Nezir Zahirovic v Bluethumb Pty. Ltd
[2024] FWCFB 403
•22 OCTOBER 2024
| [2024] FWCFB 403 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Nezir Zahirovic
v
Bluethumb Pty. Ltd.
(C2024/6468)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 22 OCTOBER 2024 |
Appeal against decision [2024] FWC 2430 of Deputy President Anderson at Adelaide on 6 September 2024 in matter number C2024/4156 - Application to deal with contraventions involving dismissal – jurisdiction – whether “dismissed”- no dismissal – permission to appeal refused
This is an appeal by Mr Nezir Zahirovic pursuant to section 604 of the Fair Work Act 2009 (Cth) (FW Act) against a decision[1] by Deputy President Anderson to dismiss an application made under s.365 of the FW Act on 6 September 2024 (the Decision). Mr Zahirovic was employed by Bluethumb Pty Ltd (Bluethumb) as a senior software engineer from 31 May 2023 until 31 May 2024.
Mr Zahirovic’s application was listed for permission to appeal only. On 18 September 2024, directions were made for the filing of material by Mr Zahirovic. Mr Zahirovic filed written submissions in relation to permission to appeal on 24 September 2024. On 8 October 2024, we conducted a hearing, by video conference, in relation to permission to appeal. At that hearing Mr Zahirovic was afforded an opportunity to present oral submissions to supplement his written submissions in relation to the appeal. Mr Zahirovic represented himself. Bluethumb was represented by Mr Edward Hartley, Chief Executive Officer, who provided brief oral submissions.
For the reasons that follow, we have decided to refuse permission to appeal.
The Deputy President’s Decision
Bluethumb is an Australian owned company selling artwork globally. It is incorporated in Australia. It operates wholly online and is based in Adelaide, South Australia.[2] Bluethumb uses information technology systems to sell artworks and communicate with prospective customers and dealers. Bluethumb engages software engineers in different global locations to rectify any online issues in real time.[3]
Mr Zahirovic is a Bosnian citizen. At all relevant times he lived and worked in Indonesia while employed by Bluethumb. He reported to an Adelaide-based supervisor, Mr Alexander Timofeev.[4]
Mr Timofeev held regular group meetings (conducted remotely) with the team of engineers, including Mr Zahirovic. One was scheduled for 30 May 2024.
Prior to this meeting, Mr Timofeev informed Mr Zahirovic during a one-on-one discussion that he was not meeting certain performance expectations including in the use of the product coding system. Mr Zahirovic disagreed with the criticism and considered the coding system to be at fault.[5] The Deputy President held that, after further discussion, Mr Zahirovic said words to the effect:
I do not need this job. I quit. So let’s discuss my peaceful exit on the terms of my contract.[6]
The conversation concluded with the parties agreeing to communicate the next day.[7] The next day on 31 May 2024, Mr Timofeev and Mr Zahirovic exchanged messages via the online platform ‘slack’. This included discussion about Mr Zahirovic’s entitlements on termination and concluded with the following comment from Mr Timofeev:
Technically you quit yesterday and it was your desire
Let me also remind you that one of the agreements for the company sponsoring your hardware was you staying here for a year, which you didn’t
If you prefer to be complicated – good luck with that
I personally did my best to be supportive, but not going to waste anymore time
Good luck[8]
Mr Zahirovic responded with a large ‘thumbs up’ icon alongside Mr Timofeev’s text.[9]
Later on 31 May 2024, Mr Zahirovic sent a lengthy message to the owners and senior managers (including Mr Timofeev) of Bluethumb which relevantly provided (as written):
Again, whatever, I have mentioned Alex I can quit and just please have in mind that I didnt use my annual leave days. Where he mentioned that like 'I won't have a right to use them' or something in that sense and that he will check with finance about it.
So, let me attach an article from my contract below.
I think I have right on those days. Today he said that its like ""for each calendar year of service", which we don't extend So basically it means you are entitled for these 20 days when your first year of service is over and you start your second year."
So, if its a goal to play games:
- Then technically my work day today is already the 1st day of next work year.
- Yesterday he said he will need day
- two to see what to consult with finance or head..
- I am just finishing my first work day and we had chat before 20min or something
Please lets finish this in the correct way, if not I will do what I can to defend my position and my rights.[10]
Upon reading Mr Zahirovic’s email, Mr Hartley immediately responded:[11]
Hi Nezir
Thank you for touching base with your concerns. I have your message and will have internal chats with team members cc’d and come back to you on Monday.
Kind regards
Ed
Mr Zahirovic replied, ‘Thank you for your understanding’.[12]
Mr Timofeev arranged for Mr Zahirovic to be removed from Bluethumb’s system on 31 May 2024. Mr Zahirovic continued to transact work on 31 May until he was removed from the system. Mr Zahirovic did not perform further work for Bluethumb beyond the afternoon of 31 May 2024 and did not seek to have his credentials reinstated.[13]
On 4 June 2024, Mr Hartley and Mr Zahirovic had a telephone conversation which Mr Hartley described during proceedings as an exit interview. Mr Zahirovic explained his reasons for resigning. Mr Hartley did not seek to talk Mr Zahirovic out of this course but agreed to discuss the issue further with his senior colleagues. Mr Hartley then spoke with Mr Alex Gibson, Chief Product Officer, and Mr Timofeev about Mr Zahirovic’s employment ending the way it did. Mr Gibson said that while it was difficult to recruit engineers, and he was surprised that Mr Zahirovic had resigned rather than work through the issues of concern, it was best to let the resignation stand. On 5 June 2024, Mr Hartley sent Mr Zahirovic written confirmation that his resignation was accepted ‘as per last week’ and referred to Mr Zahirovic’s final payment.[14]
Mr Zahirovic immediately responded rejecting the calculation of the final payment. He also asserted that he was entitled to one week’s notice under the FW Act. On 11 June 2024, further email communication occurred between the Chief Financial Officer and Mr Zahirovic on the final payment calculation. In that communication, Mr Zahirovic claimed that Mr Timofeev had ‘asked me to finish my work on the last day of May 2024 and… I told him if he asks me to finish my engagement in May that’s okay but I want to do everything by contract we assigned’. The dispute about the final payment was not resolved and Mr Zahirovic filed the application on 21 June 2024.[15]
Bluethumb raised three objections to the application. Bluethumb submitted that Mr Zahirovic is not eligible to make the claim because he is not an ‘Australian-based employee’ within the meaning of s.35 of the FW Act. Further, Bluethumb submitted that Mr Zahirovic resigned or that his employment ceased by mutual agreement. Finally, Bluethumb submitted that the application was made one day beyond the 21-day time limit as the employment ended on 30 May 2024, and that time should not be extended because the circumstances are not exceptional.[16]
The Deputy President found that Mr Zahirovic was an ‘Australian-based employee’[17] and that the application had been filed within the statutory 21-day time limit as the employment had ceased on 31 May 2024.[18]
The Deputy President found that Mr Zahirovic plainly stated to Mr Timofeev on 30 May 2024 that he was resigning when he said the words ‘I quit’.[19] The Deputy President said that he was satisfied that the conduct of and communication between the parties on 30 and 31 May amounted to a mutual agreement that the resignation would take effect at close of business on 31 May 2024. The Deputy President had particular regard to Mr Timofeev suggesting that Mr Zahirovic’s employment finish that day by stating ‘finish our story in May’ in an online messaging service and Mr Zahirovic agreeing to this by saying in response ‘hey Alex thank you’.[20]
The Deputy President found that if notice of resignation was not clear from the events of 30 May 2024, it was made abundantly clear on 31 May 2024 when Mr Timofeev reminded Mr Zahirovic in writing that ‘technically you quit yesterday and that was your desire’ and Mr Zahirovic responded with a large ‘thumbs up’ emoji.[21]
The Deputy President found that by 31 May 2024, there was already a sufficiently clear mutual agreement that the employment relationship would end that day. The withdrawal of permissions was conduct consequential on that mutual understanding and was not conduct terminating the employment relationship.[22]
The Deputy President acknowledged that Mr Zahirovic wanted a peaceful exit and considered that this meant being paid what he understood to be his contractual entitlements. However, the Deputy President did not accept that the resignation was of itself, conditional. The Deputy President observed that Mr Zahirovic did not continue performing active work beyond 31 May 2024 nor seek to have his permissions restored. In his email to Mr Hartley on 11 June 2024, Mr Zahirovic expressly acknowledged that he had agreed with Mr Timofeev’s proposal that his last day be 31 May 2024.[23]
The Deputy President took into account that Mr Zahirovic’s resignation on 30 May 2024 was an impulsive reaction to unexpected criticism and that this could characterise it as having been made in the heat of the moment. However, the Deputy President found that this was not such a resignation as the conversation between Mr Zahirovic and Mr Timofeev was direct but not heated, that Mr Timofeev followed up with Mr Zahirovic the following day after Mr Zahirovic had time overnight to calm down and that Mr Zahirovic did not withdraw or recant his decision to leave but instead affirmed it, with a thumbs-up emoji.[24]
The Deputy President did not consider this to be a case of ambiguous conduct by an employee that would reasonably require an employer to clarify or confirm an employee’s intention before giving effect to a resignation.[25]
The Deputy President then considered whether Mr Zahirovic was forced to resign by the conduct or a course of conduct by Bluethumb. The Deputy President found that there was nothing unreasonable about Bluethumb raising performance concerns with Mr Zahirovic. The Deputy President accepted that the concerns were genuinely held and that they were raised in a fair manner.[26]
The Deputy President said that regardless of whether the criticism was fair or warranted, there was no basis upon which to objectively conclude that the resignation was forced. Termination of the employment relationship by resignation was not caused by Bluethumb withdrawing online permissions because, by the time Bluethumb did so, Mr Zahirovic had already notified his resignation.[27]
The Deputy President concluded that Mr Zahirovic was not dismissed within the meaning of the FW Act, and that his general protections application to deal with a dismissal dispute is beyond jurisdiction.[28]
Grounds of Appeal
We understand from the matters raised by Mr Zahirovic in the Notice of appeal[29] that the appeal grounds are:
The Deputy President erred in law by failing to properly consider the conditional nature of the alleged resignation and the full context of the employment relationship.
The Deputy President mischaracterised the resignation, incorrectly interpreting ‘I can quit’ as a definitive resignation rather than a hypothetical statement. (Referred to as Appeal Ground 1 in Mr Zahirovic’s submissions)
The Deputy President failed to consider Bluethumb’s conduct, including the refusal to provide evidence of alleged underperformance and the premature conduct of an exit interview, which effectively forced the resignation. (Referred to as Appeal Ground 2 in Mr Zahirovic’s submissions)
The Deputy President overlooked the psychological impact of Bluethumb’s actions, including the fear of future false accusations, which made the work environment untenable.
The Deputy President erred in not recognizing that Bluethumb’s actions, including posting a job advertisement before the performance discussion and rapidly dismissing Mr Zahirovic, indicated a predetermined intention to end the employment. (Referred to as Appeal Ground 5 in Mr Zahirovic’s submissions).
The Deputy President failed to adequately consider Mr Zahirovic’s pre-existing health issues and complaints about work procedures, which were relevant to understanding the context of the situation. (Referred to as Appeal Ground 6 in Mr Zahirovic’s submissions)
The Deputy President erred in law by failing to consider the principle of procedural fairness in performance management. (Referred to as Appeal Ground 3 in Mr Zahirovic’s submissions)
The Deputy President made a significant error of fact by accepting that Mr Zahirovic said ‘I quit’ when the closest statement made was ‘If I quit’, which indicates a hypothetical scenario rather than a definitive action.
The Deputy President incorrectly interpreted Mr Zahirovic’s ‘thumbs up’ emoji response as an agreement to resign, when it was merely an acknowledgment of Mr Timofeev’s statements. (Referred to as Appeal Ground 4 in Mr Zahirovic’s submissions)
10.The Deputy President overlooked the fact that the employer had posted a job advertisement for a new Rails developer a week before 30 May, 2024, suggesting a predetermined intention to end Mr Zahirovic’s employment. (Referred to as Appeal Ground 5 in Mr Zahirovic’s submissions)
11.The Deputy President failed to consider that Mr Zahirovic was removed from the company's systems on 31 May, 2024, preventing him from continuing work or collecting evidence to defend against the performance accusations.
12.The Deputy President overlooked Mr Timofeev’s confirmed refusal to provide any evidence of underperformance or allow Mr Zahirovic to defend himself, as stated during the hearing.
13.The Deputy President failed to recognize that the meeting on 4 June 2024 was conducted as an exit interview without any attempt to resolve the performance dispute or address Mr Zahirovic’s concerns.
14.The Deputy President overlooked the Chief Financial Officer's alleged threat to withhold Mr Zahirovic’s salary and other payments, which is relevant to understanding the pressure Mr Zahirovic was under and the hostile work environment. (Referred to as Appeal Ground 7 in Mr Zahirovic’s submissions)
15.The Deputy President failed to adequately consider how the employer's actions created a hostile work environment.
Mr Zahirovic’s submissions in the appeal
The argument advanced by Mr Zahirovic in the hearing before the Deputy President was that he was dismissed on 31 May 2024 when Bluethumb unilaterally withdrew his permissions to access its online systems and perform work.[30] Mr Zahirovic submitted that his employment did not end by resignation because his agreement to leave Bluethumb was conditional on there being an agreement over contractual entitlements and a peaceful exit, which did not occur.[31] In the alternative, Mr Zahirovic submitted that if he resigned, he was forced to resign by a course of conduct by Bluethumb, which included Bluethumb raising unreasonable performance concerns and failing to negotiate a peaceful exit.[32] Another way of describing Mr Zahirovic’s contentions is that his resignation was forced, but that it was a conditional resignation and therefore of no effect. In the appeal, Mr Zahirovic also argued that the resignation was of no effect because his communications were ambiguous.
Appeal ground 1 appears to be in relation to the Deputy President’s finding that the resignation was not conditional. Appeal grounds 2, 8 and 9 appear to be in relation to the Deputy President’s finding that the resignation was not ambiguous. Appeal grounds 3-7 and 10-15 appear to be in relation to the Deputy President’s finding that the resignation was not forced by the conduct of Bluethumb.
Mr Zahirovic made submissions in relation to seven of the 15 grounds of appeal. In relation to Appeal Ground 2 (Appeal Ground 1 in the submissions), Mr Zahirovic submitted that his lengthy email of 31 May 2024 to the owners and senior managers of Bluethumb demonstrated that Mr Zahirovic said ‘I can quit’ in a heated discussion regarding unsubstantiated performance claims. Mr Zahirovic contended that he used hypothetical phrases like ‘I can quit’ and ‘If I quit’, which clearly do not indicate a final or clear intent to resign.[33] Mr Zahirovic submitted that his continued work activity indicates no resignation took place. The evidence shows that as at 31 May 2024 at 12:49 pm (Indonesian time) he was still actively working, and no formal resignation had been submitted. The unilateral removal of access on 31 May 2024 at 2:22pm (Indonesian time) further demonstrates that the resignation had not yet occurred, and the termination of employment was initiated by Bluethumb.[34] Mr Zahirovic further submitted that his use of the thumbs up emoji in the email exchange of 31 May was not evidence of agreement to resign but merely an acknowledgement of receipt of the message from Mr Timofeev.[35]
In relation to Appeal Ground 3, (Appeal Ground 2 in the submissions) Mr Zahirovic submitted that the Deputy President applied the wrong legal tests in relation to constructive dismissal. Mr Zahirovic submitted that the following matters indicated that he had been constructively dismissed:
Bluethumb’s refusal to provide evidence of performance issues;
Bluethumb’s removal of Mr Zahirovic’s system access before he provided formal notice or there was a discussion of resignation; and
Bluethumb’s conduct of an exit interview without any attempt to resolve the performance dispute.[36]
Mr Zahirovic submitted that the performance issues were raised by Bluethumb at the same time that Mr Zahirovic was expecting an annual salary review which suggests that Bluethumb was motivated to terminate Mr Zahirovic and avoid the salary increase.[37]
In relation to Appeal Ground 7, (Appeal Ground 3 in the submissions) Mr Zahirovic submitted that the Deputy President failed to consider the employer's conduct with respect to failure to provide procedural fairness in performance management including:
Bluethumb did not provide Mr Zahirovic with any specific examples of underperformance;
Bluethumb did not provide Mr Zahirovic with an opportunity to respond to the allegations of underperformance before system access was revoked; and
There was no formal performance management process.[38]
Mr Zahirovic submitted that this lack of fairness is significant given his previously strong performance record.[39]
In relation to Appeal Ground 9, (Appeal Ground 4 in the submissions) Mr Zahirovic submitted that the Deputy President's interpretation of the ‘thumbs up’ emoji as an agreement to resign was premature and failed to consider the full context of the communication. Mr Zahirovic submitted that this approach is inconsistent with established principles of interpreting electronic communications in employment contexts.[40] Mr Zahirovic submitted that the ‘thumbs up’ emoji has multiple potential meanings, including simple acknowledgment of receipt, which is particularly common in remote work settings.[41] Mr Zahirovic submitted that the evolving nature of workplace communication, especially in digital contexts, requires a nuanced approach to interpretation. [42]
In relation to Appeal Ground 10, (Appeal Ground 5 in the submissions) Mr Zahirovic submitted that the Deputy President failed to consider evidence of a job advertisement for a new ROR Developer posted before the performance issues arose. Mr Zahirovic submitted that this suggests a predetermined intention to replace him, which is relevant to determining whether there was a termination at the initiative of the employer.[43] Mr Zahirovic submitted that Bluethumb's conduct after the termination further demonstrates an intent to force resignation. This conduct included:
Withholding of final salary payments, accrued annual leave, and the notice period; and
Continuing to withhold compensation for Mr Zahirovic’s computer, in breach of the employment contract.[44]
In relation to Ground 6, (Appeal Ground 6 in the submissions) Mr Zahirovic submitted that the Deputy President failed to consider the employer's duty of care regarding mental health. Mr Zahirovic submitted that he had disclosed stress and sleep disorders to Bluethumb, which were ignored during the performance discussions, exacerbating the situation.[45]
In relation to Ground 14, (Appeal Ground 7 in the submissions) Mr Zahirovic submitted that the Deputy President failed to consider multiple breaches of the employment contract and the FW Act which support Mr Zahirovic’s argument that Bluethumb’s conduct was not consistent with a voluntary resignation but rather with a coercive termination. Mr Zahirovic pointed to Bluethumb’s conduct in withholding salary, annual leave, and the notice period payment.[46]
In relation to public interest considerations, Mr Zahirovic submitted that the appeal raises significant issues for modern workplace relations, including:
Interpretation of resignation in the context of performance disputes and digital communications.
The extent of procedural fairness required in performance management, especially in remote work settings.
Balancing performance management with the employer's duty of care concerning employee mental health.
Addressing power imbalances in employment relationships, especially during disputes.
The decision, if unchallenged, risks setting a harmful precedent for interpreting resignation and constructive dismissal, which could undermine employee protections under the FW Act.[47]
Principles – permission to appeal
An appeal under s. 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[48] There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(1) requires the Commission to grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[49] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[50]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[51] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[52]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[53]
It is well established that an appellate body will not interfere with the factual findings of a first instance decision-maker unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[54]
Where a finding or conclusion involves the exercise of a discretion, where some latitude is afforded, an appellate body will also generally not interfere with the conclusions of the decision-maker. As stated by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission:[55]
‘Discretion’ is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result.’ Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
(citations omitted)
For there to be legal error, it would need to be shown that the Deputy President acted on a wrong principle, took into account irrelevant matters, mistook facts, or that the outcome is unreasonable or plainly unjust.[56] It is not enough that a different member or an appellant body might have reached a different conclusion.
Consideration
After considering all of the material before us, we are not persuaded that it is appropriate to grant permission to appeal. The appeal grounds advanced by Mr Zahirovic do not give rise to an arguable contention of appealable error. The basis for this conclusion is explained briefly as follows, by reference to each appeal ground.
Appeal Ground 1
Appeal ground 1 is that the Deputy President erred by failing to properly consider the conditional nature of the alleged resignation and the full context of the employment relationship.
The Deputy President considered the evidence of Mr Zahirovic and Bluethumb in relation to these matters. The Deputy President had particular regard to the communication between Mr Timofeev and Mr Zahirovic on 30 and 31 May 2024,[57] that Mr Zahirovic did not continue performing active work beyond 31 May 2024, that Mr Zahirovic did not seek to have his permissions restored[58] and that Mr Zahirovic expressly acknowledged that he had agreed with Mr Timofeev’s proposal that his last day be 31 May 2014 in his email to Mr Hartley on 11 June 2024.[59] The Deputy President accepted that Mr Zahirovic wanted a peaceful exit and considered that this meant being paid what he understood to be his contractual entitlements.[60] However, the Deputy President stated that he did not accept that the resignation was, of itself, conditional.[61] Such a finding was available to the Deputy President based on the evidence before him and as such no arguable appealable error is disclosed.
Appeal Grounds 2 and 8
Appeal grounds 2 and 8 are that the Deputy President mischaracterized the resignation, incorrectly interpreting ‘I can quit’ as a definitive resignation rather than a hypothetical statement.
The evidence before the Deputy President in relation to this matter was the communication between Mr Timofeev and Mr Zahirovic on 30 and 31 May 2024 and Mr Zahirovic’s email of 31 May 2024 in which he stated ‘again, whatever, I have mentioned Alex I can quit.’ The Deputy President also had before him Bluethumb’s submission which was signed by Mr Hartley and witness statements from Mr Gibson and Mr Timofeev. Bluethumb’s submissions stated that Mr Zahirovic said to Mr Timofeev:
I don’t need to improve. Bluethumb needs to improve. I do not need this job and quit. So let’s discuss my peaceful exit.[62]
Mr Timofeev’s statement relevantly provided:
I am writing this letter to confirm that neither myself nor Bluethumb had any intention to dismiss Mr Zahirovic and that on the 30th of May I held a discussion with him to address his slowing output, decreased code quality standards with reluctance to adjust based on code review provided by the team and how he could improve. I did not expect him to react as he did, and was surprised by his sudden resignation.[63]
Having regard to all of this evidence, it appears that in recording Mr Zahirovic as saying ‘I quit’ at [25] of the Decision, the Deputy President accepted the evidence of Bluethumb. In our view, it was open for the Deputy President to do so having regard to the online communication between Mr Timofeev and Mr Zahirovic on 30 and 31 May 2024. By the time Mr Zahirovic sent the email saying ‘I can quit’, he had already resigned according to the Deputy President’s findings. The Deputy President did not rely upon this email in concluding that Mr Zahirovic resigned. Accordingly, no arguable appealable error is disclosed.
Appeal Ground 9
Appeal ground 9 is that the Deputy President incorrectly interpreted Mr Zahirovic’s ‘thumbs up’ emoji response as an agreement to resign, when it was merely an acknowledgment of Mr Timofeev's statements. In the Decision, the Deputy President found that Mr Timofeev's statements together with Mr Zahirovic’s response with a large ‘thumbs up’ emoji made it abundantly clear that Mr Zahirovic had resigned.[64] The Deputy President also noted that on 31 May 2024, the day after his conversation with Mr Timofeev, Mr Zahirovic did not withdraw or recant his decision to leave. Rather he affirmed it, with a thumbs-up emoji.[65]
Regardless of whether the ‘thumbs up’ emoji was an acknowledgement of, or an agreement with Mr Timofeev’s comments, it was relevant to the Deputy President’s consideration of its meaning that Mr Zahirovic did not withdraw or recant his decision to leave on 31 May 2024. Having regard to this matter and the conversation between Mr Zahirovic and Mr Timofeev the previous day, the finding that the thumbs-up emoji affirmed the resignation was available to the Deputy President. Accordingly, no arguable appealable error is disclosed.
Appeal grounds 3-7 and 10-15
These appeal grounds all deal with Mr Zahirovic’s contention that the Deputy President applied the wrong legal tests in relation to constructive dismissal. Mr Zahirovic submitted that the following matters indicated that he had been constructively dismissed:
Bluethumb’s refusal to provide evidence of performance issues; (Appeal Grounds 3 and 12)
Bluethumb’s removal of Mr Zahirovic’s system access before he provided formal notice or there was a discussion of resignation; and (Appeal Ground 11)
Bluethumb’s conduct of an exit interview without any attempt to resolve the performance dispute. (Appeal Ground 13)
The following appeal grounds also appear to be relevant to the issue of constructive dismissal:
The Deputy President overlooked the psychological impact of Bluethumb’s actions, including the fear of future false accusations, which made the work environment untenable. (Appeal Ground 4)
The Deputy President erred in not recognizing that Bluethumb’s actions, including posting a job advertisement before the performance discussion and rapidly dismissing Mr Zahirovic, indicated a predetermined intention to end the employment. (Appeal Grounds 5 and 10)
The Deputy President failed to adequately consider Mr Zahirovic’s pre-existing health issues and complaints about work procedures, which were relevant to understanding the context of the situation. (Appeal Ground 6)
The Deputy President erred in law by failing to consider the principle of procedural fairness in performance management. (Appeal Ground 7)
The Deputy President overlooked the Chief Financial Officer's alleged threat to withhold Mr Zahirovic’s salary and other payments, which is relevant to understanding the pressure Mr Zahirovic was under and the hostile work environment. (Appeal Ground 14)
The Deputy President failed to adequately consider how the employer's actions created a hostile work environment. (Appeal Ground 15)
The Deputy President commenced his consideration of whether Mr Zahirovic was dismissed by referring to the relevant authorities,[66] observing that a finding whether a person was ‘dismissed’ is based on a consideration of the evidence as a whole, including inferences reasonably drawn from the conduct of the parties.[67] The Deputy President referred to these principles as summarised in the Federal Court judgement of Rares J in Koutalis v Pollett:[68]
…it depends upon what a reasonable person in the position of the parties would have understood was the objective position…based on what each party…had said or done, in light of the surrounding circumstances.
In relation to a constructive dismissal, the Deputy President observed that the question for the Commission is whether the employer’s conduct was the “principal contributing factor” which led to the termination such that, had the employer not taken the action it did, the employee would have remained in the employment relationship.[69] The Deputy President noted Mr Zahirovic’s submissions were that if he resigned, he was forced to resign by a course of conduct by Bluethumb.[70] This included the employer raising unreasonable performance concerns and failing to negotiate a peaceful exit. Conduct at the initiative of Bluethumb included Bluethumb unilaterally withdrawing Mr Zahirovic’s permissions to access its online systems and perform work and its unwillingness to negotiate a peaceful exit in line with his contract.[71]
The Deputy President found that the case of forced resignation advanced by Mr Zahirovic is weak.[72] The Deputy President accepted Mr Gibson’s evidence that the concerns about Mr Zahirovic’s performance were genuinely held, that they were raised in a fair and orderly manner and that there was nothing unorthodox about the steps taken by Bluethumb to raise its concerns in the proper management of its operations.[73] The Deputy President found that regardless of whether it was unexpected and uncomfortable for Mr Zahirovic to hear the criticism and whether it was fair or warranted, there is no basis upon which to objectively conclude that the resignation was forced.[74] The Deputy President also concluded that it was not unreasonable for Mr Hartley to conduct an exit interview on 4 June to better understand Mr Zahirovic’s reasons for having resigned, and consider whether he would try to change his mind. These findings were open to the Deputy President after considering all of the evidence before him and applying the relevant authorities and as such no arguable appealable error is disclosed.
The Deputy President found that Bluethumb’s actions in revoking Mr Zahirovic’s access was not conduct terminating the employment relationship as by then, there was already a sufficiently clear mutual agreement that the employment relationship would end that day. The Deputy President also found that this was conduct consequential on that mutual understanding. These findings were open to the Deputy President after considering all of the evidence before him and as such no arguable appealable error is disclosed.[75]
In relation to the exit interview, the Deputy President noted Mr Hartley’s evidence of the meeting with Mr Zahirovic on 4 June 2024.[76] Mr Zahirovic explained his reasons for resigning. Mr Hartley did not seek to talk Mr Zahirovic out of this course but agreed to discuss the issue further with his senior colleagues. Mr Hartley then spoke with Mr Gibson and Mr Timofeev about Mr Zahirovic’s employment ending the way it did. Mr Gibson expressed the view that while it was difficult to recruit engineers, and whilst he too was surprised that Mr Zahirovic had resigned rather than work through the issues of concern, it was best to let the resignation stand.[77]
After considering the evidence, the Deputy President found that it was not unreasonable for Mr Hartley to conduct an exit interview on 4 June 2024 to better understand Mr Zahirovic’s reasons for having resigned, and that the written confirmation sent by Mr Hartley to Mr Zahirovic on 5 June 2024 is best characterised as confirmation of what had already occurred. As the Deputy President had found that Mr Zahirovic’s resignation took effect prior to this meeting, there was no arguable appealable error disclosed in the conclusions that the Deputy President reached about the meeting on 4 June 2024.
In relation to Bluethumb’s refusal to provide evidence of performance issues, there was no evidence before the Deputy President that Bluethumb intended to take some form of performance management or disciplinary action after raising its concerns with Mr Zahirovic which would warrant considerations of procedural fairness including the provision of any evidence of underperformance or an opportunity for Mr Zahirovic to defend himself. The Deputy President found that Mr Zahirovic did in fact defend himself, as he believed that more objective criteria should be applied to assess his performance and responded with criticism of the Bluethumb coding system.[78]Accordingly, no arguable appealable error is disclosed.
The remaining Appeal grounds dealing with constructive dismissal can be best described as matters which Mr Zahirovic relies upon to contend that Bluethumb was engaging in a course of conduct, which culminated in Mr Timofeev raising the performance issues which led to Mr Zahirovic’s resignation. As no appealable error is disclosed with respect to the Deputy President’s findings that the resignation was not forced by the raising of the performance issues, we find that it was unnecessary for the Deputy President to consider these matters. Accordingly, no arguable appealable error is disclosed with respect to Appeal Grounds 4-7, 10, 14 and 15.
Conclusion and disposition
We are not persuaded that permission to appeal should be granted. We do not consider that an arguable case has been advanced that the decision of the Deputy President was attended by appealable error.
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.602(2), that the appeal raises any legal or factual issue of significance or general application, there is diversity of decisions at first instance, or that the legal principles applied by the Deputy President are disharmonious when compared with other decisions. Further, we do not consider that the Deputy President’s decision is counter intuitive or manifests an injustice.
We order that permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Mr Z. Zahirovic, Appellant
Mr E. Hartley, Co-Founder and CEO, for the Respondent
Hearing details:
2024
8 October
Microsoft Teams
[1] [2024] FWC 2430
[2] Ibid, [9].
[3] Ibid, [10].
[4] Ibid, [12]-[13].
[5] Ibid, [19]-[23].
[6] Ibid, [25].
[7] Ibid, [26].
[8] Ibid, [30].
[9] Ibid.
[10] Ibid, [31].
[11] Ibid, [32].
[12] Ibid, [33].
[13] Ibid, [34]-[36].
[14] Ibid, [37]-[38].
[15] Ibid, [40]-[45].
[16] Ibid, [46]-[49].
[17] Ibid, [74].
[18] Ibid, [112].
[19] Ibid, [91].
[20] Ibid, [93].
[21] Ibid, [94].
[22] Ibid, [95].
[23] Ibid, [96]-[97].
[24] Ibid, [99].
[25] Ibid, [100].
[26] Ibid, [102].
[27] Ibid, [104]-[106].
[28] Ibid, [109].
[29] Form F7 – Notice of appeal, Paragraph 2.1
[30] [2024] FWC 2430, [52].
[31] Ibid, [53].
[32] Ibid, [54].
[33] Outline of Appellant’s Submissions, [6.1.2].
[34] Ibid, [6.1.3].
[35] Ibid, [6.1.4].
[36] Ibid, [6.2.2].
[37] Ibid, [6.2.4].
[38] Ibid, [6.3.2].
[39] Ibid, [6.3.3].
[40] Ibid, [6.4.1].
[41] Ibid, [6.4.2].
[42] Ibid, [6.4.4].
[43] Ibid, [6.5.1].
[44] Ibid, [6.5.2].
[45] Ibid, [6.6.2].
[46] Ibid, [6.7.1].
[47] Ibid, [4].
[48] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194, [17] per Gleeson CJ, Gaudron and Hayne JJ
[49] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78, [44]-[46].
[50] [2010] FWAFB 5343, 197 IR 266, [27].
[51] Wan v AIRC (2001) 116 FCR 481, [30].
[52] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].
[53] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140, [82].
[54] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27]-[29].
[55] [2000] HCA 47; 203 CLR 194 at [19].
[56] House v The King (1936) 55 CLR 499 at 505.
[57] [2024] FWC 2430, [93]-[94].
[58] Ibid, [97].
[59] Ibid.
[60] Ibid, [96].
[61] Ibid.
[62] Appeal Book, 67.
[63] Appeal Book, 70.
[64] [2024] FWC 2430, [95].
[65] Ibid, [99].
[66] Koutalis v Pollett [2015] FCA 1165, [43]; Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941
[67] [2024] FWC 2430, [84]
[68] [2015] FCA 1165, [43]
[69] City of Sydney RSL & Community Club Ltd v Balgowan[2018] FWCFB 5 citing Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162, [75] cited in [87] of [2024] FWC 2430.
[70] [2024] FWC 2430, [54].
[71] Ibid, [52].
[72] Ibid, [102].
[73] Ibid, [102], [104].
[74] Ibid, [104].
[75] Ibid, [95].
[76] Ibid, [37].
[77] Ibid.
[78] Ibid, [103].
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