Mr John Boswell v 208 South Terrace Management T/A Sage Hotel/Grand Chifley
[2018] FWC 135
•10 JANUARY 2018
| [2018] FWC 135 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr John Boswell
v
208 South Terrace Management T/A Sage Hotel/Grand Chifley
(U2017/9994)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 10 JANUARY 2018 |
Application for an unfair dismissal remedy - jurisdictional issue - whether employee resigned or was dismissed – claim of forced resignation – section 386(1)(b) – employee resignation following fall-out with new manager – employer conduct - choice exercised – not forced resignation
Employer paid out portion of notice period before resignation took full effect – whether dismissal at initiative of employer – section 386(1)(a) – employer conduct consensual and consequential to resignation – employee not dismissed – application dismissed
[1] On 14 September 2017 Mr John Boswell applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his (alleged) dismissal by 208 South Terrace Management T/A Sage Hotel/Grand Chifley (South Terrace Management or ‘the employer’). He claims to have been unfairly dismissed on 24 August 2017, with the dismissal taking effect that day.
[2] Mr Boswell’s application to the Commission was lodged within the statutorily required 21 days after his (alleged) dismissal took effect.
Background
[3] Through a management company (Silver Needle Hospitality Group), South Terrace Management operates three hotels in Adelaide; the Sage, the Country Comfort and the Chifley.
[4] Mr Boswell is a 72 year-old resident of Adelaide who was a licensed builder for most of his working life. Rather than retiring, he took employment in August 2011 as a full time maintenance attendant with South Terrace Management working primarily at the Chifley Hotel. He worked continuously for the employer until 24 August 2017. His employment was governed by a contract of employment underpinned by a modern Award, the Hospitality Industry (General) Award 2010.
[5] Mr Boswell seeks a finding that he was unfairly dismissed within the meaning of the FW Act, and an order for compensation that includes compensation for the loss of future earnings and for the loss of pro-rata long service leave accruals during his six years of service. Mr Boswell considers reinstatement inappropriate.
[6] South Terrace Management raises a jurisdictional issue. It contends that Mr Boswell was not dismissed but resigned his employment on 24 August. Accordingly, it claims that Mr Boswell could not have been unfairly dismissed within the meaning of the FW Act. In the alternative, it contends that the dismissal was not harsh, unjust or unreasonable. It too considers re-instatement inappropriate.
[7] Conciliation of the matter on 10 October 2017 was unsuccessful. On 24 October 2017 I issued pre-hearing directions requiring the lodgement of written materials by the parties. 1 These were complied with. I conducted a hearing by determinative conference on 16 November 2017. Evidence and submissions on jurisdiction, merits and remedy were presented. Mr Boswell was self- represented. South Terrace Management was represented by Mr Webb supported by Mr Evans of the Australian Hotels Association SA Branch. At the conclusion of proceedings, I reserved my decision.
[8] Three issues arise for decision: first, was Mr Boswell dismissed within the meaning of the FW Act; second, if so, was his dismissal unfair (that is, was it “harsh, unjust or unreasonable” having regard to the factors in section 387 of the FW Act); and third, if so, what is the appropriate remedy?
[9] It was common ground between the parties that Mr Boswell was a person protected from unfair dismissal under the FW Act (section 382); that the (alleged) dismissal was not governed by the Small Business Fair Dismissal Code (section 385(c)) and that his termination was not a case of genuine redundancy (section 385(d)). On the evidence, I am satisfied this is correct.
The Dismissal Requirement
[10] Under the FW Act, a person can only be “unfairly dismissed” if they have been “dismissed” (section 385(a)).
[11] Section 386(1) of the FW Act provides that:
(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.
[12] The provisions of section 386(2) and (3) do not apply in this matter.
[13] Having raised the jurisdictional issue, South Terrace Management bears the legal onus of establishing that Mr Boswell was not dismissed. However, in circumstances where an employee resigns but claims their resignation was, at law, a dismissal, an evidentiary burden exists on the employee to establish that the termination was at the initiative of the employer or forced by the employer’s conduct. 2
[14] The definition of dismissal in section 386(1) has two elements: dismissal at the initiative of the employer, and forced resignation. Consistent with a recent decision of a Full Bench of this Commission, 3 during the hearing I drew to the attention of both Mr Boswell and South Terrace Management the provisions of section 386(1) and these two elements. Mr Boswell confirmed that he was pursuing his application under the ‘forced resignation’ provision in section 386(1)(b). In these reasons I deal primarily with the forced resignation issue. I do however also consider section 386(1)(a) particularly in relation to the employee’s notice period not being fully worked out.
The Legal Principles
[15] The legal principles governing the application of section 386(1) are well established. Together with an analysis of its legislative history, they were recently set out by a Full Bench of this Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli 4 as follows:
“(1) There may be a dismissal within the first limb of the definition in section 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 section 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 probable 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.” 5
[16] Although decided under a previous Act, 6 the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd7 remains generally relevant to the consideration of section 386(1):
“In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.”
In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. 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.”
In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 8
[17] Although determined by the English Court of Appeal, the following approach taken in CF Capital PLC v Willoughby 9 is also generally consistent with that of Australian courts and tribunals:
“37. The ‘rule’ is that a notice of resignation or dismissal (whether given orally or in writing) has effect according to the ordinary interpretation of its terms. Moreover, once such a notice is given it cannot be withdrawn except by consent. The ‘special circumstances’ exception as explained and illustrated in the authorities is, I consider, not strictly a true exception to the rule. It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be. The need for such a so-called exception to the rule is well summarised by Wood J in paragraph 31 of Kwik-Fit’s case and, as the cases show, such need will almost invariably arise in cases in which the purported notice has been given orally in the heat of the moment by words that may quickly be regretted.
38. The essence of the ‘special circumstances’ exception is therefore that, in appropriate cases, the recipient of the notice will be well advised to allow the giver what is in effect a ‘cooling off’ period before acting upon it. Kilner Brown J, in paragraph [15] of his judgment in Martin’s case understandably referred to such a period as an opportunity for the giver of the notice to recant, or to withdraw his words; and this is in practice what is likely to happen. I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words.”
[18] I apply these principles and, in the context of the current statutory scheme, particularly the full bench observations in Bupa Aged Care Australia Pty Ltd v Tavassoli, in determining this matter.
The Witnesses
[19] Four witnesses gave oral evidence in support of their written witness statements; Mr Boswell for himself and three witnesses called by South Terrace Management: Mr Damian Gillings the Executive Assistant Manager of South Terrace Management; Ms Heidi Cornes the Regional Human Resources Manager for Next Story Group (a company contracted to manage human resources for the employer); and Mr Joel Cantaros a newly employed Maintenance Manager.
[20] Certain facts were contested, with different versions of events, whilst other facts are conceded or uncontested. Issues of credit, particularly relating to the contested facts, are relevant.
[21] Mr Boswell gave evidence in an open and conversational manner. His recollection of events was reasonable and he was willing to make appropriate concessions in cross examination. Understandably, as a self-represented party, his evidence strayed from a narrative of the facts into opinion and submission. His sense of having been wronged was clear as, at the hearing, the events were raw – having occurred only two months prior. It was clear he felt let-down by persons he believed he could trust. On some factual matters his recollection was hazy or needed to be refreshed. However, as a whole he was a truthful witness who endeavoured to provide an honest account of the events which led to his employment of six years coming to an end. With the caveat that I prefer Mr Gillings evidence in the few areas where there is an inconsistency, I generally accept Mr Boswell’s evidence as reliable though I form my own objective view on the opinions and submissions he expressed.
[22] Mr Gillings was a witness of credit whose evidence can be relied upon. He presented his evidence in a calm manner and demonstrated a good recall of key events. He gave ground where it needed to be given. He showed no disrespect to Mr Boswell either when being cross examined or in responding to the narrative, submissions or opinions expressed by Mr Boswell. I also form my own view on certain conclusions and opinions expressed by Mr Gillings.
[23] Ms Cornes presented her evidence in a professional manner. Generally speaking, I found her to be a reliable witness though she tended to place some gloss on aspects of her involvement in the matter and in particular her evidence about her responses to issues that Mr Boswell had raised prior to his resignation.
[24] I approach the evidence of Mr Cantaros with caution. Rather than tell me what occurred, he gave the impression of wanting to tell me the story as it best suited the employer’s case and to downplay Mr Boswell’s criticism of his conduct. Whilst giving evidence was clearly an unfamiliar experience, his flat denials and unwillingness to concede ground made his evidence appear selective and, at times, self-serving. Where there is a conflict, I generally prefer Mr Boswell’s evidence to that of Mr Cantaros.
[25] I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of the Full Bench of this Commission which recently said:
“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 10
[26] Some of the oral evidence and evidence in witness statements tendered strayed into the field of irrelevant considerations, hearsay, opinion and assumption. I place reduced levels of weight on such evidence except where it is corroborated by direct evidence, is uncontested or is inherently believable.
[27] I note that this is not an inquiry into the general staffing relationships between persons employed by South Terrace Management. I only take into account evidence about personal relationships or conduct where it is relevant to the facts that need to be determined on Mr Boswell’s application and the employer response to it.
[28] I determine this matter on the basis of all the evidence and submissions before me.
The Events leading up to 21 August 2017
[29] It is not in dispute that Mr Boswell resigned at 9am on Monday 21 August 2017 after handing a sealed envelope containing a letter of resignation to Mr Gillings along with a medical certificate for the week prior. His resignation was to take effect from Friday 15 September 2017.
[30] Nor is it in dispute that Mr Boswell’s final day of employment was Thursday 24 August 2017.
[31] The circumstances leading up to the letter of resignation, the employer’s response to it, and the reasons why Mr Boswell did not work out the whole of his notice period are central to determining this matter.
[32] In large part, this case concerns a breakdown in the relationship between Mr Boswell and Mr Cantaros between 24 July and 24 August and the responses of both Mr Boswell and the employer to that fact. Mr Boswell contends that there was an untenable working relationship between himself and the new Maintenance Manager Mr Cantaros which led to his decision to resign.
[33] I make the following findings on the basis of the evidence before me.
[34] Mr Cantaros was recruited to the position of Maintenance Manager by a merits based selection process that included Mr Gillings. He commenced on 24 July 2017. Mr Boswell was required to report to him.
[35] The previous Maintenance Manager had been Mr Boswell’s son. 11
[36] Even before Mr Cantaros commenced, there was some apprehension on Mr Boswell’s part. Mr Boswell had suggested to Mr Gillings that both a former General Manager and a former tradesman had recommended Mr Cantaros as a way of “having a parting go at me”. 12 Mr Boswell had also expressed a concern to Ms Cornes that Mr Cantaros and the employer’s other maintenance worker (Mr Banayo) were both of Philippine background and would get on better together than with him.13 She told him that he needed to “give Joel (Mr Cantaros) a chance”.14
[37] On the day of commencing (24 July) Mr Cantaros inspected the maintenance area occupied by Mr Boswell. He considered it untidy and disorganised. He asked Mr Boswell questions about his qualifications, expertise and length of service. Although he denied it, I find that Mr Cantaros also asked Mr Boswell how old he was and how long he intended to continue working. Mr Boswell did not like the questions or attitude on display.
[38] On the following day (25 July) Mr Cantaros, this time accompanied by more senior management, audited the hotels and their facilities, including again inspecting the maintenance area occupied by Mr Boswell. Later that day Mr Cantaros told Mr Boswell (and also Mr Banayo) that they needed to do a stocktake and differently organise priorities by only doing urgent maintenance items whilst attending to the stocktake. The new manager told them that a system of ‘time and task sheets’ was being introduced to require each maintenance worker to record their work and the time taken on each task. This was a new obligation. Mr Boswell did not like being told how to prioritise, nor the obligation to record tasks or the attitude on display.
[39] On the following day (26 July) Mr Boswell found Mr Cantaros and Mr Banayo speaking Philippino together in a workplace setting. He said nothing but felt uncomfortable. He also found Mr Cantaros in his (Mr Boswell’s) workshop. He questioned the manager about why he was there and was told by Mr Cantaros that permission was not required for him (Mr Cantaros) to be in a maintenance workshop. He told Mr Boswell to tidy it up as the previous day’s audit had revealed disorganised and unused items. Although he denied it, I find that he also asked Mr Boswell if his “house was that messy”. I also find (despite his denials) that he told Mr Boswell words to the effect “big changes are coming to the maintenance department”. They weren’t specified. Mr Boswell answered back in a critical manner suggesting that priority had become a tidy workshop rather than customer needs.
[40] Over these first three days there were other clashes between Mr Boswell and Mr Cantaros involving the performance of maintenance work. 15 Mr Boswell perceived Mr Cantaros as presenting ‘smug’ and sometimes ‘rude’ behaviour towards him, including speaking to him as he walked away from him.
[41] Upset and frustrated, later on the 26 July Mr Boswell went to see Mr Gillings. He complained about Mr Cantaros in both general and specific terms. He didn’t like the new obligations (time and task sheet, stocktake) nor that Mr Cantaros had questioned his skills and had spoken in his native language to Mr Banayo in the workplace. Mr Gillings expressed support for the new obligations (time and task sheet and stocktake), indicating that there were business reasons for them. 16 He sought clarification whether the conversation in Philippino occurred as a three-way conversation (that is, the presence of Mr Boswell) or in a two-way conversation. Mr Boswell indicated it was between themselves as he entered the workshop but nonetheless felt it inappropriate. Mr Gillings said that he did not believe any disrespect would have been intended given it was a two-way conversation but that he would speak to Mr Cantaros about the issue.17 More generally Mr Gillings told Mr Boswell that “he needed to give him (Mr Cantaros) a fair go and get used to a new boss, the old ways aren’t the only ways” or words to that effect.18 Mr Boswell ended the discussion with Mr Gillings by asking for his employment contract.19 Mr Gillings undertook to have it provided by Ms Cornes.
[42] On 31 July Mr Boswell went to see Ms Cornes. By then he had worked with Mr Cantaros for five days. He took two pages of handwritten notes he had written about his first three days of working with Mr Cantaros. 20 Mr Boswell’s notes expressed concerns that Mr Cantaros “was pushing his buttons” and viewed this as a way to force him to leave so that pro-rata long service leave would not have to be paid. His notes concluded as follows:
“…and the fact that I am due for pro rata payment next year, I can only come to the conclusion that it would benefit the company to be gone by then. If this situation continues, I will not hesitate to approach outside agencies to resolve the matter.”
[43] Ms Cornes read the notes and this concluding comment. She asked Mr Boswell if they were a formal complaint that required a discussion with Mr Cantaros and questioned Mr Boswell regarding the operational issues Mr Boswell had raised in the notes. Mr Boswell described what had occurred in the days preceding and then stated to Ms Cornes that the notes were for the record. Mr Boswell said that they (Mr Cantaros and Mr Boswell) had two really good days, and that if it continued in that manner, Mr Boswell was fine. 21 Ms Cornes provided Mr Boswell his employment contract which he had requested.
[44] On 9 August Mr Cantaros provided Mr Boswell and Mr Banayo with the daily time and task sheets 22 which they were required to complete. These sheets were to detail the daily tasks the maintenance employees were performing in ten minute increments and for how long each task would take.
[45] Between 9 and 21 August Mr Boswell was absent from work on medical grounds except for 9, 10, 11 and 14 August. His absence was supported by medical certificates. His evidence was that he was feeling unwell and also stressed and worried by new maintenance tasks that were mounting up. He had three brief conversations with Mr Gillings over this period. On 9 August Mr Boswell expressed concern about the build-up of tasks; on 11 August he expressed concern at climbing stairs multiple times to take water temperatures; and on 14 August he reported that his weariness had been compounded by the flu. Mr Gillings provided an understanding ear. He told Mr Boswell to take time off to get well, that he did not need to worry about the build-up of jobs as it had been anticipated that the audit would trigger a longer than usual list, and that he would speak to Mr Cantaros about minimising stair climbing. 23
[46] Ms Cornes also had two further brief conversations with Mr Boswell over this period. In the first week of August she went to the Chifley Hotel to informally see how things were going with Mr Boswell. They spoke about taking annual leave. No issues of concern were raised by either party. However on 14 August, before Mr Boswell went home ill, in addition to speaking to Mr Gillings he approached Ms Cornes. He told her that he was ill, that he was disappointed Mr Cantaros wasn’t showing understanding, and that the tasks and timesheet obligation and the build-up of work was a continuing worry. She told him to rest and that on his return operational issues should be discussed with Mr Gillings and Mr Cantaros.
Mr Boswell’s Resignation
[47] Mr Boswell returned to work on 21 August. Early in his shift, at 9am, Mr Boswell went to Mr Gillings office. He handed Mr Gillings a sealed envelope and a medical certificate. The following exchange occurred: 24
Gillings (holding up the envelope): “if this is what I think it is, do you want to discuss it before I open it?”
Boswell: “no, it’s all in there, I can expand on it if you want”
[48] Mr Gillings opened the envelope containing a letter dated 21 August 2017 from Mr Boswell which read as follows:
“To whom it may concern,
Due to an untenable working situation within the maintenance department as discussed on numerous occasions with upper management, I am resigning from my position of maintenance attendant with my last day being Friday 15th September 2017.
John Boswell
Maintenance Department
Chifley Hotel.” 25
[49] The conversation continued: 26
Gillings: “what do you mean by untenable?”
Boswell: “I’ve already outlined them before” (then referred to time and task sheets, stock lists, jobs on maintenance list, cleaning of workshops, opinion of Mr Cantaros workmanship)
Gillings: I am not going to comment on Joel’s workmanship however the other points we have already discussed them. We see them as necessary to improve the business. While I would be personally sad and disappointed that you wish to finish, I can see that the changes are having an effect on you and sometimes it can be difficult adapting. However if you feel you cannot continue then I will accept your resignation”
Boswell: “yes that’s what I want. I will finish on 15 September”
Gillings: “okay, your last day is 15 September”.
Events Following Resignation
[50] As events transpired, Mr Boswell’s last working day with South Terrace Management was 24 August, not 15 September. On 23 August Mr Boswell was asked to move two heavy flower pots. Mr Boswell found these to be too heavy to lift and reported this to Mr Gillings. Mr Gillings said to not touch the pots. The two pots were then brought to Mr Boswell on a hotel trolley and he asked Mr Cantaros if he wished for him to paint them. Mr Cantaros answered that he did to which Mr Boswell replied that he wasn’t going lift them. Although he denied it, I find that Mr Cantaros then rudely stated that he didn’t want Mr Boswell to lift anything heavier than a duster. This was a sarcastic and belittling comment to which Mr Boswell rightly took exception.
[51] On 24 August, Mr Gillings and Ms Cornes went to Mr Boswell’s workshop and told Mr Boswell it was in the best interests for everyone if he finished on that day given the circumstances and the events the day prior. Mr Gillings and Ms Cornes also stated to Mr Boswell that he would be paid up until 15 September (which he was). Mr Boswell agreed.
[52] Mr Boswell finished his employment with South Terrace Management on 24 August.
[53] On 25 August Mr Boswell received a letter in the mail dated 24 August 2017 from South Terrace Management which stated the following:
“Dear John
Termination of your employment (with notice)
208 South Terrace Management (Hotel) Management Pty Ltd acknowledge receipt of your resignation letter dated 21st August 207. You advised four weeks notice with your last working day being 15th September 2017.
Due to the strained relationship and ongoing miscommunication between yourself and your direct Manager, 208 South Terrace Management (Hotel) Management Pty Ltd have decided to end your employment effective immediately.
You will be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including 15th September 2017.
Some termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.
We thank you for your hard work to date and wish you the best with your future endeavours.
Damian Gillings
Acting General Manager
Next Hotels, Adelaide”
Was Mr Boswell’s Resignation a Dismissal?
[54] Leaving aside the issue of not working out his full period of notice (discussed below), I do not consider that Mr Bowell was dismissed at the initiative of the employer within the meaning of section 386(1)(a) of the FW Act. The facts do not fit within any of the established circumstances pertaining to section 386(1)(a) outlined in Bupa Aged Care Australia Pty Ltd v Tavassoli, nor otherwise fall within the concept of dismissal at the initiative of the employer.
[55] The more substantive issue which arises is whether Mr Boswell was “forced” to resign because of the conduct or a course of conduct engaged in by his employer within the meaning of section 386(1)(b) of the FW Act.
[56] A resignation is only a forced resignation under section 386(1)(b) if the employee was forced to do so “because of conduct, or a course of conduct, engaged in by his or her employer”. This requires conduct or a course of conduct of the employer, and a sufficient causal connection between that conduct and the resignation. The causal connection is not a loose one. In the words of the statute, it has to be sufficient to have “forced” the resignation.
[57] The legislature has chosen to use the word “forced” as the basis for the causal connection, rather than looser or weaker formulations. The word is not defined in the FW Act. It is the past tense of the noun “force” and the verb “to force”. The noun and verb are defined in recognised English dictionaries to mean (in relevant contexts): 27
“force (noun): coercion or compulsion”
“to force (verb): to cause or produce by effort; to attain by strength of effort”.
[58] The word “forced” suggests the existence of conduct of such a character which compelled the outcome in the sense that the outcome was at least the probable consequence of the conduct such that free will was denied. In the words of the full bench in O’Meara v Stanley Works Pty Ltd adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli the test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.
[59] Mr Bowell resigned because, in his words, he considered himself to have been placed by his employer in an “untenable position”. 28 Mr Boswell’s evidence was that he did not want to leave and resigned under duress.
[60] The employer’s conduct which he asserts forced him to resign was that the employer unreasonably allowed an impossible situation to arise between himself and his manager (Mr Cantaros) by not investigating or acting on his complaints of Mr Cantaros’ unacceptable conduct.
[61] I have no difficulty concluding that Mr Boswell made complaints to Ms Cornes and Mr Gillings on multiple occasions about the conduct of Mr Cantaros. Mr Boswell requested Ms Cornes and Mr Gillings to “do something about it” and indicated that “if you can’t or won’t do anything about it, I won’t hesitate to look elsewhere for advice on this or other agencies”. 29 Mr Boswell expected that the employer would find some way to resolve the matter through mediation, but did not directly request this of South Terrace Management.
[62] I have found that Mr Cantaros made some remarks towards Mr Boswell which were rude and smug. While I consider the operational measures introduced by Mr Cantaros (such as the time and task sheet and the stocktake audit) to be within the legitimate operational discretion of the employer, they did cause concerns to Mr Boswell. The time and task sheet was potentially an excessive and onerous obligation depending on how strictly it was applied. The evidence before me was that it could be completed by identifying tasks in blocks of time, not specifying each and every ten minute increment. 30 Nonetheless, Mr Boswell was within his rights to raise his concerns with Mr Gillings and Ms Cornes, and he did so in a legitimate way.
[63] However, although the employer’s response was not to his satisfaction, his concerns were not dismissed out of hand. Mr Gillings empathised with some, rejected others (by defending the operational decisions) and took others up with Mr Cantaros. Although Ms Cornes did not formally investigate the concerns, Mr Boswell had initially conveyed mixed messages to her; making on the one hand a written complaint but on the other advising that things had improved and his written complaint was ‘just for the record’. I do not consider that the employer can be fairly criticised for the informal way it dealt with the issues between Mr Cantaros and Mr Boswell. I do not accept Mr Boswell’s submission that formal mediation should have been initiated. The employer had to manage not only Mr Boswell’s interests but also not unduly undermine the authority of its newly appointed manager. An informal approach, especially in those early days, was appropriate in the circumstances.
[64] Mr Gillings and Ms Cornes both assessed Mr Boswell’s concerns as a transitional phase of an established employee getting used to a new manager and new procedures, and the new manager finding his feet. 31 They did not characterise Mr Cantaros as having made unlawful or unreasonable demands of Mr Boswell. I generally agree. Although Mr Cantaros had shown rudeness and indifference to Mr Boswell that contributed to the strained relationship, Mr Boswell had a negative view of Mr Cantaros even before he commenced. The relationship was testy but for periods it improved. At the date of resignation Mr Cantaros had only worked for the employer for one month. Taking into account absences, Mr Boswell had only worked fourteen days in the presence of Mr Cantaros. These were early days and it was reasonable for the employer to conclude that the issues were transitional.
[65] Although the pressure of the new manager and his unhappiness at the operational changes did not lead Mr Boswell to consider options short of resignation, they were there. He could have given more time than a few weeks to see how things would settle. He could have asked South Terrace Management to formally investigate his complaints. He could have had his medical advisers inform the employer in more detail of the reasons for his distress. Whether any of these options would have assisted is not to the point; the point is that Mr Boswell had had enough by 21 August.
[66] I note Ms Cornes concession in her evidence that she and the employer could have handled the situation better. I agree. She particularly, as the employer’s human resources consultant, could have been more proactive in formally taking up with Mr Cantaros the concerns Mr Boswell raised about his rudeness and dismissive attitude, rather than simply leaving it to Mr Gillings or Mr Canteros to deal with the ‘operational issues’. 32
[67] I do not however accept Mr Boswell’s contention that South Terrace Management orchestrated or intended that he resign, or that resignation was the probable consequence of its conduct such that effective choice was not exercised. Ms Cornes had spoken to Mr Boswell about taking annual leave. Mr Gillings had spoken to Mr Boswell about taking the time needed to get well. This was conduct consistent with intending a relationship to continue, not to see it terminated. Although I accept that Mr Boswell formed the view, over time (and especially since his resignation) that he was being forced to resign so that the employer did not have to pay his pro rata long service leave, 33 there is no evidence to support this hypothesis. It was a year before Mr Boswell would have established an entitlement to pro-rata long service leave under South Australian law.
[68] Mr Boswell’s resignation was not a heat of the moment decision, nor was it ill-considered or unconsidered. He made the decision after removing himself from the immediate geography of the workplace and presence of work colleagues. He drafted his resignation on Sunday 20 August and printed it with the assistance of his son on the same day. He had discussed the events leading up to his resignation with family and friends during the preceding week.
[69] I find that ultimately he chose to resign once he perceived there was a working situation which was untenable to him. As he said in his evidence, “I could not work in that situation”. 34 His written submission put it this way:
“Because of the relationship between myself and the new maintenance manager, I decided that, sadly, I should quit my role in maintenance, and retire. I told management that it was not of my choosing, but the situation was not conducive to my health or well-being. I gave 4 weeks notice”. 35
[70] In the preceding fortnight Mr Boswell had unhappily observed the employer’s support for the operational decisions which Mr Cantaros had introduced and which he did not like but which he knew he would have to work under if he was to continue in employment. On 21 August he took his resignation letter to Mr Gillings. Mr Gillings paused before opening the letter, suspecting that it was what it was, thereby giving Mr Boswell an opportunity to retract or reflect on it. Mr Boswell chose not to. I take into account that it was not his preference to go, and he made that known to the employer on a number of occasions. He had enjoyed his job and had been commended in the past for being a valuable employee. 36 Although his choice was difficult, I find that it was nonetheless an effective choice and one that was left to him and made by him.
[71] For these reasons, I do not consider that Mr Boswell’s resignation was forced by the conduct or a course of conduct by South Terrace Management within the meaning of the FW Act. As a Full Bench of this Commission recently said:
“The well-established test for a forced resignation was restated in the recent Full Bench decision in Bupa Aged Care Australia Pty Ltd v Tavassoli. The employer must have engaged in conduct with the intention of bringing the employment to an end, or termination of the employment must have been the probable result of the employer’s conduct, such that the employee had no effective or real choice but to resign. 37
Was Mr Boswell Otherwise Dismissed?
[72] I turn to consider whether, in deciding on 24 August to pay out the remainder of Mr Boswell’s notice period, the employer terminated his employment at its initiative within the meaning of section 386(1)(a) of the FW Act.
[73] Mr Boswell acted within his rights to elect to work out his four-weeks of notice from 21 August to 15 September. The employer decided, on 24 August, part way into this period of notice being worked out, to pay out the remainder of the notice to 15 September.
[74] This decision was made by Mr Gillings based on an in-principle view he formed the afternoon prior once he had been appraised of the incident between Mr Boswell and Mr Cantaros concerning the moving of flower-pots, and the anxiety that had understandably caused Mr Boswell.
[75] I find that in the discussion between Mr Gillings and Mr Boswell on 24 August, Mr Gillings told Mr Boswell that he considered that finishing up and paying out the notice that day would be in everyone’s best interests, that he gave Mr Boswell a letter to this effect and that Mr Boswell agreed to that course.
[76] In these circumstances I find that the termination of Mr Boswell’s employment on 24 August 2017 on the basis that the remainder of his notice period be paid out until 15 September 2017 was proposed by the employer but given effect to by mutual consent. Being agreed, it was not a termination at the initiative of the employer within the meaning of section 386(1)(a) of the FW Act.
[77] Even if Mr Boswell had not agreed, in the circumstances where the employer simply paid out the remaining portion of the period of notice of resignation and where there was no clear prejudice on the part of the employee in doing so, I would have found the employer’s actions to be in consequence of the resignation and not in substitution for it. 38
Conclusion on the Jurisdictional Issue
[78] Mr Boswell was not terminated at the initiative of the employer within the meaning of section 386(1)(a) of the FW Act. No action was taken by the employer to dismiss. Its decision on 21 August to accept his resignation was made independent of the resignation. Its decision on 24 August to pay out the remaining portion of his notice period was made with consent and in any event was not in substitution for his resignation.
[79] Nor was Mr Boswell “forced” to resign “because of the conduct or a course of conduct engaged in by his employer” within the meaning of section 386(1)(b) of the FW Act. Mr Boswell exercised a difficult but real and effective choice in doing so.
[80] Mr Boswell was not dismissed within the meaning of the FW Act. As he was not dismissed, questions whether his dismissal was harsh, unjust or unreasonable (and issues of remedy) do not arise.
[81] I dismiss the application.
DEPUTY PRESIDENT
Appearances:
J. Boswell, on his own behalf.
O. Webb with T. Evans, for the Respondent.
Hearing details:
2017.
Adelaide.
16 November.
1 Directions, 24 October 2017 Deputy President Anderson
2 Australian Hearing v Peary (2009) 185 IR 359 at [30]
3 “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.” Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [48]
4 [2017] FWCFB 3941 per VP Hatcher, DP Binet and Cribb C
5 Ibid at [47]
6 Workplace Relations Act 1996 (Clth)
7 (2006) 58 AILR 100
8 Ibid at [23]
9 Court of Appeal (Civil Division) per Rimer LJ [2011] EWCA 1115. See also Gunnedah Shire Council v Grout (1995) 134 ALR 145
10 Pearse v Viva Energy Refining Pty Ltd[2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509
11 Transcript 16 November 2017 10.36am
12 Gillings Statement paragraph 8
13 Cornes Statement Attachment A Handwritten Notes by Mr Boswell 31.7.17
14 Cornes Statement paragraph 6
15 Cantaros Statement paragraphs 8 and 11; Boswell Handwritten Notes HC1
16 Gillings Statement paragraphs 11 to 13
17 Ibid paragraph 10
18 Ibid paragraph 14
19 Ibid paragraph 15
20 Cornes Statement HC1
21 Ibid paragraph 9 “if everything continues as it was on Thursday and Friday I have no issues”
22 Attachments B, Statement of Joel Cantaros, Exhibit JC2, 9 August 2017
23 Gillings Statement paragraphs 16 to 21
24 Ibid paragraph 22
25 Statements of John Boswell and Damian Gillings, Exhibits JB4 and DG2 letter dated 21 August 2017
26 Gillings Statement paragraphs 23 to 24
27 Australian Concise Oxford Dictionary (2nd edition)
28 Statements of John Boswell and Damian Gillings, Exhibits JB4 and DG2 letter dated 21 August 2017
29 Transcript 16 November 2017 11.36am
30 JC2
31 Transcript Gillings evidence 3.18pm 16 November 2017; Cornes Statement paragraph 10
32 Cornes Statement paragraph 15
33 Transcript 11.36am 16 November 2017
34 Transcript 16 November 2017 11.36am
35 Mr Boswell written submission JB1 (undated) page 1 paragraph 7
36 JB1 page 2
37 Fitzgerald v Woolworths[2017] FWCFB 2797 at [24] 17 October 2017
38 ABB Engineering Construction Pty Ltd v Doumit AIRC Full Bench 9 December 1996 Print N6999 page 10
Printed by authority of the Commonwealth Government Printer
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