Mr Michael Harvey v Transpacific Industries Group Pty Ltd T/A Transpacific Industries

[2013] FWC 2922

[2013] FWC 2922

FAIR WORK COMMISSION

DECISION

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

Mr Michael Harvey
v
Transpacific Industries Group Pty Ltd T/A Transpacific Industries
(U2013/5861)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 14 MAY 2013

Summary - application for unfair dismissal remedy -s.394 - s.386(1)(b) - subjective responses to workplace experiences - Respondent’s conduct objectively considered - application dismissed.

[1] This is an application by Mr Michael Harvey (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant seeks an unfair dismissal remedy in relation to his alleged dismissal by Transpacific Industries Group T/A Transpacific Industries (“the Respondent”).

[2] This matter has been before me at an earlier time in which I considered an initial matter relating to whether I would allow the application in another time, for the purposes of s.394(2)(b) of the Act. That matter was disposed of by way of my decision in [2013] FWC 1629 (“the prior decision”).

[3] Before turning to determine the substantive application, it is necessary, however, to consider a further question as to whether the application is jurisdictionally competent. This is because the Respondent claims that the Applicant resigned his employment and as a consequence there had been no dismissal that could be characterised under the Act as an unfair dismissal. Whilst it would have been more effective in some ways to have dealt with both objections to the application at one time, for reasons given in the prior decision this was not achievable.

[4] I have however taken advantage of this second opportunity to hear from the parties to obtain from them materials and evidence in relation to the substantive application (and will deal with that matter by separate decision if warranted). There is some measure of synergy in this approach because the factual circumstances relevant to the jurisdictional question overlap significantly with those relevant to the substantive application.

Legislative provisions

[5] The Act provides that a person who has been unfairly dismissed may seek a remedy under s.394 of the Act. Section 385 of the Act reads as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[6] Section 386 of the Act sets out the definition of ‘dismissed’, and reads relevantly as follows:

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

[...]

[7] An employee who has resigned his or her employment cannot be taken to have been dismissed for the purposes of s.385 of the Act.

[8] Here, however, the Applicant contends that his dismissal was consistent with s.386(1)(b) of the Act. The Applicant does not oppose the claim that he resigned his employment. He contends, rather, that he did not do so voluntarily but for reason of the conduct, or course of conduct, engaged in by the Respondent, which left him with no other reasonable choice but to do so. A resignation in such a context is a dismissal for the purposes of s.386(1)(b) of the Act:

386 Meaning of dismissed

(1) A person has been dismissed if:

[...] 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.

[9] It is this latter claim by the Applicant that will be the focus of my inquiries.

[10] The verb that is used in s.386(1)(b) of the Act (“forced”) suggests that the employer’s course of conduct must have, in some manner, compelled the employee to have resigned their employment, in the sense that the employee had no reasonable, alternative choice but to resign.

[11] The Full Bench in O’Meara v Stanley Works Pty Ltd (“Re: O’Meara”) remains the relevant authority in this respect, despite it being decided under the Workplace Relations Act 1996 as it was prior to being amended by the Workplace Relations Amendment (Work Choices) Act 2005.

[12] Specifically, the Full Bench decision in Re: O’Meara was based upon the legislation prior to the introduction of s.642(4) of the Workplace Relations Act 1996 in March 2006, and therefore before the current legislative provision under s.386(1)(b) of the Act. Although there are some differences between the relevant provisions of the Workplace Relations Act 1996 and the current Act, I do not think that these differences affect the relevance of the decision to the current provisions.

[13] In Re: O’Meara, the Full Bench stated relevantly as follows:

“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.” [My emphasis].

[14] The circumstances relevant to this application are as follows.

[15] The Applicant appears to have moved through a number of positions during his time as an employee of the Respondent. He was firstly employed as an Accounts Payable Officer with the Respondent on 1 June 2010.

[16] The Applicant states that around 15 September 2011 he resigned from his position of Acting Team Leader Supplier Maintenance because he was overruled by a manager in regards to a direction that he “assigned the girls” that he supervised and was subsequently left out of the decision-making process.

[17] The Applicant was reappointed, on 1 November 2011, as the Supervisor of Supplier Maintenance where he claims to have been verbally harassed by two female employees (that he supervised). He claimed the three female employees he supervised provided low quality work because they were continually talking. It appears as though the Applicant was himself the subject of a complaint by “the girls”, as he referred to them. The Applicant also appears to have requested to be moved away from where “the girls” sat so he would not hear them “whispering”.

[18] In his materials, the Applicant came to believe that it was arguable that the female employees he supervised had discriminated against him:

• 2.4.2 – Unlawful Discrimination, as the 2 team members making the complaint against me were female it can be argued that as per point 2.4.2 (b) I faced discrimination based on sex, pregnancy, relationship status or family/carer responsibility – sex, in that I was male and they are pretty young women.

[19] The Applicant’s belief that he was discriminated against only appears to have reached the point of being arguable and no more (which he confirmed in his viva voce evidence).

[20] The Applicant claims that the relationship with “the girls” became “toxic” and as a consequence he swapped roles (from 4 June 2012) with the Solid Waste Accounts Payable Team Leader.

[21] The Applicant claims that in this position he was essentially overworked as he not only performed the team leader role but was also undertaking the role of “2IC”. In addition, the Applicant claims that he was also instructed by the National Accounts Payable Manager, Ms Annette Linney, to organise and supervise site visits for staff. Not only did the Applicant not have his own “2IC”, he claims that as a consequence of a business restructure he had his numbers cut back from seven full-time employees and access to temporary employees (when required) to 6 full-time employees only.

[22] He also claims that some of his employees regularly had 45 minute lunch breaks instead of the scheduled 30 minute lunch break and arrived 5 to 15 minutes late on a regular basis without working back. One of his employees was also being investigated by HR in view of the number of sick days she had taken. The conduct of the employees appears to have added to his stress or anxiety levels as he sought to manage the individual’s conduct.

[23] The Applicant also claimed that he was required in the course of his duties to chair a performance management review of an employee (a Ms Liz Hislop) who had, so he claimed, “abused” him verbally in front of others, and was required to sit only some two seats away from that very person. The Applicant claims there was a long period before the matter was resolved (and only immediately prior to his resignation) and that “this [delay] put [..] me in a horrible situation as you can well imagine.”

[24] But the Applicant’s situation was not as he subjectively appraised it as being. While there was a delay in the conclusion of the disciplinary process, for reasons as explained, the Applicant had not been left utterly unsupported, as his own evidence demonstrated:

So you had an employee that doesn’t perform appropriately and you get that angry about it?---No, it’s not the fact that the employee wasn’t performing. It’s the fact that the employee, since my time as solid waste team leader, was actively undermining me. I’d been telling Annette for two months I’m having problems with Liz’s behaviour, her condescending attitude, the way that she’s addressing me in team meetings, and Annette did nothing.

Finally Liz erupts in a team meeting so that the whole office overhears what’s going on. Finally Annette acts and says, “Not good enough. Formal warning.” I followed through with the processes that the company has in place. A formal warning letter is issued - is drafted. I change it to suit the situation at hand. It’s given to Annette who’s then transferred it to Paul Innes. For six weeks nothing and in the meantime Liz’s behaviour deteriorates more against me, all right, so, yes, I consider with the unresolution of these issues and the fact that I followed the processes in place by your company and nothing is done about it that my response is measured. In fact, I think I’ve been very well done to not take my anger out on her and have had to leave the company. (sic) [My emphasis]

[25] The Applicant also appears also to have been disappointed in the approach taken to create a new structure across the Transpacific Accounts Payable division, which he claimed created difficulties in paying subcontractors. The results of the restructure, the Applicant submitted, “impact[ed] greatly upon me because as team leader I had to deal with the complaints as well as organise urgent payments.”

[26] The Applicant appears also to have made a complaint about the conduct of various of his work colleagues. One of these was a Mr Darren Halliday. The Applicant was asked to enquire of Mr Halliday as to why he had not completed a particular invoice. Mr Halliday was said to have advised the Applicant that he hadn’t done the work and didn’t know why. The Applicant related this information to his manager, Ms Annette Linney. Subsequently, Mr Halliday apparently provided the completed invoice to Ms Linney and claimed that he had been confused by the Applicant’s instructions.

[27] The Applicant claims that he was able to demonstrate that Mr Halliday had lied to him and commenced a performance management review. The review, however, was cancelled by Ms Linney:

I show[ed] and that the e-mail that Darren was given regarding what was required of him. I also show and get an e-mail that Darren said to Carley O'Brien (Team Leader of Procurement) on 30 October 2012 where he has only just completed the work. Annette advises me that “It doesn't matter, PMR still cancelled”. I say to Annette words to the effect “you can't do this; I've proved that Darren is lying”. Annette then says “too bad Michael”. Annette then says to me “Do you want to change jobs Michael”. At this point, on so disillusioned I say I don't care. Annette then advises me that I will be changing jobs in two days.” (sic)

[28] The Applicant was required to work in a new role, albeit for a three week period only, in the Industries AP department, so he says, without any documentation and processes and was overloaded with queries to which he was unable to respond.

[29] The Applicant was concerned by the change in his roles. He believed that he was going to be “phased out”, as the Applicant put it, and “it would be just a matter of time” and that “he could see the writing on the wall”. He approached Mr Pat Ryan, the Employee Relations Manager, and on his own evidence, Mr Ryan proposed to convene a meeting with Ms Linney or with Mr Innes, the Group Financial Controller. The Applicant declined these opportunities, but did meet with Ms Linney to discuss his concerns.

[30] The Respondent - particularly through Ms Linney’s evidence - contended that the short term position was not a demotion, had been planned for some time as a cross skilling exercise, and was brought forward only because of the difficulties the Applicant was having in his position at the time.

[31] The Applicant claims that he attempted to discuss these matters after this meeting with Mr Ryan, but that his concerns were not taken seriously and Mr Ryan diverted the conversation on to unrelated topics. Mr Ryan accepted that he did have a conversation in which he had discussed some informal matters with the Applicant but claims the Applicant has a contorted view of the conversations, neglected to recall that there had earlier been substantive discussions, and generally claimed that he had not been dismissive of the Applicant.

[32] In the course of fulfilling this new role the Applicant states that he experienced an incident in which a contract employee stood over him and gave him the “eye-ball” for requesting the completion of certain documentation. The Applicant claims that “a non-Transpacific Industries employee feels comfortable standing over a team leader because the precedents have been set that Michael [the Applicant] will not be supported.”

[33] The Applicant claims that on two separate occasions he attempted to speak to the Group Financial Controller, Mr Paul Innes, about these matters. On the Applicant’s evidence, Mr Innes appears to have been attempting to avoid the Applicant. Mr Innes appears on 7 November 2012 to have eventually agreed to a meeting, but then to have been unable to attend, and this caused disappointment to the Applicant. Such was the Applicant’s disappointment about the cancelled meeting that he resigned his employment:

“At no point did he advise of a suitable time that he could see me so I tended my resignation.”

[34] The Applicant claims that over the course of his employment with the Respondent he was bullied and harassed and that his health was severely affected such that he has been incapable of working since 23 November 2012. The Applicant claims to have been diagnosed as suffering from post-traumatic stress disorder (which he claims arises from the abuse and bullying issues he had experienced).

[35] The Applicant resigned (after some confusion as to the date on his initial letter of resignation) on 8 November 2012 but his period of notice culminated on 7 December 2012. The Applicant did not serve out his entire period of notice as he produced a medical certificate indicating he was unfit for work owing to a stress condition.

[36] The Respondent was aware that the Applicant had some history of depression and had admitted to certain stressors in his personal life.

[37] The evidence of Ms Annette Linney, which the Applicant confirmed under cross examination, was that during this notice period she had approached the Applicant and informed the Applicant that it was not too late for him to “retract” his resignation. The Applicant declined.

[38] Ms Linney also stated that shortly after the Applicant’s resignation she had “checked with” the Applicant to ensure that he had made the right decision out of concern that the Applicant did not have another job to which to move.

[39] Mr Linney’s further evidence was that shortly after his resignation she had approached the Applicant and, noting that the Applicant had admitted that he was “feeling very lost”, had offered him an alternative position which did not require him to exercise managerial responsibilities (which had caused the Applicant stress). Mr Ryan stated that the Applicant declined the offer on the basis that “he did not want to work with the company any longer” (though the Applicant denies he stated so).

Consideration

[40] Generally, the Respondent’s conduct in this matter is not the conduct of an employer who seeks to construct the dismissal of an employee which it no longer wishes to employ.

[41] Nor is this a matter in which the Respondent has reached a view that an employee’s employment was deemed to be unsatisfactory by his employer or where the employer has sought the employee to resign his employment or else be dismissed. There is no evidence to these ends.

[42] The Applicant did not enjoy a stable or pacific period of employment. He came into conflict with a number of his work colleagues, largely those over whom he had some measure of supervisory responsibility (such as Ms Hislop) and was frequently redeployed. But the causal conduct that led to these situations cannot be laid at the feet of the Respondent as his employer, nor were the incidents of the scale that ought to have led the Applicant to serious despair as to his position with the Respondent.

[43] Ms Hislop may indeed have spoken inappropriately to the Applicant, but the incident could only be described as of a relatively modest level (despite its subjective impact upon the Applicant). From Ms Linney’s description, the incident, in actuality, concerned Ms Hislop speaking loudly and in an angry manner.

[44] It appears that the alleged delay in the resolution of the disciplinary action against Ms Hislop in its own right was a cause for added anxiety on the part of the Applicant (though Ms Linney explained that this arose from a delay in implementing new delegations for signing warnings, and had nothing to do with Applicant or the issue). It may have been unsettling for the Applicant to have not had the matter dealt with more expeditiously, but this is a not a matter that demonstrated that he was so utterly without support that he had no reasonable choice but to resign his employment.

[45] Further, the Applicant was very concerned about being required to apply a performance management review of Ms Hislop himself (albeit with the support of another senior employee - the 2IC to Ms Linney). This does not seem to be so unreasonable a request as to contribute to a decision to resign, particularly as the Applicant had a supervisory role in relation to Ms Hislop. I can envisage that some discomfort may arise, arguably, but again, the direction is hardly fatal to the employment relationship, or else in its own right or in conjunction with other circumstances so odious as to “force” the Applicant to resign his employment.

[46] The Applicant no doubt had become fixated by Ms Hislop’s relationship with him. His comments made on his Facebook page after his resignation about her are disturbing. The Applicant’s comments had very violent overtones (and Ms Hislop should be made aware of this if only from these proceedings). Such was the Applicant’s view of Ms Hislop’s apparent “condescending” attitude towards him that he stated this was the reason for his resignation:

So you had a lot of rage for Ms Hislop?---After what she’d done and the way it hadn’t been resolved and the way that her behaviour kept deteriorating towards me, yes, I had a lot of rage. That’s why I had to quit.

[47] The incident involving Mr Halliday appears to have arisen owing to a miscommunication (on Ms Linney’s evidence). The matter was capable of prompt rectification but, as with Ms Hislop’s conduct, it became an issue of very great significance to the Applicant, and one which he sought to agitate. Ms Linney simply wanted to close it off, in effect, as a lesson learned and move on. The Applicant wished to bring Mr Halliday to account, as he had sought to bring Ms Hislop to account, and “the girls” before that, as well as those employees who were late to work, or who took long lunch breaks, or who appeared to use excessive personal leave.

[48] In the Applicant’s mind the matter concerning Mr Halliday became a further instance of lack of support. And by this stage the Applicant appears to have been aggregating every workplace experience to construct a monolithic, negative view of his employer and its intent.

[49] Yet even if the Applicant’s version of events were to be accepted and it was demonstrated that Mr Halliday had caused him embarrassment and Ms Linney had purposefully declined an opportunity to sanction him (Mr Halliday), the incident was not in its own right or in conjunction with other incidents of such magnitude to force the Applicant to resign his employment. The circumstances, while they may have be a source of discomfort and caused the Applicant a measure of disaffection, do not manifest such odium on the part of the Respondent so as to “force” the Applicant to resign his employment.

[50] Nor is there any objective support for the Applicant’s claim that because he was reassigned for a three week period to a different division that his employment was at risk as a consequence. The Applicant simply assumed he was being “demoted”, and “phased out”. He had no evidence to sustain this belief. And Ms Linney’s claims were to the contrary.

[51] Part of the decision, at least in relation to timing, was to remove the Applicant from a situation which was becoming more difficult (in terms of his relationships with his co-workers) owing to what was said to be his “dogmatic” and “authoritarian” style of supervision. But the primary purpose was cross skilling, and the move had been planned for some time. The limited duration of the move was a compromise between the Respondent and the Applicant. The move cannot be characterised as a demotion, though the fact that the Applicant had been subject to another move yet again caused him to believe his standing in the workplace would be affected negatively.

[52] Even when the Applicant expressed his concerns in these regards, he was offered an opportunity to ventilate these through meetings between the HR Department, Ms Linney and Mr Innes. The Applicant indeed had a lengthy meeting with Ms Linney over his concerns about moving position to the Industries AP and they appear to have resolved the matter on the basis of the move being only for a short period. None of this is evidence that the Applicant was treated in a dismissive way by his employer (let alone in such a way as to cause or contribute to him resigning his employment.

[53] Generally, the Respondent managed the Applicant as it could, steering him to resolve situations directly rather than have them escalate through formal disciplinary machinery. The evidence of Mr Ryan was particularly strong in this respect. Equally, Ms Hayley Gibbs, the HR Business Partner (Queensland region) for the Respondent, gave evidence that the Applicant had at no stage made any complaint to her regarding bullying in the workplace by the Respondent’s managers or his peers (though arguably - and at a stretch - the complaint about Ms Hislop’s conduct might fall into this category in some technical sense).

[54] Further, the evidence demonstrates that the Applicant was aware of the Respondent’s policies and complaints procedures for the purposes of doing so, had he been motivated at the time.

[55] To be sure, the Respondent moved the Applicant around through various positions seeking a “better fit” as it were. But by the time of the final, proposed three week move to Industries AP, the Applicant felt he could no longer accommodate what he perceived as persistent conduct by the Respondent to undermine his standing in the eyes of the workforce and not give him support in his continuing tensions with his subordinates.

[56] In some instances the conduct of an employer may be so oppressive as to warrant resignation without discussion. But the circumstances before me now are very much different.

[57] The Applicant may have had workload concerns which appear to have constituted an added stressor. But these do not appear to have been so dogmatically insisted upon by the Respondent so as to have contributed to the Applicant’s resignation. Indeed, the Respondent does not generally appear to have been disposed to adopt a dogmatic view about its expectations in the broad, and sought at many turns in the course of the Applicant’s employment to reassign and re-accommodate him sympathetically.

[58] Further, if the Applicant felt disaffected because of the conduct of Mr Innes in not keeping the meeting arrangement as agreed the previous day, then he should have taken steps to seek a new time (despite his sense of frustration with the first meeting having been cancelled). It does not appear to me that Mr Innes’ conduct could be characterised as being conduct that forced the Applicant to resign his position, but to the Applicant is was a further and final demonstration of the absence of managerial support:

At no point did he advise of a suitable time that he could see me so I tended my resignation.

[59] The Applicant also made references particularly in his latter submissions-cum-statements as to having been bullied or harassed whilst an employee. The Applicant’s evidence in this matter reveals that he was very well aware of the Respondent’s express complaints procedure in this regard. It was a procedure that was at his disposal for the purposes of addressing his concerns as he believed them to be.

[60] While the Applicant had encountered a number of uncomfortable circumstances in the course of his employment none of those, as I have set them out in summary, on their own or taken together are sufficient to demonstrate that the Respondent had taken a course of conduct that had left the Applicant with no choice but to resign his employment.

[61] There are also inconsistencies in the Applicant’s own conduct. Whilst he was of the view he was forced to resign, he did so on one month’s notice. That is, while the circumstances of his employment were perceived to be so intolerable as to require his resignation, he was able to persist in employment for a further month because, as he put it, he needed the money. If the odium of continued employment was overridden by monetary goals, the workplace environment may have been intolerable, but only to a degree relative to other priorities.

[62] Generally, the evidence in this matter yields nothing which supports the Applicant’s assertion that he was forced to resign his position because of the conduct or course of conduct of the Respondent.

[63] There was no conduct on the Respondent’s part that was imbued with any sufficient element of compulsion or duress or coercion or oppressiveness or odium that imposed upon the Applicant in such a way as to cause him to resign his employment.

[64] This is more the case that the Applicant’s subjective response to the series of workplace incidents set out above was such that he came to the belief his continued employment was impossible. And these circumstances do not make out a case that the Applicant was forced to resign his employment because of the Respondent’s conduct as objectively considered.

[65] The Applicant was very troubled by his experiences, and this is evident if only from the proceedings. But the jurisdiction is not predicated upon the illumination of the subjective experience of an employee. The Commission must determine the circumstances and characterise the conduct of the employer objectively.

[66] I add that the Respondent provided an opportunity for the Applicant to reconsider his decision after such time as he had resigned, as well as providing a subsequent opportunity to him to be re-employed in a position which may be less stressful and which may accommodate his skills. The Applicant was not inclined to avail himself of these opportunities. This then is not a case in which the Respondent has sought to exploit or take advantage of the circumstances which have affected an employee. As I have mentioned above, the Respondent’s conduct is quite the contrary to that of employer which seeks to rid itself of a troublesome or unwanted employee, or else willingly or otherwise sustains an inhospitable workplace environment.

[67] Because of my findings as set out above, the Applicant was not a person who had been dismissed by his employer (the Respondent) for the purposes of section 385(a) of the Act.

[68] The application before me under s.394 of the Act must therefore be dismissed as it is not a jurisdictionally competent application.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M. Harvey, Applicant

Mr T. Small, for the Respondent

Hearing details:

Brisbane

2013

8 & 9 May

Printed by authority of the Commonwealth Government Printer

<Price code C, PR536506>