[98] Mr Baker states that following this consultation process, on 7 July 2020, the suite of new SWMS were issues to all employees onsite including the Applicant. He annexed to his statement a copy of the email sent to all employees, attaching the relevant documents. 8

[99] Mr Baker’s evidence is that in addition to updating and reissuing the relevant safety documentation, the Respondent also conducted weekly phone contact with all maintenance employees based at remote sites. He states that communications were reported weekly in a safety meeting for action as required. As to the Applicant, Mr Baker’s evidence is that he often refused to or avoided participation in these regular phone contacts by way of indicating he was too busy to talk. Mr Baker’s observations were that the Applicant considered himself to be very knowledgeable in WHSE matters and was above this process or any requirement to report to APC Safety. However, Mr Baker also stated that on his dismissal with the Applicant, he did appear to have a “reasonably good” grasp of WHSE issues and regulator requirements based on his years of experience in the industry.

[100] Mr Baker states that while the Applicant was encouraged to participate, it was not forced or required of him to meaningfully participate in the weekly sessions.

Responses to the Applicant’s evidence

[101] Mr Baker confirms that Toolbox Talks or other safety meetings do not work in the setting where the Respondent only has one or two persons for each of the campsites. Mr Baker notes that as the campsites are several hours away from each other, it would not be practical to have a joint Toolbox Talk with APC employees across campsites.

[102] Mr Baker states that the Respondent’s maintenance workers were therefore required to attend and participate in pre-starts, daily breathalyser sampling and urgent breakdowns or maintenance tasks directly with the contractor or site/camp operator, being Santos and/or ESS. Mr Baker states that if there were any safety issues, Santos and/or ESS would then formally advise APC Safety. Mr Baker notes in this regard that he has a strong working relationship with Santos’ Safety Department.

[103] Mr Baker also gives evidence that in conjunction with Santos and other contractors on site, the Respondent has a robust WHSE system in place, incorporating Take 5s, Job Hazard Analysis and SWMS. Mr Baker annexed a copy of an email sent to maintenance employees, including the Applicant, reiterating the Respondent’s Take 5 Standard Operating Procedure which has been in place on the Respondent’s worksites since 2018. 9

[104] As to any safety concerns referred to by the Applicant, Mr Baker states that if he witnessed employees performing tasks without the necessary training or accreditation and failed to report the incident to the Respondent, this would be in breach of the Respondent’s and Santos’s WHSE policies and procedures. Mr Baker refers to the Respondent’s ‘Cardinal Rules’ which provides that all employees have a duty of care and responsibility to report such incidents. He went on to say that the Respondent has no record of such a report by the Applicant.

[105] Mr Baker also states that as the Respondent’s Safety team is located in South Australia, it is logistically impossible for the team to be aware of the stock level of safety equipment at a remote camp. He states therefore it was the responsibility of individual employees to ensure adequate materials by submitting a “request for materials” form, which he says would always be approved if relevant (such as personal protective equipment requests).

[106] In this regard, Mr Baker gives evidence that the only WHSE issue raised by the Applicant was discussed on 21 January 2020 during a telephone conversation. He says that the Applicant’s major concern was getting a forklift ticket paid for by the Respondent. He says the Applicant also explained that Mr Broodbank had at minimum weekly phone contact and face to face contact every eight weeks or so. Mr Baker says that travel blackspots were also discussed with the Applicant, along with the requirements for a task which required a Working in a Confined Space Permit.

[107] Mr Baker says in that conversation, the Applicant was advised that the relevant ‘rescue equipment’ to perform the task was being sent from Monarto to the site. However, Mr Baker states that he understands from another contractor onsite that the task was performed by the Applicant prior to the safety equipment reaching the site.

[108] As to the Applicant’s evidence of him conducting work outside hours or alone, Mr Baker gives evidence that he has reviewed the Respondent’s records and confirms the Applicant had not completed any Working Alone Hazard Checklist for such work in accordance with the Working Alone Procedure.

Respondent’s submissions

[109] The Respondent submits that the Applicant commenced with the business on 27 May 2019, as a casual maintenance plumber at the Respondent’s campsites located within Santos’ GLNG Gas Field Development Project near Roma, Queensland. The Applicant performed casual shifts rostered in 21-day blocks at different sites as needed.

[110] The Respondent submits that the Applicant was receiving ongoing counselling by the Respondent regarding safety issues, in particular performing unauthorised back-to-back shifts alone and without informing anyone. The Respondent submits that it had also received a complaint that the Applicant bullied another employee at the worksite.

[111] The Respondent submits that on 16 June 2020, Mr Broodbank telephoned the Applicant and raised the allegations of bullying, along with the ongoing safety issues. It submits that in response, the Applicant said to Mr Broodbank words to the effect of “I’ll just move on”. The Respondent says that Mr Broodbank took that to mean that the Applicant had decided to move on from his casual position, that he had resigned and would not be returning. Mr Broodbank then received confirmation from the Applicant’s “good friend and colleague”, Mr Ryder, that the Applicant was not coming back to work and had in fact resigned.

[112] The Respondent submits that the Applicant later made contact through his solicitors, asserting he had not resigned. The Respondent in response advised that it thought the Applicant had resigned, but then formally put the allegations of the safety breaches and bullying to the Applicant and the solicitors.

[113] The Respondent submits that following an exchange of correspondence and an investigation, on 12 August 2020, the Respondent notified the Applicant that it determined to terminate the Applicant’s employment on the basis of serious misconduct.

Minimum employment period

[114] The Respondent submits that the Applicant was employed as a casual employee, and in accordance with s.384(2) of the Act a period of casual employment does not account towards the employee’s period of employment unless:

(i) “the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; …”

[115] The Respondent submits that the test as to whether an employee had a reasonable expectation of continuing employment by an employer on a regular and systematic basis is “simply whether or not during a period of at least six months prior to the dismissal the employment as a casual employee was on a regular and systematic basis and the employee had, during that period, a reasonable expectation of continuing employment by the employer on a regular and systematic basis.” 10

[116] The Respondent’s position is that the Applicant had no reasonable expectation of continuing employment. It states that each “swing” was offered independently and was dependent on a number of factors including the business requirements of the various campsites. 11 The Respondent submits that, in the circumstances, any expectation of continues “swings” of shifts was not reasonable.

Dismissal

[117] The Respondent notes that a precondition for an unfair dismissal remedy is to establish that the person has been dismissed. The Respondent refers here to the meaning of dismissed as provided at s.386(1) of the Act.

[118] The Respondent cites the decision in Sovereign House Security Services Ltd v Savage, in which it was provided:

“… generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise …”. 12

[119] The Respondent submits that the comment of the Applicant during a phone call on 16 June 2020, to the effect of “I’ll just move on then”, coupled with the follow up from the Applicant’s colleague over the following weeks confirming that the Applicant had resigned, constitute unambiguous words or actions of resignation. It submits this is particularly so, in light of the Applicant’s casual position with the Respondent.

[120] In closing submissions, the Respondent further submits as follows:

“6.1. Firstly, Mr Broodbank’s account of the conversation of 16 June 2020 was that he specifically recalls relaying the bullying allegations by Clinton O’Donnell to the Applicant and the Applicant responded by saying to him; “That’s a load of crap. None of that ever happened. If that’s the way you think about it, I’m just going to move on. That’s it for me. I don’t need this in my life.” The Applicant accepted the conversation happened but initially denied that he said anything about “moving on”. Under cross examination, he admitted he had said the “move on part” but said that he was referring to the night clean incident on 1 June 2020. He also said that he accepted that Mr Broodbank may “have taken it like that” but that he had not meant it like that. The Respondent submits that Mr Broodbank’s version of events is the more plausible and should be believed. The subject of the night clean had already been dealt with and Mr Broodbank had given instructions for the Applicant to be paid overtime in respect of it by 11 June 2020. The focus of the discussion on 16 June 2020 was the bullying allegations against the Applicant and the direction for him to go home while the Respondent investigated. In those circumstances, it was entirely plausible for the Applicant to react angrily and to say the words alleged by Mr Broodbank. Further, Mr Broodbank was not challenged on his evidence that no steps were taken by him or other employees of the Respondent to investigate the bullying allegations against the Applicant on the basis that he believed the Applicant had resigned. Such inactivity is entirely consistent with Mr Broodbank’s version of the 16 June 2020 conversation.

6.2. Secondly, Mr Broodbank’s evidence was that he “didn’t just take [those words] as gospel.” Rather, he confirmed his belief that the Applicant had resigned based on the following:

6.2.1 Firstly, in the days following the conversation, he spoke to Mr Kym Ryder, a work colleague and close friend of the Applicant who informed Mr Broodbank that the Applicant was “pretty upset”, “very angry” and “not coming back”.

6.2.2 Secondly, he was informed by the Applicant’s colleagues that the Applicant had removed himself from the work group’s WhatsApp group which they used to communicate with each other. The Respondent submits that Exhibit R-04 clearly shows that the Applicant removed himself from the group on 16 June 2020. The Applicant’s attempts to deny this in the face of such evidence were simply not credible.

6.2.3 Thirdly, the Applicant’s colleagues advised Mr Broodbank that the Applicant was looking for another job. Indeed, the job applications produced by the Applicant in support of his claim show that he applied for two plumber positions on 20 and 23 June 2020. That is consistent with the Applicant having resigned and at odds with the evidence he gave under cross examination when he said that if he believed his employment was terminated [after 16 June 2020 but before he sent emails to Mr Broodbank on 24 June 2020] he would have been looking for a job.

6.2.4 Fourthly, the Applicant was a casual employee, as are all maintenance employees of the Respondent, and it was not uncommon for maintenance employees to resign with little or no notice.”

[121] For these reasons, the Respondent maintains the Applicant used clear and unambiguous words to convey his resignation.

[122] Further, the Respondent accepts the Applicant was “angry” when told about the bullying allegations. However, as to any suggestion Applicant resigned in the “heat of the moment” (Respondent’s emphasis), the Respondent submits that Mr Broodbank did not conclude that the Applicant had resigned until he had taken the steps and gathered the knowledge outline in the evidence. The Respondent submits that reasonable time had therefore elapsed before the Respondent concluded that the Applicant’s resignation was really intended.

[123] Further, the Respondent submits it cannot be said that by putting the allegations to the Applicant about bullying and directing him not to attend work while they were investigated “forced” him to resign. The Respondent submits that the Applicant always had the choice to participate and “await the outcome” of the investigation, however the Applicant left the employment relationship at that time voluntarily. 13

[124] The Respondent’s primary case is that the Applicant voluntarily resigned, but in the event the Commission finds the Applicant did not resign, it submits it had a valid reason to dismiss him for his conduct, for the following reasons.

Submissions as to merits

[125] The Respondent also made submissions that, in the event the Applicant overcomes these jurisdictional hurdles, the dismissal was nevertheless not harsh, unjust or unreasonable within the meaning of s.385(b) of the Act.

[126] The Respondent submits that the dismissal was not a case of genuine redundancy, and that the Small Business Fair Dismissal code is not applicable here. It submits this is a matter of whether or not the dismissal was harsh, unjust or unreasonable.

Valid reason

[127] The Respondent outlined that in determining whether there was a valid reason for the dismissal, the relevant principles are that:

(a) the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer;

(b) the question the Commission must address is whether there was a valid reason for the dismissal;

(c) the test is not whether the employed believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct but whether the conduct occurred based on the evidence before the Commission;

(d) the test is whether the reason was sound, defensible or well founded. 14

[128] The Respondent relies on the breaches of safety and bullying as valid reasons for the Applicant’s dismissal.

Safety issues

[129] The Respondent submits that the Commission may take into account the following issues, in determining whether there has been a breach of safety as a valid reason for the dismissal:

(a) the seriousness of the breach/incident;

(b) company policies setting out safety procedures and consequences for breaches;

(d) whether the incident/breach was isolated or recurring in nature; and

(e) whether or not the employee concerned was a supervisor and expected to set an example.

[130] The Respondent submits that it has comprehensive policies, which set out an employee’s obligations with respect to safety. It submits that employees, including the Applicant, are comprehensively trained in its policies and procedures through the indication process. It says that this is also continually reinforced on site, not only through APC’s systems but also through Santos’ systems. The Respondent relies here on the evidence given by Mr Paul Broodbank in his statement.

[131] The Respondent submits that the breaches of safety in working outside of the Applicant’s rostered hours alone, without proper authority and without notifying anyone, were extremely serious. It submits that there are specific policies and procedures in place regarding working alone, including a requirement that the employee undertake a hazard checklist before commencing work alone. It submits that these policies and procedures were breached by the Applicant.

[132] The Respondent further submits that the Applicant performed back-to-back shifts, which was a significant safety risk due to performance of high risk tasks alone and where fatigue is a factor. The Respondent submits that this had potential consequences for the Applicant himself and further that fatigue can be a key contributor to unintended errors and mistakes which could lead to consequential safety issues for all persons within the campsite.

[133] The Respondent submits that the Applicant was previously counselling in relation to breaches of safety and was directed not to continue working outside of rostered hours without authority. It submits the Applicant however did not ‘heed’ the direction, and wilfully continued to breach his safety obligations “against clear policy”. The Respondent therefore submits the breaches were recurring in nature.

[134] The Respondent submits that while the Applicant did not have a supervisory role, he was one of the more experienced tradespeople on site, was a role model, and “ought to have been expected to set an example”. As to unfairness in cases involving safety breaches, the Respondent cites the decision of a Full Bench of the Commission in BHP Coal Pty Ltd t/a BMA v Schmidt, as follows:

“The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is “a fair go all round”. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.” 15

[270] The Full Bench of the Commission has held that s.387(c) of the Act is to be applied in a common sense way to ensure that the Applicant has been treated fairly and does not necessarily require formality in the sense of conducting a meeting with the employee to inform the employee of the reasons for the proposed dismissal or providing the employee with an opportunity to address the employer’s concerns in writing. 51

[271] The Applicant and his legal representatives were provided the allegations and his representatives made a detailed response to the allegations. The Applicant knew the precise nature of the employer’s concern about his conduct and had a full opportunity to respond to the allegations. This satisfies the requirement in this section.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[272] The Applicant was legally represented during the allegation and termination process.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[273] This matter relates to the conduct and not the performance of the Applicant and is therefore not relevant

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[274] The Respondent does not have any in house Human Resource specialists. However, I am satisfied that in the face of misconduct on the part of the Applicant, the Respondent acted appropriately.

(h) any other matters that the FWC considers relevant

[275] There are no other relevant matters that preclude me from finding that the dismissal was harsh, unjust or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[276] As per my earlier comments in this decision I find firstly that this was a resignation and therefore no dismissal took place and I find that the jurisdictional objection is upheld. If I am wrong on that, I have considered the merits of this matter and find that the dismissal was not harsh, unjust, or unreasonable.

[277] I order that the matter be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Witness Statement of Mr Broodbank, annexure ‘PB-01’.

2 Witness Statement of Mr Broodbank, annexure ‘PB-02’.

3 Witness Statement of Mr Broodbank, annexure ‘PB-03’.

4 Witness Statement of Mr Broodbank, annexure ‘PB-04’.

5 Witness Statement of Mr Broodbank, annexure ‘PB-05’.

6 Witness Statement of Mr Watson, annexure ‘RW-01’.

7 Statement of Mr Baker, annexure ‘SB-01’.

8 Statement of Mr Baker, annexure ‘SB-02’.

9 Statement of Mr Baker, annexure ‘SB-03’.

10 Ponce v DJT Staff Management Services Pty Ltd t/as Daly’s Traffic[2010] FWA 2078.

11 Statement of Paul Broodbank 20 November 2020, [28].

12 [1989] IRLR 115.

13 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.

14 Rail Corporation New South Wales v Vrettos [2008] AIRCFB 747; Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; Selvachandran v Peterson Plastics Pty Ltd [2995] IRCA 333.

15 [2016] FWCFB 1540.

16 [2020] FWC 120 at [78].

17 [2020] FWC 120 at [130].

18 The Respondent refers to the decision in Jalea v Sunstate Airlines(Queensland) Pty Ltd t/a Qantas Link[2012] FWA 1360.

19 [2012] FWA 7204 at [161].

20 [2012] FWA 7204 at [161].

21 [2018] FWC 2398.

22 Browne v Coles Group Supply Chain Pty Ltd[2014] FWC 3670; B, C and D v Australian Postal Corporation T/A

Australia Post [2013] FWCFB 6191.

23 Transcript at PN126.

24 Transcript at PN700.

25 Transcript at PN699; PN682.

26 The Respondent refers to the decision in Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport (2000) 98 IR 137.

27 The Respondent refers to the decision in RMIT v Asher (2010) 194 IR 1, citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1.

28 Witness statement of Mr Grinblat, annexure ‘AG-01’.

29 Witness statement of Mr Grinblat, annexure ‘AG-02’.

30 Witness statement of Mr Grinblat, annexure ‘AG-03’.

31 Witness statement of Mr Grinblat, annexure ‘AG-04’.

32 Witness statement of Mr Grinblat, annexure ‘AG-08’.

33 Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic[2010] FWA 2078.

34 Ibid.

35 McKinnon v Reserve Hotels Pty Ltd T/A The Crest Hotel Sylvania[2014] FWC 5053.

36 Transcript at PN613.

37 [1989] IRLR 115.

38 Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Minato v Palmer Corporation Ltd [1995] IRCA 315 (30 June 1995), [(1995) 63 IR 357 at pp. 361‒362]; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ)

39 in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

40 Sexton v Pacific National (ACT) Pty Ltd PR931440 at [36].

41 (AIRCFB, Munro J, Duncan DP, Jones C, 24 December 1998) at [35].

42 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [31].

43 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [69].

44 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at 373.

45 Ibid.

46 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.

47 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

48 Ibid.

49 Wadey v YMCA Canberra [1996] IRCA 568.

50 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, at 7.

51 Pitts v AGC Industries [2013] FWCFB 9196, at [54] referring also to Gibson v Bosmac Pty Ltd (1995) 60 IR 1; cited and adopted in RMIT v Asher (2010) 194 IR 1.

Mr Andrew William Grinblat v Australian Portable Camps Services Pty Ltd

[2021] FWC 2824

17 MAY 2021

DECISION