[2020] FWC 5098

FAIR WORK COMMISSION

DECISION

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

Mr ZA
v
The Facelift Group Pty Ltd
(U2020/4015)

COMMISSIONER HUNT

BRISBANE, 22 SEPTEMBER 2020

Application for unfair dismissal remedy – whether applicant was forced to resign because of conduct or a course of conduct engaged in by the respondent – jurisdictional objection upheld - application dismissed.

[1] On 1 April 2020, Mr ZA (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from employment with The Facelift Group Pty Ltd (the Respondent) and that the dismissal was harsh, unjust or unreasonable. The Applicant seeks a remedy of compensation.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application, the Respondent raised a jurisdictional objection pursuant to s.368(1)(b) of the Act contending that the Applicant had resigned from his employment and was not forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

When has a person been unfairly dismissed?

[3] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

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

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

Has the Applicant been dismissed?

[4] As set out above in s.385 of the Act, only employees who have been dismissed are able to make an application for an unfair remedy application under the Act.

[5] Section 386(1) of the Act provides that a person has been dismissed if:

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

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

[6] A threshold jurisdiction issue for determination is whether the Applicant has been dismissed from his employment.

Background

[7] The Respondent is a maintenance and construction company. The Applicant started working as a contractor for the Respondent in March 2017 and commenced employment with the Respondent on 4 December 2017 as a Business Development Manager. The Applicant’s terms of employment provided, amongst other things, that he would receive a bonus calculated from profit share in addition to a salary.

[8] In his role the Applicant had largely been performing on-site work for a client of the Respondent which the Applicant had brought with him when he first commenced with the Respondent. The client operates retirement and aged care communities, including on the Gold Coast, Queensland. I have decided to anonymise the client’s name and shall refer to it as ‘Client C’.

[9] On 26 February 2020 the Applicant sent the below letter to the Respondent resigning his employment:

“26th February 2020

The Facelift Group,

I’m writing to notify you that I am resigning from my position as Business Development Manager within The Facelift Group. I will work the agreed resignation notice period of two weeks and my last working day will be 11^th March 2020.

Among my reasons for resigning is that profit shares are not being calculated in a fair and reasonable manner. Several changes have been initiated by the company regarding costing breakdowns without consultation or agreement. All have has detrimental effects on my earning. I have raised my concerns for approximately the last nine months, attempting to gain a clear understanding of why these changes were implemented and agree on cost breakdowns. Scheduled meetings to discuss this within management have been cancelled week after week.

I have discussed this and other matter with FairWork and sought legal advice. I now offer you the opportunity to provide fair and reasonable breakdowns of costs for ALL profit share works carried out and/or attributed to myself. This pertains to all outstanding and disputed profit shares.

I also ask that as per my contract all relevant costs associated with my job role be calculated, such as phone bill, and an agreed date for payment be made prior to my last working day.

On a personal note, I am deeply disappointed that out working relationship has deteriorated to such that these matters were not even given the respect or urgency that they deserved. I worked excessive hours for two years in an effort to help build this business and enjoyed the respectful and profitable business relations that we both benefited from until a year ago.

Regards,

…..”

[10] There is no factual dispute that the Applicant resigned from his employment with the Respondent on 26 February 2020. He stated that he was put on ‘gardening leave’ with his last date of work being 11 March 2020. This is not contested by the Respondent. The application was made on the 21^st day following 11 March 2020, and therefore was made within the statutory time limit in which to bring an application.

[11] The question to be determined by the Commission is therefore whether the Applicant was forced to resign because of conduct, or a course of conduct, engaged in by the Respondent.

[12] Around the time of the Applicant’s resignation the Respondent was considering making the Applicant redundant but had not yet met with the Applicant to consult. When processing the Applicant’s resignation, the Respondent’s evidence is that the Applicant’s termination pay was processed as if the Applicant was employed pursuant to the Building and Construction General Onsite Award 2010 (the Award) on account of the hours the Applicant had been performing “on the tools”. The Award provides for an industry-specific redundancy payment on termination, regardless if the employment is redundant at the initiative of the employer, or if the employees lawfully resigns employment. 1

Hearing

[13] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. After taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing. The hearing was conducted by telephone on 22 June 2020.

[14] The Applicant appeared and gave evidence on his own behalf. The Respondent was represented by Ms Emma Kirkby and Ms Holly Wiseman of Master Builders Queensland, an employer association.

[15] The following persons appeared and gave evidence for the Respondent:

• Mr Mark Hassell, Director of the Respondent;

• Mr Philip (Tony) Imray, Director of the Respondent; and

• Ms Julia Bonacchi, Operations Manager of the Respondent.

Confidentiality order

[16] I have made a confidentiality Order [PR273004] in respect of the Applicant and one other person. I consider it necessary to protect their identity in these proceedings because of the operation of the protection order described at paragraph [39] below. Throughout this decision the individuals will be referred to as Mr ZA (or the Applicant) and Ms AB. Throughout this decision I have anonymised the name of the employer of Ms AB so as not to allow the identification of Ms AB.

Order to produce

[17] The Applicant made an application for the Respondent to produce certain documents. On 8 June 2020 I issued an order for the Respondent to produce certain emails within its possession; the Respondent complied with the order.

[18] It is the Applicant’s position that the Respondent did not produce all the emails in compliance with the order, or that the emails had been edited to remove certain correspondence for the convenience of the proceedings. The Respondent’s position is that it has complied with the order and provided all of the documents available to it.

Evidence and Submissions of the Applicant

[19] The Applicant made two witness statements and gave evidence at the hearing.

[20] The Applicant stated that prior to March 2019 his role with the Respondent had primarily been “building the business”. He stated that he had been working “exhaustive hours” of 65 to 70 hours per week. He used his skills across multidisciplinary job roles from Business Development Manager, Project Management, Site Supervisor, procurement of trades & materials and trade based works to ensure the Respondent was providing the best level of service possible to the multiple, major clients he had brought onboard, including Vicinity, AirMaster and aged care facilities including Client C. During cross-examination, the Applicant stated that he did not think the Directors, Mr Hassel and Mr Imray understood most of the jobs he was doing. He stated that he was not employed to be a site supervisor, but often found himself doing just that.

[21] A copy of the Applicant’s original letter of engagement dated 24 November 2017 with the Respondent provides that:

“5.5 Overtime:- Compensation for any overtime requirements, which do not form part of the ordinary pay package, will be based on a profit split for all new business brought in, by you, during your employment. This will be based on 20% of the agreed profit of each job. Labour will be charged at the company rate of $88 per hour including GST and all expenses and costs will be included. Tracking sheets for hours worked and other expenses will be required for any claims and all claims.” 2

[22] A copy of the Applicant’s further letter of engagement with the Respondent following a pay increase dated 1 July 2019 provides that:

“5.5 Bonus:- Bonus will be paid for works introduced to the Company by you on the following basis:

(a) 20% share of profit for each job – profit to be agreed upon by you and your employer.

(b) All expenses and costs, inclusive of labour & GST, to be will be deducted from the income for all jobs to deduce total profit.

(d) Authorised and duly signed sign in sheets for hours worked are to be provided for all jobs.

(e) All expense receipts and invoices will be required for any and all claims” 3

March 2019

[23] The Applicant noted that in March 2019, Ms Bonacchi commenced employment as operations manager. Ms Bonacchi is Mr Hassell’s partner. The Applicant contended that within weeks of Ms Bonacchi commencing the breakdown calculations for how profit share had been calculated changed. The Applicant alleges that a further 10% margin was now being removed from final profit calculations prior to the Applicant’s 20% payment being made, thus reducing the Applicant’s earnings. He characterised this as “flawed accounting” on Ms Bonacchi’s behalf. At the time he voiced his concerns about this matter, stating to the Respondent that Ms Bonacchi’s accounting was contradictory to agreed set charges for hours to cover all on-costs.

[24] At the hearing, the Applicant gave evidence that he understood that on the terms of his profit share if there was, for example, $300.00 in profit he should receive 20% of that as profit share, being $60.00. He asserted that the Respondent was allegedly incorrectly deducting a further 10% from that profit share amount. On that example, a further $6.00 from the $60.00 resulting in a payment of only $54.00 to the Applicant.

[25] I raised an example with the Applicant to clarify that if the Respondent had calculated $60 as a profit of GST inclusive items, it would be necessary to further deduct from that the GST component. In that case the Respondent would divide $60 by 11 and multiply by 10 such that the Applicant would receive payment of $54.55.

[26] Having heard the Applicant’s concerns with the calculations performed by the Respondent, I suggested that perhaps the Applicant had been a recipient of an overpayment for the first two years of his employment, and Ms Bonacchi’s calculations were correct, ensuring only 10% GST was remitted to the ATO, without loss of a further 2% overpayment of profit to the Applicant.

[27] The Applicant stated that he suggested to the Respondent that the parties have weekly meetings to collate all information regarding works being carried out so as to not misplace information. The Applicant submitted that his requests for regular, scheduled meetings were ignored and as a result confusion mounted, information was lost, and only ad hoc meetings occurred. During the hearing the Applicant stated that he wanted clear, concise calculations to be performed on each job.

April 2019

[28] The Applicant stated that as of April 2019, work orders had reduced. He considered that the excessive hours he worked to gain work orders and the amount of hands-on time spent on labour was never accounted for by the Respondent. Had such time been accounted for, subcontracted costs and his overtime would have drastically brought down the profit and made it unsustainable. The Applicant contended that the Respondent never acknowledged this, never paid him the overtime and expected him to continue working 70 hours a week on unpaid overtime.

[29] The Applicant stated that a meeting to “go over” profit and loss was carried out. At the meeting the Applicant made it clear to Ms Bonacchi that his true time spent, and skill set used were not being considered. The Applicant stated that he voiced several concerns to Mr Hassell and Mr Imray around April 2019 about awarded works and the most profitable direction to head.

May 2019

[30] In or around May 2019 he started a residential renovation priced at approximately $250,000. He quoted and fully managed this contractual job as he had done with all his other works. He stated that he worked “tirelessly around the clock”, and he had secured skilled, licensed subcontractors to carry out these works at $55.00 per hour per person. He was requested to use the company-employed apprentices & labourers to carry out these works and he agreed as it would be an excellent opportunity for their learning. The Applicant stated that “despite using unskilled trades I worked harder to bring the job in on schedule. It amounted to 208 hours for apprentice labour and 150+ hours for myself”.

[31] The Applicant stated that around May 2019 he was asked by Mr Hassell to sign a new employment contract drawn up that read like the old contract but stated he would no longer be paid overtime. The Applicant voiced his concern prior to signing and he was told it was for his benefit and that the company does not want him working excessive hours.

June 2019

[32] In or around June 2019 Mr Hassell informed him that his Business Development Manager role was “benched”, and his duties restricted to a tradesman role only. The Applicant stated, “I was used as cheap labour for Mark’s jobs that, as I now understand it, had been under-priced and had not been allocated correct supervision”.

July 2019

[33] The Applicant asserted that in or around July 2019 he was still carrying out a trades-based role on the Respondent’s jobs and he tried to book in his “own” jobs as he had found a gap in the calendar. The Applicant stated that he was asked by Mr Hassell to reschedule those jobs and Mr Hassell rang the clients and informed them the works would not be carried out as the Respondent had other pressing matters.

[34] During this time a face-to-face meeting took place to go over profit shares from the months prior. The Applicant stated that he was presented with another additional calculation to profit shares. The Respondent’s management “without consultation or agreement” implemented charges of $66.00 per hour per apprentice and labourer. These “inflated” costs had been backdated to include jobs for up to two months prior. The Applicant stated he was shocked to hear that $66.00 per hour per man for a 17-year old labourer, and first- and third-year apprentices was to be factored in. The Applicant stated that he voiced these concerns to Mr Imray about the profit calculations and stated that he could have had skilled and licensed trades on that job at no more than $55.00 per hour per man and the job would have been completed earlier with less supervision.

[35] During cross-examination, with respect to the Applicant’s submission that the rate of labour was unilaterally increased to $66.00 per hour, it was put to the Applicant that his original employment contract provides that:

“Labour will be charged at the company rate of $88 per hour including GST”

[36] The Applicant stated that the rate of $88.00 was “drawn up” when it was himself, Mr Hassell and Mr Imray, meaning that if the Applicant needed labour from either Mr Hassell or Mr Imray, that was the charge-out cost. However, all the work for the Applicant had been carried out by subcontractors who were apprentices and there was never an agreed rate for apprentices. The Applicant stated that he was required to provide extra supervision to apprentices, and it took up more of his time on-site as opposed to having skilled labourers on site.

September 2019

[37] The Applicant submitted that in or around September 2019 it became clear that Mr Hassell had several large works run over budget and time which massively affected profit as they were priced and managed incorrectly.

[38] As set out in the evidence of Mr Hassle, Mr Imray and Ms Bonacchi below, the Applicant had an affair with Ms AB, a senior employee of Client C. The affair resulted in the Applicant’s child being born to Ms AB. The Applicant was married at the time of the affair.

[39] The Applicant predominantly provided the Respondent’s services to Client C sites where Ms AB worked. After the birth of the child and Ms AB’s subsequent return to work, the Applicant alleged that he was experiencing domestic violence on the part of Ms AB and a Domestic Violence Order (DVO) was made by the Magistrates Court. A copy of the DVO dated 25 September 2019 was annexed to the Applicant’s witness statement. The DVO listed the Applicant as the aggrieved and Ms AB as the respondent, and stated:

“It is ordered by consent without admissions that:

(1) The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

(2) The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved by any means whatsoever including telephone, text or internet.
Except when appearing personally before a court or tribunal.
Except when attending an agreed conference, counselling, or mediation.
Except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court.

The respondent was present in Court when this order was made.

UNLESS OTHERWSIE ORDERED THIS ORDER CONTINUES IN FORCE TO AND INCLUDING 24/09/2021.”

October 2019

[40] It is the Applicant’s evidence that by October 2019 and following the Applicant taking out a DVO against Ms AB, it was apparent to him that the Respondent had “fully” sided with the “perpetrator of threats” against the Applicant’s family and work, and he was ordered by the Respondent to not attend Client C’s work sites. During cross-examination, the Applicant stated that Ms AB had contacted the Respondent and requested for him not to attend the site and he considered this an “act of vexation”. The Applicant stated that Ms AB had no authority to contact the Respondent’s directors on behalf of Client C and make a request for the Applicant to not attend the sites.

[41] At the hearing I asked the Applicant how is it that he could continue to perform work at Ms AB’s workplace if Ms AB was to comply with the DVO. The Applicant stated that when performing work, he reported mostly to Client C’s Village Managers. Ms AB is the Asset Manager of 13 or 14 sites, being more senior than the Village Managers and dealing only with higher budget works than the Applicant’s work (which mostly had budgets of $2,000 or less). The Applicant stated the work dealings with Ms AB were sporadic, and he dealt with the Village Managers for approximately 90% of the time on-site.

December 2019

[42] In December 2019 the Applicant was asked to return to Client C’s sites following agreement between the Directors and Ms AB. The Applicant refused to do so. During cross-examination, the following exchange occurred between the Applicant and Ms Kirkby:

Ms Kirkby:	You were very angry that you were removed from the site, why did you then decide you couldn’t go back on them?
The Applicant:	I was, I was very angry. Because my voice, I wasn’t even a voice. I had shown them the protection order and I had explained to them numerous times on what was occurring with the harassment and the threats and it was dismissed, completely dismissed.
Ms Kirkby:	Would you agree it was best you weren’t on those sites at the time?
The Applicant:	No, it was agreed several months prior that I would be slowly be removing myself from these sites anyway…and an effort to build a rapport would move to a new client. That was my old job role. That was my whole job role, was to develop a client and move onto another one and implement people in trades to follow on once I had built the arm of the business someone would take over and keep running it.
Ms Kirkby:	So there was no harm then from you not being on those sites? If you were planning on transitioning out?
The Applicant:	There was no harm, not at all. I agree so why was it implemented in the first place?

[43] The Applicant submitted that no profit share was paid to the Applicant over a period of approximately six months. It is relevant to note that the Applicant had entered into an arrangement in the months prior for the Respondent to build his house at a budgeted rate, as set out in the evidence of Mr Hassell below at [59] – [60]. On this point the Applicant stated:

“An agreement to pay for extra materials towards the home build from profit share at source was agreed. However it was clear to me by this time that the cost for these materials had been well and truly accounted for in the profit share that should have been awarded to me by this time.. Yet no evidence was provided to me as to where monies had been allocated.

…..

I continued to question profit share and request meetings via email to determine Profit and loss on multiple jobs. It was clear from my calculations, as I kept clear and legible records of all jobs associated with me, that profit share should have been awarded by now. No profit share had been paid since August. Meetings were set up weekly and cancelled everytime. To this day no meetings took place with regards to profit & loss and profit share.” [Original text]

[44] The Applicant further stated that by December 2019:

“It was becoming very apparent by now that the company was suffering from their previous decisions in months prior to not bring in any new work since July or even quote new works for the previous several weeks.

A meeting took place early December between myself and the two directors to discuss several matters. I was informed that they had rang the client “The perpetrator of the DVO” (only one phone call not the alleged lengthy negotiations they claim) and stated that TFG cannot service these sites and it is of importance that I be allowed back on these sites. This was done again in an effort of business only. I explained that me not being present on any of my clients sites over the last several months has meant we have lost work and rapport across all clients sites. I explained that I’m not a miracle worker and I would be virtually starting from scratch as managers had been and gone so I should be focusing on the client base that I had been working towards the previous few weeks. I also stated that I'm hesitant to enter these specific sites as the harassment from this client was still continuing also the fact that there was a personal issue of being on these sites.

It was put to me that I need to decide what I want to do. A couple of days later while working alongside Mark I made my decision that I did not want to attend these sites.

Nothing more was said.

A week later a work order for other works I had just quoted was granted one of these sites. I had organised for sub trades to perform this job. I was told TFG staff must perform these works as there was no work. I was also given an ultimatum that if I did not attend the site to supervise then I would forfeit my profit share (in breach of my contract). Again I expressed my concerns stating my job role and questioning how am I to grow the business if I'm restricted to being on one job, performing multiple roles. I'm only working contracted hours and I'm not prepared to work overtime as I had previously to manage and supervise multiple jobs in this manner.

I relented through pressure and attended site to deliver materials and offer a brief scope of works before leaving.” [Original text]

January 2020

[45] The Applicant submitted that by January 2020 it was “clear” that the Respondent had no work of their own. However, the Applicant personally had over $18,000 in awarded works sitting in the system waiting to be carried out. It was the Applicant’s evidence that another job was booked in on one of the sites he did want to attend, so he had subtrades allocated. The Applicant was told he must attend the site to perform the works himself and that he had to also take the apprentices.

[46] He objected to this communication, noting that carrying out the trade work and supervising apprentices was not part of his Business Development Manager role and the cost for this labour was not acceptable. The Applicant stated he was told their cost would be adjusted in line with new rates and it was agreed by all that the $66.00 per man per hour was unacceptable. However, he was later informed in February 2020 that the cost would not be adjusted at all.

[47] The Applicant stated that a meeting took place on 10 January 2020 with the two directors and the operations manager to go over his concerns. He stated that “profit & loss was cancelled again”. The Applicant further stated that he was confronted again with the issue of attending Client C’s sites. His evidence is that Mr Hassel threatened him that if he did not attend these sites he would be “sacked”. Mr Imray calmed Mr Hassel down and the parties attempted to find a common position. The Applicant informed them that his history of making money for the company was demonstrable.

[48] The Applicant stated that in the following two days he brought in another $7,000 worth of work with a profit margin of over 40%.

[49] In cross-examination, the following was put to the Applicant regarding water leaks at a Client C site:

Ms Kirkby:	On January 22 you sent an email to Ms Bonnachi saying that you were keen to sort out your bonus for that period. That is on page 94 of the court book. ….. At that time you were aware were you not of work on leaks that had been flagged in early December?
The Applicant:	No, in early December that email came through and we were still work on the job. I was still there. Trades were still working on that job.
Ms Kirkby:	When did you become aware that there was going to be rework on that job?
The Applicant:	After I had left the Facelift Group.
Ms Kirkby:	The emails between you on the [redacted] problem show that you knew that well before you left. Maybe after you resigned the conversation was had. I see here on page 98 between Mr Imray, Mr Hassel and yourself in regards to [redacted] leaks. So you’re saying that you weren’t aware of those?
The Applicant:	I was aware of them and I was aware that if you read the email trail through there were probably a dozen different sites and people and residential customers that had emailed through with the leaks. …..
Ms Kirkby:	The reason that email has been included is that perhaps you were pushing so hard to have meeting at that time because you knew that there was going to be extra costs going into that job and it was your intention to get your bonus before that came to the view your employer… ….. So, how you would you expect your employer to be able to calculate your bonus without knowing about those leaks and even if they did know about them, which they say they don’t, without knowing the cost of repair. How would that happen?
The Applicant:	….. Warranty works again was never in my contracts and warranty works - very few and far between had I been pulled for warranty works on a job. So this was out of the blue. How were they meant to calculate profit share on a job that has warranty works? Again the job was performed and carried out. I was made aware after an extreme weather event had just rolled through. Again my email clearly stated to onsite management who agreed that we would monitor the issue and if there were leaks further down the line and it was considered warranty works on our part then they would be dealt with from that point on.
Ms Kirkby:	But that would impact profit would it not?
The Applicant:	Of course, it would but this is business isn’t it? …..
Ms Kirkby:	So you would have been paid bonus on that?
The Applicant:	Of course, that was the agreement. And if there were warranty works, warranty works would have been deducted.

February 2020

[50] The Applicant considered that by February 2020 his concerns were being “washed over and brushed under the carpet”. The Applicant stated that this had a severe phycological impact on him and he had to take a week off due to stress. A medical certificate was provided to Ms Bonacchi. During the hearing, the Applicant stated that he did not make the Respondent aware that he was on work-related stress leave and the following exchange occurred:

The Commissioner:	So they wouldn’t have known that you were on work-related stress leave?
The Applicant:	Not at the time they didn’t, no.
The Commissioner:	Well when were you going to tell them?
The Applicant:	When things started to come to light and we started to address issues and hopefully get a sit down meeting and go through things, I would say ‘look ill be honest it was crippling me mentally and I had to take time off’. …..
The Commissioner:	So you sent a text to Mr Hassel on Sunday that says “Hi mate Ive not come right yet got some pills off the doctor today ill let you know how I am going after tonight” Is this to Mr Hassell? …..
The Applicant:	I did send that, I won’t deny that I did sent that.
The Commissioner:	He writes back: “Ok Mate. Cheers What does he think youve got” And then you wrote: “Not sure took a mouth swab today. So I’ll have to wait to find out.” ….. And then the next day you write: “Hi mate. I’m gonna be out of action again. I’ll let you know how I am in the morning” You were taking it day by day were you?
The Applicant:	I was.
The Commissioner:	Yet you have a medical certificate that took you through until the 16^th of February.
The Applicant:	Yes, I understand that but it is not in my nature to abuse that sort of thing so I wanted to just, you know. Just knowing that I had time to sort of get my head back in the game it was sort of just enough you know. ……
The Commissioner:	Mr Hassell writes: “Ok. Have they given you results as yet.” And you write: “Nah viral he reckoned but I’m popping pills like made broad spectrum”
The Applicant:	That’s right.
The Commissioner:	So were you subject to a virus or something, or were you mentally and physically unwell?
The Applicant:	No, I was mentally unwell at the time. …..
The Commissioner:	So these text messages were not truthful?
The Applicant:	No. So I had to make something up, so you know, to keep them at bay. …...

[51] It was the Applicant’s evidence that at this time he requested meetings daily which were cancelled and never granted. He stated:

“Giving way to the final day at which I had been promised a meeting everyday which was cancelled in favour of performing menial tasks on behalf of the company.

On returning home that day after being at work for what can be argued 9.5hrs. Mark text demanding I create quotations and provide reports for other works that he required by the morning.

I pointed out that I was finished for the day. I also had a day off booked for the next day. Even so, I agreed to create the quotes in order to try and keep the peace.

After contemplation I realised my only option was to resign.” [original text]

[52] The Applicant submitted that the Respondent was not concerned about his well-being, financially, emotionally or psychologically. It was submitted that the Respondent forced the Applicant into a poor financial situation over the previous six months with its actions and its refusal to come to the table and justify or discuss its decisions. It was further submitted that the Respondent failed to the meet employer obligations on multiple levels and in a variety of ways, and still, to-date a large sum of profit is to be paid to the Applicant.

[53] During cross-examination, with respect to the Applicant’s reason for his resignation, the following exchange occurred:

Ms Kirkby:	You’re seeking a variation on your protection order? …..
The Applicant:	Yes, I am because this harassment and threats have continued, they have never stopped actually. …..
Ms Kirkby:	Do you remember what you put in that application for the reason you have for your resignation?
The Applicant:	….. I say that it was part of the reason I had to leave through her actions, because of the stress and mistrust within the company.
Ms Kirkby:	You specifically say that it led to your resignation through her actions. That is not anything that your employer did though is it?
The Applicant:	The employer aided it. They aided that. She rang them with a vexatious attempt to try and further the harassment and this threatening behavior. The Facelift Group did nothing to understand it, they did nothing.

[54] As set out in Ms Bonacchi’s evidence below at [95], the Applicant received a bonus of profit share of $10,336.91 for the January to March 2020 quarter. During the hearing, I put to the Applicant the following:

The Commissioner:	Do you agree [name] that you received $10,336.91 gross?
The Applicant:	I am just trying to prove that their figures are all over the place.
The Commissioner:	That is my question for you, did you between January and March 2020 receive gross $10,336.91 into your bank after tax?
The Applicant:	I did receive that, that was what I was paid from months prior. …..

[55] In reply submissions, the Applicant made the following submissions:

• Ms Bonacchi’s accountancy about profit share was flawed and lacks any reasonable and evidence-based explanation as to how she arrives at her calculations, which led the Applicant to feel incredibly disempowered and ignored;

• The Respondent has edited emails to mislead the case and or discredit the Applicant to show that he was not performing any of his roles;

• It was unbeknown to the Applicant that his role was becoming redundant;

• The Respondent failed in their duties as an employer to protect the Applicant in a domestic violence situation; and

• The Respondent left him in an awful financial situation and with an unfinished house build.

Remedy

[56] The Applicant submitted in his written materials that the remedy he seeks is financial compensation of $22,400.76 calculated as follows:

• Loss of earnings through constructive dismissal of six weeks being $9230.76; and

• Profit share not paid being $790; and

• Mobile phone the company agreed to pay being $1570; and

• Legal fees and subsequent loss of further earnings relating to this matter being $3700.

[57] At the hearing, with respect to mitigation of loss the Applicant stated that he has been working as a handy man since the end of his employment where he has earned approximately $22,000 to $23,000, to which about 60% is spent on materials. He stated that he has been “surviving” off his termination payments. His new business is operating under a trust.

Evidence of the Respondent

Evidence of Mark Hassell

[58] Mr Hassell made a witness statement and appeared and gave evidence at the hearing. Mr Hassell is one of two Directors of the Respondent. He confirmed that the Applicant started working as a contractor for the Respondent in March 2017 and was taken on as a full-time Business Development Manager directly employed as an employee on 4 December 2017.

[59] In April 2018, the Applicant approached him and asked if the Respondent would be willing to build his house. The Applicant explained that he wanted the Respondent to do the job as he could not get another builder to build the house that he wanted nor for the amount of money that the bank would lend him. Mr Hassell agreed that the Respondent would build his house provided he could demonstrate that the house he wanted could be built within budget.

[60] The Applicant entered into a QBCC building contract and all the terms of the contract were fulfilled. The build began around mid-2019. Mr Hassell denied that the Respondent agreed to build the Applicant’s house without a margin to cover potential warranty claims. He stated that the build was agreed to with no profit, and only a minimal margin as a favour to the Applicant.

[61] Mr Hassell’s evidence is that throughout 2018 and into the early part of 2019 he attended to the Applicant’s payroll and made his bonus payments based on the figures the Applicant provided to him via emails. He did not feel the need to check over these figures as he trusted the Applicant. Around the early part of 2019 it had become clear to Mr Hassell that he no longer had the time to effectively oversee the payment of wages and bonuses and Ms Bonacchi was appointed as the Operations Manager.

[62] In June 2019, Mr Hassell and Mr Imray decided that they would give the Applicant a pay rise, increasing his salary from $70,000 to $80,000. The Applicant signed a new letter of employment and his new salary began on 1 July 2019.

[63] In June 2019 the Respondent had been doing significant work for Client C. The Applicant had brought Client C to the Respondent when he commenced with the Respondent. The Client C renovation work was managed for Client C by Ms AB, with whom the Applicant had an ongoing affair that resulted in the birth of a child. Mr Hassell was informed that Ms AB had returned to work from maternity leave and was trying to get hold of the supervisor of an existing work site. Mr Hassell told the Applicant to contact Ms AB but he did not. The Respondent was in the dark about “what was going wrong” with the relationship between the Respondent and Client C because of the personal issues between the Applicant and Ms AB.

[64] On 25 July 2019, Ms AB emailed and on behalf of Client C pulled out of an approved contract that the Respondent was about to begin. On 30 July 2019, the Applicant confessed to Mr Hassell about the personal situation between the Applicant and Ms AB, and Mr Hassell proceeded to contact Ms AB and advise that Ms Hassell would now be her point of contact and not the Applicant.

[65] On 30 September 2019, Ms AB contacted Mr Hassell by telephone and requested that the Applicant not attend Client C’s Gold Coast sites she controlled as the Applicant had taken out a DVO against her and she was concerned that if she ran into him on site it could be a breach of the DVO.

[66] Mr Hassell was not shown a copy of the DVO by the Applicant and did not know the details of it. During examination-in-chief, Mr Hassell stated that he thought the request made by Ms AB seemed reasonable in the circumstances.

[67] Mr Hassell described the Applicant as being angry when he told him he could not attend these sites. The Applicant expressed his opinion that the Respondent should have insisted that he attend so he could earn his bonus, and the Respondent should have told them to “fuck off”. The Applicant informed him that interfering in his work life was a breach of Ms AB’s DVO and the Respondent shouldn’t allow it. Mr Hassell explained to the Applicant that a client has the right to exclude people from its site, but the Respondent would try to resolve the issue so that the Applicant could return to this work.

[68] During examination-in-chief, it was Mr Hassell’s evidence that the Applicant was advised that he was still able to contact the Village Managers by telephone, but that Mr Hassall and Mr Imray would service the client on-site to quote. Mr Hassell stated that to his knowledge no contact was made by the Applicant to the Village Managers to maintain the relationship on a “proactive basis”.

[69] Mr Hassell stated that over the next few months the Respondent had discussions with Ms AB and on 5 December 2019 Ms AB agreed to have the Applicant return to her employer’s Gold Coast sites.

[70] On 10 December 2019 Mr Hassell and Mr Imray held a meeting with the Applicant to discuss the situation relating to Client C’s Gold Coast sites. The three men attended a pub for a beer together following this meeting. The Applicant serviced Client C’s sites until his return from the Christmas break. On 7 January 2020, the Applicant emailed Mr Hassell as follows:

“Hi mate

I just need to clarify after our conversation prior to breaking up for the holiday. For reasons discussed me personally I cannot be physically present on these gold coast [client C] sites, I will manage any works at distance…….”

[71] On 10 January 2020 Mr Hassell and Mr Imray held a meeting with the Applicant regarding his refusal to attend the Client C sites. At this meeting the Applicant was “adamant” that he would not attend these sites. Mr Hassell’s evidence is that he informed the Applicant that if he did not intend to service Client C’s sites in person as required then there would no longer be a viable job at the Respondent for him. In order for the Applicant to keep his job Mr Imray came up with a compromise, to which the Applicant agreed, that Mr Imray and Mr Hassell would take over the Gold Coast Client C sites and the Applicant would be allocated other works or could prospect to get other works. As the Applicant would no longer be involved with Client C sites, he would no longer earn any profit share from these works.

[72] Mr Hassell stated that at the same meeting a new bonus system was discussed with the Applicant. Mr Hassell concluded that the Applicant “seemed keen” at the meeting for the new bonus system to be put in place and started to complete time sheets from the following week which was an integral part of the new bonus system. The Applicant was given the following week to focus solely on prospecting for new clients in order to try and replace the works from Client C’s Gold Coast sites. After a few days the Applicant rang to ask to be given work as he didn’t have anyone else to call on and had contacted everyone he could think of.

[73] By mid-February 2020 Mr Hassell and Mr Imray had concluded that it was “obvious” that the new compromised working arrangements were not working out well. The Applicant was clearly resentful and hostile to directions despite being paid a salary. Mr Hassell stated that it was becoming extremely difficult to get the Applicant to complete the work calendar that showed where he was working and who he was seeing, and it became obvious he resented any oversight of his work at all. A copy of emails between the Applicant and Mr Hassell about the Applicant’s work calendar were annexed to Mr Hassell’s witness statement.

[74] Mr Hassell stated that he and Mr Imray had decided to discuss the prospects of redundancy with the Applicant. However, the Applicant went on sick leave from 7 February 2020 for a week. A meeting was scheduled for 28 February 2020 to discuss the prospects of redundancy with the Applicant, but the meeting was cancelled because Mr Hassell had to attend a funeral. Before the next meeting was planned to discuss the potential redundancy, the Applicant resigned.

[75] During examination-in-chief, Mr Hassell stated that the Applicant had installed an air conditioning unit in his home being built by the Respondent to which the Applicant was paying off through his profit payment.

[76] During the hearing, Mr Hassell also stated that the resignation of the Applicant was a surprise to him. He stated that at no time prior to his resignation did the Applicant indicate to him that he was unhappy with his bonus structure.

Evidence of Philip (Tony) Imray

[77] Mr Imray made a witness statement and appeared and gave evidence at the hearing. Mr Imray is one of two Directors of the Respondent. Mr Imray stated that when the Applicant was engaged with the Respondent during 2017 the arrangement was that if the Applicant brought in work, he would manage it and get a 20% cut of the profit in addition to his salary. This profit share was called his bonus. A letter of engagement date 24 November 2017 was annexed to Mr Imray’s witness statement.

[78] Mr Imray stated that throughout 2019 a substantial amount of the Applicant’s work was involved with Client C in the Gold Coast area. The Applicant always seemed to manage this area of his work efficiently which in turn allowed him to maximise his bonus payments.

[79] On 27 July 2019, the Applicant’s wife approached Mr Imray at a company event, informing him that the Applicant had been having an affair.

[80] On 30 September 2019, Mr Imray was notified by Mr Hassell that Ms AB had requested that the Applicant no longer attend Client C’s Gold Coast sites due to a DVO he had taken out against her and the implications of her possibly crossing paths with him in the normal course of her work. Mr Imray discussed this issue with Mr Hassell and thought it was a reasonable request under the circumstances.

[81] On Friday 4 October 2019, Mr Imray and Mr Hassell had an informal meeting with the Applicant outside the front of Mr Hassell’s house where they informed the Applicant of the situation and that he was no longer able to attend Client C’s Gold Coast sites. Mr Imray’s evidence is that the Applicant was “agitated” at this direction. Mr Imray informed him he would go to the sites for the Applicant and provide him with photos so that he could still quote on the works. For the period the Applicant was excluded from Client C’s sites, Mr Imray and Mr Hassell did their best to maintain the Applicant’s bonus by allowing him to manage jobs remotely.

[82] Mr Imray stated that on 5 December 2019 he spoke with the Applicant and re-confirmed that the Respondent had negotiated his return to Client C’s Gold Coast sites. The Applicant informed Mr Imray “it’s not that easy”. Mr Imray informed the Applicant that it would seriously affect his bonus if he refused to service these clients in person.

[83] After a meeting with the Applicant on 10 December 2019, the Applicant serviced Client C’s Gold Coast sites in person for the remainder of December 2019.

[84] Mr Imray is aware of the email the Applicant sent to Mr Hassell set out at [70] above on 7 January 2020. Later that day Mr Imray called and explained to the Applicant that servicing Client C’s sites remotely was not feasible, would complicate the internal working of the Respondent and therefore significantly impact his bonus. Mr Imray’s evidence is that during the nine weeks that the Applicant had been excluded from the sites it had seriously affected the Respondent’s work commitments and it was not viable in the long term.

[85] On 10 January 2020 a further meeting was held with the Applicant regarding the Client C site issue. Mr Imray asked the Applicant why he didn’t want to go to these sites to which the Applicant stated it was because of his wife. After further discussion Mr Imray suggested that as a compromise Mr Hassell and Mr Imray would service Client C sites, and where there were other works to do the Applicant could attend to those clients and works. This arrangement would mean, however, that the Applicant would no longer be paid profit share on Client C’s sites. Mr Imray’s evidence is that the Applicant agreed to this arrangement.

[86] Mr Imray stated that the Applicant was told that this arrangement would only be viable so long as there were other works for the Applicant to attend to. A new bonus system was required due to the reduction in the Applicant’s client base. The new system required the Applicant to keep timesheets.

[87] Mr Imray considered that the Applicant became disinterested in finding new clients, informing the Respondent that he had exhausted all possibilities and asked for other work to do. By mid-February 2020 Mr Imray considered that the Applicant was not interested in bringing in new work, attending to his existing client base or attending to other works. As the Applicant’s role was no longer “sustainable” Mr Imray and Mr Hassell decided to discuss the prospects of redundancy with the Applicant. A meeting to discuss the prospects of redundancy was arranged on 28 February 2020 but it did not go ahead as Mr Hassell had to attend a funeral. During the hearing, Mr Imray denied that the decision to consider making the Applicant redundant was fabricated following the resignation.

[88] Mr Imray stated that at no time prior to his resignation did the Applicant indicate to him that he was unhappy with his bonus structure.

Evidence of Julia Bonacchi

[89] Ms Bonacchi made a witness statement and appeared and gave evidence at the hearing. Ms Bonacchi started working for the Respondent has an Operations Manager on 26 February 2019. Upon commencing in her role, she promptly noticed that the Applicant had been incorrectly receiving GST in his bonus payments and thereafter GST was removed from the profit and loss calculations.

[90] In April 2019 Ms Bonacchi met with the Applicant in relation to his bonus. She believes that the Applicant pushed to stop the larger renovations as this would involve contact with Ms AB. Ms Bonacchi stated that the Applicant is incorrect when he says that he requested weekly meetings to discuss profit share in March or April 2019.

[91] On 1 July 2019 the Applicant was issued with a new contract which raised his base salary to $80,000 per annum from 1 July 2019. This contract did not change his contractual entitlement to overtime as his bonus was a payment in lieu of overtime in both his original and July 2019 contracts. A copy of the July 2019 employment contract was annexed to Ms Bonacchi’s witness statement.

[92] Ms Bonacchi’s evidence is that there was no change around that time to the labour rate charged to the Applicant’s jobs. Ms Bonacchi directed the Commission to the Applicant’s contract which provides for a labour charge rate of $88 per hour (including GST). The Applicant complained about the $88 per hour charge rate and the Directors agreed to drop it to $66 per hour. Ms Bonacchi denied that the Applicant was instructed not to seek new work, nor was he restricted to non-bonus work.

[93] Ms Bonacchi stated that on 27 July 2019 at a company paid dinner event the Applicant’s wife told her about the Applicant’s affair with Ms AB.

[94] Ms Bonacchi’s evidence is that by August 2019 the Applicant had begun to not complete his calendar properly and it was difficult to know his daily movements. Calendar screenshots were annexed to Ms Bonacchi’s witness statement.

[95] Ms Bonacchi stated that the Applicant was not paid his bonus for a period of time because he had arranged to purchase a ducted air conditioning unit for his house build that had not been budgeted for, and the Respondent had agreed to pay for it and offset the cost against his bonus payments. This was paid off in December 2019 and bonuses restarted in January 2020. A summary of the bonuses paid to the Applicant was annexed to Ms Bonacchi’s witness statement, as produced below: 4

Quarter	Amount	Breakdown
July – Sept 2018	695.79	100% Gold Coast Client C
Oct – Dec 2018	8,924.59	48% Gold Coast Client C 52% Other Clients
Jan – Mar 2019	6,198.15	18% Brisbane Client C 82% Gold Coast Client C
April – June 2019	13,124.22	2% Brisbane Client C 98% Gold Coast Client C
July – Sept 2019	18,772.20	8% Brisbane Client C 30% Gold Coast Client C 62% Other Clients
Oct – Dec 2019
Jan – Mar 2020	10,336.91	25% Brisbane Client C 27% Other Clients 48% Gold Coast Client C
Overall breakdown	58,051.86	9% Brisbane Client C 33% Other Clients 58% Gold Coast Client C

[96] During the hearing, Ms Bonacchi stated with respect to the arrangement for the Respondent to purchase a ducted air conditioning unit for the Applicant’s house build, that:

The Commissioner:	So with the air conditioner, let’s say it was $8000 dollars, did you just wipe $8000 gross off his profit?
Ms Bonacchi:	So what we did with the air conditioner was we took the GST component out and it ended up being $7,800 or something. So he had to earn up to $7800 and he paid it off. So he got it tax free.
The Commissioner:	He got it tax free, yes.
Ms Bonacchi:	And GST free too.

[97] On 5 December 2019, Ms Bonacchi rang the Applicant to tell him that Ms AB had agreed to allow him back onto Client C’s sites. The Applicant did not respond happily stating that what Ms AB did to him was illegal and the Respondent should have taken his side.

[98] Ms Bonacchi denied that weekly bonus meetings were set up and cancelled throughout November 2019. An email trail about a meeting that was attempted to be scheduled through November and December 2019 was annexed to Ms Bonacchi’s witness statement. During the hearing, Ms Bonacchi stated that a couple of meetings had to be cancelled due to the general operations of the business.

[99] It was Ms Bonacchi’s evidence that after the Applicant’s refusal to attend Client C’s Gold Coast sites there was a meeting on 10 January 2020 as described by Mr Hassell and Mr Imray above to discuss a proposed new structure to the Applicant’s profit share. The suggestion for the profit share was to charge all hours applicable to any bonus jobs, not just onsite hours, but at a lower hourly rate. Ms Bonacchi stated that the Applicant seemed keen for this change and in fact asked her to apply the new structure retrospectively to completed unpaid jobs. Ms Bonacchi told the Applicant that this was not possible as she did not have accurate timesheets for these jobs.

[100] Ms Bonacchi stated that through a series of emails it became clear to her that the Applicant did not understand at all the implications for the change. Her evidence was that she would not institute the new system until the Applicant had again met with Mr Hassell and Mr Imray to fully understand the system. The Applicant then went off sick for a period and then resigned and the proposed change to the profit share never eventuated.

[101] Ms Bonacchi stated that at no time did the Applicant raise a concern with her that the change did not occur, later accusing the Respondent of trying to make a change to his detriment. Ms Bonacchi’s view is that if the Applicant believed that the Respondent was trying to make a change to his detriment, he should have been happy that she did not make the change.

[102] Ms Bonacchi recalled that in January 2020 the Applicant did start pushing for meetings around his profit share. She believes that the Applicant’s push for profit share to be paid and the pressure around meetings from January through February was due to outstanding warranty works on a job that would have been part of his bonus pay period. Between 5 and 6 February 2020 Ms Bonacchi notified the Applicant of his next bonus payment amount and provided the Applicant with a breakdown of that amount. She also stated that she would come back to him no later than the following Monday with a date for their next meeting to go over the bonus figures.

[103] During cross-examination, Ms Bonacchi gave the following evidence:

The Applicant:

The new job costs would have been financially detrimental, and would they have not been of breach of my contract which I did say at the time?

Ms Bonacchi:

No, they wouldn’t have been detrimental to you. As I have said to you this is a costing centre for long term. What would have happened is that all of hours you would have spent drumming up would then have to be attributable. Currently, none of the hours you spend unless you were actually on site were attributable to any job. So what we were doing was lowering the hourly rate, and attributing all your hours that are worked on to that costs centre.

…..

So it would of actually done very well. The more business you brought in, the more that you got under your belt you would have done very well because the labour rate would have been so low. You would have done very well. But in the little month or so between when it would have been implemented and then you left there was no jobs to be implemented against it because you didn’t bring any jobs in. You didn’t actually bring any in to be paid for. So it would have been detrimental for you with such a short space of time, which is why we didn’t do it. And we didn’t do it anyway so I don’t understand what the problem is. It didn’t happen. It would have only happened if you had signed a new contract. We didn’t even get to that point yet.

…..

A thing in writing would have had to have been given to you. You would have had to have signed it. It would have had to have changed your contract. We wouldn’t have just unilaterally done it without changing your contract.

…..

[104] Soon thereafter the Applicant went on sick leave for six days and then Ms Bonacchi was on annual leave the following three working days. On her return to work on 25 February 2020 she attempted to a book a meeting for 2 March 2020 to “get his bonus sorted”. However, the Applicant resigned the following day, 26 February 2020. Where the Applicant has given evidence in these proceedings that he was off on stress leave, the Respondent was unaware of any general or specific stress that could possibly be attributable to work.

[105] Ms Bonacchi stated that it became clear to the Respondent that it was not going to have enough work to support the Applicant’s employment if the Applicant refused to do Client C’s work. As such, she rang Master Builders Queensland and took advice around the possibility of making the Applicant’s role redundant. Ms Bonacchi was advised that she needed to consult with the Applicant and was intending to schedule a redundancy meeting. This never occurred as the Applicant resigned. When processing the Applicant’s resignation, it was processed as if a redundancy had gone ahead and he therefore received the relevant redundancy entitlements under the Award.

Respondent’s Submissions

[106] The Respondent submitted that there is no dispute that the Applicant resigned his employment on 26 February 2020, giving 2 weeks’ notice with the last working day being 11 March 2020. The Applicant claims that unilateral changes had been made to his remuneration that significantly affected his earning capacity, however the Respondent submitted that this is not born out by the evidence. In response, the Respondent noted that:

• In March 2019, Ms Julia Bonacchi identified that the Applicant had been adding GST to his bonus claims. This was clearly incorrect and when this was identified with him, the Applicant did not object to the correct tax treatment being applied;

• The Applicant states that in July 2019 the labour rate charged for his bonus jobs was increased to $88 per hour. This had always been the agreed rate. The Applicant did object to paying this rate for apprentices and it was agreed to reduce the apprentice charge rate to $66 per hour; and

• In January 2020, the Respondent initiated discussions to better identify actual costs of jobs by setting them up as cost centres. To do this it was proposed that all time spent on a job, including purchasing etc be assigned to the job rather than just on-site time. However, an offset was suggested in lower labour costs being assigned. The Applicant resigned before these discussions were able to progress.

[107] With respect to the “supposed changes”, the Respondent submitted that:

• One was correcting an overpayment that the Applicant had been incorrectly claiming in March 2019, 11 months before the resignation;

• One was not a change except in as much it reduced the charge rates to the Applicant’s bonus jobs in July 2019, 7 months before the resignation; and

• The third was a change the Applicant was keen to initiate but it did not go ahead as it was apparent that he did not have a full understanding about the proposed change. It is only after the event that the Applicant characterises this proposed change as an effort to disadvantage him. The fact that the Respondent did not proceed with the change without further consultation belies the Applicant’s claims of unilateral changes.

[108] The Respondent submitted that in the Applicant’s own submissions he states that he only raised concerns about how his bonus was being calculated in January 2020, presumably while the discussions to better identify the actual costs of jobs where being held. Raising a concern once and then resigning while further discussions are ongoing is illogical and not reflective of an ongoing pattern of behaviour by the employer that might be said to lead to the resignation.

[109] It was submitted that the Applicant claims that the actions of the Respondent denied him income via his bonus by telling him not to tender for works outside of Client C. This is belied by the bonus figures from the July to September periods provided in Ms Bonacchi’s statement that show that in this period the Applicant’s bonus went from 100% Client C to 62% other clients and increased from $13,000 to $18,000 in the same period. Clearly, the Respondent was supportive of the Applicant seeking new work during this time when Client C withdrew access to major works.

[110] The Respondent submitted that the Applicant was removed from Client C’s site as Ms AB, the client contact was not willing to have him on-site and risk breaching the DVO he had taken out against her. However, the Respondent still went out of its way to maintain his access to these bonus works by undertaking measuring and other on-site works themselves, then handing them over to the Applicant. This was done while the Applicant was complaining that the Respondent was not supporting him in his personal issues by taking the client’s instruction to remove him from site. The Respondent was no longer willing to maintain such disruption to the business when the decision not to do the bonus works was purely the Applicant’s. The Applicant was supported in his decision to avoid Client C’s works rather than make his personal life uncomfortable, however he was told that he could not refuse the work and still get the bonus.

[111] It was submitted that the Applicant was given every opportunity to build other works, much like he had done in the July to September the previous quarter. He did not do so and chose to resign instead. The evidence of Mr Hassell and Mr Imray go to the efforts expended by the Respondent to shield the Applicant of the consequences of his own conduct despite the impact this had on the company. At no time did the Applicant provide a practical alternative to the actions of the Respondent at this time.

[112] The Respondent submitted that the Applicant complains that meetings were postponed between November and his resignation when he wanted to discuss his bonus. The Respondent denies a pattern of delay and Ms Julia Bonacchi’s evidence provides details of meetings that have been held and re-scheduled. While the Applicant may have wished that meetings always happened at his convenience it is a usual part of business that on occasion, meetings have to be rescheduled. This falls far short of behaviour that is either designed to, or have the likely effect of, the employee resigning.

[113] It was submitted that it appears more to the Respondent that the Applicant was annoyed that he was being asked to identify how and where he was spending his time. With a drop of new works coming in, the company, reasonably, wanted to know what their $80,000 per year was supporting. The Applicant was clearly annoyed when asked to diarise his comings and goings. The Respondent submitted that asking an employee to identify their whereabouts and clients contacts is completely reasonable and no employer would anticipate an employee taking such offence to being asked to record their daily tasks that they would resign, particularly an employee with extensive experience in sales where such diary management is usual.

[114] The Respondent noted that the Applicant claims that he was off work, stressed in February 2020, however as Ms Bonacchi’s evidence shows he maintained that he had a viral infection. There is no evidence to suggest his text messages and descriptions of medical treatment at that time were not honest. If the Applicant was stressed there are any number of possible reasons for this and there is no evidence to suggest that his bonus payment, that he had not flagged as a concern with the company Directors he had daily contact with was the issue, or even an issue.

[115] It was submitted that the Applicant earned over $10,000 in bonuses during the January to March 2020 period with works that had been tendered before the Christmas break. The Respondent submitted that it is incomprehensible that an employee would walk away from a job that had a base salary of $80,000 and had in the previous 12 months bought in nearly $50,000 in bonus payments because he was frustrated that a couple of meetings had been cancelled.

[116] The Respondent submitted that while it is not entirely clear why the Applicant chose to walk away from this well-paying role, there is no indication that any circumstances exist that would lead the Applicant to feel he was coerced into a resignation, by either threat, inducement or ultimatum. Nor is there any pattern of behaviour on the part of the Respondent that could be taken to be anything other than supportive of the Applicant and his ongoing employment.

[117] It was further submitted that the Applicant had received legal advice before resigning his employment and had elected not to address his contractual concerns. It is the view of the Respondent that the pressure to finalise bonus payments in January 2020 was because the Applicant wanted these paid before the warranty works, of which he had sole knowledge at the time, were reported with the subsequent reduction in the profit that his bonus would be paid on.

Alternative submissions

[118] The Respondent submitted in the alternative that in the event that the Commission finds that the actions of the Respondent did result in a termination at the initiative of the employer the Respondent maintains that:

• There was a valid reason for the termination being the reasonable need to identify where the employee’s hours were being spent and the impact of this on job profitability.

• There was a valid reason for termination being a requirement that the Applicant actually undertook relevant works in order to be paid a bonus.

• There was a valid reason for termination being a reasonable expectation that the employee would not refuse to undertake works that were consistent with his skills.

• These valid reasons were communicated to the Applicant and he was provided an opportunity to respond.

• The behaviours of the Applicant put the Respondent at financial and reputational risk and so any additional matters considered by the Commission should weigh towards the fairness of a termination.

Remedy

[119] The Respondent submitted that in the event that the Commission finds an unfair dismissal at the initiative of the employer, the Respondent maintains the following:

• The Respondent had planned a meeting with the Applicant in early February 2020 to discuss a potential redundancy given there was insufficient work being bought in by the Applicant to support his salary.

• It was the intention of the Respondent to provide any suggestions that it may have to enable the employment to continue.

• Given the Applicant’s obvious dissatisfaction with the relationship and his pay structure, it is unlikely that an alternative to redundancy would have been found.

• The Applicant acknowledges that his role was becoming redundant at his annex 3 of submissions.

• It is noted that the Applicant was paid a termination payment on his resignation, as at the time of termination a portion of his work could be characterised as falling under the Award.

• Accordingly, the Applicant has received what monies would have been payable to him had he been made redundant and no further monies should be awarded.

Consideration

[120] As stated at paragraph [10], there is no factual dispute that the Applicant resigned from his employment with the Respondent on 26 February 2020. The question to be determined by the Commission is therefore whether the Applicant was forced to resign because of the conduct, or a course of conduct, engaged in by the Respondent.

[121] A forced resignation, also referred to or known as constructive dismissal, occurs where an employee has no real choice to resign their employment with an employer. The concept of a constructive dismissal is set out in the case of Mohazab v Dick Smith Electronics (No.2) 5(“Mohazab”) as follows:

“However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.” 6

[122] In Mohazab, the Full Bench of the Court also referred to authority in the case of Allison v Bega Valley Council 7 which provides:

“Although the term “constructive dismissal” is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?

…..

In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change.”

[123] In P. O’Meara v. Stanley Works Pty Ltd, 8 a Full Bench of the Commission said:

“[23] 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.” [citations omitted]

[124] In Doumit v ABB Engineering Construction Pty Ltd, 9 a Full Bench of the Australian Industrial Relations Commission said that the line to distinguish whether conduct leaves an employee with no choice but to resign or results in an employee resigning at their own initiative is a narrow one, but the line must nonetheless be ‘closely drawn and rigorously observed’:

“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 … 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.”

[125] The onus is on the Applicant to establish that he did not resign voluntarily, proving that the Respondent forced his resignation. 10 I must find that the Respondent took action with the intent or probable result to bring the employment relationship between the Applicant and the Respondent to an end.11

[126] During the hearing, the Applicant stated that he does not attribute the conduct of Mr Imray to his resignation. The Applicant was rather hoping that Mr Imray would be a “voice of reason” as a witness in the proceedings. The Applicant stated that he attributes the conduct of Mr Hassel and Ms Bonacchi to his resignation.

[127] Curiously, the first time the Applicant asserted that he had required paid personal leave on account of being stressed from work was during these proceedings. He agreed that he had not been truthful in his text messages to Mr Hassell when he was describing his illness as some kind of virus.

[128] It is true that the Applicant brought with him Client C when he joined the Respondent. It provided to be a rewarding client for the Respondent and the Applicant was appropriately awarded for the work, receiving a 20% profit. This continued even when he was not permitted to service the client, and when he chose not to service the client.

[129] The evidence of the Respondent is that there was damage done to the relationship between the Respondent and Client C on account of the interpersonal issues going on between the Applicant and Ms AB. I accept Mr Hassell’s evidence that the Applicant failed to proactively engage with Village Managers between September to early December 2019. Even if the Applicant could not service the work needs of Client C through Ms AB, he could have continued to remotely work with the Village Managers which, according to the Applicant’s evidence accounted to 90% of his work with Client C. Instead, the directors were left to carry the load and the Applicant still reaped the benefit of a percentage of profit during this time.

[130] I accept the evidence of Ms Bonacchi that according to her calculations, the Applicant appeared to have been incorrectly claiming GST inclusive profit prior to her commencement with the Respondent. On Mr Hassell’s evidence he had simply accepted the Applicant’s calculations when presented with them. On Ms Bonacchi’s commencement, she identified an error and sought to prospectively correct the profit share owed to the Applicant. She didn’t seek to retrospectively claw back what she considered to be overpayment to the Applicant.

[131] The Commission does not have the exact figures on this issue before it. However, having reviewed the written evidence of the Applicant and heard oral evidence on this issue, on the balance of probabilities it is more likely that the Applicant had inadvertently overstated his profit share until Ms Bonacchi’s commencement. If the Respondent is wrong, the Applicant will have available to him access to the Magistrates’ Court to have this addressed.

[132] With respect to the DVO against Ms AB, the Commission has some sympathy to the Applicant that it was necessary for him to obtain such an order from the Court. However, how he thought he could continue to perform the Respondent’s work servicing Client C where Ms AB worked in a relatively senior position is surprising. It is unclear how Ms AB could have met the conditions of the DVO in her own workplace with the Applicant’s regular attendance at her workplace. It appears that the Applicant did not give thought to this real and live issue at the time of seeking the order. If he had done so, it might have been open to the Court, on application to make suitable arrangements while ever the Applicant and Ms AB came into contact in a workplace and for work purposes.

[133] Understandably, it appears that Ms AB held concerns that she may breach the DVO if the Applicant attended upon her workplace. She notified the Respondent and reported the issue. Mr Hassell and Mr Imray considered that her point was valid, and the Applicant should not attend Client C’s workplace. The Respondent then went, in my view, over and above for a period of months to ensure that the Applicant was not financially disadvantaged from this exclusion.

[134] The Applicant considered that it was not Ms AB’s place to have made such a request for the Applicant to be excluded from her and his workplace. He considered that she was interfering with his work; he concluded that her actions might constitute a breach of the DVO. On the evidence before the Commission he did not report this to the police or to the Court as a potential breach. He accepted the Respondent’s decision that he should not attend on Client C’s site, but still enjoyed some of the rewards of the Respondent’s efforts.

[135] When he was then informed that Ms AB had concluded that he could attend the sites, presumably because she had satisfied herself that to do so would not cause her to breach the DVO ordered against her, the Applicant did so for a short time before withdrawing from the arrangement. On the evidence before the Commission it was because of commitments he had made to his wife or relationship issues with his wife.

[136] In no uncertain terms, the Applicant declared by January 2020 that he would not return to servicing Client C’s sites. In his oral evidence during cross-examination he agreed that it was of no harm for him to have been moved from Client C’s sites. He agreed that it was part of the plan anyway; for him to be transitioned out from such a client and then find other work. It appears to me that the Applicant was less upset about being excluded from Client C’s work, and more upset that it was at the direction of Ms AB to the Respondent.

[137] By January 2020 the Respondent was faced with a manager earning $80,000 per annum unwilling to work on Client C’s sites due to personal reasons and tasked with finding other work. On the evidence before the Commission the Applicant became disinterested and less responsive when asked to complete his work calendar. I accept the Respondent’s evidence on these issues.

[138] The Respondent was considering making his role redundant and awaiting his return to work from paid personal leave to hold a discussion with him on this issue. The Respondent had been informed by the Applicant that he was suffering from some kind of virus, yet the Applicant’s oral evidence before the Commission is that he was suffering from stress. It is not clear which is the truth.

[139] Ms Bonacchi’s evidence, which I accept, is that she wanted to work with the Applicant to calculate his bonus claims. She considered, given his emails to her that he did not fully understand the proposed new bonus scheme and she did not want it implemented until the Respondent was satisfied that he did understand it. I consider this to be a responsible action of the Respondent.

[140] The Applicant had been receiving approximately $30,000 per annum in bonus payment. While he may have become disappointed in the Respondent’s ability to bring in new works and cost it effectively, ultimately that is an issue for the Respondent. If the Applicant considered that the Respondent was incompetent, inefficient, expensive or improperly costing labour, it really is a matter for the Respondent, not the Applicant. The Applicant held no stake in the business; he was rewarded by way of a salary and a portion of the profit of the Respondent. If the Respondent was not wise with its decisions, it does not correlate to a course of conduct engaged in by the Respondent forcing a resignation of the Applicant.

[141] I accept, however, that in accordance with the new contract issued 1 July 2019, the labour costing changed from a contractual $88 per hour inclusive of GST to “Labour will be charged at the agreed company rate for each worker”. In July 2019, the Applicant’s evidence is that he was extremely unhappy with the labour for apprentices and unskilled labour being charged at $66 per hour. It seems that this continued despite the Applicant’s concerns.

[142] The Applicant received the value of an air conditioning unit for his house build in exchange for some profit earned in the October – December 2019 quarter. Calculations were performed to offset the profit earned against the cost of the unit. It is clear that the Applicant has not appreciated that where he received the unit GST-free out of goodwill of the Respondent, he also received the cost of the unit income-tax free. That is, where he earned approximately $8,000 in profit and would have otherwise paid income tax on that amount if it had been paid to him, he received the benefit of an item to that value.

[143] At [95] the Applicant received the amount of $10,336.91 in bonus payments for the quarter of January – March 2020. This amounted to the third highest quarter of quarterly payments made to the Applicant during his employment. 73% of that amount seemingly was for the work performed at Client C but at least in respect of the Gold Coast sites, the Applicant did not need to perform that work because it was being covered by the two directors (bar a short period in December 2019 where the Applicant was performing work at Client C).

[144] This substantial payment is telling, and there is no evidence before the Commission that the Applicant was being incorrectly paid profit payments.

[145] If the Applicant truly considered that he was not being paid correctly, he could have performed calculations himself and put those calculations to the Respondent for its consideration. He did not do so. Even if he did not have all of the information before him, he could have made a formal letter of demand on the Respondent to provide an estimate of what he claimed he was owed.

[146] Furthermore, as an alternative to resigning his employment, he could have commenced a small claims dispute in the Magistrates’ Court or Federal Circuit Court while his employment was on foot. The Applicant did none on these things.

[147] The Respondent submitted that the Applicant was likely aware of potential warranty claims that might eat into the Respondent’s profit on jobs that had already been performed, affecting the Applicant’s earnings and he did not bring this to the attention of the Respondent. On the evidence before the Commission, one client had been informing the Applicant of leak issues and did so as late as 6 February 2020, inviting the Applicant to investigate. The Applicant went on sick leave the following day. Later in February 2020, and just prior to resigning his employment, the Applicant pressed upon Ms Bonacchi the urgency of resolving his profit payments.

[148] I do not accept the Applicant’s submission that the Respondent, and particularly Ms Bonacchi was holding off from having discussions with him regarding profit payments. Ms Bonacchi was trying to work around the parties’ availability, and it was not an unreasonable period of time to organise the Applicant and the directors to come together to discuss.

[149] The Applicant resigned his employment and gave two weeks’ notice, stating his willingness to work out the notice period. I accept the evidence of Mr Hassell that the Applicant’s resignation was a surprise to him.

[150] Relevant to the Applicant’s resignation letter and his stated willingness to work the two-week notice period, I have had regard to the decision of Senior Deputy President Richards in Singh v West Coast Industrial Supplies Pty Ltd T/A WCIS where his Honour stated: 12

“[77] Indeed, when the Applicant came to resign her employment on 1 May 2013, she did so on one month’s notice, consistent with the terms of her employment contract. The Applicant did not immediately cease the relationship with the employer and abandon her employment (owing to the impossibility, perhaps, of interacting any longer with Ms Wishlow, or Ms Peters or Mr Brooks, or in some way being associated at all with her former employer).

[78] I add that the Applicant did make some intermittent claims that she had received some psychological support, but there was no developed evidence or submission in this regard, and very little could be made of the Applicant’s occasional claims. Whatever those claims might have been they did not stop the Applicant claiming she was adamant that she had wished to work out the entirety of her notice period.

[79] Ordinarily, an employee who is forced to resign their employment because of the course of conduct of the employer will resign immediately because the relationship has reached such a point that it is no longer sustainable and there can no longer be personal service of the contract of employment. The sudden and comprehensive repudiation of the employment relationship is often indicative of the difficulty in the employment relationship at the relevant time.

[80] Here, however, the Applicant maintained the relationship for a further month upon giving notice of her resignation. I do note further, as the Applicant for her part indicated in the course of the proceedings, that had she not fallen ill following the handover a few days into her notice period, she would have continued to provide services to the Respondent.

[81] The conduct of the Respondent, therefore, had not been so odious or repugnant so as to cause the Applicant to repudiate immediately the presumed employment relationship.” [citation omitted]

[151] In the matter before me, the Applicant did not state that the employment relationship was so repugnant that he could not continue for a single hour or day. He was prepared to attend for work and have it “live” for a further two weeks. He did not require that it end immediately.

[152] It was stated by Commissioner Cambridge in the decision of Susan Kutty v Coast2Bay Housing Group Ltd that:

“A constructive dismissal is not established by a resignation founded upon unhappiness with changed employment circumstances, particularly if such changed circumstances appear to be reasonable and comprehended by the general terms, stated and implied, of the contract of employment.” 13

[153] In this matter I do not consider that Mr Hassell, Mr Imray or Ms Bonacchi conducted themselves in a manner to bring about the Applicant’s resignation. I am considerably impressed by the actions and conduct of the Respondent in trying to accommodate the personal situation that came upon the Applicant. The Respondent was amenable, flexible and considerate of the Applicant and he did not suffer any financial detriment as a result of what I consider to be a temporary lawful exclusion from Client C’s sites at the request of Ms AB, and later as a result of his refusal to service those sites on account of decisions that he thought were best given his family circumstances at the time.

[154] Even particularly having regard to the Applicant’s concerns that he was performing site supervisor work throughout a large part of 2019 and early 2020, and the Respondent was not appropriately costing jobs, I do not accept that the Respondent unreasonably refused the Applicant the opportunity to address his concerns. On the evidence before the Commission, those opportunities were going to occur in a suitable timeframe. I consider that the Applicant reacted with impatience and resigned his employment with relative haste.

Conclusion

[155] For the reasons set out above I have determined that the resignation of the Applicant was not caused by conduct, or a course of conduct, on the part of the Respondent. I find that the Applicant was not a person dismissed from employment and the jurisdictional objection raised by the Respondent is upheld.

[156] I must dismiss the application for lack of jurisdiction. An Order [PR723003] will be issued together with this decision.

[157] As an aside, I note that the industry-specific redundancy payment made to the Applicant described at [12] is the same amount payable to the Applicant whether he resigned his employment, or if he was to be made redundant by the Respondent, as noted at [119]. The Applicant suggested that the Respondent had factitiously suggested that it would have made him redundant, and the Applicant suggested it was evidence given by the Respondent only for these proceedings. It is not necessary to test such evidence.

COMMISSIONER

Hearing details:

22 June 2020, Brisbane (by Telephone).

Printed by authority of the Commonwealth Government Printer

1 Building and Construction General On-Site Award 2010, Clause 17.

2 Witness Statement of Philip (Tony) Imray, 1 June 2020, Annexure 1.

3 Witness Statement of Mark Hassell, 1 June 2020, Annexure 3.

4 Witness Statement of Julia Bonacchi, 1 June 2020, Annexure 1.

5 Mohazab v Dick Smith Electronics Pty Ltd (No.2), (1995) Industrial Relations Court of Australia, 62IR 200.

6 Ibid page 207.

7 Allison v Bega Valley Council, (1995) Full Commission of the Industrial Relations Commission of NSW, 63IR 68.

8 (2006) 58 AILR 100, [23].

9 Print N6999 (9 December 1996).

10 Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30,

[(2009) 185 IR 359].

11 O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at

para. 23, [(2006) 58 AILR 100].

12 Singh v West Coast Industrial Supplies Pty Ltd T/A WCIS [2013] FWC 9171

13 [2014] FWC 5481, Paragraph [39].

Mr Za v The Facelift Group Pty Ltd

[2020] FWC 5098

22 SEPTEMBER 2020

DECISION