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 cubic metres. This was fraudulent conduct which compromised his integrity. One of the biggest clients, Bibra Lake Soils threatened to report the employer to the Weight and Measures regulator.

In about December 2020, he asked Andy Gulliver his manager whether the company was using sewage in its products. He wanted to know what he was selling customers. Mr Gulliver told him the answer was no. However, he was told by Jessica Bell that although the company was not licenced to process sewage it was coming into the yard and being used.

He says customers saw the trucks coming into the business being clearly marked as sewage trucks. This caused a great deal of damage to his reputation by being ambiguous about sewage and other waste products including paints being used in the company's product.

Around September 2019, Dave Cullen and Andy Gulliver came back into the business and refreshed the lines of product sold. He was told to discuss this with customers with a view to everything being true to specification within 8 months. However, this stretched out well beyond 8 months and probably continued throughout the rest of his employment.

He says the respondent was consistently replacing products without clients' consent and often without his knowledge which caused customer dissatisfaction and created a bad reputation in the marketplace, both for the company and for him.

He says there were extensive complaints which came to him, and nothing was done when he tried to have them resolved at management level through Mr Cullen and Mr Watts. They both considered that the customer was always wrong. When he put in customer complaints it was often frowned upon, not acted upon and he had been blamed for causing the customers to complain.

On one occasion for detailing a possible cause of the complaint, the applicant was threatened with his job.

Large clients such as Government and Local Government agencies as well as big private operators required laboratory certifications in accordance with Australian Standard AS 4454 with respect to compost and mulches. The company did not meet the standard as tests showed we were high on heavy metals.

He says Mr Cullen and Mr Watts said that they had a table of typical analysis on the label and that was all customers needed to know. The applicant states he was told not to provide information that clients were requesting, and this effectively took away his tools to effectively service clients and sell to them.

This conduct of the company was depressing as he couldn't effectively do his job as the company was misleading its customers.

The company also undermined his position with Super Soils in December 2020. He had engaged with them regarding their plans to expand north of the river and the amount of product that they would require. This plan had been discussed and he reported progress back to Andy Gulliver. Without informing him, Mr Cullen and Mr Watts arranged a meeting with the owner of Super Soils which left him looking incompetent and stupid.

He says the respondent refused to give him correct technical specifications for clients or asked him to provide fraudulent information that does not relate to product and or batches.

The respondent constantly comprised his integrity by changing the blended ratios of products from volume to weight which is not transparent to clients and on occasion makes the product not fit for purpose. He was consistently challenged by management when he tried to put customers' orders/place holders in or act in the best interest of the client, if it was not convenient for the respondent at that time.

In September 2021, he had his rights to negotiate resolution of complaints fully removed and given to management. This was again in the context of customer complaints about short loading. As he had always been left to solve these complaints on his own for the previous 3 years, his solution would be to provide some extra product on the next load the customer took. He says Mr Cullen objected to this and ruled that he was no longer authorised to do this.

The applicant’s evidence was that the company continually through the last 24 months of his employment approached problems with clients as if they are always wrong. This was almost a mantra and made his working life exceedingly difficult as he had to deal with the clients on a day-to-day basis and often, they were very angry with the company.

The applicant says he was never recognised for his achievements. Soon after commencing in 2017, he had doubled the retail revenue and continued to obtain good long-term clients.

He was overlooked for promotion and told he was not qualified and when he put his hand up for a senior role in August 2021, the company instead appointed an Oil and Gas Geologist instead. This was extremely belittling.

He says that up until recently he was underpaid in comparison to other sales staff doing the exact same job who were not performing at all.

He was regularly told by Mr Cullen that things were 'above my paygrade,' 'I don't need to know, and things are on a 'need to know basis' when trying to find answers or solutions for clients, particularly with respect to specifications of the product and about the use of sewage.

In June 2020, the applicant was told to 'fuck off’ by Greg Watts (in front of Jackie Hammond, HR who took no action), told to tell his clients to 'fuck off and told that he and others were not educated or trustworthy enough to know the C-Wise IP.

He was told by Jackie Hammond that anyone who airs any grievances to management will be shut down and that management have made a pact they will all stick together regardless of circumstances.

He says Greg Watts tells employees their jobs are easy, and they could easily be replaced, and they are 'low risk' if they leave. He says management can give away vast amount of products for free or nominal value, use suppliers for their personal gain, take credit for other people's work, raise voices, speak over others, be passive aggressive and belittle staff and threaten them with their jobs. But when he raised concerns about his treatment and other staff it was ignored.

He says the respondent created a toxic culture and lost many good people due to this, exit interviews are not conducted, however the attrition figures speak for themselves.

He says he was certified unfit for work due to the workplace stress in early November 2021[3] and he fully intended to return to work once the complaint he had made both to the company and to Fair Work on 18 November 2021 was resolved.[4] His evidence in chief was that however from the company’s standpoint that could not and would not happen.[5]

During his stress leave of absence in December 2021, the company locked him out of all their IT systems. However, it took over a month for his phone to be diverted, leaving him to field the work calls when he was seriously unwell. He says this seemed to him like a deliberate decision to on the one hand cut him off from the IT but leave the phone so he could be stressed by work calls. This made it clear to him he says that he was being pushed out of the company.

The Commission notes the applicant’s evidence about being stressed by fielding work calls while he was absent is inconsistent with the email sent by the applicant’s partner on his behalf to the respondent on the evening of 17 November 2021 which states,

“Colin will leave a message on his phone diverting all calls through to the sales team and forward on all outstanding emails that need actioned, as well as diverting all new emails received to Richard and Chris in the sales department.”

He says he made a formal complaint to management on 17 November 2021. He says this was never addressed nor answered.

His evidence was that in December 2021, his doctor arranged for psychological treatment for his deteriorating mental health. Both practitioners strongly recommended that he not return to work as the issues confronting him were long standing and were now severely impacting his health.

The applicant says he took the advice of his treating practitioners and tendered his resignation.

The applicant’s statement in reply filed after the respondent’s witness statements were filed adds only what the applicant referred to as a transcript of the phone conversations that occurred on 17 November 2021 between himself and Ms Caroline Heredia and Ms Jacalyn (Jackie) Hammond.[6] His evidence was this document was drafted only after he had seen the respondent’s witness statements and was not written at the time of these conversations in November 2021, however he says he did have some notes of what occurred at the time. Those notes were not provided to the Commission.

Relevantly, the applicant’s document records in his words the exchanges. In a raised voice, Caroline tells him she will pass on to Ms Hammond and places him on hold to do this. His record of the conversation states that he needed a minute to think about the issue and so he hung up the phone.

His record of the conversation says 30 seconds later, Ms Hammond rang him and speaks aggressively, then after an exchange refers to her as being very passive-aggressive, his record notes that he was becoming defensive and was frustrated after this his record says Ms Hammond said to him not to speak aggressively to her or she will hang up, after a further exchange with her he says he was overwhelmed by frustration and asked her why she wasn’t listening to him or trying to help him he records her reply as follows,

“.. do not yell at me I’m hanging up the phone now.”

His record of the conversation then says he was then confronted by Mr Moss who asked him to come to a meeting room where he began to discipline him and told him that he would receive a written warning. This was even before he could tell his side of the story he says.[7]

I note the evidence of Mr Cullen was that when he spoke to Mr Watts to arrange him to speak with the applicant, Mr Watts suggested that Mr Moss as the applicant’s direct supervisor would be best to discuss the situation with him.[8]

Under cross-examination, the applicant agreed that in October 2018 he had been given a 19.5% increase in his base salary taking his salary from $73,000 per annum to $87,235.[9]

The applicant also agreed that in July 2020 his salary was increased from $87,235 up to $100,000 per annum. Mr Gulliver thanked him for his contribution to the business and confirmed this through a letter. A handwritten notation on that letter from Mr Gulliver again thanked him for his efforts and the conversations over the fast past few months and states that Mr Gulliver had really appreciated it and was looking forward to the next 12 months.[10]

Under cross-examination, the applicant’s evidence was that Mr Watts came and spoke to him on 17 November 2021 about an incident that had allegedly occurred between himself and Ms Heredia and Ms Hammond and had advised the applicant that the respondent would be investigating this. I note that this is contrary to the applicant’s written record that it was Mr Moss that spoke to him, however nothing turns on who in fact did speak to him.

The applicant confirmed when his wife emailed his three-page letter detailing his complaints against the respondent with the covering email and medical certificate that evening at 11:26 PM that he had been involved in preparing this letter. [11]

The covering email read as follows,

“Please find Colins medical certificate attached, he has been signed off by the doctor yesterday with severe stress & anxiety. Please note that under doctors’ orders he is not to be contacted by any C-Wise staff member, and should you need to contact him or discuss this further you can come through me in the first instance, details as per below. Colin will leave a message on his phone diverting all calls through to the sales team and forward on all outstanding emails that need actioned, as well as diverting all new emails received to Richard and Chris in the sales department.
I am also attaching a formal complaint by Colin, listing the events and harassment which have led to Colins illness and witnessed over numerous months, this can be discussed with him only upon his return to work under current legislative guidelines and should not under any means affect his recovery.
Please be advised as per his letter this has also been forwarded on to the Fair Work Commission as we feel this is the only way the complaint will be dealt with in a non-bias, discriminatory, and/or non-threatening fashion.
Please also note that this letter as marked is strictly private and confidential for the addressees and other than this usage should be used for investigative purposes only.”

The letter attached to the email is headed Formal Complaint 17 November 2021 and over three pages details 14 examples of what the applicant refers to as bullying and harassment which his letter says makes “... it near impossible for me to continue to carry out my duties as per my employment contract.”[12]

The applicant concludes his letter as follows,

“I am not willing to endure anymore bullying and harassment, double standards and/or stress & anxiety and poor safety standards caused by the C-Wise structure any longer. No one deserves to have to come into a workplace and be treated like this when they are giving 150% to their job with no respect, appreciation or value to that person and non-management personnel being treated like second class citizens and over micro-managed at a ratio of about 1 Manager for every 2/3 personnel.
These are not isolated incidents and I have witnesses who can back up everything I have said in this letter, to my treatment and to their treatment which they received whilst working for C-Wise previously. Unfortunately, the treatment listed is only a fraction of occurrences.
In summary, a management of a business is there to train, lead and motivate not to belittle, harass and bully their staff whilst they all fight amongst one another to gain the most power in the organisation to a point they have the staff members frozen with stress and anxiety.
To receive fair treatment, I have forwarded a copy of this onto Fair Work.
Upon my return to the organisation, I would like these points addressed in a non-bias manner to myself and measures put in place where I can come back to work in a safe and healthy working environment.”

With respect to COVID-19 vaccination under cross-examination, the applicant explained that the respondent advised it was possible they would be mandating vaccination and he was aware in October 2021 that the critical date for employees to be vaccinated was likely to be 31 December 2022. His evidence was that he had not objected to being vaccinated but was looking for answers because it was in his view ambiguous as to whether or not the workplace was covered by the government directions mandating vaccination.

His evidence was that the respondent had advised that no one was going to be laid off for not being vaccinated.

The Commission notes that the respondent has provided correspondence which went back and forth between the respondent and the applicant explaining in short, that the respondent is covered by directions of the Western Australian Government that mandate staff to be vaccinated in order to remain at work from 31 December 2021, and if they were not, they would have to take annual leave until the matter was resolved.[13]

As at the date of hearing, the applicant’s evidence was that he has not received a COVID-19 vaccination.

The Commission therefore finds that if the applicant had not resigned on 29 December 2021, he would not have been able to attend the workplace because he was not vaccinated and so would have had to either take annual leave or an indefinite period of leave without pay.

With respect to the Stop Bullying application he filed on 18 November 2021, he identifies the performance or disciplinary process in his application he was involved in as follows:

“I was threatened with a written warning for raising my voice aggressively to 1 of the staff members bullying me, although no investigation or evidence was provided.”

The applicant confirmed that he discontinued the Stop Bullying application on 6 January 2022.[14]

Mr Grant Alexander provided a witness statement.[15] Mr Alexander was not cross-examined.

Mr Alexander was a client of the respondent who dealt with the applicant. Mr Alexander had a number of complaints with the products and the service he received from the respondent.

Ms Erika De Walt provided a witness statement. She was employed by the respondent from January 2019 to 31 December 2020.

She gave evidence detailing that there were customer complaints, but management did not in her view take this seriously.

She says the applicant was expected to sort out customer complaints with little support.

She says there was a culture of it being okay to belittle staff, bully, intimidate and coerce which was largely coming from Mr Cullen, Mr Watts and Mr Soutar.

She was critical of a range of other matters within the business.

She says Ms Hammond would interfere in department’s businesses and got worse in 2019 when Ms Hammond was promoted to Administration Manager.

Ms De Walt confirmed she resigned in 2020 and was not there for the last 12 months of the applicant’s employment.

Ms Beverly Riach provided a witness statement. Her evidence is that she is the applicant’s partner.

The evidence was that she has witnessed the applicant be bullied and harassed and other staff members came to her to say they were also being bullied and harassed by management.

She has witnessed the applicant being asked to commit fraud by providing dodgy technical specifications to clients.

She has heard furious clients on the phone due to product quality and under loading.

She has advised not only the applicant but others within the organisation that employers are not allowed to treat the staff like this and there is legislation in place to protect them but most of them either ended up leaving, being pushed out or ignore what management are doing and choose instead to join with them if they are at a high enough level to be accepted into the ‘club’.

She says she pleaded with the applicant over 2 years to leave his position and not to put up with this treatment any further but he is extremely dedicated and far too loyal to a fault.

Ms Riach details numerous further complaints about the respondent generally consistent with the applicant’s evidence. Much of her evidence is hearsay.

Her evidence was that leading up to the events which seriously impacted his health with an unjust threatened written warning, she had been present in his car the week prior and heard Ms Hammond scream down the phone at him when he tried to place a customer order. Her evidence was this was not an exception, but an everyday occurrence when he was spoken to like a petulant child, belittled and spoken over.

Mr Riach’s evidence was that she fully supported his decision to leave C-Wise and had asked him that he take time out to fully recover from the years of abuse.

Under cross examination, Ms Riach agreed it was her view that the applicant should resign. Her evidence was that she had repeatedly seen the way he was mistreated and had advised him that over the last couple of years. She says he didn’t resign based on her advice but thinks that he had just reached his limit, he had asked for mediation, but the company hadn’t come back to him about anything he had raised. She said he had then made the decision to resign.

The applicant’s documentary materials filed in support of his application include a psychological report from a clinical psychologist Mr Sean Ng in the form of a letter dated 5 June 2022. Mr Ng was not called to give evidence and has not been subject to cross-examination. The Commission has however agreed to accept the report into evidence.

That report indicates it was drafted at the request of Mr Mullaly to assist in his representation of the applicant.

The report states the dates of attendance by the applicant were 14 January 2022, 24 January 2022 and 11 February 2022.

The report states that the applicant self-reported significant challenges with low mood, loss of ability to concentrate and focus, changes to sleep, fatigue, negative thought ruminations, a sense of hopelessness consistent with depression.

The report states that the workplace environment as reported by the applicant was largely due to the unprofessional conduct and inappropriate workplace behaviour (bullying) perpetrated.

The report states it is the psychologist’s clinical opinion that the applicant would not have been able to continue working at C-Wise when considering the increasing severity of the state of his mental health over time.

The respondents Managing Director, Mr David Cullen, gave evidence as follows. C-Wise is an organics recycling business that convert waste products, such as organic form liquids and solids, into products best and most widely understood as mulch and soil conditioners.

Since 2019 he has been responsible for the operational and day-to-day running of the business. Mr Gulliver took on the role of sales manager until about August 2021.

The business has approximately 35 employees.

The businesses is divided into administration, sales, operations and technical.

The administration division is comprised of the front office and the accounting teams, making up the admin team, as well as the sales team.

The Sales Team is relatively small and are responsible for managing and generating our sales as follows:

a. by charging for incoming materials they receive (i.e. gate fees); and

b. selling finished products that they produce and deliver to customers.

The Admin Team processes customer invoices and orders, and the Sales and Admin Teams need to work together to ensure orders are delivered correctly to customers and all related paperwork is properly completed.

Specifically, all details relating to each order placed by the Sales Team need to be clearly

and effectively communicated to the Admin Team, so customers’ orders are accurately processed.

When he started, the applicant’s duties were generally limited to supporting the wholesale product to the established retail yards, including being the customer’s first point of contact for orders, talking about the products available and passing the orders through the system.

The applicant transitioned to full time employment in February 2018 and it was at about this time that the Applicant started supporting sales for commercial landscapers, which involved promoting products suitable for commercial landscaping and projects, as well as continuing to perform the existing retail yard sales duties.

His evidence confirmed that in September 2018, the applicant’s base salary increased to $87,235 and in July 2020 it increased to $100,000.

During his employment he generally performed his role of the sales representative satisfactorily.

External communications and management coaching for some employees including the applicant was arranged, a feature of which included how to improve individual communication skills, including conflict resolution.

The sessions comprised six half day coaching sessions over a three-month period.

The applicant had the option which he took up to continue having monthly private individual coaching sessions for 12 months the cost of which was paid by the respondent.

Throughout 2021, C-Wise engaged in a “Refresh Project”, where it looked at methods and systems of operation and production and identified areas for optimisation and improvement.

Over this period of time, it implemented new accounting software, confirmed information sharing requirements and expectations between the business divisions, and sought to clarify or reinforce existing processes for production and supply of product, as well as develop new ones.

The Refresh Project was a collaborative exercise with C-Wise employees and the applicant was required regularly to attend meetings to provide input and feedback on the proposals within the Refresh Project.

His evidence was that though C-Wise employees were involved in the Refresh Project and aware of any changes that were introduced as a result, some day-to-day tensions arose between the Admin and Sales Teams, specifically with respect to information sharing for processing orders.

Mr Cullen’s evidence is that he recalls in or about March 2021, Ms Hammond the Administration Manager complained to him that she considered the Applicant’s manner and communications towards her were of an inappropriate and abusive nature.

Consequently, he notified Mr Gulliver of Ms Hammond’s concerns and asked him to discuss the matter with the applicant.

His evidence was that Mr Gulliver told him he spent time discussing Ms Hammond’s concerns with the applicant and informally coaching him on appropriate workplace behaviours.

He says he recalls in early November 2021, Ms Hammond came to him again and told him words to the effect of “I won’t stand for his [the applicant’s] continued bullying and abuse and if it continues I am going to resign”.

Consequently, he approached the applicant and told him what Ms Hammond had complained of and reiterated to him C-Wise’s expectations that he treats the Admin Team with respect.

Ms Hammond told him the applicant later apologised for his inappropriate behaviour.

Both Ms Hammond and the applicant appeared satisfied that this resolved the dispute.

After this, he says he held separate discussions with the Sales Team including the applicant and the Admin Team about the importance of communicating with each other respectfully to avoid tensions and disputes in the workplace.

During both discussions, he:

a.emphasised the importance of ensuring appropriate behaviour towards each other in the workplace; and
b.used words to the effect of “you catch more flies with honey than vinegar” to illustrate this point.

Mr Cullen says he commonly uses this phrase, and in using it meant that if each Team were more polite and respectful in their dealings with each other, they would more likely get along and obtain the assistance they required from each other.

The Commission notes that applicant in his witness statement in reply did not contest the above evidence of Mr Cullen about prior complaints about his behaviour having been made by Ms Hammond and that the respondent as a result had previously counselled the applicant about his behaviour toward Ms Hammond.

Mr Cullen’s evidence was that on 17 November 2021, he was interstate on holiday and received a call from Mr Watts regarding complaints he had just received from Ms Hammond and Ms Heredia the Receptionist about the Applicant’s conduct towards them.

During this call, Mr Watts told him the following:

a.Ms Heredia had called the Applicant to query the status on a customer’s order, specifically, whether the customer would need additional product for a particular job.
b.Ms Heredia alleged the Applicant had aggressively responded by shouting down the phone and this could be heard by Ms Hammond who was not participating on the call at the time.

c.Ms Heredia asked the Applicant to stop shouting at her and indicated she would need to hang up the phone if it continued.
d.The Applicant allegedly continued, and Ms Heredia said she would need to put Ms Hammond on the phone to have the discussion with the Applicant, as she felt she was being verbally abused. The Applicant then abruptly hung up the phone.
e.Ms Hammond called the Applicant back to query what had just occurred between himself and Ms Heredia. The Applicant become verbally aggressive towards Ms Hammond and made critical comments about other Admin Team members.
f.Ms Hammond told the Applicant she would not tolerate being screamed or shouted at and asked the Applicant to stop otherwise she would hang up.

His evidence was that after Mr Watts told him about the incident, he instructed him not to take any substantive action in response until he returned from holidays the following Monday. He advised Mr Watts that they would need to consider it in detail and work out what had happened before any disciplinary action would be considered.

Mr Cullen says he instructed Mr Watts that in the interim, he should have a discussion with the Applicant to address the fact that they were concerned about his alleged conduct and that disciplinary action may need to be considered.

Mr Watts suggested to him that Richard Moss have this discussion with the Applicant

because he was his direct supervisor, and Mr Cullen agreed.

Mr Cullen’s evidence is that he was updated by Mr Watts by phone later that day to confirm Mr Moss had the discussion with the Applicant and that he had provided him with details of the Employee Assistance Provider too.

Mr Watts further told him that the Applicant left the premises immediately after this meeting.

When Mr Cullen returned to work the following week, Ms Hammond provided him with a copy of:

a.Her email to Mr Watts and Mr Moss regarding the incident which read as follows,
“Just getting down on paper this morning s events.
Caroline called Colin to ask about balance of order for xxxxx. I walked past desk and could hear Colin screaming down the phone at her Caroline was visibly upset and frustrated and she said she would pass call to me at which Colin hung up. I called him back to ask what was wrong and he begun by blaming production for not filling up trucks. Caroline said Colin was blaming production as he stated Andy had already made it clear that this was how it was to run and production should know there job. I suggested he spoke with either yourself Greg or Ross if there was a production issue as Caroline probably could not assist. He said everyone was against sales and they could not do anything. I said everyone has to work together. I further explained Caroline was liaising with Colin to ensure the customers expectations were met as I had said lets ensure we are all over the order and it goes without a hitch. We are also trying to train Nikki & Nicole on these type of orders.

Colin started talking about trucks and I noticed there was no formal instruction on the order and mentioned to him that the SO did not have any specific truck request. He said he had missed that as he had put it on the other order. I also mentioned time critical was in the Internal Instruction & not in the Delivery Instruction box which means it does not flow through to the PO. Colin argued that when Nikki Groves was here it did and that we have changed the process. His words “you guys have changed it since”. I stated I was part of the original set up and the info flows from the Delivery instruction.
At this point Colin started screaming at me and I told him I was hanging up as I wasn’t going to be screamed at. There is no place for abuse in any workplace and there is no excuse for abuse.
Point to note – Beth overhead the conversation obviously only my end and asked me if I was ok.
Greg and I made the decision and instructed Caroline as to how to deliver the remaining balance. Here is a screenshot of the order in question.” [16]

b.Ms Heredia’s formal complaint regarding the incident which read as follows,
“I simply asked Colin to see if the customer would need extra product for the job & Colin has go into a tirade of verbal abuse asking why don't have the Semis on the job also saying that Andy had sort ed this out so the Semis would hold 22.Sm 3 which I informed Colin this was not on the s/o & explained this information but Colin went on saying that production are not doing their jobs properly & he can't understand why Andy's instructions are not being followed. At this point I felt like I was getting verbal abuse over a simple question.
I feel that most conversations with Colin lead to different degrees of abuse directed at myself & other areas of the business. I can' t work in a stressful environment when I can't ask simple questions without feeling like I get knocked down.”

Mr Cullen and Mr Gulliver the same day received the email from the applicant’s partner with the attached the applicant’s formal written complaint and medical certificate stating he was unfit to work until 2 December 2021 due to stress.

Mr Cullen’s evidence is that on 19 November 2021, Mr Gulliver responded to the email received from the applicant’s partner advising that his formal complaint would be

“…provided to external HR advisors for the purposes of investigation and settling any complaint that has been made (as requested in your email)”

That response also advised that no steps would be taken to arrange meetings with the applicant given his request in the email of 17 November 2021 that no one contact him until 2 December 2021.

The applicant’s partner replied by email to Mr Gulliver and Mr Cullen on 19 November 2021 saying no meeting is required and they were happy to leave this in the hands of non-biased outside parties moving forward so as not to compromise anyone’s position.[18]

Mr Cullen’s evidence was that he took steps to ensure that the applicant emails and calls were then diverted from his work mobile to the respondent’s office, and he is not aware that anyone from the respondent had any further contact with the applicant in relation to his complaint made on 17 November 2021.

On 19 November 2021 at 1:00 pm, the respondent received an email from the applicant attaching a copy of the Form F72 - Application for Orders to Stop Bullying dated 17 November 2021.

Mr Cullen’s evidence is that the respondent’s solicitors filed a Form F73 response to this application on 25 November 2021.[19]

On 30 November 2021, Mr Cullen and the applicant received an email from the Chambers of Deputy President Beaumont of the Fair Work Commission advising that a conference would be held to discuss and mediate the Stop Bullying application on 8 December 2021.

Next, the respondent’s lawyers received an email from the Chambers of Deputy President Beaumont advising that Ms Riach on behalf of the applicant had requested the conference on 8 December 2021 be adjourned and relisted. The email from Chambers confirmed that the applicants request had been granted and that the mediation conference was relisted for 17 December 2021.

On 15 December 2021, the Chambers of Deputy President Beaumont sent an email to the respondent advising Ms Riach had corresponded that day and apparently provided a further medical certificate and had requested that the 8 December 2021 mediation conference be again adjourned and relisted. In this email, Deputy President Beaumont advised the applicant that whilst the Commission was sympathetic to the circumstances the matter would not be placed in abeyance for an undetermined period and noted that the medical certificate covered the period up until 24 December 2021.

On 20 December 2021, a Notice of Listing was received from the Deputy President Beaumont’s Chambers listing the mediation conference for 25 January 2022.

Next on 28 December 2021 at 4:07 PM Mr Cullen and Mr Gulliver received an email from the applicant titled ‘Colin Rossbridge Resignation Letter’ the email referred to the attached letter of resignation and stated it was effective immediately from 29 December 2021.

The letter of resignation is three pages long. In the first paragraph the applicant says

“… I have been strongly advised by my doctor not to return to my employment with C-Wise. I therefore feel that I have been left with no other choice.”

The letter then continues on to list examples of how the applicant believes his job was made impossible and then lists examples of what he characterises as harassment followed by a number of additional criticisms of the respondent. The applicant then says that the formal complaint he issued on 17 November 2021 “... was not addressed other than a return form to Fair Work addressing the incident with Jackie Hammond.” He then states amongst other things:
“ ….furthermore, I was not even asked my version of events before being told I would receive a written warning,…”.
The letter continues on with a range of other complaints and concerns being expressed by the applicant regarding a range of matters including customer service, poor management, hypocrisy and his company car arrangements.

Mr Cullen’s evidence was that the email and resignation letter from the applicant was as far as he was aware the first correspondence the respondent had had with the applicant since he left the workplace on 17 November 2021. By this time the applicant had been absent from the workplace for approximately 41 days.

Mr Cullen by reply email to the applicant accepted his resignation. Arrangements were then made between himself and the applicant to meet for a final handover. He provided the applicant with a copy of his employment contract as he requested. His evidence was that the meeting with the applicant was formal but cordial.

Around 20 January 2022, the respondent made an application to have the Stop Bullying application previously filed by the applicant dismissed on the grounds that he was no longer employed. The Chambers of Deputy President Beaumont however advised in reply that the applicant had already withdrawn the application by email on 6 January 2022.[20]

In response to the allegations and complaints made by the applicant in his witness statement, Mr Cullen gave detailed responses in his witness statement. This evidence is summarised below.

The applicant’s role as a Sales Representative did not require him to understand the technical specifications or composition of the product to perform his duties. The respondent’s technicians were responsible for ensuring all product produced and sold was to the standard required by C-Wise, and the standard expected by the customer.

Mr Cullen finds the allegation that C-Wise “defrauded” customers by underloading as horrendous and there is no evidence that this has occurred. C-Wise is highly conscious of the impacts of underloading and regularly conducts reviews and audits into how to manage this prospect.

He says the applicant has selectively collated a sample of customer complaints and sought to rely on this as a demonstrative example of C-Wise operations and customer service during his employment. For context, over the past year, the Applicant processed approximately 320 orders. C-Wise processes in excess of 5,000 orders each year.

C-Wise assesses any customer complaints of this nature on a case- by-case basis. The Applicant was often involved in obtaining and managing any customer feedback and areas for improvement for C-Wise.

It is unclear to Mr Cullen how the applicant’s personal reputation would be impacted in circumstances where he exclusively sold C-Wise products. It is important to note that the respondents products contain all kinds of waste materials, including paint, as raised by the Applicant. He states this is not controversial as assessing and ensuring appropriate materials are used in the production of our products is the responsibility of C-Wise technicians and it appears that in making this allegation, the applicant does not understand the technical aspects of the products (nor was he required to in his role of Sales Representative).

Mr Cullen’s evidence is that the respondent even states on its website “… We recycle wastes including manures, timber mill wastes, restaurant cooking oils, engine coolant, fuel and even paint.”

His evidence was that all products the respondent produces are designed to meet the needs of customers. This means that even though technical aspects and specifications of a product may vary, particularly during busy periods, the end product remains complaint with regulatory standards and customer expectations. In relation to the comment about the applicant being threatened with his job, all authority in relation to termination of employment rests with him as Managing Director and no one within C-Wise is entitled to make decisions with respect to employment matters unless it is with his approval.

Mr Cullen’s evidence was that C-Wise provides customers with all relevant information about nutrient values and physical characteristics of the product. However, sensitive commercial information about the production or technical aspects of the product are not shared with customers due to their sensitive and confidential nature.

With that in mind, and consistent with ordinary business practices, customers were provided with all information they requested about the product that was not deemed commercially sensitive or confidential.

Mr Cullen notes that at times the Applicant would speak with C-Wise’s production team and ask for changes to blended ratios of products himself, which was outside the scope of his role and duties.

The applicant did not have authority to make this sort of request because he did not have the requisite technical expertise to do so, and the applicant’s requests to this effect would be rejected. This was an area of improvement picked up and implemented as part of C-Wise’s Refresh Program.

Mr Cullen’s evidence was that the applicant raised no formal complaints about bullying or harassment during his employment, until his partner emailed the Formal Complaint on the evening of 17 November 2021.

With respect to the requirement for employees to receive a COVID-19 vaccination, Mr Cullen gave evidence about the history of communications and relevantly his evidence was that about 2 November 2021, the applicant sent him a further letter again setting out his objections to the vaccination and confirming his intention not to become vaccinated.[21]

About 3 November 2021, Mr Cullen sent a letter to the applicant confirming the respondent had no additional information to provide him with respect to vaccination mandates further to their letter to him of 29 October 2021.

Mr Cullen’s evidence was that he never raised the prospect of termination of employment as a result of non-compliance with the vaccination mandates because C-Wise did not yet know where it stood legally on the issue. As events unfolded, the applicant had resigned before the first vaccination cut-off date for vaccination of 31 December 2021.

Under cross-examination, Mr Cullen said that the formal complaint sent by the applicant on the evening of 17 November 2021 came as a surprise. He confirmed it was the respondent’s intention for these matters in the applicant’s complaint to be looked at by an independent outside person as was conveyed to Ms Riach in the email from the respondent on 19 November 2021.

He confirmed under cross-examination that the respondent had not contacted the applicant as the applicant had requested in his email of 17 November 2021.

He agreed no one had been appointed to undertake the foreshadowed independent investigation into the applicant’s complaint.

After receiving the applicant’s formal complaint, the next event was the respondent was served with the Stop Bullying application filed by the applicant on 19 November 2021.

Under cross-examination, Mr Cullen’s evidence was the applicant was on personal leave and the applicant didn’t want the respondent to contact him until he felt well enough to be contacted.

His evidence was that the respondent’s reply to the Stop Bullying application proposed the Commission staying the Stop Bullying proceedings until an independent investigation into the applicant’s complaints had been done.

Mr Cullen’s evidence was that the applicant’s resignation email and letter of 28 December 2021 said his resignation was with immediate effect on 29 December 2021. He agreed he did not reply to the substance of the applicant’s resignation letter. His evidence was it was a very emotive letter, but the respondent did not force the applicant to resign, he chose to.

With respect to the complaints made by Ms DeWalt, Mr Cullen’s evidence in cross examination was that she had never raised these concerns with him. None of those things had been put to him either formally or informally by her.

The Commission notes that neither party called Mr Moss to give evidence as to his version of the discussion he had with Mr Rossbridge at work on 17 November 2021, concerning the earlier interactions between the applicant and Ms Hammond and Ms Herrida.

The applicant’s evidence was that Mr Moss told him he would be given a written warning. The applicant’s partners hearsay evidence however was somewhat different in that she says what occurred was “... an unjust threatened written warning...”.

Whatever the applicant understood immediately after the discussion with Mr Moss about a written warning being issued to him, eight days later, the respondent’s position about the complaint it had received from the two staff members about the applicant on 17 November 2021 was expressly stated in their response to the Stop Bulling application he had filed.

On 25 November 2021 the respondent’s filed response states that Mr Moss had advised the applicant that appropriate disciplinary action would be considered and that his behaviour towards the two other staff members caused Mr Moss to be concerned about the applicant’s health and well-being.

The respondent’s filed response also states that the applicants formal complaint detailed in his letter to the respondent dated 17 November 2021, which detailed his various allegations of bullying and harassment and other areas of complaint including his understanding he was to be given a written warning because the two staff members had complained about him, would be provided to external HR advisors for investigation.[22]

Consequently, the Commission finds that at the time of resigning the applicant was aware that the formal complaint he had made to the respondent, which amongst other things dealt with his version of the incident between himself and two staff members on 17 November 2021 and his complaint about being told he would receive a written warning without having given his side of the story, would be independently investigated.

With respect to the psychological report provided by the applicant the Commission notes that how the applicant was affected by events in his workplace is entirely subjective.

The Commission notes the applicant had not attended the clinical psychologist prior to his tendering his resignation on 28 December 2021 nor had he attended prior to making this application to the Commission on 11 January 2022.

The clinical opinion in the psychologists report is reliant upon the accuracy of the self-reporting of all relevant events by the applicant.

There is no indication in the report that the writer was aware that, prior to the applicant resigning, he had made a Stop Bullying application and the writer was aware of the explanations and proposed course of action advised to the applicant and detailed in the employer’s response to that application, and was aware of the nature, timing and possible outcomes of the Commission proceedings programmed to deal with his application.

In the absence of the applicant’s clinical psychologist being available for cross examination and to be questioned by the Commission, the Commission does not accept the psychological report as objectively demonstrating that the applicant had no choice but to resign and/or was forced to resign, as at 28 December 2021, because of the respondent’s conduct or a course of conduct

Submissions

The Applicant

It is submitted on behalf of the applicant that he has identified the following conduct or a course of conduct of the respondent as being a repudiation of his employment contract and/or conduct designed or likely to force the applicant to leave the employment. He said as much in his resignation letter:
Told that he doesn't need to know what he was selling.
Told by management that clients are ignorant and uneducated, don't know what they are talking about and to tell them to 'fuck off’.
Defrauding clients with continual underloading and refusal to address the problem losing our clients thousands of dollars which was unlawful or fraudulent.
Causing damage to the applicant's reputation by being ambiguous about sewage and other waste products including paints being used in in the product.
Replacing products without client's consent and often without his knowledge which causes customer dissatisfaction and a bad reputation in the marketplace as customers can tell the difference and know this is not what they have ordered.
Customer complaints often frowned upon, not acted upon and the applicant has been blamed for causing the customers to complain. On one occasion for detailing a possible cause of the complaint the applicant was threatened with his job.
Told by management not to provide information that clients were requesting.
Refusing to give me correct technical specifications for clients or asking the applicant to provide fraudulent information that does not relate to product.
Changing blended ratios of products from volume to weight which is not transparent to clients and on occasion makes the product not fit for purpose and again fraudulent conduct.
Bullying and harassment to such an extent that the stress ultimately caused the applicant to be unfit for work.
It is submitted that in all the circumstances, the applicant could not reasonably be expected to continue under management which treated him in this way and he made this clear to the respondent in the lead up to his resignation.

The resignation was forced upon him by the conduct, or a course of conduct and he had no option but to resign.

Once the applicant establishes that he was dismissed under the legislation he can establish an unfair dismissal.

There was no valid reason for his dismissal and the respondent did not follow the procedures to establish procedural fairness in arriving at his termination.

In summary, the matters set out in s387 of the Act when addressed against the termination of the applicant all favour a finding of the termination being harsh, unjust or unreasonable. It was therefore an unfair dismissal.

The respondent

For the respondent, it is submitted that the 10 instances of alleged conduct or a course of conduct of the respondent which the applicant says were a repudiation of his employment contract and/or were conduct designed or likely to force him to leave his employment are simply not of this character.

None of these alleged conduct by the Respondent amounts to conduct or a course of conduct engaged in by the Respondent with the intention of bringing the employment to an end or that termination of the employment was the probable result of the Respondent’s conduct such that the Applicant had no effective or real choice but to resign.

If an employer engages in ambiguous conduct and that impacts on an employee’s decision to resign – that is, the employee decides to resign because of their perception and response to the ambiguous conduct – that resignation cannot be treated as a forced resignation. In those circumstances, the resignation is voluntary.

The respondent submitted that circumstances here cannot amount to a forced resignation because at no point did the Respondent engage in conduct that was intended to bring the Applicant’s employment to an end. In fact, the opposite is true. The respondent:

on receiving the Applicant’s Formal Complaint (which was the first complaint ever raised by the Applicant in relation to his employment), committed to taking steps to have the allegations independently investigated;
actively participated in the Applicant’s Stop Order Application in good faith with a view to genuinely resolve the dispute between the parties; and
provided one-on-one communication and management coaching sessions with an external performance coach for a 12-month period.

These actions of the respondent demonstrate it took active and positive steps to preserve the applicant’s employment with the respondent.

Further, the applicant had been absent from the workplace for 41 days prior to his Resignation, and during this time, the respondent complied with the applicant’s request that no one from the respondent contact him to allow him the time to recover.

The respondent cannot be said to have engaged in any conduct which was intended to or had the probable effect of forcing him to resign in circumstances where it had not communicated or engaged with the applicant (at his request) and the applicant had been absent from the workplace. Further, as noted in Mr Cullen’s statement, the applicant took issue with the possibility that he may be required to receive a COVID-19 vaccination by 31 December 2021 and be fully vaccinated by 31 January 2022 as a result of WA State Government mandates.

Curiously, the applicant resigned from his employment just 2 days before the date on which the applicant believed he may have been required to receive a COVID-19 vaccination.

This is in circumstances where the applicant had expressed on two occasions, in writing, his objections to receiving any form of COVID-19 vaccination. Accordingly, it is open to the Commission to conclude that the basis for the applicant’s resignation was borne out of his concern that he was required to receive a COVID-19 vaccination and had nothing to do with the conduct of the respondent.

It is clear the requisite conduct on the part of the respondent cannot be established by the applicant.

Even if the respondent engaged in some conduct that contributed to the applicant’s decision to resign (which is denied), that conduct can only be characterised as ambiguous and any decision by the applicant to resign as a result of that conduct was voluntary and based on his own perceptions of that ambiguous conduct.

The applicant makes a number of extremely serious and baseless allegations which lead him to a logical fallacy in relation to the alleged conduct. Such allegations are wholly unfounded and injurious to the respondent and its employees.

A number of the allegations raised by the applicant which he asserts gave him no choice but to resign are hardly particularised, let alone applied to the correct and relevant legal test on whether or not this amounts to a dismissal for the purposes of section 386(1)(b) of the Act.

However, taken at their highest, the allegations raised by the applicant convey the subjective views of a disgruntled and/or dissatisfied former employee who was on notice of being subject to a disciplinary process following his own inappropriate behaviour and/or misconduct during the course of the 17 November 2021 incident.

To the extent the applicant asserts this is conduct on the part of the Respondent, which gave him no choice but to resign, the respondent maintains engaging in a disciplinary process is reasonable management action carried out in a reasonable manner.

It is submitted that the applicant has not established he was dismissed. He has failed to demonstrate conduct on the part of the respondent which had the intention of bringing the employment to an end or had the probable result of bringing the employment to an end.

The resignation cannot be treated as anything other than voluntary. The application should therefore be dismissed.

The legislation

Section 385, which is set out below, prescribes that one of the prerequisites for the Commission to be satisfied that a person has been unfairly dismissed is that the person has been dismissed.
“385      What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a)       the person has been dismissed; and
(b)       the dismissal was harsh, unjust or unreasonable; and
(c)       the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)       the dismissal was not a case of genuine redundancy.
Note:   For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Section 386, which is set out below, defines when a person has been dismissed which includes a person who has resigned but only in the circumstances prescribed in s.386(1)(b).

“386 Meaning of dismissed

(1)A person has been dismissedif:
(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 dismissedif:
(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.

Consideration

A person is only eligible to claim unfair dismissal where they are 'dismissed'. Section 386 of the Act defines the term 'dismissed' exhaustively to mean a situation where:

1. a person's employment has been terminated at the employers initiative, or
2. a person was forced to resign because of the conduct or a course of conduct engaged in by the employer.

When determining whether or not a person was 'forced to resign', the Commission will consider whether: the employer engaged in conduct with the intention of bringing the employment to an end; or the end of the employment was the probable result of the employer's conduct because the employee had no effective or real choice but to resign.[23]

The applicant bears the onus of proving the respondent's actions restricted the possibilities available to him, so the only reasonable alternative was to resign, with that resignation being a reasonable reaction to the respondent's actions.[24] This is a high threshold.

In O'Meara v Stanley Works Pty Ltd, it was held that it is not enough to simply establish that the acts of the employer resulted 'directly or consequentially in the termination of the employment'.[25]

The acts of the employer must do more than that. They must close off all other possibilities and include some compulsion such that a resignation in the face of the conduct could be considered a reasonable response. In ABB Engineering Construction v Doumit,[26] the Full Bench of the Fair Work Commission found that caution should be exercised when finding constructive dismissal:

'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.' (underlining added)

Authorities that consider circumstances where the resignation was given in the heat of the moment are not relevant in this case.

In the case of Celia O'Keefe v Ramsay Health Care Australia Pty Limited which concerned a constructive dismissal application by an employee alleging she was bullied during her employment.[27] Deputy President Asbury held at [5] that she was not required to make a finding on whether or not the applicant in that case had been bullied within the meaning of s789FD of the FW Act. In dismissing the application in that case, Deputy President Asbury held at [151]:

“Resignation to escape a difficult or unpleasant situation in a workplace will not amount to dismissal where the employee has other options besides resignation. This is so even where the situation in a workplace is objectively difficult or unpleasant or where the options are to resign or be subject to an investigation or disciplinary process, as distinct from resign or be dismissed. Here the Applicant opted to resign to remove herself from a situation which she perceived to be unfair and from conduct she perceived to be bullying. While some of the Applicant’s concerns were valid, on balance the conduct the Applicant complains of was not such that I could be satisfied that the Applicant was forced to resign. The Applicant had options other than resignation and it cannot be said that the conduct or a course of conduct she complains about had the intended or probable effect of ending her employment. Finally, I consider that even if all the conduct described by the Applicant occurred, it is not a course of conduct that objectively, was so egregious, that it gave the Applicant no real choice but to resign. While I do not underestimate the difficulties the Applicant would have faced if she remained at work, and the adverse impact upon her of resigning from her employment with the Respondent, I do not accept that she was forced to resign by a course of conduct engaged in by the Respondent.”

Turning to consider the relevant facts of this matter, a number of the events the applicant complained about happened a long time before he resigned. He complains of particular events which occurred in September 2019, March 2020, June 2020 and two in December 2020.

Given the time that had passed since these particular events occurred, the Commission is not satisfied that these events demonstrate an intention by the respondent to bring his employment to an end nor that those events meant he had no real choice but to resign in December 2021 when he did.

More recent events of which the applicant complained were in August 2021, when he applied for a senior role but was overlooked for the promotion, and in September 2021 when Mr Cullen removed his rights to negotiate solutions to customer complaints. Whilst these events would understandably have disappointed perhaps distressed or even angered the applicant there is no basis for the Commission to conclude that the respondent by these actions intended to bring the employment to an end nor is the Commission satisfied that because of these events the applicant had no real choice but to resign.

Self-evidently, some of the other events the applicant complains about are properly characterised as disagreements between the applicant and the respondent’s management about various operational matters.

These conclusions should not be taken as the Commission accepting that the respondent had acted properly at all times or was always blameless. Clearly there were some robust conversations which perhaps some of the respondent’s managers could have and should have dealt with more professionally than they did.

The apparent trigger for the applicant absenting himself from the workplace was his understanding that the complaints made by two staff members about his behaviour towards them on 17 November 2021 had been accepted by the respondent, without him having been asked for his side of the story, and he was to receive a written warning.

For the many weeks after 17 November 2021 through to 28 December 2021, the date he notified the respondent of his resignation, the applicant was absent on personal leave.

At the commencement of this period of absence his partner on his behalf, in the email to the respondent on the evening of 17 November 2022, requested he not be contacted and stated his formal complaint can be discussed with him only upon his return to work and they felt that only through the Fair Work Commission will his complaint be dealt with in a “..non bias, …non-threatening fashion.”

Thereafter by its actions the respondent respected these wishes of the applicant.

On 25 November 2021, the respondent filed with the Commission and served on him its response to his Stop Bullying application. That response expressly confirmed that his formal complaint of bullying and harassment including the various other allegations emailed to the respondent on 17 November 2021 would be independently investigated. This restated what had previously been advised to the applicant’s partner on 19 November 2021.[28]

In the applicant’s formal complaint, he dealt with in detail his version of what had occurred on 17 November 2021 with the two staff at the workplace and that he understood from Mr Moss he would be getting a written warning. Consequently, having received the respondent’s response to his Stop Bullying application on 25 November 2021 he also then knew that the events of 17 November 2021 were to be independently investigated.

Thereafter, the developments concerning his employment were that the Commission on a number of occasions listed his Stop Bullying application for a mediation conference and the applicant then requested the conference be delayed to a later date. The Commission agreed to the first adjournment and after his second adjournment request listed the mediation for a date in late January 2022. The respondent at no time objected to the applicant’s requests for adjournment.

From the applicant’s subjective perspective, he had dealt with many difficulties in his workplace over a number of years. He had been in conflict with management over a range of issues where he had starkly different views from them. He had at times been spoken to harshly and inappropriately.

Notwithstanding the fact that he had enjoyed the benefit of two discretionary pay increases he still felt his efforts were not properly recognised by his managers.

He also had a troublesome relationship with some administration staff, although the evidence indicates criticism could be levelled both at the applicant and at these staff all of whom at times behaved poorly to each other.

There is no dispute that the applicant resigned. The question is whether he was forced to resign because of the conduct, or a course of conduct engaged in by the respondent.

In the matter of Neil Ashton v Consumer Action Law Centre[2010] FWA 9356 at [59] Commissioner Bissett explained as follows,

“It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.”

There is no evidence that supports a finding that the respondent engaged in conduct with the intention of bringing the applicant’s employment to an end.

The applicant had made a Stop Bullying application to the Commission. At the applicant’s request the proceedings were relisted to later dates. When the applicant resigned, he was aware that the first mediation conference was to be held in January 2022.

The respondent had applied no pressure for him to return to work. It had not opposed his adjournment requests.

The applicant knew the respondent had committed to an independent investigation of his complaints and had advised the Commission of this.

The applicant’s evidence at hearing was that he fully intended to return to work once the complaints he had made to the company and to Fair Work were resolved. He expressly states this in his formal complaint on 17 November 2021. He says he believed however that from the company’s standpoint that couldn’t and wouldn’t happen. He believed he was being pushed out of the company.[29] This was the subjective view he had later formed. The evidence does not objectively demonstrate that this was the case however.

Whilst the applicant was clearly unhappy at work and this had negatively affected his mental health the circumstances, considered objectively, were not such that the respondent’s conduct meant the applicant had no effective or real choice but to resign.

With respect to concern for his mental health, at the time he resigned he had not been required to attend for work for a number of weeks and there had been minimal contact with the applicant during his absence further there was no suggestion the respondent was expecting him to attend the workplace in the near future.

His decision to resign appears to have been based triggered in part by on his subjective perception that the respondent wouldn’t allow him to return and that he was being pushed out of the company.

The timing of the applicant’s resignation is inexplicable. Perhaps the applicant had simply decided to take his treating doctor’s advice to leave the workplace. The Commission notes the applicant first saw the clinical psychologist on 14 January 2022, after he had resigned.[30]

Rather than resigning, the applicant obviously had the option of participating in the Commission’s mediation conference, which he had initiated, and which he previously considered an unbiased and non-threating process. He could see if the mediation assisted him with the complaints he had about his workplace. A second option he had was to, when his health allowed, participate in the independent investigation the respondent had advised they would conduct into his formal complaint.

Instead of doing either of these things, the applicant resigned.

In all the circumstances here, the Commission is not satisfied that the applicant had no effective or real choice but to resign because of the conduct or a course of conduct engaged in by his employer.

Therefore, I find that the applicant was not dismissed within the meaning of section 386 and as a consequence of section 385, by definition the applicant cannot have been unfairly dismissed.

The Commission will now dismiss this application and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

[1] Court Book pp. 1-6, 269-270.

[2] Ibid pp, 7 – 18.

[3] Ibid pp 180 – 187.

[4] Ibid pp. 196 - 211

[5] Ibid p. 12 [29].

[6] Ibid p. 271.

[7] Ibid p. 272.

[8] Ibid p. 152 [58] – [62].

[9] Ibid p. 115.

[10] Ibid p. 116.

[11] Ibid pp. 180 – 187.

[12] Ibid pp. 82 – 85

[13] Ibid pp. 252 – 268

[14] Ibid pp. 249.

[15] Ibid p.28.

[16] Ibid p. 178.

[17] Ibid p. 179.

[18] Ibid p. 192.

[19] Ibid p. 202.

[20] Ibid p. 249.

[21] Ibid p. 265.

[22] Ibid p.183 also see p. 222 [8] to [12].

[23] Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli [2017] FWCFB 3941 at [32].

[24] Australian Hearing v L Peary [2009] AIRCFB 680 at [30] .

[25] PR973462 [2006] AIRC 496, at [23].

[26] AIRCFB N6999 at [150].

[27] [2021] FWC 4796.

[28] Court Book p. 222 and 189.

[29] Ibid pp. 12,13 [29] – [30].

[30] Ibid p. 13 [34].

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