Mr Raguparan Mahesan v Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust T/A Henry Schein Halas

[2014] FWC 7087

[2014] FWC 7087 [Note: An appeal pursuant to s.604 (C2014/7175) was lodged against this decision - refer to Full Bench decision dated 30 January 2015 [[2015] FWCFB 392] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Raguparan Mahesan
V
Henry Schein Regional Pty Ltd as trustee for Henry Schein Regional Unit Trust T/A Henry Schein Halas
(U2013/17284)

COMMISSIONER RIORDAN SYDNEY, 13 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] This is a decision in relation to an unfair dismissal application lodged by Mr Ragu Mahesan against his former employer, Henry Schein Regional Pty Ltd as trustee for Henry Shein Regional Unit Trust t/as HENRY SCHEIN HALAS (Henry Schein).

[2] Mr Mahesan was employed on 13 June 2005 as an Internal Auditor (SOX Compliant). Mr Mahesan gave four weeks notice of his pending resignation on 18 September 2013. His resignation took effect on 16 October 2013.

[3] Mr Mahesan claims that he has been the subject of a targeted campaign by his female supervisors due to his gender and their jealousy over his relationship with senior staff. Due to work performance issues, on 17 September 2013, Mr Mahesan was invited to attend a formal meeting on 18 September 2013. Mr Mahesan refused to attend the meeting and submitted his resignation instead. Mr Mahesan claims that his resignation was due to the inappropriate actions of Henry Schein and that he was constructively dismissed.

[4] Mr Mahesan represented himself in these proceedings. I allowed his brother Mr T Mahesan to also appear in the proceedings. Mr Roland Hassall of Sparke Helmore Lawyers sought leave to represent Henry Schein which was granted in accordance with section 596(2) of the Fair Work Act, 2009 (the Act).

[5] Mr Mahesan provided a witness statement and submissions on his own behalf. Henry Schein relied on witness statements from Mr Leo Cain (Chief Financial Officer), Ms Susan Jennings (Human Resources Director), Ms Melissa McEwan (Financial Controller) and Ms Hayley Wilding (Finance Manager).

[6] Mr Mahesan’s unfair dismissal application was lodged out of time. On appeal, the Full Bench granted Mr Mahesan an extension of time.

Statutory Provisions

[7] Section 386 of the Fair Work Act, 2009 (the Act) states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.”

[8] There have been a number of significant cases in relation to the issue of constructive dismissal which identify the parameters for consideration in relation to this issue, including the difficult issue of identifying the individual who initiated the termination of employment.

[9] In Mohazab v Dick Smith Electronics Pty Ltd 1 (Mohazab), the Full Court of the Federal Court of Australia said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and His Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” 2

[10] In Pawel v Advanced Precast Pty Ltd 3, a Full Bench of the Australian Industrial Relations Commission 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 instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.” 4

[11] In ABB Engineering Construction Pty Ltd v Doumit 5(ABB Engineering), a different Full Bench of the Commission 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.” 6

[12] In P. O’Meara v Stanley Works Pty Ltd 7 a Full Bench of the AIRC said:

“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.” 8

[13] The test for Mr Mahesan therefore, is to show that Henry Schein intended to bring the employment relationship to an end or that they could foresee that their actions would probably result in the employment relationship coming to an end.

Background and contentions

[14] Mr Mahesan claims that he was constructively dismissed for the following reasons:

a) Henry Schein underwent an internal restructuring of its Finance Department in July 2012. Ms Wilding was appointed to the position of Finance Manager, without the position being advertised. Mr Mahesan’s title was changed from Senior Management Accountant and Risk Officer to Senior Accountant. Mr Mahesan claims that he was emoted because he was now required to report to Ms Wilding rather than the Financial Controller, Ms McEwan. Mr Mahesan had regarded Ms Wilding as being his junior prior to her appointment.

b) Mr Mahesan claims that he was the subject of bullying and harassment as a result of his gender. Mr Mahesan claimed that Ms McEwan wanted an exclusively female finance department and embarked on an 18 month process of harassment to achieve this aim.

c) Mr Mahesan claimed that Henry Schein did not conduct his latest performance appraisal appropriately. He claims that his performance appraisal should have been conducted by two managers on the basis that he reported to Ms Wilding and Mr Ron Hodge, yet only Ms Wildling was involved. Also Mr Mahesan claims that his 2013 performance appraisal has been altered after he had signed it. Mr Mahesan claims that the Manager’s comments in relation to KPI 5 are of relevance:

“KPI 5 - Assistant Accountants have been successfully trained and are meeting expectations. Next stage is the cross training as discussed in Q2 2013.”  9

Mr Mahesan claims that the second sentence of this KPI means that the performance appraisal was altered because it talks about a discussion in the second quarter of 2013, ie April - June 2013, and he signed the document in 2012.

d) Mr Mahesan claims that the rejection of his request for annual leave to tend to his sick child was another example of the campaign to make him resign.

e) Mr Mahesan was requested to sign a voucher that he had not prepared nor undertaken the majority of work. He claims that this was an attempt to trick him into signing a document that was not factually sound and was in breach of a law of the USA. Mr Mahesan refused to sign the voucher.

f) Henry Schein advertised a new role of Senior Business Analyst in July 2013. Mr Mahesan believed that the new position encapsulated 50% of his existing role. Mr Mahesan did not apply for the role but simply expected to be appointed to the role in the same manner as Ms Wilding was appointed. This did not occur.

g) Mr Mahesan also claims that he was micro-managed in the two weeks prior to his resignation being submitted.

[15] Henry Schein argues that there was no constructive dismissal and that Mr Mahesan simply resigned his employment, albeit against their wishes.

[16] Henry Schein argues that Mr Mahesan had ignored previous verbal warnings in relation to his performance from Ms Wilding and was therefore asked to attend a formal counselling meeting on 18 September 2013;

“Dear Ragu,

Re: Notice of formal counselling meeting

I am writing to confirm that you are required to attend a formal meeting at 2:00pm on Wednesday 18th September 2013 in Unit 2 Meeting Room 1. I will conduct the interview in the presence of Teddy Chalouhi who will act as an objective observer and will take notes of the meeting.

The purpose of the meeting will be to discuss concerns in regards to:

- Ability to meet deadlines

- Ability to liaise and partner effectively with the business

- Comprehension of feedback and ability to act upon it

The company considers these matters to be serious, since it relates to the level of performance that we would like to see from a Senior Accountant at Henry Schein Halas.

At the meeting you will be provided with the opportunity to respond to the Company’s concerns. Naturally, you may be accompanined to this meeting by a support person who will be permitted to advise you within reasonable limits but you will be asked to speak for yourself. Notes of the interview will be taken, a copy of which will be provided to you.

I would like to remind you that these matters will be treated by the company as confidential, and you are asked to do likewise.

Ragu, I would also like to remind you that Access Counselling, a free and confidential counselling service available to staff to assit you with any concerns that you may have. Should you wish to use this service, Access Counselling can be contacted on 1800 818 728.

Please note that a copy of this letter and any response you make will be retained by Human Resources and kept on your personal file.

Yours sincerely,

Hayley Wilding

Finance Manager.”  10

[17] Relevantly, rather than attend the meeting, Mr Mahesan tendered his resignation;

“Hi Hayley,

I’m surprised to receive below email and attachment re meeting with HR today re notice of formal counselling meeting. I have rejected this meeting for the below reasons:

There was not a one to one meeting for about at least 6 months to know about any unresolved issues or concerns.

I’ve served Henry Schein for about 8 and half years, reported to various male FC’s; CEO’s and mix of other senior executives. To date there was not any black mark re not meeting deadlines or other performance issues. Last few years of performance records do not also indicate otherwise.

I was part of the team that stood up in crisis situations working hours to meet deadlines in the absence of FC or FM. I’m a deadline focused professional who have managed given tasks on a timely basis, brought new ideas to the company and made several value adding process improvements.

As the door for open communication is closed and need to create an all women’s team seems to imminent on your game plan, I do not want to stand with your or your FC’s plan.

However, I do not accept false comments.

Hence, I like to tender my resignation today with dignity and honour with 4 weeks’ notice without fear or favour.

Any further discussion I’m only willing to have with CFO.

Kind regards,

Ragu Mahesan.” 11

[18] Later that day, in an attempt to resolve the situation, Mr Cain met with Mr Mahesan to discuss his resignation. Mr Cain advised Mr Mahesan that he believed that his reaction to the counselling meeting was an overreaction. Mr Mahesan refused to withdraw his resignation.

[19] The following day, Mr Cain offered to set up a meeting between Ms Wilding, Ms Jennings and Mr Mahesan. Mr Mahesan rejected the idea of the meeting and advised that he was happy to move on.

“Ragu

I meant to speak to you again after our chat but must have missed you.

Are you open to a discussion between yourself, Hayley and Sue Jennings on Monday? It seems there is a big difference in understanding. Just let me know and I will set up.

I am on leave today and Friday.

Regards

Leo” 12

Mr Mahesan responded in the following terms:-

“Hi Leo

Thanks for the offer. But, I decline any further dealings between them as I need an impartial decisions to be made on case brought against me.

As I said to you earlier, I’m happy to move on from HENRY SCHEIN to seek outside opportunities.

Talk to you on Monday.

Enjoy your break.

Regards

Ragu Mahesan”

[20] On September 23 2013, Mr Mahesan again met with Mr Cain. Ms Jennings was also present. The following conversation took place:-

Mr Cain: “Ragu, as you know your resignation has come as a surprise. I still feel like it is an overreaction. Is there something we can do to make you change your mind?”

Mr Mahesan: “I feel that I am being forced to leave the company.”

Ms Jennings: “You are not being forced to leave the company; you have in fact resigned of your own choice. This is an unnecessary step you are taking and I am confident that any misunderstanding could be resolved.”

Mr Mahesan: “Thank you for the offers but I feel it is time for me to move on from Henry Schein and that it would be best for my career to leave Henry Schein.”  13

[21] Mr Cain testified that he tried to convince Mr Mahesan not to leave on two separate occasions. The following emails between Mr Cain and his supervisors support this testimony:-

“From: Cain, Leo

Sent: Wednesday 18 September 2013. 6.13pm

To: Donnell, Bryce

Hi Bryce

Ragu resigned today.

A performance meeting was set up by Hayley at HR and Review to discuss some recent disappointing performance. Ragu was advised yesterday in writing and took offence and resigned before the meeting was even held.

Seems a complete over reaction. There seems to be a real disconnect between Hayley and Ragu over performance feedback. Hayley believing she has given plenty of feedback, Ragu on the other hand believes he has not been given any performance feedback and it comes as a complete shock.

I’m looking to get Sue to help mediate a session on Monday. At this stage Ragu wants to leave and cant/won’t work for Hayley or Mel. Hayley also feels she can’t work with Ragu and the trust is gone.

Not that hopeful of a resolution at this stage but will keep you in the loop.

Regards,

Leo” 14

“From : Cain, Leo

Sent: Tuesday 15 October 2013. 10.12pm

To: Jennings Sue, McGlynn Lorelei

Hi Lorelei

Yes agree with Sue. Still shaking my head at this one - the decision by Ragu makes no sense. He leaves HS with no job to go to.

My direct reports (Mel and Hayley) were quite frustrated with his performance over many months and conversations and felt the need for HR to assist. A meeting was set up to simply discuss how we can work through the issues and set in place a plan to address issues. Ragu took great offence and resigned without having the meeting/discussion.

Having sense that Ragu had over reacted, I twice personally met with Ragu to try to find a middle ground. He rejected offers of assistance on both occasions and felt that it ‘was time to move on’. I was personally very disappointed as we work very closely on Fx hedging matters etc and we respect each other. It appears to me that there is a deeper issue going on.

I had considered moving him out of direct control of Mel and Hayley but decided against this as it would have been creating a job for an individual and I don’t agree with this approach.

Only today, I offered him a short term contract assignment to help out on something but again he strongly rejected the offer. Again no job to go to.

At the end of the day I believe he completely over reacted to a process designed to help him and has not thought through his decision fully. Henry Schein offered a helping hand numerous times but it was declined. Not much more we can do.

Cheers

Leo” 15

[22] On 30 September, Ms Wilding enquired about a farewell event for Mr Mahesan to celebrate his time with Henry Schein. Mr Mahesan rejected that idea, simply replying:-

“Thanks for asking. I just like to have a peaceful exit. Thanks for everything.”  16

[23] On 15 October 2013, Mr Cain offered Mr Mahesan a short term contract of work to extend his employment at Henry Schein. Mr Mahesan declined the offer.

Consideration

[24] An employer is entitled to conduct a meeting with any of its employees if they are concerned about their performance. That meeting may end up being the first step in a disciplinary process, but that is not necessarily the case. In Neil Ashton v Consumer Action Law Centre, Bissett C, said:

“[47] It is obvious that it is not unusual for an employer to place an employee under additional supervisory arrangements if there are concerns about the performance of the employee. Such actions are generally seen to be for the benefit of the employee, as they are provided with additional guidance and mentoring as they work to overcome the perceived performance problems. It is appropriate that management identify and seek to resolve performance issues with employees at the earliest time. It is not unusual (and one would hope common) for employers to have a grievance process that allows an employee to lodge a grievance and have it investigated and determined in a timely manner.

[48] The existence of these processes, by themselves or together, is not enough to warrant a conclusion that the employer took action with the intent of bringing the employment relationship to an end.

[55] That Mr Ashton and the Respondent saw his performance in different terms does not make the action of the Respondent in seeking to raise these issues with Mr Ashton action that was intended to bring the employment relationship to an end. The letter of 3 August with respect to performance issues was designed to give Mr Ashton an opportunity to respond to those performance concerns. He chose not to and instead resigned his employment.

“[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.” 17

[25] The scenario in this case has similar aspects to what happened with Mr Mahesan. I concur with the views of Commissioner Bissett.

[26] I accept that the restructuring of the Finance Department in July 2012 was unusual, but it was not illegal. Traditionally, management best practice would require that all promotion opportunities should at least be advertised internally. This did not occur for the role of Finance Manager.

[27] Mr Mahesan failed to accept the appointment of Ms Wilding as his manager. He believed that he should have been given the role on the basis that he had 6 months of longer service with Henry Schein than Ms Wilding. However, the days of promotion being based purely on seniority are long gone. In my experience, one of the core competencies for any manager would be good communication skills. Ms Wilding has far superior communication skills than Mr Mahesan. I note that Mr Mahesan maintained his salary with his new title. I also note that Mr Mahesan had the two new Assistant Accountants report directly to him as a result of the restructure. I have taken this into account.

[28] I can find no evidence or suggestion that Mr Mahesan has been the subject of discrimination due to his gender or culture. Mr Mahesan is clearly a good accountant with a specialist skill set who has been commended for his dedication and capacity by Henry Schein in the past. I do not accept that Ms McEwan had embarked on an 18 month campaign to cleanse the finance department of males. I have taken this into account.

[29] I acknowledge that Mr Mahesan worked closely with Mr Cain in relation to foreign currency hedging. However, I cannot find any evidence to support Mr Mahesan’s claim that this working relationship caused any feelings of jealousy to either Ms McEwan or Ms Wilding. I have taken this into account.

[30] I accept the evidence of Ms Wilding that Mr Hodge asked her to conduct Mr Mahesan’s performance appraisal on the basis that she would be his sole Manager in the future.

[31] I reject Mr Mahesan’s claim that his 2013 performance appraisal had been altered after it was signed. Mr Mahesan has failed to understand that performance appraisals look back at the last 12 months to assess performance and forward to the next 12 months to set relevant parameters. That is exactly what the Manager’s comments pertaining to the KPI clause of the 2013 performance appraisal identifies.

“Manager

KPI 1 - Successfully meet

KPI 2 - Good job on commission templates, consignments reports. Yet to come to the GL matrix for marketing to make coding easier for them and us.

KPI 3 - Still WIP but nearly there. Some more testing to come.

KPI 4 - Well done on taking on FX and documenting. Now procedures need to be saved in central area.

KPI 5 - Asst Accountants have been successfully trained and are meeting expectations. Next stage is the cross training as discussed in Q2 2013.

KPI 6 - Great effort by the team this year making it by day 5. We need to still find some time savers and efficiencies to get down to day 4.” 18

[32] KPI 5 highlights that cross training of the Assistant Accountants will take place in the second quarter of 2013, not that the discussion took place in that period. I have taken this into account.

[33] It was deeply regrettable that Mr Mahesan’s annual leave applications were rejected when he was trying to take time off to be with his sick son. In hindsight, he should have simply accessed his sick/carers leave. However, I accept the evidence of Ms McEwan and Ms Wilding that his leave was rejected on the basis of the Finance Department’s workload at the time and their collective ignorance of the reasons behind Mr Mahesan’s need to take leave. I have taken this into account.

[34] Mr Mahesan is convinced that somebody has forged his signature on a journal voucher. I am not a handwriting expert and can therefore pass no judgement on this accusation except to say that the handwriting looks similar to other examples of Mr Mahesan’s signature that I was shown. I understand the issue raised by Mr Mahesan that he did not want to sign a document to verify its accuracy if he had not actually performed the work himself. After making his objections known to management, eventually, Henry Schein changed its practices. I do not pass any negative judgment on Henry Schein for trying to simplify and customise its administrative practices. It makes sense for the final “sign off” of a voucher to fall to the senior manager in the department, that being, Ms McEwan. That would be impossible if she signed the voucher first as the person who undertook the majority of the work included in the voucher. I note that Mr Mahesan did not raise his objection to signing the voucher directly with Ms McEwan, nor was he issued with a direction to sign it. I have taken this into account.

[35] The issue regarding a suspected breach of a US law is of no relevance to these proceedings. I note that this allegation was found to have no credence by an external auditor.

[36] The “final nail in the coffin” according to Mr Mahesan, was that he was not appointed to the role of Senior Business Analyst. Mr Mahesan knew the position had been advertised but failed to apply. Responsibility for his inactivity on this issue must surely fall to Mr Mahesan. I have taken this into account.

Conclusion

[37] I have taken into account all of the detailed submissions and evidence that have been provided by the parties.

[38] I accept that Mr Mahesan is convinced that he has been the subject of a conspiracy to undermine his position at Henry Schein. I accept that Mr Mahesan believes that he had no option but to resign his employment and was therefore constructively dismissed.

[39] However, I do not agree.

[40] Mr Mahesan resigned his employment. He gave the required four weeks’ notice of his resignation. He worked out his notice without issue. Henry Schein representatives tried to convince him to withdraw his resignation but Mr Mahesan refused. Henry Schein representatives attempted to conduct meetings with Mr Mahesan and his managers to work through the issues, but Mr Mahesan refused to attend these meetings. Unbelievably, Mr Mahesan even rejected the approaches of Mr Cain for on-going short term employment. Mr Mahesan claimed to be “happy to move on”.

[41] Mr Mahesan did not recognise the authority of Ms Wilding. He objected to her being his manager. He was upset with the way in which she was promoted over him to the extent that he continually referred to her in a derogatory manner as his “junior manager”.

[42] Mr Mahesan failed to take notice of the verbal warnings that he had been given by Ms Wilding in relation to his performance. His decision to resign rather than attend a formal meeting to discuss his performance simply confirms his contemptuous attitude towards Ms Wilding.

[43] I cannot find any evidence of any conduct by Henry Schein which could in any way support an argument that Henry Schein intended, or could foresee, the resignation of Mr Mahesan. Mr Mahesan did not have to resign. He should have attended the formal counselling meeting and worked to improve his performance to the satisfaction of his managers. Put simply, Mr Mahesan over-reacted to this situation.

[44] I find that Mr Mahesan was not constructively dismissed but voluntarily resigned his employment.

[45] The application is dismissed. An Order will be published to reflect this decision.

COMMISSIONER

 1 (1995) 62 IR 200

 2   Ibid at 205-6

 3   Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C

 4   Ibid at paragraph 13

 5   Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C; quoted with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008, 17 December 1998 per Ross VP, Munro J and Harrison C and in Mosey v Australian Customs Service (2002) 116 IR 1.

 6   Ibid at page 12.

 7   PR973462

 8   Mohazab at page 205.

 9   HS4 - SJ1 pg 4

 10   HS4 - SJ3

 11   HS4 - SJ4

 12   HS4 - SJ5

 13   HS4 - Pn15(iv)

 14   HS2 - Annexure A

 15   HS2 - Annexure B

 16   HS4 - SJ6

 17   [2010] FWA 9356

 18   HS4 - SJ1

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