Mr Colin Rossbridge v WA Composts Pty Ltd - [2022] FWC 3089

[2022] FWC 3089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Colin Rossbridge
v

WA Composts Pty Ltd

(U2022/627)

COMMISSIONER WILLIAMS

PERTH, 1 DECEMBER 2022

Application for an unfair dismissal remedy

This decision concerns an application for an unfair dismissal remedy made by Mr Colin Rossbridge (the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is WA Composts Pty Ltd.

The application was not resolved at a staff telephone conciliation and so was referred to the Commission for hearing and determination.

The respondent objects to the application on the ground that the applicant was not dismissed.

Evidence and factual findings

The applicant filed a witness statement and a second statement in reply to the respondent’s materials. [1]

The respondent operates a compost business, and the applicant was employed as a sales consultant.

The applicant was first employed in November 2017.

It is not disputed that the applicant resigned from his employment. On Tuesday 28 December 2021, the applicant sent an email to the respondent’s management which referred to an attached letter of resignation. Both the email and the letter of resignation of three pages confirmed that he was tendering his resignation with effect from 29 December 2021.

The applicant’s evidence in chief,[2] relevantly, was that over the last 24 months the respondent had made it impossible for him to carry out his duties and retain his integrity and reputation in the market. His evidence is that he tried to have numerous discussions expressing concerns about this with management but was ignored.

He was told he did not need to know what he was selling by Dave Cullen. One occasion in March 2020, Mr Cullen told him to never tell a customer that they had run out of anything as the respondent would put something together in the context of running out of a product.

The applicant says this meant a blend of product, which was not what the customer had ordered, was then provided.

He says he wanted to be honest with the customer, but Mr Cullen said they didn't need to know. The applicant says his integrity was compromised by this.

He says he experienced many complaints from customers. Greg Watts (the General Manager Operations) told him on numerous occasions that the clients are ignorant and uneducated, did not know what they are talking about and just tell them to 'fuck off'. He says this attitude disturbed him greatly.

He said the employer had a major problem with underloading product. He dealt with numerous complaints about this. It went to the highest level of Dave Cullen, Greg Watts, Andy Gulliver, Gavin Soutar and Jackie Hammond for a solution, but none came. He says the company refused to address the problem losing clients thousands of dollars.

His evidence was that he investigated the problem and found that the loading bucket was calibrated to 4.5 cubic metres when the company told customers that one bucket was 5…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 3089
Decision Date: 1 DECEMBER 2022

CaseChat Overview and Summary

This case involved an application by Mr Colin Rossbridge against WA Composts Pty Ltd for unfair dismissal. The applicant alleged that he was forced to resign due to a course of conduct by the respondent. The Commission considered whether the applicant was dismissed within the meaning of section 386 of the Fair Work Act 2009. The Commission held that the applicant had not been dismissed by the respondent and therefore could not be found to have been unfairly dismissed. The case hinged on whether the applicant had been forced to resign due to the conduct of the respondent. The Commission concluded that the applicant had not established that the respondent engaged in conduct with the intention of bringing the employment to an end, or that the end of the employment was the probable result of the respondent's conduct. The applicant had other options available to him, such as participating in the Commission's mediation conference and the independent investigation into his complaints, instead of resigning. The Commission dismissed the application and issued an order to that effect.

Orders