Mr Daniel Brewer v Greenlight Human Capital - [2018] FWC 4852

[2018] FWC 4852

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394 - Application for unfair dismissal remedy

Mr Daniel Brewer

Greenlight Human Capital

(U2018/3219)

DEPUTY PRESIDENT SAMS

SYDNEY, 21 AUGUST 2018

Application for an unfair dismissal remedy – rehabilitation consultant – resignation letter – performance issues – relocation to respondent’s Head Office – claim that work relocation and associated extra travel and costs forced applicant to resign – no option to resign – constructive dismissal – respondent did not seek a reconsideration of his resignation – workers’ compensation claim during notice – payment made in lieu of notice – no dismissal at the initiative of the employer – no conduct or course of conduct designed to secure applicant’s resignation – no dismissal – Commission has no jurisdiction to deal with the merits of the application – application dismissed.

BACKGROUND

Mr Daniel Brewer (the ‘applicant’) commenced employment as a rehabilitation consultant on 14 August 2017 with PBS Health Pty Ltd t/a Greenlight Human Capital (the ‘respondent’ or the ‘Company’). The respondent is engaged in providing workplace rehabilitation services and employs 25 persons. The applicant’s role involved attending workplaces, clients’ homes and medical practices and making various rehabilitation assessments of clients. The applicant was employed as a 457 visa holder under a written contract of employment. His gross salary was $93,075, including superannuation.

On 9 March 2018, the applicant resigned from his employment in a letter which read:

‘Dear Alexa
Whilst I would like to thank you for the opportunity at Greenlight I feel now is the time to move on onto different paths. I would like to give my four weeks notice declaring my resignation from as of the 12/03/2018 to leave on 09/04/2018.
Regards
Daniel Brewer’

The applicant claimed that he was forced to resign and his resignation constituted a constructive unfair dismissal.

On 27 March 2018, the applicant filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he sought compensation for his alleged unfair constructive dismissal. Unsurprisingly, in its Form F3 in response to the application, the respondent raised a jurisdictional objection to the matter proceeding to determination on the grounds that the applicant had not been dismissed, nor had there been any intention to do so. Rather, it was said, that on 9 March 2018, the applicant was unhappy that he had been directed to base himself in the Parramatta office as a result of the respondent’s concerns with his refusal to follow instructions, his inappropriate communication style and poor time management/organisational skills. This was a direction issued verbally and in writing in order for the applicant to be appropriately supported, coached and monitored. The written direction was emailed at 4.51pm on 9 March 2018. The email reads as follows:

‘Hi Dan,
Further to our conversation earlier today, this email is to confirm that you are required to work from the Parramatta office on a full-time basis, effective from next week. Your employment contract states that ‘Greenlight…

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.

Continue reading Mr Daniel Brewer v Greenlight Human Capital

Details

AGLC: Mr Daniel Brewer v Greenlight Human Capital [2018] FWC 4852
Case: [2018] FWC 4852
Decision Date: 21 AUGUST 2018

CaseChat Overview and Summary

The case before the court involved Mr. Daniel Brewer, an employee, against Greenlight Human Capital, his employer. The dispute centred around an application for an unfair dismissal remedy. The matter was heard in the Fair Work Commission. Mr. Brewer had alleged that his resignation was effectively a constructive dismissal due to the employer's actions, particularly the relocation to the respondent's Head Office, which he claimed forced him to resign because of the extra travel and associated costs. He argued that the employer did not provide him with an option to resign and did not seek a reconsideration of his resignation.

The legal issues before the court included whether Mr. Brewer's resignation constituted a constructive dismissal and if the employer's conduct or course of conduct was designed to secure his resignation. The court had to determine whether the employer's actions amounted to dismissal and whether the Commission had jurisdiction to deal with the merits of the application. The court examined whether the employer's failure to seek a reconsideration of the resignation amounted to dismissal at the employer's initiative. The court also considered whether there was any conduct or course of conduct by the employer that was designed to secure Mr. Brewer's resignation.

The Fair Work Commission found that there was no dismissal at the initiative of the employer, as the employer did not seek a reconsideration of Mr. Brewer's resignation. The Commission held that there was no conduct or course of conduct designed to secure Mr. Brewer's resignation. Consequently, the application for an unfair dismissal remedy was dismissed. The Commission concluded that it had no jurisdiction to deal with the merits of the application. The Commission also noted that Mr. Brewer had made a workers' compensation claim during his notice period, and payment was made in lieu of notice, which further supported the finding that there was no dismissal by the employer.

In summary, the Fair Work Commission dismissed Mr. Brewer's application for an unfair dismissal remedy, finding that there was no dismissal at the employer's initiative and no conduct or course of conduct designed to secure his resignation. The court's decision was based on a detailed examination of the evidence and the applicable legal principles. The Commission's findings effectively concluded that Mr. Brewer's resignation was not a result of the employer's actions, and therefore, the application was dismissed.

Orders