Mr Fungai Mutsiwa v Westpac Banking Corporation

[2020] FWC 2960

[2020] FWC 2960

FAIR WORK COMMISSION

DECISION

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

Mr Fungai Mutsiwa
v
Westpac Banking Corporation
(U2020/2545)

DEPUTY PRESIDENT CROSS SYDNEY, 28 JULY 2020

Application for an unfair dismissal remedy.

BACKGROUND

[1] On 4 March 2020, Mr Fungai Mutsiwa (“the Applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant had been employed by Westpac Banking Corporation (“the Respondent”). The Applicant commenced his employment with the Respondent on 4 January 2016, as a Customer Relations Consultant. The Applicant tendered his resignation on 24 January 2020, to the Respondent, and his final day of employment with the Respondent was 21 February 2020.

[2] The Applicant asserts that his resignation was involuntary and occurred as a result of the Respondent creating a hostile working environment. In particular, the Applicant expressed his assertions in his submission as follows:

“The Applicant commenced employment with the Respondent as a Customer Relations Consultant on 4/01/2016, and from the 4/09/2019 he suffered continued chain of victimization, harassment, and bullying. As a result of the continuing victimization, harassment and bullying, the Applicant faced a hostile workplace and consequently suffered severe mental health breakdown and he could not continue with his employment with the Respondent under such circumstances and resigned on 28/02/2020.”

[3] Contrary to the Applicant’s position, the Respondent denied that the Applicant was dismissed within the meaning of s. 386 of the Act, and asserted that the resignation was voluntary. The identification of the date when alleged victimization, harassment and bullying commenced, which as outlined below was the date upon which the Applicant was asked to provide a written response to a review on 4 September 2019, was a relevant consideration. The Respondent noted that, to the extent that the Applicant relied on the review, there was a temporal disconnect between the review and the resignation, with the resignation taking place some three months after the review was concluded and closed, with a decision being made not to terminate Mr Mutsiwa’s employment.

Relevant Facts

[4] There were two witnesses in the matter. The Applicant gave evidence in his case, and Mr Craig Ward, the Head of Finance in the Superannuation Platforms and Investments team of the Respondent, who was the Applicant’s Manager from May 2019, gave evidence in the Respondent’s case.

[5] The relevant facts in this matter are largely not contested. The relevant facts are as follows:

a) On 7 December 2018, the Applicant attended a workplace Christmas party, in attendance with other colleagues from the Respondent.

b) On or about three days later, a female colleague (“the Complainant”) at the Respondent raised a complaint alleging that the Applicant made inappropriate advances towards her, touched her on the dancefloor and was persistently communicating with her in an unwelcome fashion (the “Complaint”).

c) On 31 January 2019 the Applicant received correspondence from the Respondent notifying him of the Complaint.

d) In response to the Complaint, the Respondent launched an investigation that involved interviewing the Applicant, the Complainant, and other witnesses to ascertain what had occurred.

e) Resulting from the investigation, a letter that described its contents as a “Formal Warning” was issued to the Applicant on 1 March 2019 (the “Formal Warning”). This letter detailed each allegation, and the consequent findings in relation to each allegation. The outcome of the investigation was that misconduct has been substantiated as well as breaches of the company Code of Conduct and the Discrimination, Harassment and Bullying Policy. The Applicant was required to complete the “Do the Right Thing” e-training module.

f) In July 2019, pursuant to the Respondent’s Grievance Process Policy, the Complainant exercised her right to a review of the decision concerning her complaint. A review of the investigation was conducted by the Respondent (the “Review”), in response to the Complainant’s escalation of the matter. On 4 September 2019, the Applicant was asked to provide a written response to the Review. Part of the Review asked that he specifically address his non-completion of the “Do the Right Thing” e-training module.

g) The Applicant provided a written response to the Review investigation on 20 September 2019, detailing his version of events that occurred at the Christmas Party, and queried why his version of events was not accepted by HR. The Applicant noted that there was no prescribed time limit to complete the “Do the Right Thing” e-training module.

h) The outcome of the Review, which was communicated to the Applicant on 24 October 2019, was that two of the three allegations against the Applicant were found to have been established. A second letter, also titled “Formal Warning” was issued to the Applicant in respect of the same event on 24 October 2019 (the “Second Formal Warning”).

i) The Applicant did not raise any complaint in relation to the Review. He did not seek to escalate the matter pursuant to Westpac’s Grievance Process Policy, nor did he raise a dispute pursuant to the relevant enterprise agreement.

j) In December 2019, the Applicant’s direct supervisor, Mr Wylie, identified that the Applicant was having a “tough time” and that he was “lacking a bit of engagement”. In an effort to support the Applicant, Mr Ward and Mr Wylie agreed to allow the Applicant to take a week of leave, without affecting any of his leave balances.

k) A further period of paid stress leave from 6 January 2020 to 27 January 2020, was approved by the Respondent, on provision of a medical certificate by the Applicant.

l) After a period of consideration while on that period of leave, on 24 January 2020, the Applicant tendered a written resignation. That resignation was accepted by the Respondent. The Applicant thereafter remained in employment during his notice period before ceasing employment by way of that resignation on the agreed date of 21 February 2020.

m) The Applicant worked out his notice period.

Consideration

[6] This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.

[7] Section 386(1) of the Act determines when a person has been dismissed. Section 386(1) provides:

“Meaning of dismissed

(1) A person has been dismissed if:

(a)  the person's employment with his or her employer has been terminated on the employer's initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[8] Relevantly, the Applicant provided in his written submissions that the primary issue for determination in this matter was whether the Applicant’s employment was terminated at the initiative of the Respondent.

[9] In support of the proposition that the termination was in fact at the initiative of the Respondent, the Applicant advanced the argument in his submissions that he “suffered continued chain of victimization, harassment and bullying.” Further it was asserted in written submissions that the Applicant faced a hostile working environment and as a result, suffered a severe mental health breakdown. The evidence, however, falls well short of establishing the existence of a severe mental health breakdown. The Applicant’s Doctor merely certified that “After a thorough review, I recommend that [the Applicant] would benefit from a period of stress leave from 23/12/19 to 26/1/2020 inclusive”.

[10] Regarding alleged hostility, it is inescapable that there were two investigations conducted into the Applicant’s conduct at the Christmas Party. The first investigation was triggered by the Complaint. The second investigation was in fact the Review investigation, provided for in the Respondent’s Grievance Process Policy. Notably, the conclusion of both the investigations did not include termination of the Applicant’s employment.

[11] I accept that the investigations the Applicant faced were stressful. The findings of the investigations were also disputed. The Respondent identified in the Formal Warning and the Second Formal Warning, that a termination would not occur, despite a finding of substantiated misconduct. Instead the outcome of the investigation was disciplinary action, namely, completion of a training module and a written expectation that no further unacceptable behaviour occur.

[12] Further amounting to the claimed hostile environment generated by the Respondent, the Applicant claims that he was interrogated by the Respondent for visiting level 10, where the office was the Complainant was located. The Applicant notes in his statement that he did not see the Complainant and that he visited level 10 of the office to speak with another colleague. The interrogation is claimed by the Applicant to constitute harassment and bullying. I disagree. Questioning the Applicant as to his motive for visiting the same level of offices as the Complainant during the course of a misconduct investigation is appropriate and justified. Further, the Applicant’s visit to that floor occurred in June/July 2019, well before the Review.

[13] The Applicant points to inconsistent reasoning of the Respondent regarding the justification of the Review. It is asserted by the Applicant that the purported inconsistent reasoning undermines the credibility of the Review investigation. In this regard, both the sighting of the Applicant on the office floor of the Complainant as well as the matter being ‘subject to review’ were cited as justifications for the reinvestigation. I do not accept the Applicant’s submission that these two reasons suggest inconsistency or a ‘contrary intention’ to properly conducting the investigation.

[14] In its response to the Applicant’s allegations of improperly conducting the second investigation, the Respondent noted that the Review was conducted on account of the Complainant escalating her concerns to her manager and seeking an apology from the Applicant. The Respondent further noted that the Review was conducted by different investigators within the Case Management team to afford the Applicant due process.

[15] In Bupa Aged Care Australia Pty Ltd v Tavassoli 1, a Full Bench of the Commission, after a consideration of authorities regarding termination at the initiative of the employer and forced resignation, observed:

“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(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 characterised as a termination of the employment at the initiative of the employer.

(2)A 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 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.” (emphasis added)

[16] In his evidence, Mr Ward, Head of Finance at the Respondent, explained the circumstances surrounding the Applicant’s tender of his resignation. In discussions with the Applicant, he stated that Mr Mutsiwa did not seek to withdraw his resignation, and instead indicated that it was “time to move on” or engage in “study”. In cross-examination the Applicant accepted that he had made those statements.

[17] In his statement, Mr Ward spoke positively of the Applicant’s performance. He provided:

“[39] I was disappointed to receive Mr Mutsiwa’s resignation, as he was generally regarded as a good worker. There were no issues with his performance. I did not have any intention of terminating Mr Mutsiwa’s employment with Westpac and the ultimate decision regarding Mr Mutsiwa’s ongoing employment rested with me.”

[18] Specifically in relation to the Applicant’s tender of resignation, Mr Ward provided in his statement:

“[42] To my knowledge, Mr Mutsiwa did not seek to withdraw his resignation at any point.”

[19] In the Applicant’s submissions, the perceived victimisation of the Applicant was advanced to support his argument that his resignation was tendered under the Respondent’s influence. I reject that submission. The timeline of events and the granting of leave simply does not support the Applicant’s case. That leave spoke instead of the Respondent’s efforts to assist the Applicant.

[20] While as noted above, the Applicant alleged that from 4 September 2019, he suffered continued chain of victimization, harassment, and bullying, in the form of disciplinary action, that action concluded on 24 October 2019, when he received the Second Formal Warning. The issuing of that warning was the end of the matter for the Respondent, and the Applicant did not raise any complaint in relation to the Review, seek to escalate the matter pursuant to Westpac’s Grievance Process Policy, nor raise a dispute pursuant to the relevant enterprise agreement.

[21] Relevantly, the Respondent provided in its Outline of Submissions that at the cessation of the investigation and subsequent review investigation, disciplinary action formed the conclusion of the matter:

“(b) There was no indication from anyone within Westpac that the matter would be reopened after the review, which was conducted in accordance with Westpac’s Grievance Process Policy;”

[22] I accept that the above submission accurately reflects the evidence. There was no indication of ongoing deliberation, or further investigatory or disciplinary action that could reasonably cause the Applicant to feel victimised.

[23] While it seems clear that the Applicant was not happy with the result of the Review, the only further relevant actions of the Respondent occurred in December 2019, when the Applicant’s direct supervisor, Mr Wylie, identified that the Applicant was having a “tough time” and that he was “lacking a bit of engagement”. The Respondent’s actions were to allow the Applicant to take a week of leave, without affecting any of his leave balances, which can hardly constitute conduct engaged in with the intention of bringing employment to an end.

[24] I consider that the Applicant fails to satisfy the first limb of s.386(1) of the Act, particularly in the circumstances where he voluntarily tendered his resignation, not in the “heat of the moment” but rather after a period of 5 weeks’ time away from work. The Applicant in fact worked out his one month notice period without at any time seeking to withdraw his resignation.

[25] In respect of the second limb of the test formulated in s. 386(1) of the Act, the Respondent cannot be seen to have engaged in conduct that “forced” the Applicant to resign. Whilst the misconduct investigations may have been stressful and unfavourable for the Applicant, hostility, bullying or harassment as is asserted by the Applicant cannot be made out by the mere course of a misconduct investigation involving numerous stages and two warning letters.

[26] Some months after the cessation of the Review and the issuance of the Second Formal Warning, the Applicant had a discussion with Mr Ward regarding a recent restructure. In his statement, the Applicant details Mr Ward’s verbal explanation of his expectations of the Applicant in the coming year to help lead the new team. It was at this meeting that the Applicant requested extra time off to deal with the stress that he experienced as a result of the allegations of misconduct.

[27] Despite the Applicant asserting that Mr Ward was angry and frustrated at this request, the Applicant was ultimately permitted a period of paid sick leave, upon issuance of a medical certificate, from 6 January 2020 to 27 January 2020, before returning to work to serve his four week notice period.

[28] It cannot be made out that the Applicant was “forced” to resign on account of conduct engaged in by the Respondent. To the contrary, there were positive representations made by the Respondent that the Applicant’s employment was to continue.

Conclusion

[29] The Applicant was not dismissed pursuant to s. 385 of the Act. The Applicant did have a real choice regarding whether to resign. Had he not so resigned, I conclude that his employment likely would have continued with the Respondent. The Application is dismissed.

DEPUTY PRESIDENT

Hearing:

6 -7 May 2020
Sydney (video hearing)

Appearances:

U Agbugba, for the Applicant

V Bulut, for the Respondent

<PR719966>

 1 (2017) 271 IR 245; [2017] FWCFB 3941, at [47].