Mr Bryan Pemberton v Scavenger Supplies Pty Ltd T/A Scavenger Supplies

[2018] FWC 6085

[2018] FWC 6085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for Unfair Dismissal Remedy

Mr Bryan Pemberton
v
Scavenger Supplies Pty Ltd T/A Scavenger Supplies
(U2018/3876)

DEPUTY PRESIDENT BEAUMONT PERTH, 28 SEPTEMBER 2018

Application for an unfair dismissal remedy – jurisdictional objection – resignation – merits - dismissal not unfair – application dismissed.

[1] Mr Bryan Pemberton (Mr Pemberton), the former Manager Operations, Fire and Safety, of Scavenger Supplies Pty Ltd T/A Scavenger Supplies (Scavenger), made an application to the Fair Work Commission (the Commission) on 13 April 2018 for a remedy in respect of his dismissal (the Application). Scavenger said that it did not dismiss Mr Pemberton and therefore the Commission had no jurisdiction to deal with his claim. Mr Pemberton held a contrary view notwithstanding he had resigned.

[2] I informed the parties at hearing that I would initially determine the matter of whether the Application was beyond the jurisdiction of the Commission. If it was not, I would then turn my attention to whether the dismissal was unfair. Having considered whether Mr Pemberton was dismissed, as that term is understood under s 386(1) of the Fair Work Act 2009 (Cth) (the Act), I have found that he was not. It follows the Application is beyond the jurisdiction of the Commission and is therefore dismissed. My reasons follow.

Background and evidence

[3] Mr Pemberton commenced employment with Scavenger on 2 July 2012 and by 2016 he had assumed the additional role of Manager, Maritime Services. 1 While it was the case that he did not have a written employment contract, Mr Pemberton’s responsibilities and duties were set out in a document titled ‘Detailed Job Description’, which Mr Pemberton signed on 11 March 2013.

[4] Scavenger operates an industrial products and services business that provides fire safety services and solutions for all terrestrial and maritime assets. 2 At the time of Mr Pemberton’s resignation it had 15 employees including Mr Pemberton.

[5] In January 2018, Mr Pemberton and his partner (romantic) discussed forming their own business and sought advice on options for doing so. 3

[6] In early March 2018, Mr Pemberton and his partner approached an accounting firm to assist with the setting up of two new companies in the business names of ‘Paramount Fire & Protection Services’ and ‘Paramount Maritime Services’. On 14 March 2018, Mr Pemberton was advised that the businesses had been established.

[7] Mr Pemberton’s evidence was that Mr Warren Blay (Mr Blay), owner of Scavenger, was under financial hardship having ‘maxed’ out all of his credit cards and had asked Mr Pemberton on several occasions whether he would consider investing in the business. 4 While Mr Pemberton was unwilling to invest in Scavenger he formed the view that offering to purchase the Fire and Safety Division of Scavenger may be a viable proposal to put to Mr Blay.5

21 March 2018 - a business proposal

[8] On 20 March 2018, Mr Pemberton travelled to Kalbarri to do some work. On arriving at the accommodation the company credit card was declined so Mr Pemberton informed Mr Blay. 6 Later on during the course of the evening, Mr Pemberton reports that Mr Blay called him to discuss the situation of the business and expressed concern about all of his credit cards being ‘maxed’ out because he had been supporting the business.7 It was at this time that Mr Pemberton indicated to Mr Blay that he had a business proposition to put to him on his return to Perth that may allay the financial predicament that Mr Blay had found himself in.8

[9] Mr Pemberton continued that at around 9:30am on 21 March 2018, Mr Blay contacted him and said ‘what the hell is Paramount Fire & Protection Services and Paramount Maritime Services’. 9 Mr Pemberton said that he tried to explain that it related to the business proposition he had mentioned the night before but, Mr Blay hung up on him.10

[10] However, when questioned in cross examination Mr Pemberton provided a different account to that provided in his witness statement:

Page 9. He says at paragraph 16 - - -?  -Yes.

- - - that he became aware that you had set up your own company on 20 March?  -Yes.

He then says he rang you on the morning. Now, he is saying 20 March, but I understand he has now conceded it was 21 March. He is saying that he then rang you up and he has asked you about Paramount Fire and Protection Services. That’s correct, isn’t it, that it was on the 21st?  -Yes, yes.

He says to you - sorry, you say to him that you want to have a talk to him about it?  -Yes.

That’s correct. There was no business proposition mentioned the night before, was there?  -No.

No, I didn’t think there was?  -No. 11

[11] While Mr Pemberton had provided sworn evidence that a conversation was held with Mr Blay on the night of 20 March 2018 regarding a business proposal 12 that simply was not the case.

[12] Mr Blay said that on 21 March 2018, he became aware via a Scavenger employee that Mr Pemberton had set up his own company, Paramount Fire & Protection Services Pty Ltd on 12 March 2018. It was Mr Blay’s evidence that on the morning of 21 March 2018 he spoke with Mr Pemberton on the telephone and asked about Mr Pemberton’s new company. 13 In response, Mr Pemberton apparently said he intended to have a talk with Mr Blay, continuing that he needed to set up a company first in order to buy Mr Blay out.14 It was said that Mr Blay replied by informing Mr Pemberton to the effect that it, or he, did not work like that.15

[13] While Mr Pemberton did not refer to it in his witness statement, Mr Blay gave evidence that during the course of the telephone conversation he raised further issues with Mr Pemberton. 16 Mr Blay provided particulars of what he considered to be the alleged ‘gross’ misconduct of which Mr Pemberton had engaged in, namely:

● taking his partner on a work trip to Kalbarri despite specific instructions not to do so and having acknowledged the instructions;

● failure to use the business truck (instead of the trailer) to deliver heavy equipment to Kalbarri when instructed to do so, resulting in the transferring of equipment in a trailer which was loaded over its safe working rate;

● attending a work site at Kalbarri without the appropriate work attire and personal protective equipment; and

● multiple failures to properly service customers.

[14] Initially, when asked in cross examination Mr Pemberton was unable to recall that issues had been raised in the conversation. 17 However, when directed to the issues in Exhibit R1,18 Mr Pemberton recalled the issues being raised with him.19

[15] Having had the conversation with Mr Pemberton on 21 March 2018, and noting that he had raised other issues with Mr Pemberton, Mr Blay gained the distinct impression that Mr Pemberton would not be returning to work as he was going to start his own business. 20

[16] Following the discussion with Mr Pemberton, Mr Blay said that he suspended Mr Pemberton by SMS text message pending an investigation into ‘gross’ misconduct, conflict of interest and workplace internet use. 21

[17] Mr Pemberton stated that about an hour after the initial discussion on 21 March 2018, Mr Blay rang him again. 22 Mr Pemberton said that he was advised that he was suspended with immediate effect without pay, and that the property of the business was to be left at his home address (inclusive of car of which Mr Pemberton had personal use, trailer, mobile phone, iPad and work credit card) as he was not to enter the premises of the business.23 Mr Blay agreed that on 21 March 2018 he directed Mr Pemberton to return his work vehicle and mobile phone to the office.

[18] Mr Pemberton said that despite his attempts to contact Mr Blay, Mr Blay either ignored his calls or hung up on him, and on 22 March 2018, Mr Pemberton returned all of business property. 24

[19] Mr Pemberton said that Mr Blay had directed him not to speak to any Scavenger employees, had denied him access to the workplace, had advised that he was changing the locks regarding access to the workplace and on that basis he formed the opinion that Scavenger was about to dismiss him. 25 He therefore considered himself dismissed and wrote to Mr Blay on 23 March 2018 advising that due to Mr Blay’s actions, he felt he had no option but to resign.26 Mr Blay confirmed receipt of a letter of resignation on 23 March 2018, noting that the resignation came before he could complete his investigations.27

[20] When providing evidence in cross examination Mr Pemberton disclosed the following:

PN2462

Yes, I am asking you. You didn’t want to be involved in that investigation, that’s why you left?  -I didn’t - no, I had no problems of being involved in an investigation.

PN2463

But you knew there was an investigation and so to avoid it you resigned?  -No, I just needed to take a little bit of control of my own destiny. That’s why I resigned.

PN2464

So you wanted to take control of your destiny?  -Yes.

PN2465

So you wanted to be in charge of what was going on?  -No.

PN2466

You just said that, you said you wanted to have control of your destiny, you wanted to take control?  -Take control of myself, yes.

PN2467

So it was your decision, it wasn’t Mr Blay’s decision?  -I think that I was - I think I was pushed into that position, yes.

PN2468

With respect, Mr Pemberton, you have just said you wanted to take control of your destiny.

PN2469

MR PETHERICK: He actually said take a little bit of control. He didn’t say take control, he said a little.

(bold my emphasis)

[21] On 23 March 2018, Mr Pemberton provided Mr Blay with a letter that confirmed the registration of two business names, ‘Paramount Fire & Protection Services’ and ‘Paramount Maritime Services’.

Following Pemberton’s resignation

[22] Mr Blay gave evidence that following receipt of Mr Pemberton’s resignation letter he discovered that Mr Pemberton had initiated the registration of his own business in January 2018, and had accessed and created copies of the business’ records and commercially sensitive documentation including customer and suppliers information as well as work schedules of fire customers. 28 Before resigning Mr Pemberton was said to have deleted all documents relevant to his employment from the business’ electronic personnel file and Mr Blay identified on Mr Pemberton’s computer that there had been access to pornographic material and internet dating sites.29

Background regarding the proceedings

[23] The matter was listed for a conciliation conference on 7 May 2018 but neither Mr Pemberton nor his representative, a Mr Trent Petherick (Mr Petherick), presented. The Commission issued a letter on that same day notifying the parties of Mr Pemberton’s and Mr Petherick’s non-attendance and requested that the parties confirm whether they wanted to schedule a further conciliation conference. On 16 May 2018, some nine days later, Mr Petherick informed the Commission that notification for the conciliation conference was provided on 1 May 2018 and having received less than one weeks’ notice this was insufficient from his perspective. A further conciliation conference took place on 18 June 2018.

[24] On 19 June 2018, the Commission issued directions concerning the filing and serving of submissions and evidence. Scavenger was due to serve its submissions by 2 July 2018 and was later granted an extension until 30 July 2018. Such documents were forthcoming by 31 July 2018.

[25] On 25 July 2018 there was an amendment issued regarding the Notice of Listing and dates set down for hearing were 20 August 2018 through to 22 August 2018. These dates were later changed to 22 August and 23 August 2018 with consent of the parties.

[26] The parties were unable to resolve the dispute and the matter was allocated to my Chambers. A Notice of Listing was issued on 1 August 2018 for a Mention on 8 August 2018. Both parties attended the Mention and subsequent to that Mention directions were issued regarding the filing and serving of additional evidence and submissions that either party wished to rely upon. In compliance with the directions Scavenger filed additional witness statements, evidence, and submissions on permission to be legally represented for the Hearing.

[27] While Mr Pemberton was directed to file and serve submissions regarding permission to be legally represented and in response to the additional evidence and submissions, no documentation was forthcoming. In light of this my Chambers contacted the parties on 20 August 2018 to ascertain the status of the matter.

[28] On 20 August 2018 at 1:05pm a response was forthcoming from Mr Petherick that he would welcome a conference regarding the matter and that the Commission had been placed on notice that it was likely an application would be made for an adjournment due to an urgent requirement for him to have medical treatment. Four minutes before the scheduled conference on 21 August 2018, my Chambers received a medical certificate certifying that counsel, namely Mr Petherick, was unable to appear for the week.

[29] The parties were invited to make submissions regarding the request for an adjournment.

[30] In response to the request, counsel for Scavenger, Mr Jason Raftos (Mr Raftos) submitted that Mr Pemberton had failed to provide any additional witness statements or submissions since 8 August 2018, had not filed submissions on representation for the Hearing, the material filed to date culminated in a mere two pages regarding the witness statement, notice concerning the adjournment application had been given on the afternoon of 20 August 2018 with no prior conferral, the medical certificate was unsigned and provided no details as to why Mr Petherick could not appear and no steps were traversed concerning attempts to find alternative counsel. Mr Raftos said that Mr Petherick would know how this would look at first blush.

[31] Mr Raftos however submitted that it was the case that Scavenger would be agreeable to find a possible middle road and would be willing to accede to an adjournment with the matter being listed on 24 August 2018 to address the jurisdictional matter. This was notwithstanding that Scavenger was said to have organised witnesses and flown in the instructing solicitor from the Eastern States on 21 August 2018.

[32] Mr Petherick referred to having had medical tests in the week of 13 August 2018 by way of an explanation for the non-compliance with the directions issued on 8 August 2018. Further, Mr Petherick referred to the difficulty faced by his client in obtaining legal representation within such a compressed time-frame and observed that Scavenger had previously not complied with directions issued.

[33] Having heard from both parties concerning the matter I informed them that I was not minded to grant an adjournment. In reaching this initial position I had considered that the adjournment request was late in the proceedings in circumstances where submissions had not been filed regarding permission to be represented; Mr Petherick operated within a firm with other practitioners and was aware of his declining health in the week of 13 August 2018. Further, it was my Chambers that had to enquire with Mr Petherick as to the status of the matter given the non-compliance with the directions of 8 August 2018.

[34] However, given Scavenger had proposed a ‘middle road’, I was amenable to the adjournment request, but to avoid further delays the matter would be listed for the following week for both the jurisdictional objection of Scavenger and the argument on merits. I considered the delay of one week would provide Mr Pemberton with sufficient time to obtain legal advice from an alternative practitioner, should he so require it.

Agreed matters

[35] Before considering the merits of a matter the Act obliges consideration of initial matters. 30 It is not in contest and I am satisfied on the evidence that:

(a) Mr Pemberton’s earnings were less than the high income threshold; 31

(b) Scavenger was not a ‘small business employer’ as defined in s 23 of the Act, so the Small Business Fair Dismissal Code was inapplicable; 32 and

(c) Mr Pemberton’s alleged dismissal was not a case of genuine redundancy. 33

[36] A person is protected from unfair dismissal if, at the time of her or his dismissal, she or he had completed a period of employment with the employer of at least the minimum employment period. To determine if Mr Pemberton had completed the minimum employment period consideration must be had to whether he had been dismissed. The word ‘dismissed’ is defined in the Act and various decisions of this Commission and in some instances the Industrial Relations Court has illuminated its meaning.

[37] It is of course the case that to constitute an unfair dismissal a person must have been dismissed. 34

The legislation and authorities

[38] The Act 35 states that 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.

[39] Under s 386(2) there are exceptions regarding when a person has been dismissed. However, those exceptions are not relevant to this case.

[40] The definition of dismissal has two elements. The first traverses ‘termination on the employer’s initiative’ and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct by the employer.

[41] In the decision of Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli 36 (Bupa) the Full Bench dealt with the meaning of the word ‘dismissed’ and clarified the operation of the two elements.

[42] Regarding the first element, it considered the unanimous decision of Industrial Relations Court in Mohazab v Dick Smith Electronics Pty Ltd 37(Mohazab), where the relevant principles were stated:

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (“David Graphics”), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation of an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:-

‘... a termination of employment at the instance [of] the employer rather than of the employee’.

and at 5:-

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’ 38

[43] The termination of employment ‘at the initiative of the employer’ may be treated as a termination in which the action of the employer is the principal contributing factor. 39 The resignation is said to be ‘forced’,40 a concept adopted in Mohazab and later followed in decisions made in respect of various iterations of the termination of employment scheme in the Workplace Relations Act (1996) (Cth).41

[44] O’Meara v Stanley Works Pty Ltd 42 was one such decision. In this case the Full Bench of the Australian Industrial Relations Commission said:

[23]… 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 of that the appellant had no effective or real choice but to resign.

[45] The question is not merely whether the act of the employer, which must be a principal contributing factor, 43 resulted directly or consequentially in the termination of employment, but whether on an objective analysis of the employer’s conduct the employee’s effective or real choice was so negated that resignation was inevitably the only recourse.

[46] Often it will be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign from employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer 44. The Full Bench of the Australian Industrial Relations Commission cautioned ‘but narrow though it be, it is important that the line be closely drawn and rigorously observed’, the Bench continued:

[O]therwise, 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 45…

[47] Preceding the Fair Work Bill 2008 a ‘forced’ resignation could constitute a dismissal ‘at the initiative of the employer’. However, in 2009 the legislature brought into operation s 386(1)(b) 46. It was observed that s 386(1)(a) was intended to capture the case law relating to the meaning of ‘termination at the initiative of the employer’ as that phrase was understood in Mohazab, while the second limb of s 386(1) would cover the circumstances where a person resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer.47

[48] One might be forgiven for assuming that the meaning afforded to ‘termination at the initiative of the employer’ had already covered what s 386(1)(b) sought to address. But, now with s 386(1)(b) in play it was perhaps unclear what the role of the two limbs were when it came to defining ‘dismissal’ under the Act.

[49] In Bupa, the Full Bench accurately observed that while a ‘forced’ resignation could constitute a termination of employment at the initiative of the employer, the legislature in when drafting 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. 48 It was therefore concluded by the Full Bench that s 386(1)(b) reflected the statutory form of the test developed in Mohazab and thereafter summarized in O’Meara.49

[50] The work then of s 386(1)(a) was left to be considered. According to the Full Bench in Bupa, it operates in the context of those circumstances in which an ostensible indication of an intention to resign on part of an employee may not be effective to terminate the employment on the employee’s initiative because it cannot reasonably be regarded as voluntary. 50 Reference to ‘context’ and ‘circumstances’ extends to the concept of ‘special circumstances’ which are such that they render an apparent indication of resignation on the part of the employee ineffective unless perhaps confirmation is obtained by the employer of the intent to resign after a reasonable period.51

[51] The Full Bench summarized the operation of s.386(1)(a) in the following terms:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterized as a termination of the employment at the initiative of the employer.

[52] Then the Full Bench clarified that s386(1)(b), which is germane to this Application, covered:

(2) … resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably [sic] result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

Matter in dispute – was there a dismissal

[53] The initial matter to be considered is whether Mr Pemberton resigned in circumstances whereby he was forced to do so because of conduct, or a course of conduct, engaged in by his employer. 52 In the circumstances of this case it is clear that s 386(1)(a) is not relied upon. If it is the case that Mr Pemberton was dismissed attention will then turn to whether he was unfairly dismissed.

[54] Mr Pemberton quite clearly asserts that he was forced to resign by the conduct of his employer, Scavenger, and Scavenger says that this was simply not the case and denies that Mr Pemberton has no effective or real choice but to resign.

[55] Mr Pemberton submitted Scavenger’s actions indicated to him that it was preparing to dismiss him and it was apparent it no longer had trust and confidence in him, having:

● suspended him without pay;

● directed him not to return to the business premises;

● directed him not to have any contact with any other Scavenger employee;

● required the return of company property; and

● advised that the locks on the business were being changed.

[56] Contrary to Mr Pemberton’s submissions, Scavenger submitted that it had not informed Mr Pemberton he was dismissed, it had not made a decision to dismiss, and it was investigating serious matters. It was therefore reasonable, in Scavenger’s view, to commence an investigation quickly and suspend Mr Pemberton promptly from his duties.

[57] In cases of an alleged forced resignation, Scavenger submitted that the onus was on the applicant to prove that the employer forced the resignation. 53 It continued that the investigation may have found Mr Pemberton engaged in ‘gross’ misconduct or did not conduct himself in such a manner. Further, the result of investigation may have been dismissal but equally another outcome may have resulted. However, what was apparent was that Mr Pemberton had choices. He could participate in the investigation or he could chose not to do so and await Scavenger’s further action.

Consideration

[58] At approximately 9:30am on 21 March 2018, Mr Blay questioned Mr Pemberton over the phone concerning Mr Pemberton’s new business and addressed Mr Pemberton about alleged gross misconduct. 54 At approximately 10:30am on that same morning, Mr Blay informed Mr Pemberton that he was suspended without pay.55 Mr Pemberton returned from Kalbarri on 22 March 2018 and after approximately 2:00pm returned the vehicle and work items.56

[59] Mr Pemberton admitted that on 21 March 2018 he began to think about resigning. 57 He then penned a document referred to as the resignation letter (Exhibit R15) in which he gave notice of his resignation. According to Mr Pemberton the document was carefully considered and was quite long.58 It took Mr Pemberton several hours to prepare and Mr Pemberton’s evidence was that he started drafting it early in the morning of 23 March 2018. Once he had completed and checked it, he emailed it to Mr Blay at 12:09pm.

[60] The resignation letter set out:

…

You have suspended me without pay and advised me of this whilst I was still working in Kalbarri. You required me to return my car, phone and credit card, which I have done. You have also advised that I am not allowed to go anywhere near the business.

I feel that I now have no option but to tender my resignation. Given the current situation, I wish this to be effectively immediately.

[61] At the time of sending the resignation letter, Mr Pemberton was aware that a decision to terminate his employment had not been communicated to him and the suspension had been in place for barely two days. Mr Pemberton had not contested the suspension or had indicated in any way that he would be forced to resign.

[62] The critical question is not merely whether the act of the employer, which must be a principal contributing factor, 59 resulted directly or consequentially in the termination of employment, but whether on an objective analysis of the employer’s conduct the employee’s effective or real choice was so negated that resignation was inevitably the only recourse.

[63] I have considered the steps Mr Blay took after having discussed with Mr Pemberton the allegations of ‘gross’ misconduct. Some of those allegations arose from alleged conduct on the Kalbarri trip. Those steps, which included instructing Mr Pemberton to return property (including the work mobile phone) and not to attend the premises of Scavenger, were taken in circumstances where not only had Mr Pemberton allegedly engaged in ‘gross’ misconduct, but had in addition alerted Mr Blay that he was in the process of setting up a business that would arguably compete with Scavenger in the future.

[64] Now, the parties agreed Mr Pemberton was not precluded from setting up a business that may in the future compete with Scavenger (albeit not in work time). In my view however the steps taken by Mr Blay were reasonable in order to safeguard the integrity of Scavenger whilst he investigated the allegations levelled at Mr Pemberton. I am not satisfied that the steps taken indicated that Scavenger was preparing to dismiss Mr Pemberton albeit Mr Pemberton held that view.

[65] At times there was a difficulty with Mr Pemberton’s evidence. It was apparent that there were inconsistencies. Unsurprisingly, this does not bode well for Mr Pemberton when his credibility is considered. Evidence was given that a discussion took place with Mr Blay on the evening of 20 March 2018. However, later evidence was adduced which showed that no such discussion ever occurred. 60 Notwithstanding when cross examined about the impending investigation I am of the view that Mr Pemberton was candid when he expressed ‘No, I just needed to take a little bit of control of my own destiny. That’s why I resigned’.61

[66] In my view this is a case where quite clearly the discretion of the resigning employee gave rise to the dismissal. Mr Pemberton’s resignation was tendered in circumstances where he had been informed of an investigation into alleged ‘gross’ misconduct. The allegations that were raised involved serious matters including disobeying lawful and reasonable instructions (including safety).

[67] Rather than endure participation in the investigation Mr Pemberton decided to resign. I am not satisfied that the conduct of Scavenger was such that there was an intention of bringing the employment to an end, or that termination of the employment was the probable result of its conduct, such that Mr Pemberton had no effective or real choice but to resign. Mr Pemberton did have a choice, to resign or participate in a disciplinary process. Where the employee in such circumstances elects to resign to avoid a disciplinary process, the resignation is not a dismissal. 62

[68] While Mr Pemberton may have felt that he had no choice but to resign due to a course of conduct engaged by Scavenger, I have found that this simply was not the case.

[69] Based on my factual findings and all of the circumstances, I have concluded that Mr Pemberton was not dismissed for the purpose of s 386(1). The Application is therefore dismissed and an accompanying Order 63 is issued to this effect.

DEPUTY PRESIDENT

Appearances:

Mr T Petherick, of Petherick Cottrell Lawyers, on behalf of the Applicant

Mr Raftos, Counsel, on behalf of the Respondent

Hearing details:

2018.

August 29.

September 6.

Final written submissions:

Applicant, 12 September 2018.

Respondent, 12 September 2018.

 1   Statement of Bryan Pemberton Exhibit A1 (Pemberton’s Statement) [6]-[7].

 2   Respondent’s Outline of Submissions in relation to Jurisdictional Objection (Respondent’s Submissions) [2].

 3 Pemberton’s Statement [8].

 4   Ibid [13]-[14].

 5 Ibid [15].

 6 Ibid [18].

 7 Ibid [19].

 8   Ibid.

 9 Ibid [21].

 10   Ibid.

 11   Transcript PN2268- 2273.

 12 Pemberton’s Statement [19].

 13   Witness Statement of Mr Warren Blay Exhibit R1 (Blay’s Statement) [17].

 14 Blay’s Statement [19].

 15 Ibid [20].

 16   Ibid [24]; Transcript PN558.

 17   Transcript PN2282.

 18 Blay’s Statement [24].

 19   Transcript PN2288-2289.

 20   Blay’s Statement [21]-[22].

 21 Ibid [23].

 22 Pemberton’s Statement [23].

 23   Ibid.

 24   Ibid [24]-[25].

 25 Ibid [27].

 26 Ibid [28].

 27 Blay’s Statement [27].

 28 Ibid [30].

 29   Ibid [29]-[30].

 30 Section 396 of the Act.

 31 Section 396(b) of the Act.

 32 Section 396(c) of the Act.

 33 Section 396(d) of the Act.

 34 Section 385(a) of the Act.

 35 Section 386(1) of the Act.

 36   [2017] FWCFB 3941.

 37 (1995) 62 IR 200.

 38   [2017] FWCFB 3941 [31].

 39   Mohazab v Dick Smith Electronics Pty Ltd [No 2] (1995) 62 IR 200.

 40   Ibid.

 41   Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

 42   [2006] AIC 496.

 43   A.S Doumit v ABB Engineering Construction Pty Ltd Print N6999.

 44   Ibid.

 45   Ibid; cited with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008.

 46   Fair Work Bill 2008 Explanatory Memorandum [1528].

 47   Ibid [1528] - [1530].

 48   [2017] FWCFB 3941 [33].

 49 Ibid [34].

 50 Ibid [35].

 51   Ibid.

 52   Transcript PN2670.

 53   Robert Tiller v Relationships Australia Western Australia Inc[2018] FWC 5519 [168].

 54 Blay’s Statement [21].

 55 Ibid [23].

 56 Ibid [25].

 57   Transcript PN1681.

 58   Transcript PN1653.

 59   A.S Doumit v ABB Engineering Construction Pty Ltd Print N6999.

 60   Transcript PN2268- 2273.

 61   Transcript PN2463.

 62   Clark v Australian Red Cross Blood Service[2013] FWC 3301 [26].

 63   PR700923

Printed by authority of the Commonwealth Government Printer

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