Mr Billy Muhinyuza v Teys Australia Beenleigh Pty Ltd

[2020] FWC 2996

[2020] FWC 2996

FAIR WORK COMMISSION

DECISION

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

Mr Billy Muhinyuza
v
Teys Australia Beenleigh Pty Ltd
(U2019/12501)

DEPUTY PRESIDENT ASBURY BRISBANE, 27 JULY 2020

Application for an unfair dismissal remedy – Section 386 - Jurisdictional objection – Whether Applicant dismissed - Applicant complained of conduct that amounted to bullying by his supervisor and racial vilification by a co-worker – Applicant alleged failure of Respondent to deal with complaints forced his resignation – Finding that failure of Respondent’s managers to deal with Applicant’s complaint was conduct by omission that had probable result that Applicant would resign employment – Jurisdictional objection dismissed – Applicant to proceed to hearing on merits.

[1] This Decision concerns an application by Mr Billy Muhinyuza (the Applicant) under s.394 of the Fair Work Act 2009 seeking an unfair dismissal remedy in respect of his alleged dismissal by Teys Australia Beenleigh Pty Ltd (Teys/the Respondent). The Applicant resigned from his employment on 23 September 2019 and filed his Form F2 – Application for unfair dismissal remedy on 11 November 2019, some 49 days after his employment ended.

[2] The Respondent objected to the application on the basis it was filed out of time and that the Applicant resigned his employment and was not dismissed at the initiative of the Respondent. A conciliation conference was listed but did not proceed as the Respondent sought that the two jurisdictional objections raised be determined prior to participating in conciliation. The matter was allocated to me and I held a Directions hearing on 13 January 2020 and issued directions for filing of material in relation to the extension of time issue. The matter was listed for hearing on 24 January 2020, in relation to that matter.

[3] In an ex tempore decision made following a hearing on 24 January 2020, I granted the Applicant a further period of time in which to make his application, on the basis that I was satisfied that there were exceptional circumstances, which included the Applicant’s mental health at the relevant time. In particular, the Applicant provided evidence from mental health practitioners that he was the subject of a suicide prevention referral and was being treated for significant mental health issues, arising from incidents which lead to the cessation of his employment, which prevented him from making his application within the required time. I also issued Directions requiring the parties to file and serve material in relation to whether the Applicant’s employment ended at the initiative of the employer.

[4] Essentially, the Applicant asserts that he experienced bullying, harassment and discrimination throughout his employment, and that he raised these complaints with the Respondent and the Respondent did not take any action to protect him from that behaviour. The Applicant asserts that the inaction from the Respondent caused him to no longer feel safe at his workplace and severely affected his mental health, so that he had no other option but to resign his employment.

[5] The Respondent’s position is that the Applicant did not complain about bullying, harassment or discrimination to his Supervisor or the site HR team and that if he did complain, then he did not properly escalate those complaints in accordance with the complaints procedure in the Teys Beenleigh Production Employees Agreement. The Respondent contends that had the Applicant done so, his complaints would have been fully and thoroughly investigated, in the same way that other, unrelated complaints made by the Applicant had been investigated. The Respondent also contends that the Applicant had viable options other than resignation open to him, and while he may not have been aware of these or in a position to access them, the Respondent did not force him to submit his resignation.

[6] The matter was dealt with by way of hearing on the basis that there were disputed facts and I considered that a hearing was the most appropriate way to deal with the matter. Following the hearing both parties filed closing submissions, and a further hearing was held to enable the parties to speak to their submissions and to respond to the submissions of the other party.

[7] The Applicant was represented by Mr Cahill of Counsel who acted pro bono and instructed by Ms Y Ildes of World Wellness Group. The Respondent was represented by Mr D Bates of Workforce Engagement Solutions instructed by Ms S Taylor of Teys. Permission previously granted for legal representation was continued on the basis that I was satisfied that the matter raised issues of complexity, both parties sought representation so that no issues of fairness arose and representation would allow the matter to be dealt with more efficiently, particularly from the perspective of the Applicant whose first language is not English. At the hearing the Applicant gave evidence on his own behalf 1. Evidence was also given for the Applicant by:

•  Mr Nicholas Bigirimana – former colleague; 2

•  Ms Jacqueline Bentley – Mental Health Clinician; 3 and

•  Dr Champa Wickramasinghe – General Practitioner. 4

[8] An interpreter was provided by the Commission to assist the Applicant and Mr Bigirimana to give their evidence. Ms Bentley and Dr Wickramasinghe were not required for cross examination. Evidence for the Respondent was given by:

•  Ms Sarah Taylor – Group Manager Talent Acquisition & Workforce Planning; 5

•  Mr Troy Herbst – Boning Room Afternoon Shift Manager; 6 and

•  Ms Courtney Poole – Human Resources Officer. 7

EVIDENCE AND SUBMISSIONS

[9] The background to the matter can be briefly summarised as follows. On 30 July 2017, the Applicant commenced working for the Respondent as a labourer in the Respondent’s Boning Room at its Beenleigh site. The Applicant alleges that he experienced bullying, harassment and discrimination during his employment, resulting in his forced resignation on 23 September 2019. The allegations of bullying and harassment relate to certain incidents largely involving the Applicant’s supervisor, Mr Dax Pillejera, as well as a former colleague of the Applicant, Ms Hang Nguyen. The Applicant contends that over the 12 months prior to his resignation, the treatment escalated to a point where the Applicant was no longer able to cope. It is the Applicant’s evidence that he made complaints to the Respondent’s Human Resource Management staff about his supervisor, but that these complaints were not recorded, and no action was taken to address them.

[10] The Applicant’s evidence about the events which he asserts forced him to resign, can be summarised as follows. The Applicant alleged that Mr Pillejera persistently and unrelentingly bullied him throughout the course of his employment by trying to find fault with everything the Applicant did and constantly harassing him. The Applicant said that Mr Pillejera’s conduct included following him around, including when the Applicant went to the toilet, and timing how long he took away from work. 8 The Applicant alleged that he complained to the HR staff at the site and saw those staff taking notes, and said that he cannot understand why there is no record of his complaints.

[11] The first incident concerning Mr Pillejera involved Mr Pillejera screaming at the Applicant in the presence of other workers when the Applicant challenged Mr Pillejera singling him out in relation to working an extra 15 minutes. The Applicant said that other workers came to the area he was working when they heard Mr Pillejera screaming, and Mr Pillejera told them they would all have to work an additional 15 minutes and said, pointing at the Applicant, “its because of this guy”.

[12] A second incident referred to by the Applicant in his evidence was said to have occurred in November 2018. The Applicant said that the incident involved a leading hand tyring to physically manhandle him. The Applicant said the leading hand wanted him to move to another machine with no reason, and he resisted. The line of boxes stopped and a manager, came in. The Applicant was spoken to and sent home. The next day the Applicant went to the HR Office before starting work and was told that he was being given a warning. The Applicant signed a formal warning letter that he was provided with but thought that it was unfair. The Applicant said that he was told that he needed to sign the letter if he wanted to keep his job.

[13] A third incident referred to by the Applicant occurred on or around 30 August 2019 when he was working with Mr Bigirimana. The Applicant said that Mr Pillejera accused them of not doing their job properly and working too slowly. The Applicant objected to this and on the next day, prior to his afternoon shift, went to the HR office with Mr Bigirimana, to make a complaint about Mr Pillejera. The Applicant states that he informed the Respondent’s on-site HR Manager, Ms Poole, that they were there to make a formal complaint against Mr Pillejera, but they were left waiting for half an hour until they were told to commence work as their shift was beginning. The Applicant said Ms Poole told him she would get in contact with the Applicant later to get details of what had occurred, but that this never happened.

[14] Mr Bigirimana gave evidence about the third incident and said in his statement that on or around 30 August 2019, he was working with the Applicant, and Mr Pillejera came in and started harassing them, saying that they were not working hard enough. Mr Bigirimana said that the next day, he accompanied the Applicant to the HR Office to make a complaint about Mr Pillejera. After waiting in the HR Office for 30 minutes, they were told to go and start work and that they would be contacted by HR later in the day, to make their complaint.

[15] In his oral evidence at the hearing, Mr Bigirimana said that he accompanied the Applicant to the HR Office where they waited 10 – 15 minutes. 9 Mr Bigirimana said that he had to wait with the Applicant because there was a line of other staff outside the HR office. Mr Bigirimana said that they were then told that the HR person they should meet was busy and that they should go back to work and would be called after 30 minutes. Mr Bigirimana never received that call.

[16] Mr Bigirimana also said that Mr Pillejera took Mr Bigirimana and the Applicant to Mr Herbst’s office and that Mr Herbst told them that they did not know how to work. Mr Bigirimana agreed under cross-examination that the complaint he wished to make was that he felt he was unfairly chastised by because he had finished his job on time and was assisting the Applicant to finish his work. 10 Mr Bigirimana denied that he saw the HR Officer walking through the plant later in his shift. In response to the proposition that he had not raised his complaint with anyone else after he left the HR Office, Mr Bigirimana maintained that the HR Office was the last level at which a complaint could be raised and said:

“THE WITNESS: You don't want to listen to hear what I'm saying. I went to the manager and the manager did not want to receive us. I went to the HR and the HR turned us back, telling us that they are going to call us, so whom should I complain again to? The manager did not receive us, the HR did not receive us. Where again should I go to complain? The next day I continue to work, did properly the job, so I think you should ask me what happened next rather than asking the question I have already answered.” 11

[17] In response to a question from me about whether Mr Bigirimana attempted to make the complaint again after going to the HR Office, Mr Bigirimana said that that was the last level someone could attend to raise a complaint. 12 Mr Bigirimana disagreed with a proposition from the Respondent’s representative that if he was not satisfied with HR’s response to a complaint, that there was a complaints procedure under the enterprise agreement that allowed someone to escalate a complaint, and reiterated his understanding that raising a complaint with HR was the limit of making a complaint.13

[18] Mr Herbst was cross-examined about this incident and said that he could recall Mr Pillejera bringing the Applicant and Mr Bigirimana to his office, but could not remember the reason for this. Mr Herbst also said that he did not recall telling the Applicant and Mr Bigirimana that they were not good workers. In response to a question from me, Mr Herbst agreed that a supervisor would generally not bring two employees to his office unless the supervisor had an issue with those employees.

A fourth incident referred to by the Applicant was said to have occurred on 9 September 2019. The Applicant alleges that on that date, Ms Nguyen racially abused him in front of Mr Pillejera and that Ms Nguyen and Mr Pillejera laughed together about what Ms Nguyen said. The Applicant said that Ms Nguyen called out: “you are black” and “I don’t want you working here.” The Applicant also said that he told Ms Nguyen that what she said was not good and she swore at him. After this occurred, the Applicant went to see Mr Herbst immediately. Mr Herbst was not available and called the Applicant later during the shift at which time the Applicant went to Mr Herbst’s office to discuss the incident. Also present was Mr Chris Fenner, the Plant Manager. The Applicant said he told Mr Herbst and Mr Fenner what had happened and Mr Herbst and Mr Fenner said it was unacceptable and that they would sort it out the following day. 14 The Applicant said he was so upset that he was crying.

[19] On 11 September 2019 the Applicant went to the HR Office prior to his shift and had a further discussion with Mr Herbst, Ms Poole and Mr Fenner. The Applicant said that he told them all the events that had occurred with Mr Pillejera, although he had previously reported these, including how Mr Pillejera timed the Applicant when he went to the toilet. The Applicant said that he also provided information about another worker, Senghor, who told him that Mr Pillejera had also spoken to him in a racist way and that he had complained to Mr Pillejera. Senghor later told the Applicant that HR had asked him about this incident and he had verified it.

[20] The Applicant said that later on 11 September 2019, he received a visit at his work station from Ms Poole and Mr Herbst. During this discussion, the Applicant said he was told that Ms Nguyen’s behaviour would not happen again, and that Ms Nguyen had been warned. The Applicant said that Mr Herbst and Ms Poole asked him what he thought about Ms Nguyen being given a warning and he found it difficult to respond. The Applicant said that he was not convinced that the matter had adequately been dealt with on the basis that it was conveyed to him in a casual manner and in passing. The Applicant said he also held concerns that he was to continue to work in the same area as Ms Nguyen and Mr Pillejera, and that Mr Pillejera remained as his supervisor. 15

[21] The Applicant said that when he was back working in the boxing area on 13 September 2019, Mr Pillejera asked to talk to the Applicant and told him that he had not heard what Ms Nguyen said to him. The Applicant did not believe Mr Pillejera because they were together and laughing after Ms Nguyen abused him.

[22] Mr Herbst stated in his evidence that the Applicant was a good employee with a number of skills to enable him to cover multiple jobs. The Applicant received a first warning for his part in an altercation with another employee in the carton room. This is the second incident described by the Applicant. The other employee involved in the incident was suspended. Under cross-examination, Mr Herbst agreed that there were notes taken of the interviews in relation to this incident but that he had not referred to those notes or the warning letter given to the Applicant when he made his statement to the Commission. In response to a question about the management plan for the Applicant and the other employee moving forward, Mr Herbst said that when the other employee returned from his suspension, he was removed from the carton room and put into a different area in the boning room so that he would not be working with the Applicant.

[23] Mr Herbst also recalls two occasions when the Applicant came to see him about team members in the carton room not rotating on jobs. On both occasions Mr Herbst addressed employees in the carton room (including the Applicant) and told them they would have to rotate on jobs. Mr Herbst said that the issues were resolved and at no time did the Applicant raise an issue or complaint to Mr Herbst or to Mr Pillejera about bullying, unfair treatment or discrimination, until 9 September 2019.

[24] Under cross-examination, Mr Herbst said that he resolved the matter “in-house” without formal discussions by telling the team that they needed to rotate between jobs. In response to questions about whether Teys has mechanisms in place to assist persons whose first language is not English in relation to such matters, Mr Herbst said that the Company uses employees to translate for other employees. Mr Herbst maintained that the Applicant had never raised an issue with him about Mr Pillejera including allegations that Mr Pillejera was monitoring him while he went to the toilet. Mr Herbst also denied that he had told the Applicant he went to the toilet too often or that the Applicant had complained about Mr Pillejera bullying him in front of other employees.

[25] Mr Herbst disagreed with the proposition put to him in cross-examination, that there was some kind of “bubbling dispute” going on in the boning room, and said that he did not take it as being overly serious and had talked to the employees about rotating the tasks. Mr Herbst could not recall the timing of the issues about boning room employees not rotating tasks being raised by the Applicant and the altercation with the other employee which resulted in the Applicant being given a warning. Further, Mr Herbst said that he could not recall the Applicant complaining to him about Mr Pillejera making him stay back and telling other employees in the boning room that they all had to stay back because of the Applicant.

[26] Mr Herbst said that on 9 September the Applicant approached him and complained about Ms Nguyen stating that she made comments about his race. Mr Herbst said he met with the Applicant the following day on 10 September 2019 with Ms Poole. Mr Herbst said that the Applicant was visibly upset and advised that he would need to take some time off work. The Applicant also said that the comments made him “feel bad.” After the Applicant provided his version, he was moved to the carton room upstairs which was not close to the frozen TMS room. The following day, Mr Herbst and Ms Poole told the Applicant that the investigation had concluded and that the appropriate action had been taken. Mr Herbst also said that the Applicant was told that if he had any further issues had should report them to Mr Herbst or Ms Poole. According to Mr Herbst, the Applicant nodded and said “ok” and did not raise any further issues or complaints on 11 September 2019.

[27] Under cross-examination, Mr Herbst said that Ms Nguyen had worked for the Company for 5 years and was classified as a tutor, which is a role involving assisting to train new starters in the frozen packing area. Mr Herbst agreed that Ms Nguyen worked under the supervision of Mr Pillejera. Mr Herbst also said that Ms Poole conducted the interviews with Ms Nguyen and Mr Pillejera about the incident and he was not present for those interviews. Mr Herbst agreed that the Applicant was very upset when he reported the matter and that he had every right to be upset. Mr Herbst also agreed that the conduct of Ms Nguyen was a breach of the Respectful Workplace Policy. Mr Herbst did not disagree with the proposition that the Applicant had a day off on 12 September 2019 because he was so upset about the incident with Ms Nguyen. Mr Herbst said that he was present during the interview Ms Poole conducted with the Applicant about this incident and did not recall the Applicant complaining about the conduct of Mr Pillejera. Mr Herbst also said that when the Applicant reported the complaint to him on 9 September, he did not state that Mr Pillejera was present when Ms Nguyen made the comment.

[28] Mr Herbst was also asked in cross-examination about what plan the Company intended to put in place to deal with the situation when the Applicant returned to work on 13 September and said that when the Applicant made the complaint on 9 September 2019, he was transferred to the carton room, away from where Ms Nguyen was working and that the plan was to inform the Applicant that this would occur. Mr Herbst agreed that on occasion Ms Nguyen may have been required to go to the carton room but said that the carton room was in Mr Pillejera’s area.

[29] Mr Herbst said that Ms Nguyen was given a final warning and told not to go near the Applicant, but was not aware of whether she was required to apologise to the Applicant. In response to the proposition that the outcome of the Applicant’s complaint was discussed with him while he was at a machine, indicating that it had not been taken seriously, Mr Herbst said that the Applicant was “removed from his task within his area” and spoken to by Mr Herbst and Ms Poole.

[30] Mr Herbst agreed that the Applicant’s unfair dismissal application made a number of allegations about the conduct of Mr Pillejera. Mr Herbst accepted that he had not interviewed Mr Pillejera about those allegations but said that: “I let HR deal with the matter without my presence.” 16 Mr Herbst was also cross-examined about the Applicant’s request to take leave on 13 September 2019 and his statement that the Applicant said that he had a few things going on. Mr Herbst agreed that it was possible that the Applicant was referring to the fact that he had been subjected to racial vilification by a co-worker when he made this comment. Mr Herbst said that he had not considered referring the Applicant to a counselling service or a GP to assist him.

[31] Mr Herbst agreed that he was concerned on 23 September when he heard that the Applicant was on the site and wanted to resign. Mr Herbst said that he did not consider whether to offer the Applicant more leave or counselling services or to give him some time to consider his position before accepting the resignation. Mr Herbst said that Ms Poole had made a note of the meeting but he was not aware of Ms Poole filling out the resignation form for the Applicant. Mr Herbst agreed that the Applicant cannot write English.

[32] Ms Poole’s evidence was that when the Applicant and Mr Bigirimana attended the HR office on 30 August 2019, they did not indicate that they wanted to complain about Mr Pillejera and instead, told her that they wanted to discuss what they needed to do to move from one classification level to the next.  17 Ms Poole states that there were a number of employees waiting to see her to complete return to work interviews which needed to be completed as those employees could not start their shifts until the interviews had been conducted. Ms Poole said that she told the Applicant and Mr Bigirimana that they would have to wait their turn.

[33] Ms Poole said that either the Applicant or Mr Bigirimana told her they could not wait any longer as they had to start their shifts and she advised them that if they still wished to speak to her they could catch her during her usual “walk around” the plant during the shift that day, as it was her usual practice to walk around the plant so that any employees who wanted to speak to HR could do so during their shift without needing to go to the HR office. 18 Ms Poole said that she saw Mr Bigirimana later that day and made eye contact with him. Mr Bigirimana did not indicate that he wanted to speak to her and had not approached her again. Ms Poole also said that the next time she spoke to the Applicant, was when he complained to her about Ms Nguyen. Further, Ms Poole said that neither the Applicant nor Mr Bigirimana made any mention of issues or complaints in relation to Mr Pillejera either when they came to see her in the HR Office in late August or at any other time.

[34] Ms Poole maintained under cross-examination that neither the Applicant or Mr Bigirimana advised her that they had come to see her to make a complaint. 19 Ms Poole was also asked under cross examination why she did not approach either the Applicant or Mr Bigirimana on her walk around later that day. Ms Poole said she saw Mr Bigirimana on her rounds and made contact with him, but Mr Bigirimana did not ask to speak to her.20 Ms Poole was also asked why she did not ask Mr Bigirimana what he had wanted to speak to her about earlier that day, and Ms Poole said that she had already told the Applicant and Mr Bigirimana that if they wanted to speak to her, they should let her know and she would come and see them, and that Mr Bigirimana did not make any actions or anything to say that he needed to.21 Ms Poole accepted that English is not the first language of either the Applicant or Mr Bigirimana and that as a HR officer her role was to communicate with employees.

[35] In relation to the incident on 9 September 2019, Ms Poole also said that on 10 September 2019 the Applicant attended the HR Office and made a complaint about comments made by Ms Nguyen on 9 September. Ms Poole said that the Applicant alleged that the comments were made in the presence of Mr Pillejera. The Applicant said that he was going to raise the matter with Mr Pillejera but did not do so because Mr Pillejera would not understand. Ms Poole said that the Applicant’s complaint was investigated and on 11 September Ms Poole and Mr Herbst met with the Applicant in the carton room to communicate the outcome. Ms Poole also said that the Applicant was told by Mr Herbst that if he had any further issues of concern, he should raise them immediately.

[36] Ms Poole said in cross-examination that she took notes of her discussions with the Applicant and other relevant persons, in relation to the Applicant’s allegations about the 9 September incident. The notes were called for and produced by Ms Poole during cross-examination and marked as Exhibit A3. The notes indicate that the Applicant made a number of references to Mr Pillejera during his interview with Ms Poole including that the Applicant had complained about Ms Nguyen to Mr Pillejera but they are close and Mr Pillejera will not report Ms Nguyen. The notes also record that the Applicant raised the issue of being made to work an additional 15 minutes by Mr Pillejera and that Mr Pillijera told all of his co-workers that they would have to work 15 minutes longer because of the Applicant. Ms Poole agreed that she had not noted in her statement that the Applicant had raised this issue on 10 September and said that she had not included this reference because it was a historical complaint that preceded her working in the Department.

[37] Ms Poole’s notes of the 10 September discussion with the Applicant also indicate that the Applicant told her that Mr Pillejera was timing him when he went to the toilet and that he did not do this to other employees. There are also notes of a discussion with Senghor who informed Ms Poole that Ms Nguyen had said that he smelled bad and she did not like African people and did not like Senghor working there. Senghor is recorded as stating that it happened more and that he had been told to report it to Mr Herbst or HR. The notes also record that Senghor claimed to have reported Ms Nguyen’s comments to Mr Pillejera, who told them to forgive each other. Ms Poole’s notes of her discussion with Mr Pillejera are headed “Senghor & Billy issues” and indicate that the issue between Senghor and Ms Nguyen had been fixed and the issue was about the smell of Senghor and that he smelled “African” and that Senghor thought that Ms Nguyen did not like Africans. In relation to the Applicant the notes record that Mr Pillejera stated that the Applicant had tried to speak to him last night, but he said he would talk to the Applicant later because he was busy. Mr Pillejera is recorded as having stated that he is not aware of any issues.

[38] The notes of Ms Poole’s discussion with Ms Nguyen indicate that she stated that she did not know what was wrong with the Applicant or why he is upset. It is also recorded that Ms Nguyen stated that Senghor is a lazy man and that she had never said she does not like black people. The notes further record that she told “Michael” he smells like Africa. The notes conclude with the words: “Careful around others”.

[39] It was put to Ms Poole in cross-examination that her notes indicated that the Applicant had raised a number of issues in discussions with Ms Poole that were also raised in his unfair dismissal application. Ms Poole said that Mr Pillejera had been “verbally spoken to” about the allegations but no notes were taken of the discussion. Ms Poole could not explain why notes of the discussion with Mr Pillejera were not taken. Ms Poole also said that she spoke to Mr Pillejera about the matters raised in the Applicant’s material in the unfair dismissal matter and Ms Taylor was also present. Ms Poole said that she could not recall if Ms Taylor took notes of the discussion with Mr Pillejera.

[40] Ms Poole also said that Ms Nguyen was given a verbal warning which was recorded. The record of the verbal warning, which was also called for and tendered by the Applicant’s representative, states:

“discussed with Huang the outcome of the allegations of racial comments towards Billy. Formally warned. States she apologised. Didn’t mean how it sounded and understands and explained that she needs to be aware of what she is saying.” 22

[41] In response to the proposition that Ms Nguyen had not apologised to the Applicant, Ms Poole said that she had apologised and that outcome had been passed on to the Applicant. Ms Poole was asked what the plan going forward was when the Applicant returned to work on 13 September. In response, Ms Poole said that they had closed out the investigation and the Applicant had been told that he would be working upstairs in the carton room and Ms Nguyen would be working downstairs in the boning room. Ms Poole agreed that Mr Pillejera would still have been the Applicant’s supervisor notwithstanding that the Applicant alleged that he protected Ms Nguyen. In response to the proposition that the meeting with the Applicant on 11 September did not take place in a meeting room, Ms Poole said that they pulled the Applicant aside in the carton room and spoke to him and took him through the investigation process. Ms Poole said that it was a private conversation, the Applicant was not on a machine and there were no other employees around. Ms Poole said that the Applicant was told that there had been a formal verbal warning given to Ms Nguyen and that he should follow the complaints procedure and report any further concerns.

[42] The Applicant was absent from work on 12 September 2019, giving as a reason for his absence “medical”. On 13 September 2019, the Applicant attended the HR Office before the start of his rostered shift. The Applicant said that he requested two weeks of sick leave because he was feeling so ill. The Applicant also said that the reason he needed time off was because he felt low and helpless about being able to change his work situation. The Applicant said that he was told that he could only have one week off and that he would need to take annual leave.

[43] Ms Poole said that on 13 September, the Applicant requested two weeks of leave with one week as paid annual leave and the other week as unpaid leave. Ms Poole said that the reasons given by the Applicant for requesting the leave were to “rest and look after my health.” Ms Poole contacted Mr Herbst and asked him to come to the office to discuss the leave request. When Mr Herbst arrived, the Applicant repeated that he “didn’t feel right” and “just needed a rest”. Ms Poole said that the Applicant was asked whether his request for leave had anything to do with the issue on 10 September and the Applicant responded by stating that: “There’s a lot happening at the moment, a lot going through my head. I just need a rest.” Ms Poole said that both she and Mr Herbst reiterated all the steps they had taken to resolve his recent complaint and reminded him to bring other concerns to the attention of Mr Herbst.

[44] In cross-examination, Ms Poole was also asked whether she was concerned when the Applicant took a sick day on 12 September in light of the fact that he had reported a serious issue involving racial abuse and this was an unusual circumstance in the Teys workplace. Ms Poole also agreed that the Applicant had asked for a further period of leave, but maintained that he had said he did not feel right and needed a rest. In response to the proposition that she should have been concerned about this, Ms Poole said that she asked the Applicant whether the further period of leave was related to recent events and he just requested leave.

[45] Ms Poole agreed that the Applicant was not offered counselling or other medical or psychological support. Ms Poole also accepted that the Applicant’s work environment was not changed insofar as Mr Pillejera was still his supervisor.

[46] Mr Herbst gave his evidence before Ms Poole and before her notes of the meeting with the Applicant on 10 September were called for and tendered. As a result, the conflict between the notes of that meeting taken by Ms Poole and Mr Herbst’s evidence were not explored in cross-examination. Mr Herbst confirmed Ms Poole’s evidence about the meeting on 13 September 2019. Mr Herbst also stated (contrary to Ms Poole’s notes of the meeting) that the Applicant did not mention his supervisor at all during this meeting. Mr Herbst approved a one week period of annual leave for the Applicant, because other employees were already approved to take leave at this time. Mr Herbst and Ms Poole said that generally two weeks notice of taking leave is required to be given by employees. Mr Herbst said that although it is not usual practice to approve leave on such short notice, the Company tries to support employees and for this reason the leave was approved for the Applicant.

[47] The Applicant said that during the period of leave, he spent the time at home, mostly in bed, but was unable to sleep properly. The Applicant also went for the first time to see Doctor Champa Wickramasinghe on 19 September 2019 and told her about his work situation and how desperate he was feeling. Doctor Wickramasinghe prescribed an anti-depressant. The Applicant said that it did not work, and that he was still feeling exhausted and helpless at the end of the week.

[48] On 23 September the Applicant returned to work. He states that he went straight to HR and spoke to Ms Poole and Mr Herbst, stating that he could not work there. The Applicant said to Mr Herbst and Ms Poole, “look at me”, meaning that they could see that he was ill. The Applicant also said that Mr Herbst told him that he was a good worker and Ms Poole asked whether the reason he was ill was because of his treatment by Mr Pillejera and Ms Nguyen. The Applicant said that he told Mr Herbst and Ms Poole that this was the reason he was ill and that neither of them said anything more and did not offer the Applicant an alternative to resignation. In this regard, the Applicant said that he could have worked under another supervisor in other areas of the boning room. Mr Herbst and Ms Poole did not state that HR would take positive steps to improve his situation.

[49] The Applicant was asked to complete an exit interview and said that he wrote “health issues” as the reason he was leaving. The Applicant said that he was very stressed and told Ms Poole that he could not cope with answering the questions and was not capable of filling out the form. The Applicant also said that he felt so stressed he could barely speak, and that Ms Poole asked him questions and filled out the form. There were some questions the Applicant could not answer as it was too distressing, and he may have answered “yes” to a question when he did not mean to answer in this way. The Applicant said that he wanted the whole interview to end and was exhausted. The Applicant also said that he did not mention bullying or harassment on the form as there seemed to be no point and that when he is in a bad way, and gets angry or distressed, he cannot talk. Further, the Applicant said that he was scared, because after a previous incident which resulted in him having to sign a formal warning letter, he was walked off the premises by Mr Herbst and this made him fearful.

[50] Mr Herbst’s evidence was that he was called to the HR Office on 23 September 2019 by Ms Poole, and the Applicant was waiting in one of the meeting rooms. Mr Herbst said that the Applicant stated that he was not feeling well and wanted to resign his employment. Mr Herbst asked the Applicant whether he was sure and said that it would be a shame to see the Applicant go. Mr Herbst said that he asked the Applicant whether there was anything the Company could do to encourage him to stay. According to Mr Herbst, the Applicant shook his head and did not respond to the question. Mr Herbst said that the Applicant looked fine and did not engage in much communication with Mr Herbst.

[51] Ms Poole then handed the Applicant a resignation form to complete. The Applicant also agreed to participate in a voluntary exit interview and answered questions opposed to him by Ms Poole. Mr Herbst said that he had no concerns about the Applicant’s conduct or performance and was disappointed by his unexpected resignation.

[52] Ms Poole’s evidence about the events of 23 September 2019 was that the Applicant informed her that he was resigning and in response to questions from Ms Poole said that he was sure about this. In response to a question from Ms Poole about whether his resignation was work related, the Applicant said: “I have a lot happening in my head that I need to sort out” and that he “had a lot going on.” Ms Poole also said that the Applicant appeared comfortable when completing the exit interview and that he was told it was optional. In response to a question as to whether there was anything that could have been done to make the Applicant stay in the business, he said “No.” Shortly after the exit interview was completed, the Applicant emptied his locker and left the site.

[53] Under cross-examination Ms Poole agreed that she did not take notes of the discussion with the Applicant on 23 September when he resigned. Ms Poole was shown the exit interview questionnaire which she filled out for the Applicant and agreed that he had stated that he was leaving the Company due to health issues and because he was feeling depressed. Ms Poole agreed that this was concerning but said that the Applicant also told her and Mr Herbst that his issues were not work related. Ms Poole also maintained that the Applicant did not appear to be upset or distressed and that he had other options other than resignation. In response to a question about what other options the Applicant had, Ms Poole said that he was asked if there was anything that could be done for the Applicant to remain employed, and he said no. Ms Poole did not agree with the proposition that she had offered the Applicant nothing. Ms Poole did not agree with the further proposition that after 10 days leave the Applicant was going to be working with the supervisor he had complained about and a woman who had made racial slurs against him and that he had no choice but to resign.

[54] Ms Poole agreed that Mr Pillejera is still employed by the Respondent. Ms Poole maintained that prior to the Applicant filing his unfair dismissal application, she was not aware of him making any complaints about Mr Pillejera. Ms Poole also said that there had been no investigation into the Applicant’s allegations about Mr Pillejera’s conduct or any attempt to get a statement from Mr Pillejera regarding the allegations. In response to questions from me, Ms Poole agreed that on the basis of the notes of the meeting with the Applicant on 10 September, her statement that the Applicant had not made any complaints about Mr Pillejera, either when he came to HR or any other time, was incorrect. Ms Poole also agreed that in his interview on 10 September, the Applicant said a lot more than simply complaining about Ms Nguyen, and had raised serious issues about being timed while going to the toilet, including an incident on 9 September when Mr Pillejera commented on the Applicant wanting to go to the toilet. Ms Poole also agreed that she did not raise these allegations in the meeting she conducted with Mr Pillejera about the incident.

[55] Ms Taylor’s evidence was that, with the exception of the complaint made by the Applicant in September 2019, there have been no formal complaints or allegations about racial discrimination at the Beenleigh Plant in the past 12 months. All employees who commence employment with Teys Australian are required to participate in a comprehensive induction program, which includes information about the Company’s policies. One such policy in force when the Applicant commenced his employment is the Respectful Workplace Policy (sometimes referred to as the Discrimination and Harassment Policy) which prohibits all forms of bullying, harassment and discrimination and explains how employees can make complaints about those behaviours. The Applicant undertook the induction when he was employed by the Company’s labour hire provider RWM and was re-inducted in May 2018, when he became directly employed by Teys. During this re-induction, the Applicant was issued with copies of all policies and the Teys Beenleigh Production Employees Enterprise Agreement, which contains a complaints procedure at clause 35. Ms Taylor also said that to highlight the importance of this procedure, a copy of this clause of the Agreement is cut and pasted into the letters of offer to prospective employees.

[56] Ms Taylor tendered the Respectful Workplace Policy and an acknowledgement signed by the Applicant on 31 July 2017 indicating that he had participated in, and understood, training in relation to an induction booklet including the Discrimination and Harassment policy and had received an electronic copy of the induction booklet. Ms Taylor also tendered a copy of the Applicant’s employment offer, signed by him on 14 May 2018 which includes the following Complaints Procedure:

“COMPLAINTS PROCEDURE

We do our best to make sure you will always love working at Teys, but no workplace is perfect and so, if you ever have a complaint about anything to do with this agreement or the NES, this is the procedure to use.

•  In the first instance, please talk to your immediate Supervisor.

•  If this doesn't resolve your complaint, please talk to the Plant Manager or HR Manager.

•  If this doesn't resolve your complaint, please talk to the General Manager.

•  If this doesn't resolve your complaint, please contact Corporate Services.

•  If this doesn't resolve your complaint, you can ask the Fair Work Commission (FWC) to help you, by conciliation, resolve your dispute.

Please note that at any stage in this process, you can request to be assisted by us. At any of the meetings, you can choose to have a personal support person or a representative from the workplace with you.

A copy of the Agreement can be obtained on the Fair Work Webiste at or alternatively a copy can be requested at HR.”

[57] Ms Taylor also tendered updated versions of the Respectful Workplace Policy and a Complaints Resolution Policy which were updated in mid-2019. Ms Taylor said that the Applicant received a copy of the updated policies on 24 June 2019. According to Ms Taylor, the only record of a formal complaint from the Applicant of any kind, including complaints relating to bullying, harassment and unfair treatment or discrimination, pursuant to the policies or the Agreement is a complaint on 10 September in relation to the use of a racist term by a Vietnamese employee.

[58] Ms Taylor said that the Company’s records indicate that the “alleged perpetrator” was appropriately disciplined on 11 September 2019, and later on that day, Mr Herbst and Ms Poole met with the Applicant to reassure him that the matter had been addressed and to inform him that he should inform them immediately if he had further concerns. Ms Taylor confirmed that the Applicant had resigned on 23 September 2019 and that she had reviewed his Resignation Form. Ms Taylor said that the Applicant had received one warning during the course of his employment, and that if he had not resigned there was no foreseeable reason why his employment would not have continued.

[59] Ms Taylor also referred to an Employee Assistance Programme which Teys provides employees with access to and said that in addition to this program, Teys supports employees including by providing access to discretionary unpaid leave and access to paid annual leave. Ms Taylor said that there is no record of the Applicant attempting to access any of these forms of leave as an alternative to his resignation. This is despite the Applicant having just returned from a week of annual leave which had been requested by him and approved by the Company, with no advance notice, on 13 September 2019. Ms Taylor maintained that no steps were taken by Teys to terminate the Applicant’s employment and no conduct was engaged in which forced the Applicant’s resignation.

[60] Under cross-examination, Ms Taylor agreed that there may be notes of discussions or meetings about the incident which resulted in the Applicant being given a warning and in relation to his complaint on 10 September. Ms Taylor said that if there were such notes they would be kept at the site level and she did not have access to them and had not investigated whether such notes existed before making her statement to the Commission.

[61] The Applicant was extensively cross-examined about the Respondent’s complaints procedure and his understanding of his options for escalating issues which he believed had not been resolved. The Applicant agreed that when he was inducted as an employee of RWM, the program included a discussion about workplace policies and procedures which applied at the Teys Plant and that he was reissued with documents setting out policies and procedures when he was offered employment by Teys directly. The Applicant further agreed that the policies were revised and reissued in 2019 and that he was provided with the revised versions.

[62] In relation to the complaints policy, the Applicant agreed that he knew if a complaint was not resolved to his satisfaction he could escalate the complaint to someone else. In response to the proposition that he could have escalated his complaint to the General Manager Mr Lachlan Teys, the Applicant said that he did not know Mr Lachlan Teys, and believed he could escalate matters to the Plant Manager. The Applicant said he understood that the policy operated so that he could raise issues with his supervisor, the manager and the plant manager. In response to the proposition that he could have escalated his complaints to the Corporate Services Team, the Applicant said: “No, I don’t know them.”

[63] The Applicant agreed that other than making an unfair dismissal application, he had not made a complaint about bullying or harassment to the Fair Work Commission. The Applicant also agreed that he was never asked to put complaints in writing because the Teys complaint procedure does not require that a complaint be made in writing. In response to the proposition that he had brought complaints about Mr Pillejera to Ms Poole’s attention on 10 September, 2019, the Applicant said that he had gone many times to Ms Poole’s office prior to that and complained about Mr Pillejera – perhaps four or five times and had twice complained to Ms Poole about harassment. Later the Applicant said he had spoken to Ms Poole approximately five times. The Applicant agreed that he was not satisfied with Ms Poole’s response to his complaints, and that he did not escalate his complaints to the General Manager Mr Lachlan Teys.

[64] In relation to the incident involving the fifteen minutes of extra work, the Applicant said that he escalated this to the Plant Manager and was not satisfied with his response, but did not escalate the complaint to anyone else. The Applicant agreed that he was not happy with the response of Mr Herbst to his complaints about being monitored by Mr Pillejera and that he did not escalate that matter any further. The Applicant also agreed that he did not make a complaint about his allegation of being forced to sign a warning letter.

[65] In relation to the incident on or around 30 August 2019 when he went to the HR Office with Mr Bigirimana, the Applicant agreed that his evidence was that Ms Poole told him that she would come back to him about the matter at some point. The Applicant was asked whether he approached Ms Poole when she did a walk through the plant that afternoon, and said that this was Ms Poole’s job. The Applicant accepted that there was no record of the complaint because he did not make a complaint on this occasion but rather came to the HR Office to make a complaint. The Applicant also said that there were many other occasions when he did make complaints. Further, the Applicant agreed that he did not make a complaint about an incident documented in his witness statement, where Mr Bigirimana was punched by another employee.

[66] The Applicant agreed that the Company immediately investigated his complaint about Ms Nguyen and that Ms Poole and Mr Herbst came and spoke to him on 11 September and told him that Ms Nguyen had been disciplined. The Applicant was asked whether he made any other complaints to Mr Herbst and Ms Poole at that time, and stated that he told them he was not happy, and that sometimes when he is not happy he cannot talk. The Applicant confirmed that the incidents set out in his witness statement are all of the complaints that he has made about unfair treatment during his employment at Teys.

[67] The Applicant also agreed that he worked for two days after making his complaint about Ms Nguyen – 11 September and 13 September – and that Ms Nguyen had not engaged in any inappropriate behaviour on either of those days. The Applicant further agreed that he was given a period of annual leave on 13 September 2019 and returned from that leave on 23 September and went straight to the HR Office to advise of his resignation. In response to the proposition that Ms Poole had asked whether his resignation had anything to do with work, and that he had responded by saying that he had a lot going on, the Applicant said that he told Ms Poole that he was ill. The Applicant also said that he told Ms Poole that he was absent minded and sick and that he was not able to work at Teys again. The Applicant agreed that he wrote the words “health issues” on the resignation form. In relation to the exit interview form, the Applicant agreed that he had responded “yes” to a question about whether he had the tools, resources and working conditions to be successful in his role. The Applicant maintained that he was not asked the question as to whether there was anything the Company could do for him to remain in the business and denied that he answered “no” to that question.

[68] The Applicant was also asked whether he had ever accessed the Employee Assistance Program advertised at the site and said that the thought that this was a medical clinic on site where employees could go if they had injuries. The Applicant agreed that he did not request any additional annual leave before he resigned on 23 September and did not accept that he could have taken sick leave. In response to the proposition that he could have taken sick leave, the Applicant said: “I decided to resign because I was being harassed at Teys. I was being insulted at Teys.” 23 The Applicant agreed that Mr Herbst stated that he was a good worker. The Applicant disputed that he responded to a question about Mr Herbst by stating that Mr Herbst was good to him and said he did not answer that question on the exit interview. In re-examination, the Applicant said that he was never referred to an employee assistance program and did not know that such a program existed, and that he was not aware of how much accrued sick leave he had.

[69] The Applicant tendered a statement from Dr Champa Wickramasinghe dated 6 February 2020, stating that she first saw the Applicant on 19 September 2019 and he presented as depressed and suffering from stress and anxiety, which he said was directly related to harassment he was suffering at work and which he said was not being addressed by management and HR, despite making complaints. Dr Wickramasinghe further states that when she saw the Applicant on 1 October 2019, it was her medical assessment that his condition had worsened and she made an urgent suicide prevention referral to the Wesley Mission. Dr Wickramasinghe last saw the Applicant in February 2020, and states that it is her observation that the Applicant is depressed, with irrational fears, hopelessness, declined suicidal ideas and sleep disturbances, which were not improved by the medication Diazepam. The Applicant remains on prescription medication for anxiety and depression and appears likely to remain on medication for an indefinite period.

[70] A letter dated 8 November 2019 from Ms Jacqueline Bentley, Accredited Mental Health Social Worker, was also tendered by the Applicant. Ms Bentley saw the Applicant on 4 October 2019 as a result of the suicide prevention referral from Dr Wickramasinghe. Ms Bentley states that at the time of the assessment the Applicant was very depressed and continues to be depressed.

SUBMISSIONS

Respondent

[71] The Respondent submitted that the only question currently before the Commission for determination is whether or not the Applicant’s resignation on 23 September 2019 was “forced… because of conduct, or a course of conduct, engaged in…” by the Respondent, pursuant to section 386(1)(b) of the Act. The Respondent submitted that the only conduct or course of conduct identified and relied upon by the Applicant is the Respondent’s alleged failure to resolve each of the Applicant’s employment related complaints.

[72] The Respondent submitted that at the hearing, under cross examination, the Applicant conceded:

(a) he was aware that bullying, harassment, and discrimination were not acceptable at the Respondent’s plant; 24

(b) he was given copies of the Respondent’s policies when he was offered direct employment by the Respondent in May 2018; 25

(c) he was given three (3) days within which to read and understand those policies; 26

(d) he was issued a document entitled “Offer of Employment” on 14 May 2018; 27

(e) the Offer of Employment included a “cut and pasted” copy of the Complaints Procedure; 28

(f) he had signed the Offer of Employment; 29

(g) the Complaints Procedure had accordingly been brought to his attention by the Respondent; 30

(h) he said he understood the Offer of Employment, and was given a copy of the same; 31

(i) the Complaints Procedure allows employees to escalate complaints if they are not happy with the response they have received, and that he understood this escalation process; 32 and

(j) the proper points of escalation after a complaint has been dealt with by the on-site HR team are the General Manager, then the Respondent’s Corporate Services team, and then the Commission. 33

[73] The Respondent submitted that despite the Applicant confirming he had both understood and been given a copy of the complaints procedure, he subsequently admitted he had never escalated any of his alleged complaints to the General Manager, Mr Lachlan Teys, or to the Corporate Services Team, or to the Commission. The Respondent submitted that escalation of the complaints was the obvious and most straight forward means by which the Applicant could have had the alleged complaints further investigated, particularly where the Applicant knew he was not required to make complaints in writing.

[74] The Respondent submitted that based on the evidence before the Commission, the Applicant had never escalated any of his alleged complaints beyond step two of the five step complaints procedure contained in the Agreement, as noted above. The Respondent submitted that the Applicant had a number of alternative options available to him other than resignation, and whilst the Applicant contended he was not aware of those alternative options, they were nonetheless real and accessible. The Respondent said the Applicant could have accessed the Respondent’s Employee Assistance Programme, requested further annual lave, accessed personal leave for a period of up to three months in any 12 month period, and/or exercised his right to escalate any or all of the alleged complaints in accordance with the Complaints Procedure provided in the Agreement.

[75] The Respondent submitted the Applicant chose not to avail himself of any of these alternatives to resignation, and while it accepted the Applicant was unwell when he resigned and may therefore not have fully understood or appreciated the availability of those alternative options, they were still viable options.

[76] The Respondent further submitted that during re-examination, the Applicant stated no alternatives to resignation were pro-actively put to him by either Ms Poole or Mr Herbst during the course of his resignation on 23 September 2019. 34 It was submitted that the evidence establishes that Ms Poole specifically asked the Applicant whether his decision to resign had anything to do with his employment, and the Applicant provided vague answers which did not disclose a direct link between his resignation and issues arising in the course of his employment. The Respondent said that despite the Applicant’s denial,35 the Applicant was asked by Ms Poole if there was anything that could be done for him to remain employed by the Respondent and his clear and unambiguous response was “no”.

[77] In relation to the evidence before the Commission, the Respondent submitted no evidence had been submitted by the Applicant in support of the allegations prior to the hearing of the matter. The Respondent disputed that the Applicant had made numerous complaints, and submitted that even if they had been made and were not followed up, it was the Applicant’s responsibility to escalate those complaints in accordance with either the Respondent’s workplace policies or the complaints procedure in the applicable enterprise agreement, neither of which occurred.

[78] The Respondent rejected the assertion that the conversation on 11 September 2019 between the Applicant, Ms Poole, and Mr Herbst about the outcome of his complaint was “almost casual, in passing”. The Respondent submitted the discussion was formal and serious in nature, and the Applicant did not express any lingering concerns to either Ms Poole or Mr Herbst. The Respondent said the Applicant was assured his complaint regarding Ms Nguyen had been promptly investigated and resolved and that appropriate disciplinary action had been taken.

[79] In relation to the Applicant’s assertion that the Respondent’s inaction effectively constituted steps taken with the intention of bringing the Applicant’s employment to an end, the Respondent submitted it could not take action in relation to complaints the Applicant has either never made or, if they were made, never appropriately escalated, and that even in the event the Respondent engaged in inaction, this could not be properly characterised as akin to taking steps with the intention of forcing the Applicant to resign.

[80] The Respondent further submitted that while the updated Complaints Resolution Policy (the Policy) issued by the Respondent in mid-2019 does require complaints to be put in writing, that policy also makes it clear that any complaint handling procedure contained in an applicable Agreement will prevail to the extent of inconsistency. The Agreement specifies that complaints are not required to be put in writing and has been in place, and unchanged, since at least April 2016. The Respondent said that the Complaints Procedure contained in Clause 35 of the Agreement was reproduced in full and expressly brought to the Applicant’s attention in the Offer of Employment letter signed by the Applicant on 14 May 2018.

[81] The Respondent submitted that the Applicant was not forced to resign and was therefore not dismissed per s.386 of the Act and the Commission therefore has no jurisdiction in the matter.

Applicant

[82] The Applicant submitted that a finding can be made that the Respondent deliberately misled the Commission by asserting in all written material tendered during the proceedings that the Applicant had never made any complaints regarding his supervisor, Mr Pillejera. These assertions were made despite the knowledge of witnesses for the Respondent that the Applicant had made such complaints as documented in Ms Poole’s notes. The Applicant said that that the Respondent deliberately withheld the diary notes which contained complaints made by the Applicant regarding Mr Pillejera.

[83] The Applicant relied on his evidence that he had made other complaints throughout his employment, and that the Respondent either failed to keep full and proper records of these complaints or deliberately withheld information to suit its case.

[84] The Applicant submitted his complaints to the Respondent regarding Mr Pillejera, and the incident of racial discrimination by Ms Nguyen, were never taken seriously, as evidenced by the Respondent’s inadequate handling of the Applicant’s complaints and the incident on 10 September 2019. The Applicant said that following the making of this complaint, the Applicant was made to continue to work under the supervision of Mr Pillejera and to work in the same physical area as Ms Nguyen. The Applicant said he was not presented with any plan going forward to give him any confidence that he would be protected from any further bullying.

[85] The Applicant submitted that the contemporaneous notes made by Ms Poole recorded complaints other than relating to the incident on 10 September 2019 and supported the Applicant’s evidence that he had made such complaints previously. The Applicant submitted that the Respondent had an apparent systemic problem in recording complaints, including no notes being taken by Mr Herbst and Ms Poole regarding various other issues involving the Applicant, 36 and also when Ms Poole and Ms Taylor supposedly addressed the Applicant’s unfair dismissal claim with Mr Pillejera.37

[86] The Applicant submitted that Mr Bigirimana’s evidence confirmed that both the Applicant and himself were turned away from the HR office on 30 August 2019 after they made it clear to Ms Poole that they wanted to make a complaint about Mr Pillejera, and told that they would be contacted but never were. 38

[87] The Applicant said he believed he had escalated his complaints to the highest level he was aware of, that being the plant manager, and was not aware who the General Manager was. The Applicant further submitted that confusion as to how to escalate the complaint and the levels of complaint was held by other employees, including Mr Bigirimana. The Applicant further pointed to linguistic and cultural factors, lack of cultural competency at the Respondent’s workplace, and fear of loss of employment by the Applicant, as relevant considerations.

[88] The Applicant said that the evidence before the Commission showed he was unaware of the range of services and sick leave available to him as contended by the Respondent, and that these were not offered to him at any point. The Applicant submitted that Mr Herbst’s evidence confirmed that he was visibly upset when reporting his issues to Ms Poole on 10 September 2019 39 and that both Ms Poole and Mr Herbst were aware of the Applicant’s ongoing issues and it would have been reasonable for them to discuss alternative options with the Applicant. The Applicant submitted that when he answered that he was too unwell to work during his exit interview, the Respondent did not ask any further questions about his distressed state, which further demonstrated the systemic problems when dealing with employee complaints.

[89] The Applicant submitted that after making his complaint about Mr Pillejera and Ms Nguyen on 10 September 2019, he was required to return to work alongside them and the work environment was unchanged. The Applicant submitted that this complaint was not followed up adequately, ultimately resulting in his final breakdown and subsequently his forced resignation.

[90] The Applicant said that although the Respondent’s evidence was that this complaint was both serious, 40 a grave breach of the safe workplace policy document,41 and further that the investigation had been closed out and discussed with both the Applicant and Ms Nguyen,42 the Applicant was only spoken to briefly while at his work station and told the matter had been resolved. The Applicant pointed to the fact that Ms Nguyen was only given a verbal warning and not a formal written warning, as evidencing the lack of seriousness given to the complaint by the Respondent. The Applicant further pointed to the fact that there were no documents such as a protection plan prepared confirming or proving that protection would be provided to the Applicant.43

[91] The Applicant submitted the conduct of the Respondent which forced his resignation, included its inaction to take any steps to acknowledge or stop the constant bullying, harassment and discrimination of the Applicant, as well as respond to other incidents complained of by the Applicant. The Applicant said that by default, the Respondent’s inaction, meant that it took steps to bring the Applicant’s employment to an end, and as a result the jurisdiction of the Commission is enlivened.

CONSIDERATION

Legislation

[92] Section 386 of the FW Act provides as follows:

“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.

(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.” 

[93] It is also relevant that the term “conduct” is defined in s. 12 of the Act to include an omission.

The approach to considering whether an employee has been dismissed

[94] The general approach to considering whether an employee has been dismissed is set out in the Decision of a full Bench of the former Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd 44 where it was stated that:

“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’ ”

[95] The Full Bench in O’Meara also cited an earlier Decision of a Full Bench in ABB Engineering Construction Pty Ltd v Doumit 45 where it was observed that:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[96] The Full Bench in O’Meara went on to observe that:

“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted)

[97] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 46 a Full Bench of the Commission noted that:

“[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)

[98] After citing these cases, Commission Hampton in Sathananthan v BT Financial Group Pty Limited 47 distilled the general legal principles into the following succinct and useful formulation:

•  The question as to whether the resignation was forced within the meaning of the FW Act is a jurisdictional fact that must be established by the applicant;

•  A termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination;

•  The employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;

•  Conduct includes an omission; 48

•  Considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and

•  In determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.

Whether the Applicant was dismissed in the present case

[99] In oral submissions, it was conceded for the Respondent that the site level practices in the present case fell short of its high standards. In my view, that submission is an understatement. There was a significant shortfall in both site level and corporate HR practices evident in this case. Ms Taylor, who is the Group Manager Talent Acquisition and Workforce Planning for Teys provided a written statement to the Commission, and swore to its truth. In that statement and her sworn evidence, Ms Taylor said that the only record of a formal complaint made by the Applicant was a complaint made on 10 September 2019 about the use of a racist term by a Vietnamese employee. In cross-examination, Ms Taylor conceded that before making this statement and swearing to its truth, she had not examined HR records at site. Had Ms Taylor examined those records, she would have seen notes made by Ms Poole in which the Applicant made allegations about Mr Pillejera and Ms Nguyen.

[100] The Allegations made by the Applicant about Mr Pillejera were serious and deserving of investigation. The notes made by Ms Poole of a discussion with the Applicant on 10 September 2019, recorded that as recently as the night before the discussion, the Applicant alleged that he had been bullied by Mr Pillejera in relation to going to the toilet during his shift. Ms Taylor managed to review the Applicant’s HR records in relation to him being given a warning, and it is surprising that she could not ascertain whether there were any other relevant records before making her statement. When Ms Poole’s notes were called for during the hearing of this matter, it took no more than ten minutes for them to be produced. The conduct of Ms Taylor evidences the general failure by the Respondent to deal reasonably with the Applicant, and in particular to properly consider and investigate the complaints he made.

[101] Ms Poole’s failure to deal reasonably with the Applicant is even more significant than that of Ms Taylor. Ms Poole made statements to the Commission which she must have known were incorrect. Ms Poole said in her reply statement 49 that the Applicant did not make any mention of any issues or complaints relating to Mr Pillejera either when he came to HR with Mr Bigirimana or at any other time. The notes Ms Poole took of her meeting with the Applicant on 10 September 2019, evidence that this statement is at best incorrect, and at worst, untrue. I also note that in her first statement50, Ms Poole said that she clearly remembered the events of the week of 10 September because her grandfather was critically ill and passed away on 12 September. I also note that Mr Herbst made similar comments to that of Ms Poole and contended that the Applicant had not made any complaint about Mr Pillejera. While the veracity of this assertion was not put to Mr Herbst, because he gave evidence before Ms Poole, it is significant that Ms Poole’s notes are contrary to Mr Herbst’s evidence.

[102] Ms Poole’s notes indicate that in addition to his complaint about Ms Nguyen, the Applicant alleged that Mr Pillejera was close to Ms Nguyen and did not report her conduct and that Mr Pillejera was timing the Applicant when he went to the toilet and was not doing this to other employees. The notes also indicate that the Applicant nominated another employee who had been subjected to distressing comments about his race from Ms Nguyen. There were also notes made by Ms Poole of an interview with the employee nominated by the Applicant, which confirmed that the employee alleged Ms Ms Nguyen had made such comments.

[103] Ms Poole’s notes also evidence her failure to properly discuss the allegations with Ms Nguyen. The notes further evidence the total failure of Ms Poole to put the Applicant’s allegations to Mr Pillejera and to otherwise deal with those allegations. The allegations the Applicant made about Mr Pillejera were not discussed at all with with Mr Pillejera. Indeed, at the point this matter was heard, there has still been no investigation with respect to Mr Pillejera’s conduct and he continues to be employed as a supervisor.

[104] In short, Ms Poole’s notes establish the failure of Teys to appropriately investigate and deal with serious allegations made by the Applicant about his treatment by a supervisor and a co-worker who had a training role. It is of significant concern that Ms Poole would give evidence to the Commission in which she makes statements adverse to the Applicant’s case, which are directly contradicted by her own notes. It is also of significant concern that these notes would never have come to light, other than through cross-examination of Ms Poole by Counsel for the Applicant.

[105] I am also of the view that the manner in which Ms Poole dealt with the Applicant when he attended the HR Office on 29 August 2019, left much to be desired. Ms Poole knew that the Applicant and Mr Bigirimana had waited for some time in the HR Office that morning to speak to her. While I accept that Ms Poole was busy dealing with other employees, the Applicant should not have had to make eye contact with Ms Poole for her to make time to speak to him about his reasons for attending the HR office on that day.

[106] Notwithstanding my concerns about the conduct of Ms Poole, and the truthfulness of her evidence to the Commission, for the purposes of determining the jurisdictional objection I consider that the conduct was negligent, careless or incompetent, rather than being conduct engaged in with the intention of bringing the Applicant’s employment to an end. I am also of the view that the conduct of Mr Herbst in relation to the Applicant’s complaints was careless, negligent or incompetent. Notwithstanding that he attended the meeting at which the Applicant raised complaints about Mr Pillejera and Ms Nguyen, Mr Herbst also maintained that the complaint had only related to Ms Nguyen, contrary to Ms Poole’s notes of the meeting.

[107] I have therefore considered the question of whether the Applicant was dismissed within the meaning of s.386 of the Act, on the basis that the resignation of the Applicant will be a dismissal, only if I objectively consider that the actions of Ms Poole and Mr Herbst had the probable result of ending the Applicant’s employment, and that the Applicant had no effective or real choice but to resign.

[108] After considering all of the circumstances, including the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee, I am satisfied that this was the case. My reasons for reaching this conclusion are as follows. The Applicant’s first language is not English and he has difficulty communicating in English. To the best of his ability, the Applicant made serious complaints about the conduct of his supervisor Mr Pillejera, and Ms Nguyen. Given that Mr Pillejera was the subject of the complaints, and the Applicant’s view that he has a close relationship with Ms Nguyen, it is unsurprising that the Applicant did not raise his complaints with Mr Pillejera. Instead, the Applicant raised them with Mr Herbst.

[109] Appropriately, Mr Herbst referred the matters to the HR Office at the site. Mr Herbst was at the meeting with the Applicant on 10 September and should have considered the Applicant’s complaints in totality instead of simply those aspects which related to Ms Nguyen. Similarly, Ms Poole should also have identified that the complaint was not simply about Ms Nguyen. Further, the manner in which Ms Nguyen was dealt with was manifestly inadequate. Ms Poole’s notes indicate that the discussion was limited and essentially Ms Nguyen received little more than a rap on the knuckles in relation to a serious allegation, which should have been substantiated given that the Applicant’s version of events was corroborated by Mr Senghor. Mr Herbst said that Ms Nguyen was given a final warning, when she received nothing more than a verbal warning.

[110] The manner in which the Applicant was advised of the outcome of his complaint, was also manifestly inadequate. Quite simply, the Applicant deserved better than to be spoken to about such a serious matter in his work area, after being taken off a machine on which he was working. The Applicant should have been spoken to about the outcome of his complaint in the HR Office so that he was afforded the courtesy of knowing that it was taken seriously. Thereafter, consideration should have been given to the fact that the Applicant was so distressed, that he took a day of personal leave on 12 September. The Applicant told Mr Herbst that he was upset by the incident and needed to take time off. Further, the fact that the Applicant returned from that personal leave day and sought an additional two week period of leave to rest and look after his health, should have been a red flag indicating that he continued to be distressed by the events he had reported, and was not satisfied with the outcome. In short, the relationship between those events and the need to take a period of leave for health reasons, should have been obvious to Ms Poole and Mr Herbst, even if I accept their evidence about what the Applicant said when he sought the leave and that he answered their questions about whether it was related to the complaint about Ms Nguyen in the negative.

[111] The blasé manner in which the Applicant was dealt with at this point is entirely inconsistent with Teys’ policy statement that the Company does its best to ensure that employees will always love working for Teys. Ms Poole and Mr Herbst could and should have done more at this point to inquire into the reasons for the Applicant’s illness or to ask him whether he needed support from the employee assistance program which Ms Poole gave evidence about. This would have been an obvious and relatively simple step for Ms Poole or Mr Herbst to have taken, particularly in light of the Applicant’s statement that things were going on in his head that he needed to sort out.

[112] Further, Ms Poole and Mr Herbst knew that not only had the Applicant been subjected to conduct (at least by Ms Nguyen) that breached Company policies, but the perpetrator had received only a verbal warning. Further, the Applicant had been informed that the resolution was that he would be left in a reporting relationship with the alleged perpetrator of bullying (Mr Pillejera) and in the same work area as Ms Nguyen, in circumstances where his complaint about Mr Pillejera had not been acknowledged, much less investigated.

[113] I am also of the view that when the Applicant returned to work and expressed a wish to resign, Ms Poole and Mr Herbst could and should have done more to assist him and to provide other options, in light of the recent events about which they were aware. The Applicant could have been offered a further period of leave or access to the Employee Assistance Program. The fact that the Applicant did not ask for leave is not to the point. Given that both Mr Herbst and Ms Poole knew of the incident with Ms Nguyen and the Applicant’s complaint about Mr Pillejera, the could and should have provided additional support. It is also the case that both Mr Herbst and Ms Poole knew that the Applicant had originally requested two weeks of leave and had been granted only one week. Further, both Mr Herbst and Ms Poole knew that the Applicant’s first language is not English and Mr Herbst knew that he was a good worker.

[114] I do not accept that the Applicant had the option of applying for a further period of leave. He had already asked for two weeks and been granted only one, and his serious complaint had not been properly dealt with. He had suffered a distressing incident at work and notwithstanding that Mr Herbst and Ms Poole may not have been aware of the serious mental health issue that the Applicant was dealing with at the time he resigned, it is not in dispute that he stated that he needed to care for his health and that his resignation was health related. I accept that in all of the circumstances confronting the Applicant, he had no real option other than to resign.

[115] I do not accept that the Company can rely on any failure of the Applicant to “escalate” his complaint in accordance with the complaints procedure. Firstly, there is a lack of clarity about the procedure. The most recent iteration indicates that complaints are required to be made in writing. Although a term of the enterprise agreement which covered the Applicant would over-ride such a requirement, that is not to the point. An employee in the position of the Applicant should not be expected to compare a workplace policy and an enterprise agreement to establish inconsistency about a procedure.

[116] Even if I accept the Applicant’s evidence that he understood that he was not required to put his complaint in writing in order to escalate it, the facts of the matter are that the Applicant made a complaint about his supervisor to a manager (Mr Herbst) and then to a HR officer (Ms Poole). Despite taking notes which established the breadth of the complaint, Ms Poole failed to deal with all matters raised by the Applicant. Ms Poole failed to articulate the complaint at the point it was made, and contrary to her notes, persisted with that failure in her evidence to the Commission. It was not until Ms Poole’s notes were put to her in cross-examination that she conceded that her evidence about the Applicant’s complaint was wrong. I do not accept that the Applicant could have reasonably been expected to escalate his complaint in the face of an apparent inability on the part of Teys’ management to document and deal with the full extent of the complaint.

[117] There is also force in the Applicant’s comment under cross-examination that he did not know the identity of the General Manager of the Company. There is no evidence of any explanation to employees about the organizational structure of Teys in relation to complaints and how to make contact with managers who are not based at the site at which the employee works. While Teys has documented its complaints procedure and disseminated it to employees, the procedure has little practical meaning for an employee who has exhausted the levels of management at the site at which he or she is working. There is no evidence of contact details being provided for higher levels of management or any practical information for employees about the steps they may take to escalate a complaint beyond the site. In circumstances where a complaint is made by an employee with limited communication skills and command of the English language, there is no capacity to escalate a complaint. The most that can be said about Teys’ procedure is that it looks good on paper. In my view, the Applicant in the present case took all reasonable steps to raise his complaint and to escalate it to managers at the Beenleigh site, and was not dealt with reasonably by Ms Poole and Mr Herbst.

[118] Accordingly, I am satisfied and find that the Applicant’s employment ended at the initiative of the employer because of a course of conduct that, on an objective basis, had the probable result of bringing the employment relationship to an end. This was more than a case of an employee leaving an unpleasant work environment. The Applicant has limited English language skills which made reporting conduct he had been subjected to, difficult. The complaints procedure was of little use to the Applicant. The Applicant was suffering from depression at the time and there is evidence that this was caused to some extent by the manner in which he had been treated at work. The employer failed to deal reasonably with the complaint and the response of Mr Herbst and Ms Poole was manifestly inadequate in light of the seriousness of the complaint.

[119] Teys management did not take reasonable steps which could have avoided the Applicant’s resignation. He sought a two week period of leave to deal with health issues in close proximity to a distressing incident at work and was granted one week. When he resigned citing health issues, he was not offered further leave or information about other support or assistance that Teys claims to make available to its employees. When considered on an objective basis, the Applicant’s assertions about the unreasonable manner in which he was treated were valid, and he had no option but to resign because of that treatment.

CONCLUSION

[120] While I accept that the line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer, must be rigorously drawn, I am satisfied that in this case, the conduct of Ms Poole and Mr Herbst, considered objectively, crosses that line. I am satisfied and find that the Applicant was dismissed within the meaning in s. 386(1)(b) of the Act. The Applicant had no effective or real option but to resign his employment and I am satisfied that the particular circumstances of this matter meet the high threshold required for such a finding. The Applicant is therefore entitled to have the fairness of his dismissal considered and the matter will be listed to program a hearing.

DEPUTY PRESIDENT

Appearances:

Mr J A Cahill of Counsel for the Applicant.

Mr D Bates of Workforce Engagement Solutions for the Respondent.

Hearing details:

2020.

By telephone.

18 & 19 March.

By Telephone.

24 April.

By Telephone.

Final written submissions:

Respondent’s Final submissions: 2 April 2020.

Applicant’s Final submissions: 9 April 2020.

Printed by authority of the Commonwealth Government Printer

<PR720019>

 1   Exhibit A2 Witness Statement of Billy Muhinyuza 7 February 2020.

 2   Exhibit A1 Witness Statement of Nicholas Bigirimana dated 7 February 2020.

 3   Exhibit A6 Witness Statement of Jacqueline Bentley dated 7 February 2020.

 4   Exhibit A7 Witness Statement of Dr Champa Wickramasinghe dated 6 February 2020.

 5   Exhibit R1 Witness statement of Sarah Taylor dated 7 February 2020.

 6   Exhibit R2 Witness Statement of Troy Herbst dated 6 February 2020.

 7   Exhibit R3 Witness Statement of Courtney Poole dated 6 February 2020; Exhibit R4 Statement in Reply of Courtney Poole dated 14 February 2020.

 8   Applicant’s Outline of Submissions at para 4

 9   Transcript PN491.

 10   Transcript PN500.

 11   Transcript PN514.

 12   Transcript PN516.

 13   Transcript PN529.

 14   Exhibit A2 at paragraph 29.

 15   Ibid at para 7-8

 16   Transcript PN608.

 17   Exhibit R4 at paragraph 3.

 18   Exhibit R4 at paragraph 5.

 19   Transcript PN705.

 20   Transcript PN710.

 21   Transcript PN711.

 22   Transcript PN941.

 23   PN1536.

 24   Transcript at PN1230

 25   Ibid at PN1232

 26   Ibid at PN1233

 27   Ibid at PN123

 28   Ibid at PN1239

 29   Ibid at PN1240

 30   Ibid at PN1241

 31   Ibid at PN1246

 32   Ibid at PN1271-1272

 33   Ibid at PN1273-1275

 34   Transcript at PN1558-1570

 35   Ibid at PN1516-1519

 36   Ibid at PN598, PN641

 37   Ibid at PN881

 38   Ibid at PN502

 39   Ibid at PN318

 40   Ibid at PN283

 41   Ibid at PN320

 42   Ibid at PN957

 43   Ibid at PN335, PN933

 44 [2006] AIRC 496 (PR973462).

 45   Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 46   [2017] FWCFB 3491

 47   [2019] FWC 5583

 48 Fair Work Act 2009 s. 12.

 49   Exhibit R4.

 50   Exhibit R3.