Nicole-Marree Smith v Bright Life Homes Pty Ltd - [2024] FWC 1494

[2024] FWC 1494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Nicole-Marree Smith
v

Bright Life Homes Pty Ltd

(C2023/4785)

COMMISSIONER HUNT

BRISBANE, 7 JUNE 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee was forced to resign – employee not forced to resign – application dismissed.

On 8 August 2023, Mrs Nicole-Marree Smith made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Mrs Smith stated that she had been dismissed from her employment with Bright Life Homes Pty Ltd (the Respondent) on 19 July 2023.

In its Form F8A – Response to general protections application, the Respondent raised a jurisdictional objection to the application on the grounds that Mrs Smith was not terminated on the employer’s initiative pursuant to s.386(1) of the Act.

Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Mrs Smith was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Mrs Smith was dismissed in contravention of the general protections provision.

Legislative Provisions

Section 365 of the Act provides as follows:

“365 Application for the FWC to deal with a dismissal dispute

If:
(a)a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

The meaning of “dismissed” is provided at s.386 of the Act:

“386 Meaning of dismissed

(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

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

(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

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

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

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

This decision deals only with the jurisdictional objection to be determined; that is, was Mrs Smith dismissed from her employment? It is not disputed that on 19 July 2023, Mrs Smith resigned from her employment by sending a text message to Mr Joel Nicholson, Site Supervisor as follows:
“Good morning mate,

I am tendering my immediate resignation this morning.
I want to personally Thankyou for being an awesome boss and wish you well in the future.
I returned my shirts to the office this morning which I have put on your desk.
The key to the end shed, CQs key and the fuel card and receipts are all in the top draw of the desk.
I have the office key which I will drop to your car this morning. (could not lock the office without it sorry)
Take care
Kind regards
Nicole”

Accordingly, the consideration before the Commission is whether Mrs Smith was forced to resign from her employment because of conduct or a course of conduct engaged in by the Respondent.

The Respondent is a new home builder in the Agnes Water/Seventeen Seventy area. Mr Kane Bentley is the Building Director and owner. His sister, Ms Melissa Gaultier is the General Manager. Her husband, Mr Jules Gaultier, works in the office. Ms Mikela Nicholson is an owner. Mr Nicholson is a Site Supervisor.

Hearing

The matter was heard before me on 10 November 2023 in the Gladstone District Courthouse and then on 22 November 2023 by video using Microsoft Teams. Mrs Smith represented herself, supported by her adult son. The Respondent was represented by Ms Gaultier. The following people gave evidence and were cross-examined:

Mrs Smith;
Ms Gaultier;
Ms Bianca Dezotti, Finance Manager (by Order of the Commission);
Mr Nicholson (by Order of the Commission);
Mr Graeme Wardlaw, Builder; and
Mr CD, Apprentice Builder.

I considered it necessary to make a confidentiality order under PR775771 in respect of a young worker employed by the Respondent on the basis that Mrs Smith made allegations of criminal behaviour against him, and he was under 18 years of age. He is to be referred to as Mr CD.

Evidence of Mrs Smith

Mrs Smith commenced a casual assignment with the Respondent as a trades’ assistant in May 2021. She is 55 years old and a widow.

By early 2023, Mrs Smith was experiencing difficulties with her colleagues. She reported the following concerns:

· she was being bullied by Mr Wardlaw, Mr CD and Mr Stuart McFarlane;
· Mr Wardlaw and Mr CD were stealing supplies; and
· Mr Wardlaw, Mr CD, Mr McFarlane, Mr Zac Russell and Mr Luke Kapo were engaging in time theft.

Mrs Smith stated that while working at a particular site, three plumbers were required to use an excavator to dig trenches to lay pipes. The excavator was at a different site where Mr Wardlaw and Mr CD required its use. Mrs Smith said the dimensions of the hole required to be dug by Mr Wardlaw and Mr CD would have meant they’d only need 30 minutes to use the excavator. Mrs Smith went to the site and explained numerous times that the plumbers required the excavator. She said they ignored her, and they took 6 hours.

Mrs Smith provided further detail of how Mr Wardlaw removed his work trailer and parked it over the front of the excavator trailer. Mrs Smith required assistance of another worker and considers that Mr Wardlaw was purposely hindering her.

On another occasion, Mrs Smith was looking for a particular tool. She asked Mr Wardlaw if he had it, to which he replied that he had no idea where it was. When the job was completed, Mr Wardlaw gave the tool to Mr Nicholson and said it had been in his trailer the whole time. Mrs Smith considered this happened on a number of occasions.

On 14 March 2023, she resigned her employment. On 14 and 15 March 2023, Ms Gaultier and Mrs Smith exchanged the following text messages:

Ms Gaultier: Hey Nic, joel just told me you were leaving and sounded worried. Are you ok? Sorry I only just found out thanks Mel

Mrs Smith:Hey hunny, All good Thankyou
Ms Gaultier: Im out of office today but ive spoken to kane joel yiva and ill have a proposal tomorrow we all want you to stay
Mrs Smith:Will chat tomorrow sweetheart

On 16 March 2023, Mrs Smith met with Ms Gaultier and Mr Bentley to discuss her resignation. She explained that Mr Russell, Mr Wardlaw, Mr CD, Mr McFarlane and Mr Kapo were at home, yet putting in their timesheets when they were not working. Mrs Smith explained that she was being contacted by office staff, Lee and Yiva as to what these employees were doing at sites on particular days, and Mrs Smith had to explain that they were not at work on those days. She considered it to be time fraud.

She also alleged that Mr Wardlaw and Mr CD were stealing supplies from sites and from the yard.

Mrs Smith was convinced not to resign her employment, and instead offered a promotion to Supervisor. Ms Gaultier walked her through what her increased responsibilities would include.

On 18 March 2023, Mr Bentley requested Mrs Smith remove supplies from an address on Sunbird Drive, Agnes Waters. There were contractors working on the site and it was identified that there was a small window of opportunity to remove supplies. Mrs Smith arrived on site and requested approval from Dylan, the head carpenter on site, to have assistance from employees he had been supervising. Dylan agreed and said when they finished assisting Mrs Smith, they could resume their duties.

Mrs Smith noticed that Andrew was working, and Mr CD was standing around, not doing anything. She asked both of them to assist her. Andrew came straight away, yet Mr CD ignored her. She asked Mr CD if he had heard her, to which he responded, “yeah”. She replied, “Can you come and help then, please?” He took his time to assist and after a few trips, stopped assisting. She then said to him, “[Mr CD], you were asked to help so come and help please.” Two other employees instructed Mr CD to assist Mrs Smith.

Mrs Smith and Mr CD then had the following conversation:

Mrs Smith:If you don’t want to help any more you need to communicate with other workers, not just decide you don’t want to help anymore and leave.
Mr CD:You are not my supervisor so you can’t tell me what to do.
Mrs Smith:Aren’t I?
Mr CD:No, you’re not, so you can’t tell me what to do.
Mrs Smith:Dylan is the head chippie and these are his words that I conveyed to you and he is your supervisor. Can you go and grab the iron like I asked earlier?
Mr CD:No, I shouldn’t have to.
[he stood there while they continued to work]

Mrs Smith:Don’t fuck with me, [Mr CD] and start helping.
[he continued to stand there]

This is a request from Dylan so can you help?

Mr CD:No
[he stepped forward in a threatening manner, close to Mrs Smith]

Why? What are you going to do about it?

Mrs Smith:I will drop you, is what I will do about it, now get the fuck out of my face and the fuck away from me before I do.
Mr CD:Just drop me then.
Mrs Smith:Just get the hell away from me, [Mr CD].

Mrs Smith accepted that her language and behaviour was not professional but stated that she was too frightened to walk away or turn her back as she was under the impression that Mr CD is a drug user and could be unpredictable. Mrs Smith has since had counselling and has identified that she acted in a ‘fight’ mode when dealing with Mr CD on this day.

On 21 March 2023, Mrs Smith attended the office and met with Ms Gaultier where she signed a new contract for her promoted role with a title of Head Trades Assistant. She was informed that her new pay rate would be $35 per hour, an increase of $2 per hour. She asked why male supervisors on site are paid between $42 and $50 per hour, to which Ms Gaultier explained that her husband, Mr Gaultier, would be upset, as would Rachel and Yiva in the office as she would be paid more than office staff.

Mrs Smith requested to be made full-time. On 23 March 2023, Ms Gaultier sent the following text message:

“Hey as predicted I got shut down on full time. It took me five years to get Joel full and Tim quit because he couldn’t get it. Sorry I tried. Id have more chance getting a pay increase as time goes on sorry”

The increased responsibilities of the role required her to manage stock control and monitor systems as there was theft on sites and at the yard. She was to closely monitor Mr Russell, Mr Wardlaw, Mr CD, Mr McFarlane and Mr Kapo.

She was charged with introducing a photo system and a timesheet system called Sitebook as it shows whereabouts in real time and cannot be changed. Following her promotion, Mrs Smith was messaging Ms Gaultier daily, informing her if staff had not been at work or had left early. She then was asked to report it to Yiva, then Bianca.

Mrs Smith would attend the office at 6:00am and approve, monitor and update the timesheets. When promoting her, Ms Gaultier had requested Mrs Smith to stick with the role for at least two months, as it would take that long to fix the bullying, fraud and stealing. She considered, however, that this aggravated her workplace bullies, Mr Wardlaw, Mr CD and Mr McFarlane. She considered that they embarked on a course of action to force her to leave her job.

Mrs Smith regularly worked overtime and was paid at a flat rate of $35 per hour.

Mrs Smith stated that on or around the week commencing 13 March 2023, Mr Wardlaw and Mr CD were working at a particular site. Mrs Smith is convinced that Mr Wardlaw stole two 90 x 90 merbau posts and two slabs of hardwood, sufficient to make a bed for Mr Wardlaw’s daughter’s bed, as he had been informing people he was attempting to do.

Mrs Smith informed Mr Bentley, Ms Gaultier and Mr Nicholson and was able to obtain footage of the suspected theft. Mrs Smith spoke with an onsite manager who observed Mr Wardlaw and Mr CD enter the site with nothing on their trailer, yet a photo exists of a trailer purportedly being driven by Mr Wardlaw with a 90 x 90 merbau post on the trailer when he exited.

This was being investigated in late March 2023 and the following text messages were exchanged on 27 March 2023:

Ms Gaultier: [photo]
What was the missing timber and off what site do you know?

Mrs Smith:it was two lengths of 90 x 90 merbau posts at 4 metres long. Michael is going to check Fridays footage too.

Ms Gaultier: Ok. He doesn’t write times on his timesheet Yiva said just hours and he was on two sites that day so hard to prove without this code thing

Mrs Smith: No other sites need those posts hunny
And the posts were taken off [number] as we needed them for garage. Joel knows about it, as I kept him updated.

Ms Gaultier: Ok. I’ve sent it to Kane and Joel but can’t reach them

Mrs Smith: They finished late hunny so will be driving home

Mrs Smith:Joel and I asked everyone on Wednesday if anyone removed or knew anything about the posts. [Mr Wardlaw] and [Mr CD] both said they knew nothing about them. They lied straight to Joel which is heartbreaking. They said the same to me but I knew they were lying as their stories changed between Joel and I. Michael checked as requested by me today Friday the 17^th and didn’t see anything.

Mrs Smith noted that in a telephone conference before the Commission, Ms Gaultier tried to explain Mr Wardlaw’s possession of a piece of timber, when Ms Gaultier said that Mr Wardlaw had asked a manager if he could take a piece that was old and split, with holes in it. Mrs Smith’s evidence is that there were no other homes with 90 x 90 merbau posts and not cut offs and she and others had cleaned each site.

Mrs Smith considered that a proper investigation was not undertaken, and the Respondent found a way to look after and excuse Mr Wardlaw. The following message was sent to all employees on 20 April 2023:

“Hi all this message is being sent to all BLH staff.
There has been quite a lot of reordering due to materials going missing from site, some samples are:
[address]/doors and hardware
[address]/tiles
[address]/posts
[address]/servery
If you know anything about the stealing happening on site can you please contact Melissa. We have no choice now but to start installing cameras and any ongoing theft will need to be reported to the police.”

Mrs Smith also found it frustrating to deal with Mr Wardlaw’s hours of work and the hours that he claimed. She considered that he would stay home or do a couple of hours of work yet claim hours for a full day’s work.

Mrs Smith spoke with a representative from Sitebook, the sign-in system, and updated the security so that a photo was required, and it would be in real time. On many occasions, Mr Wardlaw would not take the photo and would make up excuses as to why he didn’t need to. Or he would change hours and not match costs centres and descriptions. She had to speak with him on numerous occasions, and Ms Gaultier was monitoring Mrs Smith’s performance on this issue.

Mrs Smith produced the following text messages between herself and Mr Wardlaw:

(a) 11 April 2023:

Mrs Smith: Morning
It is a requirement of Brightlife to sign in and out with the photo of the site you are on.
If you have any trouble please let me know and I will assist you.
Cheers

Mr Wardlaw: ok thanks heaps for that
I wasn’t there Thursday so I didn’t think I had to sign on.
Mrs Smith:The days you work it is a requirement. Also to fill in the cost centre and notes. If you have any trouble pls [missing text]

(b) 26 April 2023:

Mr Wardlaw: Hey nic, I won’t be in today sorry
Mrs Smith:I received a call from the office to say that you have not been filling in your breaks and cost centre. Can you please make sure it’s done this week. If you have any trouble call me and I will walk you through it

Mr Wardlaw: Yeah I’ve had a chat with yiva on Monday. I missed a couple lunch breaks I didn’t write no smoko, I got it, I just got a lot on my [missing text]

(c) 2 May 2023:

Mrs Smith: Good morning
A reminder to pls take a photo for work commencement and finish times. Cheers

(d) 3 May 2023:

Mr Wardlaw: Hi Nicole, I’m heading down to Bundy to get my shoulder x-rayed, I’m not fucking another night with no sleep, I’ll be back [missing text]

(e) 17 May 2023:

Mrs Smith:     Morning
  What time did you finish yesterday?
  Can you pls make sure you take photos
Mr Wardlaw: The photo was in the car in the street
  Outside the job
Mrs Smith:     Can you pls take pics of the signs.
  Admin are on my back about sign pics
  What time did you finish pls
(f)     6 June 2023:

Mrs Smith: Morning
Management require pics for each job. Sign in at arrival.
When you go to the next job pls sign out and sign back in. Also sign out at the end of the day.
Cheers

Mr Wardlaw: No dramas, Thank you, yesterday was a proper fuck up, I didn’t sign out before I signed in again n it all turned to shit sorry

Mrs Smith: All good management are all over it and want it done
Mr Wardlaw: Tried to sign off with photo but it wouldn’t download the photo, took my phone into office just to show them the problem, just thought I’d let you know that I did sign on n off I just couldn’t download the photo

Worked it out seems [name] turned my roam off so I couldn’t get internet, been like it for weeks, obviously been the hassle. I did actually take photos n shit this morning n afternoon but it just wouldn’t go through

(g) 7 June 2023 at 6:28am:

Mr Wardlaw: I did fit out like I wrote
Mrs Smith:Yiva and Melissa have requested the notes section be filled out of the work performed in the fit out etc.
Pls give them a call if you have any concerns with their request.
Cheers

Mr Wardlaw: No dramas first I’ve heard of having to fill out that but, id there any chance that we can do this after 6:30, that’s what time I start

Mrs Smith considered that at no time did management speak with Mr Wardlaw about his obligations. She considered that he was speaking derogatorily about her, not working the hours he was claiming, stealing, and if management had addressed these issues, she would not have been forced to leave to protect herself.

Issues with Mr McFarlane

Mrs Smith considered that Mr McFarlane would claim hours he did not work. He was required to message her if he was not attending work or if he was leaving early. He didn’t message her. She had to request on multiple occasions for him to take photos of the worksites he was at. The following text messages were sent between Mr McFarlane and Mrs Smith on a Sunday evening when neither of them was at work:

(a)Sunday, 2 April 2023 at 5:17pm:

Mr McFarlane: Have no interest in what u have to say you’re a problem with material everytime

Year fuck off some day
I have an don’t care about anything

Mrs Smith:Stuart, I am not sure if these disrespectful messages are for me. I will kindly ask you to never send me anything of the kind again as they neither make sense or reason. You are obviously under the influence of drugs and or alcohol. In future the only conversations with me should be work related and in work hours. Everything else will be ignored!
Mr McFarlane: I’m only respectfull of people who no what there doing

Sorry mate but don’t ever talk to me about building u no jack shit
Just remember u no jack shit about anything
Just pick up shit and don’t annoy me
Oh yeah I don’t care who u think u are

On 3 April 2023, Ms Gaultier sent the following text message to Mrs Smith regarding Mr McFarlane’s offensive text message the day earlier, and Mr CD’s conduct on 18 March 2023:

“Hi Nic Jules showed me the message from Stu. Please know him and [Mr CD] will receive a warning. I’m working from Brs and had hoped to do it in person but is not working out that way. This behaviour is not acceptable. Thanks Mel”

On 5 April 2023, the following text messages were exchanged:

Ms Gaultier: Stu has now received a warning and has had to admit he has been fully out of line

Mrs Smith:     Thankyou
  What’s happening with the other two please
Ms Gaultier:    “[Mr CD] is to meet me in the office post Easter for his warning and Kane has been away sick, he wants to deal with [Mr Wardlaw] face to face. I’m working from an alley in west end brs currently”

Mrs Smith: Thankyou
[Mr Wardlaw] asked Frankie for a tap at the meeting on Monday and Frankie said he didn’t have one. Couple of blokes said happy to steal in front of Joel and all of us. Bloke has no shame

Ms Gaultier: Yep he knows physically he has us over a barrel with people with work experience needed vitally on site at the moment. But be assured as soon as we can get contractors into place, we will all get the last laugh. Kanes better at chess!

What was the tap for not a jobsite I assum

Mrs Smith: no for his home, his tank
Ms Gaultier: Unbelievable

In early April 2023, Mrs Smith and Mr McFarlane exchanged the following text messages:

Mrs Smith:Hi stu can you let me know if you had breaks on thurs Friday Wednesday this pay week

Mr McFarlane: They were just normal days as of every other day of the year

Mrs Smith:Morning
It is a requirement of Brightlife to sign in and out with the photo of the site you are on.
If you have any trouble please let me know and I will assist you.
Cheers

On 25 May 2023, Mr McFarlane sent the following three text messages to Mr Gaultier in the early evening, purportedly about Mrs Smith. Ms Gaultier telephoned Mrs Smith on 26 May 2023, informing her that Mr McFarlane had declared that Mrs Smith was a ‘huge stoner’ and turning up to work drug affected. Mrs Smith explained to Ms Gaultier that she could not put in the long hours and days to achieve the handing over of three houses if she was affected in any way. Ms Gaultier shared the text messages with her, produced below:

“hey my friend can u stop nic texting after wk hours im done with her mull cookies have been clean for along time cheers mate
Haven’t touch the weed 3 mths these workers are riddled with it
How can u have leaders who are mad stoners”

Ms Gaultier also informed Mrs Smith that Mr Wardlaw had been in the office complaining about her.

On 27 May 2023, Mrs Smith sent the following text message to Ms Gaultier:

“Morning sweetheart
I just wanted you to know that yesterday when I was notified of what pud and stu have been saying and doing it was very disheartening. They both do and have made work hard.
I turn up to work and have put in massive hours and have worked myself, some chippies and the TA’s to the bone to meet deadlines.
Which we have all done successfully and ethically.
I have thanked each and every one of them daily for their team work and effort. Even brought some of them beers.
I never turn up hungover or effected in any way and have been fighting that dam flu for the last couple of weeks. But still turned up. I have worked favours with our suppliers to have stock they told Joel they didn’t have, to me then sorting it with them and have it arrive to finalise and complete the work on the houses to be handed over.
What’s disheartening is the two in question have not turned up to work and when they do their work effort and behaviour is below standard.
Stu always smells of alcohol and makes several trips home to drink while on Brightlifes time. Oh&s nightmare. When attending site he does the minimal and complains constantly.
Saying he has been off the drugs is bull as in the last two weeks he has asked others at work can he buy some which they refuse because of his behaviour when he is effected. He does not like the pics to sign in and out because he can’t commit fraud like he has been doing for a while.
Never messages to say he is not coming in which makes it hard for Joel to assign work. Does not follow simple instructions directed from Joel.
Messes up so much, that the fix ups cost Brightlife money in supplies and time.
Pud has been saying he is coming to work to Joel, then doesn’t turn up.
Spends his time when or if he does turn up bagging the hard workers, driving around and doing stuff all, unless he is supervised by Joel or Kane. Then he works effectively. He has been saying for weeks he is leaving, which in my opinion is attention seeking. If the man wants a supervisor position, which he pay rate supports, he needs to turn up to work for starters, work hard, and stop being derogatory towards or about the ones that do turn up and work. Talk to Kane about it. As you know he has been staling of Brightlife, pinching tools of other workers, committing fraud and doing the minimal unless under supervision from Joel or Kane. Still has not fixed the septic from months ago.
The problem with these two is they have got away with it for a long time and hate the fact that measures have been put in place to stop them.
I never act like the boss or tell anyone what to do but ask them and let them know the time frames we need to meet as per Joel, Kane or Jules instructions and everyone besides these two do it without drama.
Brightlife have a great team and awesome guys that turn up work and do all they can for the company. The last two weeks many of them have been doing the work of two or three men without a second thought. As you and I both know, what people do in their own time is their choice as we all have lives outside of work. These two on the other hand need to have a good hard look at themselves instead of projecting on others their own failures.
I don’t expect Brightlife to do anything as I know how hard it is to get workers, but simply understand that these two do not have the best interest in Brightlife, the team and their behaviour effects everyone around them. Everyone seeks them as they truly are.
Everyone else although knowing the above, treat them respectfully.
Thes two men should do the same.”

Ms Gaultier replied as follows:

“Hi Nic, I totally agree with you, if it was my job I would fire them on the spot. I’m going to talk to Kane again on Mon I can’t stand poor work ethic either. If he doesn’t want to fire them I’m more then happy to. Or as a min say sorry no work for you at the moment and let them go on their own! I feel they are the last of the old crew and bad apples bring everyone down. I know Kane is stressed to the hilt so I need to be careful how I handle it. Its an insult to everyone else who works there arses off agreed!”

Text message 2 June 2023

On 2 June 2023, Mrs Smith sent the following text message to Mr McFarlane as he had, on occasions, turned up to her home and intoxicated:

“Afternoon Stuart,
I need to make this very clear and you need to take me seriously!!! This is personal and not work related. You are not allowed anywhere near or on my property under any circumstances!
You are not welcome here!”

Apprentice training of Mr CD

Part of Mrs Smith’s role was to assist apprentices with their training modules. She had set a goal for Mr CD to complete five modules in a week. In the first week of June 2023, Mr CD said he had done some work, but hadn’t completed the five modules. Mrs Smith required him to work from the office on 16 June 2023 where she would assist him.

On arrival, Mr CD said he had only completed one of the five modules. Mrs Smith asked him if there were any issues and did he require support, to which he said he didn’t want to complete them. She informed him that he needed to, and he replied, “I don’t have to do anything you ask and you’re just a stupid TA.”

Mr Gaultier was sitting at the next desk and informed Mr CD that Mrs Smith is his supervisor, and he needs to do what she asks of him. Mr CD raised his voice and became angry. Mrs Smith asked him to sign out of the computer and leave the office as his behaviour was inappropriate. She said that she would take him back to work and speak to Mr Bentley about his behaviour.

Mrs Smith stated that not only did Mr Gaultier witness the behaviour, but Ms Dezotti did too. Mrs Smith stated, “This is how he treats and speaks to me all of the time.”

On leaving the office, Mrs Smith yelled out Mr CD’s name. He turned around, told her to fuck off and gave her the middle finger. Mrs Smith was embarrassed. She returned to the office and requested Mr Gaultier to make a note of what had just occurred.

Mrs Smith then received a phone call from Mr Russell, stating that she was picking on Mr CD and wouldn’t give him a lift to work. She explained that she is constantly treated this way by Mr CD. She stated that she didn’t want to be disrespected by Mr CD.

Mrs Smith then reported the conduct to Mr Bentley. He said that he would speak with Ms Gaultier and Mr CD would receive another official warning. She asked if he had received an earlier warning, to which Mr Bentley responded that he thought Ms Gaultier had done that. Mrs Smith informed Mr Bentley that Mr CD’s conduct was not acceptable, and she couldn’t put up with his disrespect and violence and she would be forced to leave if nothing was done about it.

Shortly thereafter, Ms Gaultier rang Mrs Smith and informed her not to bring apprentices to the office and they are now banned. Mrs Smith said that Angus had done really well with his modules under her supervision, and he shouldn’t be punished by a ban. Ms Gaultier repeated that all apprentices are banned from the office.

That afternoon Ms Gaultier sent two text messages to Mrs Smith; the first stating that Mr Russell would now deal with Mr CD’s apprenticeship check-ins, and Mrs Smith could continue to handle Angus. The second text message sent around one hour later advised that Mr Russell would also now be handling Angus.

Incident of 21 June 2023

Mrs Smith was due to take some planned time off work between 22 and 29 June 2023.

On 21 June 2023, Mrs Smith received a text message from Mr Russell regarding supplies at a worksite. Mrs Smith took the supplies, as requested. On arrival, Mr CD approached the back of the vehicle where she was unloading the timber. She informed him that she would not tolerate his constant abuse and violence anymore.

Mr CD replied, “You’re just a stupid old woman who constantly picks on a 17 year old and I’m going to get my mates and come around to your home and bash you up.” Ritchie approached the back of the truck and stood there.

Mr CD continued, “You’re just a labourer and can’t tell me what to do. You’re just a stupid old woman. You should just fuck off. You have no idea what you’re doing. You’re just a dumb old cunt.” Mr Russell approached the back of the truck then went to his own vehicle.

Mrs Smith informed Mr CD that she would not tolerate this kind of behaviour from him any longer. Mr Russell then said, “That’s enough, [Mr CD], we’re in the workplace.” Mr CD replied, “But she is just a stupid old cunt.” Ritchie and Mr CD started to take the timbers off the back of the truck. Ritchie asked Mr CD if he was OK.

Mr Russell approached Mrs Smith and said, “You two certainly don’t get on.” Mrs Smith replied, “I beg your pardon, you have just witnessed him violently abusing me and threatening me and all I did was say that I would not tolerate this kind of behaviour from him anymore.”

Mr Russell replied, “I have never seen [Mr CD] act that way before.” Mrs Smith replied, “Every time I am near [Mr CD] he is violent and abusive towards me for no reason. Then he lies about it and people then have a go at me. If he is big enough to act this way he should be big enough to tell the truth. I am exhausted from constantly being treated like this at work and can’t wait to be away from all of this for a week.”

Mrs Smith drove to the office and saw Mr Bentley. She explained to him what had just happened and stated that she can’t put up with it anymore and needed something to be done or she would have no choice but to leave. She stated, “I don’t want to but you’re leaving me no choice.” Mr Bentley requested Mrs Smith to contact Ms Gaultier and have her speak with Mr CD and receive another written warning. Mrs Smith asked if he had been spoken to before and received the earlier warnings? Mr Bentley replied, “I told [Ms Gaultier] to.”

Mrs Smith then spoke with Ms Gaultier, advising that she had spoken with Mr Bentley, and he had suggested that Mr CD receive a written warning. Mrs Smith asked Ms Gaultier if there were any jobs going in the office, to which Ms Gaultier said no, “Kane would never allow it as you are too important on-site.”

Mrs Smith then spoke with Mr Nicholson and explained that someone needs to protect her while she is on her one-week holiday as she doesn’t know what Mr CD, Mr Wardlaw or Mr McFarlane would do. She said it’s not acceptable, and she would be forced to leave if she is not protected. It should be noted that at this point in time, Mr McFarlane was no longer employed by the Respondent.

Mrs Smith informed Mr Nicholson that she had spoken with Mikela, an owner of the business on 20 June 2023 and informed her of the stealing, fraud and bullying and said that it was too much for her. Mr Nicholson asked what Mikela’s response was; Mrs Smith stated that Mikela had suggested she punch Mr CD in the mouth or tell him she won’t put up with his crap anymore. Mikela committed to speaking with Mr Bentley about the issues raised with her as they didn’t want to lose her.

Mrs Smith was too frightened to be at home and she left her home on the evening of 21 June 2023. While away, she became more fearful of returning home and extended her leave until 17 July 2023.

18 July 2023

Mrs Smith returned to work on 18 July 2023. She was informed by Zeke, Trades Assistant, that while she was away, Mr CD had an incident with Mrs Smith’s tenant and fellow employee, and supplies had been stolen from sites and the yard.

Ritchie, another Trades Assistant arrived on-site and ignored Mrs Smith, ignored her work directions and followed Zeke. Ritchie grabbed gloves for himself and Zeke, but not for Mrs Smith. Mrs Smith detailed how throughout the day, Ritchie ignored her and was shirking his responsibilities. She considered that because Ritchie had observed Mr CD’s violent outburst on 21 June 2023, he too was treating her disrespectfully. Mrs Smith reported Ritchie’s conduct to Mr Nicholson.

Mrs Smith went to the office to inform Ms Gaultier that she was leaving, however Ms Gaultier was busy.

On arriving home, Mrs Smith was shaky, anxious and teary. She could not return to work as she considered that the bullies had not been addressed by management, and she now had to work closely with Ritchie who was showing the same characteristics as the bullies.

There was a further hearsay account where Mrs Smith was informed that Mr CD wished to have his father come to her granny flat and bash her tenant who also worked for the Respondent.

Mrs Smith heard further accounts that supplies had been stolen from the yard and sites, and Mr Wardlaw had not been at work but was seen wearing his work uniform at the tavern.

Mrs Smith considered it to be all too overwhelming, having to monitor her bullies for fraud and theft, while management did not address any of the issues she had raised. She considered that she had no other option but to resign her employment to protect herself.

On 19 July 2023, Mrs Smith resigned her employment to Mr Nicholson by text, reproduced at [6].

The following texts were exchanged between Mr Gaultier and Mrs Smith:

Mr Gaultier:    Hi Nicole,
It is my understanding you are leaving us…
  Do you want to chat?
  Could you please return the keys as well? Office, shed and CQ

Mrs Smith:As I advised Joel, the fuel card and receipts, CQs key and end shed key are all in the top draw of his desk. As I could not lock the office door without the office key, it was put on the front seat of Joel’s car.
Everything is returned with respect.

Mr Gaultier:    Thanks.
  Have a good day
  Did you have David’s notebook as well?

The following text messages were exchanged between Ms Gaultier and Mrs Smith:

Ms Gaultier: Hey are you ok. I heard you quit…

Hey Nic, not sure whats happened but it would be good to chat. Can I confirm that the stuff in the office is yours returned? Also if you have left we would nice to at least say goodbye.

Mrs Smith: Morning melissa,

Confirming everything at the office is mine. I do not have anything of Brightlife’s left in my possession. My reason for leaving is simple. I have been harassed, bullied, intimidated, lied about, degraded, threatened with violence and even to the point where Brightlife employees are coming to my home to bash me up.
I have spoken to management on a number of occasions with regard to the above.
I made it clear to all management, if these above mentioned matters were not addressed and myself protected, I would resign.
On returning from holidays things had not been addressed and had escalated.
As I was not protected, I had no choice but to leave to protect myself and resign immediately.
I will further add the Brightlife employees that have done the above to me are the ones whom have stolen lied and have committed fraud in Brightlife.
I wish Brightlife all the best for the future but will not be returning.
Kind regards
Nicole

Ms Gaultier: Hi nic this is a serious accusation. Please nominate who threatened you in your home so the police can be called.
Thank you Melissa

Also I did not know you came in the other day as I had meets all day, ive just been told as I had a day off yesterday

Im being told Daves diary was lastly with you, where would I locate that please

Mrs Smith:With all due respect I do not wish Brightlife to be involved in my matters and will be handling things by myself.
Best of luck.
Nic

Joel was given the diary.

Ms Gaultier: Thank you, all the best

On 20 July 2023, Mrs Smith attended the Agnes Waters Police Station and reported Mr CD’s behaviour to a Senior Constable. The Senior Constable advised that she could press for Mr CD to be charged for his threats and behaviour towards her. Mrs Smith said that she did not wish for him to be charged at this stage but did request that he be spoken to regarding his threat to come to her home with his mates and bash her up.

The Senior Constable stated that he would put a flag on her name and address in the event she did call then a patrol would be dispatched immediately. He committed to speaking with Mr CD. According to Mrs Smith, the Senior Constable did speak with Mr CD and informed the Senior Constable, “I don’t care.”

On 8 October 2023, in relation to this application, the Senior Constable confirmed in writing that Mrs Smith had attended the Agnes Water Police Station on 20 July 2023 and had reported her workplace concern in respect of Mr CD. She had reported that she was threatened by Mr CD but did not wish to make a formal criminal complaint at the time.

Post-resignation employment

On 11 September 2023, Mrs Smith commenced casual employment with a concreting contractor who contracts to the Respondent on its work sites. Mrs Smith considered that she was working for an employer who is supportive of her and will not tolerate bullying in her workplace. Even though she would see people who she claimed had bullied her, she felt safe.

Mrs Smith reported that the employment ended on 3 October 2023 on account of Ms Gaultier informing her new employer that she did not want Mrs Smith delivering concrete for her new employer on sites where the Respondent’s employees were, and for whom Mrs Smith had alleged that she felt threatened by them.

Evidence given during the Hearing

In evidence given during the Hearing, Mrs Smith stated that she flew to Melbourne on 22 June 2023 to visit family.

On her return to work on 18 July 2023, she doesn’t know for certain if Mr CD did, in fact, threaten to have his father bash Mrs Smith’s tenant and workmate. It is hearsay evidence.

She stated that while she felt like she didn’t have any other option but to resign, she is certain that Mr Bentley, Ms Nicholson and Ms Gaultier did not want her to resign.

She did not visit her doctor until after she had resigned. She considered that it wasn’t just what was said and done on 18 July 2023 that caused her to resign; the damage was done.

In answering questions from me, Mrs Smith conceded that she did not inform Mr Bentley, Mr Nicholson or Ms Gaultier of Mr CD’s threat to bring his friends to her home to bash her.

In cross-examination, Mrs Smith conceded that she had not ever informed the Respondent that she was fearful for her life, rather, she said she was fearful for her safety.

She agreed that the construction industry had been a stressful place to work. She was stressed by the long hours of work, meeting the Respondent’s demands, dealing with suppliers, monitoring timesheets, however Mr Nicholson as her supervisor had been great.

In respect of the apprentices being in the office completing their TAFE work, Mrs Smith acknowledged that they were permitted one hour in the office and Angus had exceeded this amount. She considered he just needed some support.

Mrs Smith agreed that she was offered and accepted a promotion in March 2023 because she was a good worker and agreed that the role had been created for her because she had threatened to resign.

She agreed that instead of resigning in July 2023 she could have brought a workers’ compensation claim. She agreed that Ms Gaultier had offered to her ‘Mates in Construction’ to assist with workplace stress.

In evidence given during the Hearing, Mrs Smith stated the reason she did not want the Respondent to get involved with her allegations of threats of violence towards her was because she felt that the Respondent had not treated her well. She stated that on her return to work on 18 July 2023, and she heard the report that Mr CD wanted to have his father bash her tenant and work colleague, she considered that there was a significant threat to her safety at home. She did not speak with her tenant and work colleague to see if this had, in fact been said to him.

Mrs Smith submitted she had no other option available to her but to resign, as she felt that the management of the Respondent was not taking her concerns seriously. She said she had reported her concerns about bullying to several senior management staff within the Respondent but conceded that at no point did she report any threats of violence – especially about Mr CD threatening to come to Mrs Smith’s home – to the Respondent.

Mrs Smith stated she was not aware of the Commission’s anti-bullying options and had not investigated them. She spoke with her GP after resigning and had not contemplated making a workers’ compensation claim while she was away from the workplace or before resigning her employment.

Evidence by witnesses ordered to attend

Evidence of Mr Joel Nicholson

Mr Nicholson gave telephone evidence at the Hearing, having been ordered to give evidence by the Commission at the request of Mrs Smith.

Mr Nicholson considered that Mrs Smith had sought to resign in March 2023 due to the conduct of employees who are no longer working with the Respondent. In answering questions of the Respondent, he agreed that the Respondent sought to find a solution by promoting Mrs Smith rather than have her resign.

In respect of how long Mr Wardlaw and Mr CD might have required use of the excavator for dimensions of 1m x 1m x 30cm with checks, Mr Nicholson suggested it might have taken approximately one hour.

In respect of why Mr Wardlaw had possession of a particular tool, Mr Nicholson considered that Mr Wardlaw returned it when he found it. It is his evidence that people make use of other people’s tools all of the time.

In respect of the timber Mrs Smith suspects Mr Wardlaw stole, Mr Nicholson stated that Mr Wardlaw had said that the timber had not been there since before the weekend. Mr Nicholson understood that at the relevant time there were a number of sites where merbau posts were required. In answering questions from the Respondent, Mr Nicholson said that there was no evidence the post was stolen, and he didn’t get a detailed explanation.

Mr Nicholson stated that at no time did Mrs Smith declare that she was being bullied by Mr Wardlaw. Mr Nicholson knew that Mrs Smith had dramas with Mr Wardlaw, Mr CD and Mr McFarlane, but at no time had she said that she was being bullied.

Regarding Mrs Smith’s leave of absence between 22 June 2023 and her return to work on 18 July 2023, Mr Nicholson recalled that Mrs Smith was going to visit her son interstate as he was recovering from a knee operation. Mrs Smith agreed in questioning that she had originally required 10 days of leave, however Mr Nicholson stated that Mrs Smith sent him a text on 6 July 2023 stating she would extend her period of absence and would return on 18 July 2023.

Mr Nicholson stated that at no time had he heard Mr Wardlaw go out of his way to say anything negative about Mrs Smith.

Mr Nicholson stated that Mrs Smith’s behaviour was appropriate, and she was not inappropriate or flirty with other employees. He agreed that she had to speak with him about Mr Wardlaw’s timesheets, and that is something Mr Nicholson continues to work with employees on. Mr Nicholson considered that Mrs Smith had good communication skills.

When Mrs Smith questioned Mr Nicholson as to whether she had reported to him the 18 March 2023 incident involving Mr CD, Mrs Smith explained that Mr CD had pushed his body up into her face. Mrs Smith then stated that he was one metre away from her. I raised with Mrs Smith the inconsistency of her evidence. Mr Nicholson stated that he understood that Mr Bentley would deal with the situation.

In respect of Mrs Smith providing module training to Mr CD in the office on 16 June 2023, Mr Nicholson confirmed that he had heard about it.

In respect of the alleged threat of 21 June 2023, where Mr CD is alleged to have stated that he would bring mates around to Mrs Smith’s home and bash her, Mr Nicolson stated that this had never been reported to him by Mrs Smith. He does vaguely remember Mrs Smith reporting that Mr CD had said to her, “You’re a silly old woman.”

When Mrs Smith returned to work on 18 July 2023, Mr Nicholson had no idea that Mrs Smith had felt threatened in the time leading up to her return to work.

Evidence of Ms Bianca Dezotti

Ms Dezotti gave telephone evidence at the Hearing, having been ordered to give evidence by the Commission at the request of Mrs Smith.

In respect of Mrs Smith providing module training to Mr CD in the office on 16 June 2023, Ms Dezotti confirmed that she was present in the office. When Ms Dezotti entered, she recalled that Mr CD was seated while Mrs Smith was standing. She could not recall Mrs Smith grabbing a chair.

Ms Dezotti stated that Mrs Smith was standing directly behind Mr CD. He said that he didn’t need Mrs Smith’s help. Ms Dezotti stated that Mrs Smith was being rude and pushy to Mr CD.

Mrs Smith turned to look at Ms Dezotti and said, “This is the way he treats me all the time.” Ms Dezotti was confused as she had heard Mr CD say he didn’t need her help and he was still looking at the computer screen. Ms Dezotti said that Mrs Smith did not look happy.

Ms Dezotti cannot recall hearing Mr CD call Mrs Smith a stupid old woman. If he did say it, it was not loud. She knows Mr Gaultier said something, but she cannot recall what. She does not recall Mrs Smith informing Mr Gaultier on her return to the office that Mr CD gave her the bird outside.

Ms Dezotti stated that Mrs Smith was generally professional and honest but noted that she was a fairly new employee when Mrs Smith resigned her employment.

Respondent’s submissions and evidence

Evidence of Mr Graeme Wardlaw

Mr Wardlaw asserted that the cause for Mrs Smith’s issues with him was a disagreement about the use of a trailer to assist in cleaning a worksite in January 2023. Given the gradient of the work site, it caused two engine mounts to break on his vehicle. He informed Mrs Smith that he was not prepared to use his vehicle and trailer and he considered that Mrs Smith became upset with him because it now required more manual movement of the supplies.

Mr Wardlaw asserted that Mrs Smith was flirtatious and almost inappropriate on the worksite, while Mr Wardlaw did not reciprocate. Mr Wardlaw reported this to Ms Gaultier and at some point in 2023, he requested the Respondent not put them working on the same sites together.

Mr Wardlaw stated that the reason he often delayed lodging his timesheets was due to difficulties with internet or phone signal access at some worksites compounded by his lack of technological skill. He didn’t appreciate Mrs Smith sending him text messages prior to his 6:30am start time as he was busy assisting his teenage children prepare for school.

Mr Wardlaw denied that he committed theft against the Respondent. He stated that most of the tools needed on a worksite were in his trailer at a given time and this is not indicative of theft. When he was on leave, his trailer would remain in use by the Respondent to transport tools. Any timber taken by Mr Wardlaw was either being transported between worksites or was leftover timber taken with specific permission from the Respondent.

Mr Wardlaw asserted that Mr CD was from a tough background but that he was attempting to improve and that any discontent between Mr CD and Mrs Smith was a consequence of Mrs Smith’s approach towards him. Mr Wardlaw said that Mrs Smith intervening and instructing Mr CD and other workers to perform tasks outside of their area consistently caused delays to delivering projects.

Mr Wardlaw conceded that he had informed Ms Gaultier post Mrs Smith’s resignation that she was working on the Respondent’s worksite, delivering concrete with her new employer. He said that it disturbed him because of the accusations she had made about him. This resulted in Ms Gaultier instructing Mrs Smiths’ new employer not to give Mrs Smith work on the Respondent’s sites.

Evidence given during the Hearing

In evidence given during the Hearing, Mr Wardlaw said that in relation to the merbau post, it was placed in the grass at the particular site. He asked Mr Russell if he could take it, and Mr Russell said yes. He noted that Ms Gaultier has apologised to him for any assertion that he might have stolen the post and the text messages she sent about him to Mrs Smith.

Mr Wardlaw stated that he has worked with lots of female labourers and has not had any dramas with any of them.

He stated that tools are very often borrowed or taken.

In cross-examination, Mr Wardlaw stated that Mrs Smith seemed to have more time and patience with Angus than she did with Mr CD.

Mr Wardlaw stated that he would often ring Mrs Smith regarding work matters, but she would not answer. He understood that she was busy. He said that sometimes he didn’t hear from her for two days.

Regarding her attendance on a Respondent site in September 2023 when she was working for her new employer, Mr Wardlaw considered that to be a strange thing to do if she was so upset with how he and others had treated her.

Evidence of Ms Melissa Gaultier

Ms Gaultier’s evidence is that Mrs Smith was not dismissed and instead, she freely and voluntarily resigned her employment. All allegations of workplace bullying and harassment were rejected by the Respondent.

During the period of her employment, Ms Gaultier had encouraged Mrs Smith to engage with a construction industry crisis support service called “Mates in Construction” in the event she required support, and encouraged her to refer colleagues to this service, if required. Ms Gaultier stated that whenever Mrs Smith raised confidential matters relating to other employees’ wellbeing, she requested to speak with the affected employee directly, but Mrs Smith would respond that this would be a breach of confidence.

Ms Gaultier stated that following the altercation on site involving Mrs Smith and Mr CD on 18 March 2023, the Respondent reminded staff of the company’s expected behaviour standards. After investigating the incident of 16 June 2023 at the Respondent’s main office, management formed the view that Mrs Smith had deliberately orchestrated the situation to publicly humiliate Mr CD in an attempt to portray him in a negative light and ultimately cause his dismissal. Given the apparent issues between the two, Ms Gaultier stated that procedures were implemented to separate the employees. Mrs Smith had never expressed that she feared for her safety in relation to Mr CD, and Mrs Smith had admitted that she threatened to “drop” Mr CD.

It is Ms Gaultier’s understanding that on 21 June 2023, Mr CD approached Mrs Smith to ask for her help in transporting timber. A verbal disagreement ensued, and Mr Russell, Supervisor, separated the two individuals. Ms Gaultier stated that at no time has Mrs Smith said that she felt bullied or intimidated or that she feared for her safety.

Ms Gaultier rejected Mrs Smith’s claims about timesheet fraud and stated that the Respondent investigated Mrs Smith’s claims against Mr Wardlaw and found all to be unsubstantiated.

With respect to Mr McFarlane’s inappropriate text messaging regarding Mrs Smith, she said that she took action. She denied that the only reason she took action was because Mr McFarlane had contacted her husband. Ms Gaultier contended that Mrs Smith regularly contacted Mr McFarlane outside of work hours.

Evidence given during the Hearing

In evidence given during the Hearing, Ms Gaultier confirmed that Mrs Smith and others were tasked with monitoring timesheets of employees. She considered the paper timesheets were great, but when changed to SiteBooks it was a work in progress, and faced difficulties with mobile covering over some of their work sites.

In cross-examination, Ms Gaultier was taken to her text message to Mrs Smith at [45] in respect of how poorly she thought of Mr Wardlaw and Mr McFarlane. Ms Gaultier said that her response must be understood in the context of numerous previous text messages dating back to 2022, where Mrs Smith had consistently provided information about the conduct of employees which Ms Gaultier understood to be true, but now believes to be false.

She further stated that it felt like Mrs Smith had an itch she couldn’t scratch. She was consistently badgered by Mrs Smith with her text messages in relation to the behaviour of other employees, which Ms Gaultier now considered wore her down. She now considered Mrs Smith’s messages were a form of harassment, and this is management’s fault as the business practices were deficient.

Ms Gaultier stated that she should not have let Mrs Smith’s opinions influence her actions.

Ms Gaultier stated that the Respondent providing Mrs Smith an official role as Head Trades Assistant in March 2023 happened to formalise the status quo, where Mrs Smith was persistently messaging the office staff of the Respondent about concerns she had regarding other colleagues onsite. Upon investigating for the Respondent, Ms Gaultier has now formed the view that most of Mrs Smith’s messages were unsubstantiated, and that the Respondent had acted inappropriately by taking them onboard initially and then providing Mrs Smith a formal role to continue this behaviour.

In response to a question from Mrs Smith regarding whether she had been subject to any disciplinary action, Ms Gaultier stated that the Respondent had asked Mrs Smith to complete an incident report in relation to the altercations with Mr CD.

On reflection, Ms Gaultier considered that Mrs Smith should have received a warning for shaping up to Mr CD, as she had threatened violence against him. She considered that they both should have received a written warning, but by omission, no disciplinary action was taken against her.

In respect of Mrs Smith’s attendance on the Respondent’s work sites when delivering concrete for her new employer, Ms Gaultier considered it to be inappropriate given she had said she felt unsafe, and the allegations had been made against the Respondent’s employees. At first, Ms Gaultier requested the new employer ensure she was appropriately supervised, and she not be supervised by the Respondent’s employees. Later she instructed the new employer that she was not permitted on the sites at all.

Evidence of Mr CD

Mr CD attended the Hearing with the support of his mother. He is a young man and presented as a troubled teen. I assured him that he was giving evidence as a witness, and he was not ‘on trial’. Nevertheless, Mr CD acted churlish, surly, aggressive and gave very little eye contact until the end of his evidence when, without the leave of the Commission, he left the courtroom in the middle of his evidence, and yelled, “I’m fuckin’ done with this. You can shove it up your arse, Melissa!” in reference to Ms Gaultier.

Mr CD was aged 17 when working with Mrs Smith. He considered that before Mrs Smith had an altercation with Mr Wardlaw, he and Mrs Smith got along well. After the dispute with Mr Wardlaw, he considered that Mrs Smith started ignoring him and Mr Wardlaw.

Mr CD considered that in respect of the 18 March 2023 altercation, he complied with her instructions, despite him considering that her instructions were not more important than those he had received from his supervisor. Mrs Smith ordered him to assist with the cleanup, in a rude, belittling manner. He assisted with the clean up to a sufficient degree before returning to his regular work. Mrs Smith called upon him to perform another task. His evidence is that Mrs Smith had been rude and aggressive when giving him instructions before threatening to assault him. He said to her, “You’re a labourer. My job from a supervisor is more important.”

When she said that she’d ‘drop’ him, he responded, “Really, Nicole, you’re going to bash a 17 year old on site?” She screamed, “Get away from me.”

He noted that he received a verbal warning from the Respondent after this incident. He stated that this warning was given to him in the absence of his mother.

In relation to the 16 June 2023 module training in the office, Mr CD informed Mrs Smith that he was trying his best. She responded, “What are you doing, [Mr CD], why don’t you know this?” He replied that he is an apprentice and still learning.

When they started arguing, Mr Gaultier instructed him that for his apprenticeship work, Mrs Smith was his supervisor. He considered that she was not his supervisor, and he was ‘pissed off’’. Mr CD admitted he had not completed any of his modules and Mrs Smith offered to provide support. Mr CD claimed he was doing this when Mrs Smith provoked him, causing them to be sent out of the office.

Mr CD stated that he did not feel comfortable going to the worksite with Mrs Smith and was going to get another colleague to assist him when Mrs Smith yelled at him outside, to which he put his middle finger up to her. He stated that he was extremely humiliated and belittled.

Mr CD stated that the Respondent, including Ms Gaultier, had taken some disciplinary action against him on occasions where complaints had been made about his conduct which were substantiated.

Mrs Smith noted that due to Mr CD’s abrupt departure from the court room, she was unable to finish her cross-examination of him.

Evidence directed to be produced following the Hearing

During the Hearing it was clear that there was very little in the way of written documentation from the Respondent relevant to a number of incidents. Ms Gaultier thought that there might be an incident report relevant to 18 March 2023, which she would endeavour to find.

She thought that there might be some notes from Mrs Smith’s March promotion, and perhaps some notes relevant to the Respondent’s investigation into whether supplies had been stolen.

Following the Hearing, Ms Gaultier advised that none of the documents could be located, largely due to a relocation of the office and documents having been packed in boxes for months. Ms Gaultier stated that she knew the incident reports in respect of the 18 March 2023 altercation were in existence as she had been handed the hand-written reports at the time.

In respect of the issue as to whether Mr Wardlaw had stolen the merbau post, Ms Gaultier stated on 19 January 2024 in correspondence to chambers that the investigation was completed by 31 March 2023, concluding that Mr Wardlaw had not stolen the post.

Respondent’s submissions

The Respondent submitted that Mrs Smith was never dismissed or forced to resign by it or its employees’ actions. The Respondent submitted that Mrs Smith elected to resign of her own free will and volition with no notice provided to the Respondent. The Respondent has concluded the allegations of bullying have not been substantiated and are believed to be false.

The Respondent noted that Mrs Smith had access to the Mates in Construction mental health support service and had been encouraged to engage with them on several occasions. The Respondent also instructed Mrs Smith to encourage her colleagues to use their service when Mrs Smith notified the office staff of the Respondent with concerns about other workers needing further support.

The Respondent submitted that Mrs Smith heavily mischaracterises her altercations with most of the impugned staff of the Respondent, stating that they had investigated her claims regarding Mr Wardlaw and found none of them to be of truth. The Respondent noted that Mr McFarlane’s employment ended on 13 June 2023.

The Respondent submitted that prior to Mrs Smith’s resignation she did not bring to the attention of the Respondent her concerns.

Consideration

Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their employment has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[2]

When analysing whether there has been a “termination at the initiative of the employer” for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[3]

Although applied under the previous Act,[4] the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[5] in my view remains generally apposite to the consideration of s.386(1) of the Act:

“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

‘[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
‘Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.’

[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.” (footnotes omitted)

A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[6] in the following terms:

“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

‘1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

· where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
· where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.’

[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)

Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:

· the question as to whether the resignation was forced within the meaning of the Act is a jurisdictional fact that must be established by the applicant;

· a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;

· the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;

· conduct includes an omission;

· considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous, and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and

· in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.

Having regard to the legislation and the authorities, it is necessary to determine whether Mrs Smith was forced to resign. In making that assessment, it is appropriate to make an objective analysis of the Respondent’s conduct to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. The line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning at their own initiative is a narrow one. The line, however, must be “closely drawn and rigorously observed”.

The onus is on Mrs Smith to establish that she did not resign voluntarily, proving that the Respondent forced her resignation.[7] I must find that the Respondent took action with the intent or probable result to bring the employment relationship between Mrs Smith and the Respondent to an end.[8]

On the evidence before me, it appears that Mrs Smith worked well with her colleagues from May 2021 up until around early 2023. This is a reasonable amount of time and was collegiate.

From early 2023, Mr Wardlaw experienced an incident with his vehicle where two engine mounts were broken, and he declared that he wouldn’t let his vehicle be used to haul materials on steep gradients. It appears to me that from around this time, animosity developed between Mrs Smith and Mr Wardlaw, together with Mr CD.

On Mrs Smith’s account, she considered that a few of the employees were engaging in time fraud and this was frustrating her. She travelled to most of the building sites, and she considered that some employees were claiming to be at work when they were not.

By 14 March 2023, Mrs Smith resigned her employment for the first time. The genesis for her resignation was her frustration with fellow employees, not with management.

In a meeting on 16 March 2023, she was convinced to stay, offered a promotion and a pay rise, and now held greater responsibilities to ensure her colleagues would electronically record their working hours. Whilst this wasn’t formally settled on the day, and the contract was signed some days later, Mrs Smith was satisfied with the outcome.

Only two days later, she had the altercation with Mr CD. Having heard all of the evidence before me, I conclude that Mr CD, while torn between meeting his supervisor’s instructions and then being told to do something else by Mrs Smith, which he considered to be less important, was more than likely insolent towards Mrs Smith. I prefer Mrs Smith’s evidence that he said to her, “You are not my supervisor so you can’t tell me what to do.” She informed him that she had Dylan’s authority to instruct him to assist her. What Mrs Smith said next, however, shaped the ugly interaction. Whilst it is understood it is a construction site, she said to a troubled, and on her account, potentially aggressive teen, “Don’t fuck with me, [Mr CD] and start helping.”

It was an irresponsible thing to say which started the aggression, resulting in Mr CD asking her what she was going to do about it, and Mrs Smith threatening to ‘drop’ him and telling him to get the fuck out of her face before she drops him. If, as a 55-year old woman working in construction wanted to garner respect from a troubled teenage apprentice, she was certainly going about it in the wrong way.

Mrs Smith was not warned regarding her conduct in the altercation, yet Mr CD was provided with an oral warning only. As Ms Gaultier reflected in these proceedings, Mrs Smith should have been warned. I agree. It would have sent a strong message to all involved that the behaviour would not be tolerated, and threats of violence are unacceptable. Both employees should have been issued with a written warning.

Mrs Smith was then tasked with monitoring the hours of work recorded by other employees and this became a huge contention between all of them. It is understandable that WiFi and mobile phone coverage would be inconsistent in the area in which the work is performed, but clearly there were other factors at play, resulting in a less than satisfactory amount of days and times being recorded.

Firstly, Mr Wardlaw and Mr McFarlane did not respect Mrs Smith and they made no effort to hide their disrespect and contempt for her. Mr McFarlane’s communications were rude, insulting and then they became incredibly offensive. Mr Wardlaw’s text communications were less offensive, and to some degree he was correct when inviting Mrs Smith not to contact before his start time of 6:30am. No doubt, however, he did not respect Mrs Smith chasing him up.

Secondly, the Respondent did not provide sufficient training to employees on the use of Sitebook, the electronic tool to record time. I consider it would have been appropriate to bring all employees into the office one morning or one afternoon, and guide them through the use of the application, and inform them which employees were tasked with monitoring and chasing up incomplete data. This would have assisted greatly with the use of the tool, and demonstrated that Mrs Smith, along with others, had authority to remind employees to properly use it. Without doing so, Mrs Smith appeared to be nagging Mr Wardlaw and Mr McFarlane, when she was tasked with making sure they completed it. The Respondent failed all of its relevant employees when it did not provide the relevant training and endorse Mrs Smith as a person authorised by the Respondent to monitor employees, including tradespersons.

By early April 2023, Mrs Smith believed that Ms Gaultier supported her views that Mr Wardlaw was stealing supplies or seeking to steal supplies. Mrs Smith had reported the request by Mr Wardlaw for a tap for his home, and Ms Gaultier responded to Mrs Smith, providing her views essentially that she couldn’t wait to have more labour supply so that she could be rid of Mr Wardlaw. Ms Gaultier’s January 2014 evidence that by 31 March 2023, the Respondent had concluded that Mr Wardlaw had not stolen the merbau post is not supported by her text message at [41], recording that Mr Bentley would ‘deal with’ Mr Wardlaw on Mr Bentley’s return from leave. I consider that Ms Gaultier fabricated that evidence in January 2024.

It is clear that in the course of these proceedings, Ms Gaultier has banded with her current employees, including Mr Wardlaw, to conclude that none of them were shirking their work responsibilities, none of them stealing supplies, and Mrs Smith was a nag and had been for years. It is not, however, how she felt at the time of Mrs Smith’s employment, and she openly shared with Mrs Smith how disgusted she was with some of her employees namely Mr McFarlane and Mr Wardlaw.

By late May 2023, Ms Gaultier was assuring Mrs Smith that if she could, she would fire both Mr Wardlaw and Mr McFarlane. As it turns out, Mr McFarlane’s employment ended on 13 June 2023. Mrs Smith ought to have felt relief knowing that the abuse that she had endured from Mr McFarlane was at an end.

With respect to the module training of Mr CD in early June 2023, I have no doubt that Mr CD was being insolent and dismissive of Mrs Smith. It took for Mr Gaultier to remind him that for the training, Mrs Smith was to be treated as his supervisor. However, I am satisfied on the evidence before me that Mrs Smith was impatient with Mr CD. As impulsively as Mr CD left the court room, he left the Respondent’s office and once outside, told her to fuck off and gave her the bird.

There was no leadership demonstrated by the Respondent when dealing with this situation. Mr CD informed Mr Russell he was hardly done by and being picked on, and he was rewarded by having Ms Gaultier instruct Mrs Smith that Mr Russell would now train Mr CD and Angus. The Respondent ought to have been firm with Mr CD, inform him to pick up his effort in training, and ensured that when he and Mrs Smith were next together, Ms Gaultier or Mr Bentley were in attendance to scrutinise Mr CD’s conduct and Mrs Smith’s supervision. The Respondent’s failure to properly deal with this situation sent a message to Mr CD and others that Mrs Smith was a nag and was unreasonable and that she was the problem. He said to her, “I don’t have to do anything you ask and you’re just a stupid TA” and no action was taken against him.

By 21 June 2023, Mr CD was emboldened by his earlier unchecked conduct, and said repulsive things to Mrs Smith when she arrived at the site. She wasn’t even instructing him to perform tasks, she had simply informed him that she would not tolerate his constant abuse and violence.

He called her a ‘dumb old cunt’, ‘a stupid old woman’ who picks on a 17 year old, and a labourer. I am satisfied that on the balance of probabilities, he did threaten to come to her home with his friends and bash her. This was not said in the presence of others. Following the threat, Ritchie and later Mr Russell were in the vicinity of the conversation, where Mr CD continued to refer to Mrs Smith as a ‘dumb old cunt’. Mr Russell admonished him, and he responded, “But she is just a stupid old cunt.”

Mr Russell, as Supervisor, clearly ought to have sought permission to suspend Mr CD from work for his outburst towards Mrs Smith. Even with the limited amount of the conversation he heard, it was outrageous and offensive.

Curiously, however, Mrs Smith did not report the threat of violence to Mr Bentley, Mr Nicholson or Ms Gaultier that afternoon. She only reported the offensive language, to which Mr Bentley requested Mrs Smith speak with Ms Gaultier, who ought to give Mr CD ‘another written warning’. Mr Bentley could not answer whether Mr CD had earlier been issued written warnings, simply answering that he thought that Ms Gaultier had done so.

If management had properly communicated with each other, brought Mr CD into the office with a parent and issued to him written warnings, there is a high likelihood that the misconduct of 21 June 2023 would not have happened. The Respondent failed Mrs Smith in failing to properly address Mr CD’s earlier inappropriate conduct.

In the period in which Mrs Smith was absent from the workplace, it seems that no action was taken by the Respondent in respect of Mr CD’s conduct. The Respondent could have interviewed Mr Russell and obtained an objective statement relative to Mr CD’s offensive statements to Mrs Smith. It did not know of the threat that he made to her as this was not witnessed by Mr Russell, nor did Mrs Smith report it to the Respondent. Why she did not is a mystery.

Understandably, Mrs Smith was upset during her absence from work. She returned on 18 July 2023 and was treated to hearsay remarks in respect of Mr CD’s alleged conduct, and how her tenant and fellow colleague might be paid a visit by Mr CD’s father. Mrs Smith did not ask her tenant if he had been threatened; she simply chose to believe the hearsay remark.

She considered that Ritchie, a Trades Assistant was being disrespectful towards her, and he was the same employee who had witnessed Mr CD’s abuse of her. She heard further accounts of people not attending work and being paid, and supplies going missing. She was overwhelmed and considered it was too much and resolved to resign her employment which she did the next day to Mr Nicholson.

Noting that Mrs Smith was upset and considered that nothing had changed in her absence, meaning she had to continue to deal with misconduct that was never properly addressed by the Respondent, Mrs Smith did not inform management of her feelings. She resigned her employment.

At the time of resigning her employment, she had not shared with management the threat made by Mr CD to come to her home with his mates and bash her, nor the hearsay account that Mr CD’s father would come to her tenant’s home and bash him. Mr McFarlane was no longer with the business, and was no longer in her life, where she considered he had once been a threat.

In her text message to Ms Gaultier on 19 July 2023, she cited the reasons for her resignation which included the Respondent’s employees were coming to her home to bash her up. This was, of course, news to Ms Gaultier and she responded appropriately, stating it was a serious accusation and questioning who threatened her and offered to contact the police. Why Mrs Smith made her concerns known to the Respondent following her resignation and not beforehand is unknown.

Mrs Smith then, bizarrely, responded that with all due respect, she did not wish for the Respondent to be involved in her matters and she’d be handling things by herself.

In evidence, Mrs Smith stated that she is certain that all of management wished for her to remain within the business, and she was too valuable to be let go. She had also been supported by Ms Nicholson who was largely outside of the business but had expressed to her that the Respondent wanted her to stay, and she should punch Mr CD in the face.

Mrs Smith was informed that she was a valued employee, and the statements that Ms Gaultier now makes, to the effect that she has realised that Mrs Smith was a poison to the business are, in my view, ridiculous statements from an employer who had its head in the sand and will do anything at this stage to protect employees from their misconduct because the Respondent’s system and operations failed all of them.

Mrs Smith was no villain, other than in respect of threatening to ‘drop’ Mr CD, and it is extremely unfair for the Respondent to now treat her as one. Her reputation around the local community ought not be tarnished by Ms Gaultier’s hysterical hindsight. Mrs Smith was badly treated by Mr CD and Mr McFarlane, and to a much lesser degree, Mr Wardlaw. The Respondent’s statements now, in full support of its employees who engaged in clear misconduct (Mr CD and Mr McFarlane) reeks of a desperate employer, trying its best to retain skilled employees in a labour-tight market and being distressed by being involved in these proceedings.

However, even where the Respondent omitted to properly reign in its employees’ misconduct towards Mrs Smith, Mrs Smith did not share important information with her employer, particularly around the incident of 21 June 2023. Where I am satisfied that Mr CD did make the threat of physical violence, Mrs Smith did not alert her employer to that fact. She ought to have done so in order to allow the Respondent to deal with it.

I will not make a finding that the alleged threat of 18 July 2023 occurred as it is hearsay. Mrs Smith made no effort to determine if it was actually said, and it was not reported to the Respondent.

When Mrs Smith resigned her employment on 19 July 2023, the Respondent had no knowledge of how she was feeling, nor did it have any capacity to investigate her claims because she did not report them before she resigned.

I consider that Mrs Smith had alternatives to resigning her employment available to her. She could have reported her concerns to the Respondent, including making the police report and informing the Respondent that she had made the police report, which I am satisfied that Ms Gaultier would have taken seriously, given her reaction to the news of the threat on 19 July 2023. Further, she could have seen a medical practitioner, and if deemed unfit for work, made a workers’ compensation claim.

Alternatively, or in addition, she could have made an application in the Commission for an order to stop bullying which would be promptly addressed by the Commission.

As highlighted in ABB Engineering,[9] a consideration of the employer’s conduct is necessary to determine if it was the principal contributing factor in the resultant termination. In this matter, the Respondent had failed Mrs Smith in many respects, including by not properly dealing with the 21 June 2023 incident, but on Mrs Smith’s return to work on 18 July 2023, had no understanding that she would resign her employment based on what was reported to her on her return, without investigation or a discussion with management.

I am satisfied that Mrs Smith’s resignation was voluntary, and not due to conduct or a course of conduct (including omission) engaged in by the Respondent.

Heat of the moment resignation

It is an established principle, that an employer is generally able to treat a clear and unambiguous resignation as a resignation.[10]

However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise such that an employer may be required to allow a reasonable period of time to pass before accepting the resignation.[11] Further, the employer may have a duty to confirm the intention to resign, if put on notice during that reasonable period that the resignation was not intended.[12]

I am satisfied that Mrs Smith’s resignation was not given in the heat of the moment. When contacted by Ms Gaultier on the day of her resignation, Mrs Smith informed the Respondent she wished to deal with her matters herself and did not want any further involvement of the Respondent.

Conclusion

For the reasons set out above, I have determined that the resignation of Mrs Smith was not caused by conduct, or a course of conduct (including omission), on the part of the Respondent. I find that Mrs Smith was not a person dismissed from employment and the jurisdictional objection raised by the Respondent is upheld.

I must dismiss the application for lack of jurisdiction. An Order [PR775790] will be issued together with this decision.

COMMISSIONER

Appearances:

N Smith for the Applicant.
M Gaultier for the Respondent.

Hearing details:

Gladstone.
Gladstone District Courthouse.
2023.
10 November.

Brisbane.
Video by Microsoft Teams.
2023.
22 November.

[1] [2020] FCAFC 152.

[2] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75]; see also Mohzaba v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.

[3] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75].

[4] Workplace Relations Act 1996 (Cth).

[5] [2006] AIRC 496 (PR973462).

[6] [2017] FWCFB 3491.

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

[(2009) 185 IR 359].

[8] 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].

[9] Doumit v ABB Engineering Construction Pty Ltd (Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

[10] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12]; citing Minato v Palmer Corporation Ltd (1995) 63 IR 357 at pp. 361‒362; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).

[11] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12]; citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 at p. 191.

[12] Ibid.

Printed by authority of the Commonwealth Government Printer