Mr Marc Kay v Open Door Pub Co Pty Ltd
[2023] FWC 1052
•8 MAY 2023
| [2023] FWC 1052 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Marc Kay
v
Open Door Pub Co Pty Ltd
(C2023/334)
| COMMISSIONER PLATT | ADELAIDE, 8 MAY 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was constructively dismissed – no constructive dismissal - jurisdictional objection upheld - application dismissed.
On 23 January 2023, Mr Marc Kay (the Applicant) lodged a general protections application against Open Door Pub Co Pty Ltd (the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging inter alia that on 18 January 2023, he was forced to resign as a result of the conduct of the Respondent’s employees towards him. Mr Kay contended that his dismissal was in breach of the general protections provisions of the Act.
On 8 February 2023, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Mr Kay had not been dismissed. The Respondent contended that Mr Kay had voluntarily resigned from the company on 18 January 2023 in the form of an email.
On 1 March 2023, the parties participated in a conciliation conference conducted by one of the Commission’s staff conciliators. The matter did not resolve.
As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.
Directions Conference and Permission
On 23 March 2023, a directions conference was conducted by telephone. Directions were issued for the filing of material in respect of the jurisdictional objection, and a hearing was scheduled for 18 April 2023.
At that directions conference parties were not represented.
After submissions from the parties were received, a second directions conference was conducted on 14 April 2023 to discuss issues with the material filed. New directions were issued with the parties invited to recast their material, and the hearing date was deferred to 3 May 2023.
The Respondent subsequently obtained legal representation.
Both parties filed revised statements and submissions.
The Hearing
The hearing was conducted, by videoconference, on 3 May 2023, commencing at 10:00am. Mr Kay represented himself, and the Respondent was represented by Mr John Douglas (of counsel) with permission being granted pursuant to s.596. The Hearing was conducted as a Determinative Conference to ameliorate the granting of permission to be represented to the Respondent.
A digital court book, containing the materials filed by the parties from the revised Direction was compiled and distributed to the parties prior to the hearing. I received the entirety of the digital court book into evidence, subject to appropriate weight being given to the evidence that was tainted by opinion, irrelevance or hearsay. The parties were reminded that this hearing was only to determine the jurisdictional issue of whether the Applicant was dismissed and was not dealing with the merits or remedy.
Mr Kay submitted a statement and gave evidence on his own behalf. Mr Ryan Adams (Venue Manager), Mr Cameron Ellis (Senior Operations Manager) and Ms Jacqueline Griffin (National HR Manager) submitted statements and gave evidence.
Evidence
The Applicant is 63 years of age and had over a decade of experience as a Barman prior to his employment with the Respondent noting that he had not performed barman duties for about 7 years. The Applicant was engaged as a Casual Barman at a new venue and his employment arrangements were documented in a comprehensive written contract of employment dated 2 November 2022. The Applicant worked a total of 15 shifts at the Respondent’s premises between 21 November 2022 and 16 December 2022. The Applicant advised he was unable to work due to illness between 17 December 22 and 18 January 2023. The Applicant resigned by email at 10.46am on 18 January 2023.
The relevant portion of the resignation email stated:
“To whom it may concern at AVC & Brewdog,
After a number of incidents in which I was, inter alia, subjected to workplace bullying, excessive micro-managing, screaming, having my complaints about being humiliated and bullied ignored, work and safety issues disregarded, unpaid work, as of January 18, 2023, I cannot work any longer at Brewdog/AVC.
Working for Brewdog/AVC meant I was exposed to an unsafe workplace. Brewdog/AVC ignored basic WH&S practice and encouraged the above behaviours, even when reported to senior management. This lack of concern for me meant I became ill as a direct result.”
The Applicant contends that the conduct of the Respondent’s employees forced him to resign. The Respondent contends that the conduct was not such that the Applicant’s only option was to resign and that there were other options reasonably available to him.
The incidents relied upon by the Applicant are summarised as follows:
· Between 7 November and 10 November 2022, between 4pm and midnight on 18 November 2022, between 6pm and midnight on 23 November 2022 and between 12-16 December 2022, he was instructed to complete compulsory training modules in his own time. The Applicant believed he would not be paid. The Applicant conceded that he had received a copy of the Training Policy and that the Policy provided that he would be paid for his time. Whilst the Applicant had verbally asked about payment, he had not advised the Respondent of the time spent undertaking or made a written request for payment.
· On 2 December 2022, the Applicant was working behind the Bar. The Bar was busy with over 100 persons present. The Applicant served a paddle of various tasting beers to a customer. Part of the process involves the Applicant writing the names of the beers on a piece of paper for the customer to review. The Applicant gave evidence that the Bar Manager at the time (Freya) told him in a raised voice in front of the customer that his writing was not sufficiently legible and asked him to rewrite. The Applicant was embarrassed and upset by this conduct. The Bar Manager did not give evidence (despite remaining in the employ of the Respondent) and I accept the Applicant’s account of this incident. The Bar Manager’s method of giving feedback was not ideal.
· At about 1:00pm on 3 December 2022, the same Bar Manager instructed the Applicant to leave the EFTPOS machine on top of the serving area which the Applicant contended was contrary to a previous instruction. When the Applicant questioned the required location the Bar Manager shouted, ‘Just do what I tell you.’ I am advised this incident also occurred during a busy service period. The Bar Manager did not give evidence (despite remaining in the employ of the Respondent) and I accept the Applicant’s account of this incident. The Bar Manager’s response was not ideal.
· At about 2:00pm on the same day, the Applicant was instructed by Bar Manager Freya, to hand clean some glasses. This requirement was new to the Applicant who had previously relied on machines to clean glasses. The Applicant was instructed to use some detergent, the Applicant was concerned about the safety of the detergent. Upon questioning the safety of the detergent, the Bar Manager said it was not that strong and walked away. I accept the Applicant’s account of the incident. As it turned out the detergent posed a minimal risk. It appears that the Applicant’s concerns were an overreaction in the circumstances.
· In the period of the Applicants employment whilst at the Respondent’s premises, staff referred to him by the nickname “Marky Marky”. This was not disputed. The Applicant was unfamiliar with the use of nicknames in Australia and was offended by same.
· On 12 December 2022, the Manager Ryan Adams communicated with the Applicant and others advising that if they had not completed the required training modules, they would be taken off the roster. By this time the Applicant had completed the required training. The Applicant was offended by the communication, this appears to be an overreaction on the basis that any threat has no application to him.
· On 12 December 2022 (which was a warm 30-degree day), the Applicant used a nearby public unisex change room (which was part of the larger complex in which the Pub was located in) to freshen up and change into his uniform prior to commencing work. The Bar Manager, Mr David Rankin, chided the Applicant for using this facility. Mr Rankin was not called to give evidence (but has remained in the employ of the Respondent). I accept the Applicant’s account of the incident. Mr Rankin’s complaint regarding the Applicant’s actions lacks any foundation and was inappropriate.
· On 13 December 2022, the Applicant was working behind the Bar, at the time the Bar had few customers. He felt a pain in his lower calf and walked to the front of the bar (to a location off the rubber mats) and walked around to ease his pain. The Bar Manager, Mr Rankin, required the Applicant to return to his standing position behind the Bar. I accept the Applicant’s account of the incident. Mr Rankin’s complaint regarding the Applicant’s actions was insensitive in the circumstances.
· At 3:00pm on 16 December 2022, the Applicant could not locate serviettes that were required. He went upstairs and spoke to Mr David Rankin who said to him unless it was a life-or-death matter not to bother him with questions regarding serviettes. I accept the Applicant’s account of the incident. Whilst Mr Rankin may have seen the Applicant’s request as a distraction, his manner of responding was inappropriate. I understand that Mr Rankin accepts his behaviour was inappropriate.
· On 16 December 2022, the Applicant complained to Mr Cameron Ellis about Mr Rankins conduct concerning the serviettes. Mr Ellis offered to conduct a mediation between Mr Rankin and the Applicant advising that Mr Rankin accepted his conduct was inappropriate. The Applicant denied the mediation was discussed. Mr Ellis contended that the Applicant was more interested in finding out which employee had breached his trust by advising Management of a statement the Applicant made about having had sued a previous employer. I had the opportunity to make assessments about the credibility of the witnesses as they gave their evidence. At the beginning of his evidence the Applicant advised that his memory of the events was not so good as the events had happened some months ago. In addition, he made an error in his statement as to one of the dates when the interaction with Bar Manager Freya had occurred, which he corrected upon learning Freya was not rostered on that day. Mr Ellis advised me that he wrote an account of his conversation with the Applicant soon after it occurred. I prefer the evidence of Mr Ellis over that of the Applicant as to the mediation being offered. It appears to me that the Applicant was more interested in finding out which employee had breached his trust than taking part in a process to resolve his differences with Mr Rankin, who appeared to be prepared to accept responsibility for his conduct.
· None of the matters detailed above were the subject of a formal written complaint by the Applicant (as described in the Respondents Internal Grievance Policy) or escalated to the Respondent’s HR function. The Applicant was aware of the Grievance Policy.
· In the period between his last shift and his resignation, the Applicant advised he felt anxious and depressed, that he could not trust his employer or the people he worked with. The mere thought of returning to that job made him stressed. He also reports suffering from backaches and sleep problems, reliving the same scenes repeatedly.
At the hearing, the Applicant contended he was suffering from Depression at the time of his resignation. The Applicant submitted a medical certificate from Dr Aladdin Matter dated 28 March 2023. The Certificate stated that the Doctor examined the Applicant on 19 December 2022 and was advised he ‘…was working in a company and came quite disturbed by the condition at wors at work. He stated that the people were humiliating bullying shouting by work bosses finding trouble coping with the view of the workers and having supply issues, feels he cant look after customer with the difficult painful company culture….’(sic). The documentation does not provide a diagnosis. No medical expert was called to give evidence.
The Applicant accepted that he could have made a Bullying Complaint or raised a dispute with the Fair Work Commission but did not do so.
Ms Griffin (National HR Manager) did not become aware of the issues until after the Applicant resigned. She offered to investigate the matter, but it was too late.
Law
Section 365 of the Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial associated that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 386 of the Act provides the meaning of dismissed:
“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.”
Mr Kay relies on s.386(1)(b) of the Act, in that he contends that he was forced to resign from his employment because of the conduct, or a course of conduct, engaged in by the Respondent.
The foundational case for ‘forced resignation’ matters was that of Mohazab v Dick Smith Electronic (No 2)[2]. In discussing the concept of ‘forced resignation’ in that case it was stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”
In O’Meara v Stanley Works Pty Ltd,[3] the Full Bench of the Australian Industrial Relations Commission expanded on Mohazab, and stated:
“[23]…It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.”…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.” (emphasis added).”
Consideration
I am not persuaded that the conduct towards the Applicant was such that it forced him to resign. The requirement to undertake training in his own time and be paid for it upon making a claim is a poor foundation for the claim made. Similarly, the ‘threat’ (to put it at its highest) that non-completion of training would result in a loss of shifts, when the Applicant has completed the training is similarly a poor foundation.
The interactions with Freya and Mr Rankin were sub-optimal. It is unfortunate that the Applicant did not participate in mediation or take the opportunity to raise his complaints formally in writing with Human Resources as detailed in the policy that he was aware of. The Applicant also has access to processes through the Fair Work Ombudsman (as to perceived underpayment) and the Fair Work Commission (Bullying).
In my view, the decision by the Applicant to resign was an overreaction to the circumstances, particularly in light of the time gap between the last event and his decision to resign. I do not believe resignation was the only option available to the Applicant. I am unable to conclude that Mr Kay had no effective or real choice but to resign.
Conclusion
Accordingly, I find that Mr Kay was not dismissed by the Respondent and for that reason, the Commission lacks the jurisdiction to allow his s.365 claim to proceed. The Application must be dismissed. An order reflecting this decision will be issued.[4]
COMMISSIONER
Appearances:
M Kay the Applicant.
J Douglas (of counsel) on behalf of the Respondent.
Hearing details:
2023.
Adelaide.
May 3.
[1] [2020] FCAFC 152.
[2] (1995) 62 IR 200.
[3] PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006).
[4] PR761646
Printed by authority of the Commonwealth Government Printer
<PR761608>
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