Mr Gary Bennett v Corsec Services Pty Ltd T/A Corsec Services
[2024] FWC 1695
•28 JUNE 2024
| [2024] FWC 1695 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gary Bennett
v
Corsec Services Pty Ltd T/A Corsec Services
(U2024/3355)
| COMMISSIONER WILSON | MELBOURNE, 28 JUNE 2024 |
Application for an unfair dismissal remedy
This matter concerns an unfair dismissal application made by Gary Bennett against his former employer, Corsec Services Pty Ltd.
From 25 May 2023 Mr Bennett was employed by Corsec Services as a casual security guard. He says that he was initially engaged for services in relation to a bus contract the Respondent held, and then finally in relation to services the company provided at the Bendigo Hospital. In these last duties he was required to provide services in relation to psychiatric patients or prisoners who needed to be hospitalised for some reason.
Whether Mr Bennett was dismissed by the Respondent and, if so, what the date of termination was, are matters in dispute and need to be determined by me.
Mr Bennett’s application was the subject of a hearing on 18 June 2024. At the hearing Mr Bennett was represented by Mr Bruce Shaw of Counsel, instructed by Ms Aggie Vlahos of Elit Lawyers by McGirr & Snell, solicitors. Mr Stephen Curnow, Corsec Service’s Chief Executive Officer appeared for the Respondent. Permission for the Applicant’s legal representation was granted by me pursuant to s.596(2)(a) of the Act. Mr Bennett gave evidence on his own behalf and witness evidence was given for the Respondent from Mr Paul Bradley, a Director and its Chief Operating Officer and Mr Robert Rigon, a Director and its Chief Financial Officer.
The Applicant maintains that he was dismissed, with that dismissal taking place on 1 March 2024. For its part, the Respondent submits that Mr Bennett was not dismissed and instead resigned on 29 January 2024.
Mr Bennet’s application for unfair dismissal remedy was made by solicitors acting for him on 22 March 2024. If the date of his termination was 1 March 2024, the application is within the 21 day statutory time limit for the making of such applications (s.394(2)), whereas if the termination date was 29 January 2024. the application will have been made outside of the statutory time limit and may only continue if the Commission is satisfied there are “exceptional circumstances” for allowing a further period for filing (s.394(3)).
The circumstances which led to Mr Bennett leaving his employment and when that was, are the subject of significant disagreement between the parties.
Mr Bennett’s evidence and submissions include that in January 2024, he was performing security services at the Bendigo Hospital. Those duties involved guarding general admission, emergency department psychiatric in patients at the hospital and particularly those who required to be confined to their beds or rooms.
On Thursday 18 January 2024, Mr Bennett says he commenced his shift at about 7 PM with his responsibilities that evening including ensuring a patient remained in his room. Shortly after his shift commenced, the patient wanted to leave his room for cigarette. Mr Bennett says he told the patient to remain in the room, after which Mr Bennett was assaulted by the patient. Mr Bennett says that without warning, the patient punched him with his right fist to his left shoulder. The punch was hard and pushed Mr Bennett back a short distance. Mr Bennett says that he did not provoke the patient in any way. He says that two nurses came to assist him and took the patient back into his room. Mr Bennett then says he used his two-way radio to notify his supervisor of the assault, who then attended shortly thereafter. No incident report about the situation or the injuries he had sustained was made by Mr Bennett, as he believed that was the responsibility of the shift supervisor.
After this incident, Mr Bennett continued his shift and finished work at about 7 AM as he was rostered to do. He says that he returned home, told his partner about what had occurred and went to bed. When he woke, he was sweating and feeling anxious and in a panic.[1] He was rostered off for a few days and when he was next due to return to work, he found he was unable to do so and informed the Respondent of this through the security control room at the Bendigo Hospital.
Later, he attended his doctor who diagnosed him with various mental health injuries. Mr Bennett says that these injuries are an exacerbation of previous mental injuries, while he was employed by Victoria Police. Mr Bennett’s evidence is that the injuries together now prevent him from performing his normal work duties and he has not returned to any work for the Respondent since the alleged assault on 18 January 2024. He has lodged a WorkCover claim relating to the events on 18 January 2024.
A week later, on Thursday 25 March 2024, Mr Bennett rang Paul Bradley, Corsec Service’s Chief Operating Officer. Mr Bennett’s evidence about this call includes:
“When I spoke with Mr Bradley on 24 January 2024, I was angry and while I can’t recall the exact words I used in the heat of the moment I did express my disgust at Corsec’s failure to take an interest in my well-being. Whilst I did make the point that I would be unable to return to work I don’t recall using any words which indicated that I was resigning my employment. I did however state to Mr Bradly that "I quit". This was in reference to the Bendigo hospital. Mr Bradley did not explore my comment. I advised Mr Bradley that staff at the Bendigo Hospital including myself were dissatisfied with Corsec not taking an interest in staff or its understanding of the work we perform, I subsequently hung up on Mr Bradley and have had no further contact or discussion with him. After what had happened, I certainly didn’t want to go back to work at Bendigo Hospital.”[2]
Mr Bradley’s evidence is that the phone call took place at about 2:14 PM and consisted simply of Mr Bennett saying “you can go and get fucked and I’m suing you and the hospital I quit”, after which Mr Bennett hung up without Mr Bradley having the opportunity to speak. Mr Bennett does not dispute that this is what the telephone call consisted of. After the phone call, and being somewhat surprised about both its nature and not knowing what had led to Mr Bennett’s concerns, Mr Bradley made some enquiries and established that Mr Bradley had been “involved in a small altercation with a patient nothing of note” and that that there was no awareness within the Respondent of there having been “any issue” involving Mr Bennett on the shift that started on 18 January 2024.[3]
The next day, Thursday 25 January 2024, the Respondent’s Chief Financial Officer, Robert Rigon called Mr Bennett and left a voicemail which was returned about an hour later. Mr Rigon says that in the return phone call, and after asking Mr Bennett whether he was okay, the latter said words to the effect, “no I’m not, I don’t need this anymore I’m done”. Mr Rigon then asked what he mean about that statement, to which Mr Bennett said words to the effect “I’m too old for this, I’m done with Corsec Services and I’m speaking with my lawyer”. Mr Rigon took that to mean that he had resigned, after which Mr Rigon wished Bennett well and then hung up.[4]
A few days later, on Monday 29 January 2024, Mr Rigon sent an email to Mr Bennett, essentially confirming what Mr Rigon understood to have occurred, the essence of which was “following on from our conversation last week on Thursday, 25 January 2024, this is just to confirm that you have decided you no longer wish to work for Corsec Services. We wish you well in all your future endeavours”.[5]
The evidence shows that Mr Bennett performed no work whatsoever for the Respondent after the conclusion of the shift in which he was allegedly assaulted, that is, the shift which started on Thursday, 18 January 2024. He also did not respond to Mr Rigon’s 29 January 2024 email until a month later, on Thursday 29 February 2024, when he wrote back to Mr Rigon that he believed “I may have miscommunicated my intentions to you the other day. At the moment I’m unable to return to work Not leave the company. Please find attached the certificate of capacity relating to this. I will have another one next week”.[6]
Mr Bennett argues that owing to problems with his computer, he did not receive the 29 January 2024 email from Mr Rigon until shortly before his response on 29 February 2024.
Of further note is that Mr Bennett says he provided multiple incapacity to work certificates to the Respondent, whereas Corsec Services argue only one was provided.
CONSIDERATION
Two matters need to be considered in the first instance; whether Mr Bennett was dismissed, and the date on which his employment terminated.
The term “dismissed” is defined in s.12 of the Act by reference to s.386, which provides this definition:
“386 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.
(2) and (3) omitted”
In this matter, the Applicant argues that his statement, “I quit”, could not reasonably be taken as a resignation from employment with Corsec Services, but instead should be viewed merely as a statement that he wished to no longer take work at the Bendigo Hospital. For its part, the Respondent argues that the words spoken by Mr Bennett can only be interpreted as a resignation of employment; that is, stating an end to the employment relationship.
Mr Bennett says that he cannot recall the exact words he spoke and that he spoke in the heat of the moment. He concedes he said words to the effect that “I quit”.
The Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli has held the following about the application of s.386(1) to a particular circumstance, dealing not only with the matters explicitly stated in the section but also the approach to be given to “heat of the moment resignations”;
[47] 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.
[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.”[7]
After an extensive review of the Australian and English law surrounding the question of whether a resignation stands, not inconsistent with the approach in Bupa, Commissioner Bissett concluded the following about consideration of resignations in Desiderato Umberto Fato v La Sagra Pty Ltd T/A Sagra Restaurant;
“If clear and unambiguous words are used to convey a resignation and these are understood by the employer, then the proper conclusion to draw is that the employee has resigned;
A notice of resignation has effect according to an ordinary interpretation of the words used to convey the resignation. Caution might be exercised in accepting certain types of resignations, where it may be prudent for the recipient of the notice to investigate the meaning with the giver of the notice. Such circumstances that may require investigation might be where an employee is coerced into the decision, if the employee is immature, the resignation is given in the heat of the moment or if given during emotional distress.
The existence of such circumstances should not be accepted as providing a unilateral right to withdrawal of the notice.
There is no right to unilateral withdrawal of a resignation during the period of notice as to do so would defeat the purpose of notice.”[8]
An application for unfair dismissal remedy to the Fair Work Commission may only be made in the circumstances set out within Part 3 – 2 of the Act. Those circumstances include being a person protected from unfair dismissal as well as having been dismissed.
The question of whether Mr Bennett has been dismissed is a matter of contention. Relevant to that question are the requirements of s.386(1), the approach to which is set out above.
In this circumstance, the argument is made by Mr Bennett either that the words “I quit” should not be interpreted as an intention to end the employment relationship or that his resignation is not an effective one, having been given in the “heat of the moment” and in such a way that a reasonable employer could not construed as an operative resignation.
The proposition which Mr Bennett advances to the Commission is that he was assaulted on 18 January 2024 and at that time, expected his supervisor to report the incident and otherwise deal with the situation from a management perspective. He then returned home and realised that he was not able to continue with the then rostered shifts in the next few days. He expected that his supervisors or managers would make contact with him about his circumstances, at least to enquire as to what occurred and what could be done further. When that did not occur, he rang Mr Bradley on 24 January 2024 and concedes, at that time, was in a heightened state of agitation.
Mr Bennett then argues that it could not be reasonably drawn from what he said to Mr Bradley, that he was in fact resigning his job. Instead, what should be drawn from the conversation is that when he said words to the effect of, “I’m suing you and the hospital I quit”, or at the least, “I quit”, what he meant was that he no longer wanted to work at the Bendigo Hospital, with that proposition being distinct from an indication that he no longer wanted to work for Corsec Services at all.
Mr Bennett concedes that he was still angry when Mr Bradley called him on 24 January 2024, but argues that the fact that he returned Mr Rigon’s call the following day shows that he was still willing to communicate with Corsec Services.
The evidence before me on behalf of Mr Bennett includes that the last work he performed for Corsec Services was in relation to the shift which started on Thursday, 18 January 2024, and that he withdrew from shifts rostered in the few days after that, eventually providing to Corsec Services first, an email notification on 29 February 2024 that he would be pursuing workers compensation and second, providing the claim compensation in written form in a letter from his solicitors, dated 8 March 2024, but received by the Respondent some time later.
For Corsec Services’ part, it argues that there was no notification approximate to 18 January 2024 that there had been an injury sustained at work by Mr Bennett, and that it was not unusual for an employee and indeed Mr Bennett, to take himself off the roster for a few days. It was only on 24 January 2024, when there was the agitated phone call between Mr Bennett and Mr Bradley, that the respondent became aware there was a problem with Mr Bennett. More significantly, there were the two conversations then between Mr Bennett and its managers, first with Mr Bradley on 24 January 2024 when the applicant said words to the effect of, “I quit”, followed by the phone call with Mr Rigon 25 January 2024. The latter conversation led to Mr Rigon sending an email to Mr Bennett on 29 January 2024, in which Mr Rigon said, “just to confirm that you have decided you no longer wish to work for Corsec Services”.[9] Mr Bennett says that he never received that email close to the time it was sent because his computer was not working properly. He also says that, when he became aware the respondent held the view that he had resigned, he sent an email to Mr Rigon stating his belief that he “may have miscommunicated my intentions to you the other day”.[10]
I accept that the conversation Mr Bennett had with Mr Bradley on 24 January 2024 was most certainly delivered in the heat the moment. Mr Bennett agrees he was angry and it is likely he spoke words which would have indicated his anger. There is little doubt, taking into account the evidence of both men, that Mr Bennett’s anger was communicated strongly to Mr Bradley. Mr Bennett does not recall the precise verbiage that Mr Bradley puts forward, however also does not deny the words attributed to him. In any event, at the very least, the two are agreed that in the course of the conversation Mr Bennett said words to the effect of “I quit”. Whether or not that statement was coupled with swearing is probably not particularly relevant, although it is relevant the words “I quit” were spoken with anger. The anger reinforces how the words were intended and how they would have been received.
I accept as well that Mr Bennett’s anger spilled over into the conversations with Mr Rigon the following day, on 25 January 2024. By all accounts that conversation was calmer than the earlier one with Mr Bradley. However, even so, there is little doubt that Mr Bennett expressed exasperation to Mr Rigon with not having been contacted following the alleged events of the shift which started on 18 January 2024 and stated words to the effect of no longer wishing to work for Corsec.
It is also necessary for me to take into account that Mr Bennett’s memory in respect of key conversations or events is poor, likely exacerbated by matters associated with his mental health. I do not say this lightly and respect that he has endeavoured to answer all questions of him as well as he can. However, it is clear that when it comes to precise recall of things said or done, Mr Bennett has difficulties.
I also take into account that, were I to accept Mr Bennett’s version of events, I would need to accept that the last shift he worked for Corsec Services was the one that started on 18 January 2024 and that it took until 29 February 2024, about six weeks later, for him to then say to Mr Rigon that his intentions may have been miscommunicated and that he had no intention to leave Corsec Services’ employment, albeit that he did no longer wish to take shifts at the Bendigo Hospital. Mr Bennett has not given persuasive evidence about why it took until 29 February 2024 to send his “miscommunication” email, or when he actually saw the correspondence from Mr Rigon which precipitated the email.
On this basis, I consider it to be more likely than not that in the course of the conversation Mr Bennett had with Mr Bradley on 24 January 2024, the tone of the conversation was unambiguously that Mr Bennett no longer wished to work at Corsec Services anymore and that the same sentiments were repeated to Mr Rigon on 25 January 2024. I do not accept that the words spoken could reasonably be parsed as something like, “While I no longer will accept shifts at Bendigo Hospital, I want to keep working at Corsec Services”. There is no, or insufficient evidence, that would lead to such a finding.
To the extent that this narrative can be seen as a “heat of the moment” resignation, there are insufficient circumstances to mitigate a finding that the resignation should be accepted as evincing an intention to end the employment relationship between Mr Bennett and Corsec Services.
It follows from the foregoing that I find Mr Bennett has not been dismissed by Corsec Services and he was not at the time of making his application, a person protected from unfair dismissal. It is therefore necessary for me to dismiss Mr Bennett’s application, an order to that effect is issued at the same time as this decision.[11]
COMMISSIONER
Appearances:
B. Shaw and A. Vlahos of counsel for G. Bennett
S. Curnow, P. Bradley and R. Rigon for Corsec Services
Hearing details:
2024.
Melbourne:
18 June.
[1]Applicant’s s596 Submissions, DHB, p.17
[2] Witness Statement of Gary Bennett, [8]; DHB, p.18.
[3] Witness Statement of Robert Rigon, DHB, pp.42, 45
[4] Ibid, [9]; DHB, p.44.
[5] Email from Robert Rigon to Gary Bennett, 29 January 2024; DHB, p.46.
[6] Email from Gary Bennett, 9 February 2024; DHB, p.47.
[7] [2017] FWCFB 3941.
[8] [2017] FWC 4458, [37].
[9] Email from Robert Rigon to Gary Bennett, 29 January 2024; DHB, p.46.
[10] Email from Gary Bennett, 29 February 2024; DHB, p.47.
[11] PR776525.
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