[2016] FWC 6160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Peter Blythe
v
David Hartree Design Associates Pty Ltd t/as Hartree and Associates Architects
(U2015/13079)

DEPUTY PRESIDENT SAMS

SYDNEY, 15 SEPTEMBER 2016

Termination of employment – architectural modelmaker – application for relief from unfair dismissal – warning letter – whether applicant resigned – jurisdictional objection – evidentiary conflict – credibility of witnesses – applicant resigned and resignation accepted by employer – termination of contract of employment – applicant’s refusal to leave premises – poor behaviour and inappropriate conduct would have justified dismissal – no dismissal of applicant – unfair dismissal application dismissed for want of jurisdiction.

[1] Mr Peter Blythe (the ‘applicant’) was employed by David Hartree Design Associates Pty Ltd (the ‘respondent’ or ‘Company’) as a modelmaker. The respondent is a small architectural design company in Perth, Western Australia, which provides designs and models under contract to major customers, such as Government departments, mining companies, developers and other architects. It operates in a very competitive market in Western Australia. The applicant is only one of a small cohort of modelmakers who specialise in this work. There was no issue taken by the respondent as to the quality of the applicant’s work and his value to the respondent’s business.

[2] The applicant commenced employment with the respondent on 15 April 2009, until his employment came to an end, according to the respondent’s version of events, on 17 September 2015, when he voluntarily resigned, or on the applicant’s version of events, when he was dismissed for alleged misconduct on 22 September 2015. Obviously, a conclusion as to whose version of events accurately describes the applicant’s termination of employment will be necessary in order to establish the Fair Work Commission’s (the Commission’s) jurisdiction to determine an unfair dismissal application, lodged by the applicant, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) on 23 September 2015. Unsurprisingly, the respondent objects to the unfair dismissal application being determined by the Commission on the grounds that there was no dismissal of the applicant at the initiative of the employer, as defined in s 386 of the Act, and if there was no dismissal, the applicant cannot satisfy the requirement in s 385(a) of the Act that he was unfairly dismissed. That section is set out hereunder:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

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

[3] Section 385 is to be read in conjunction with s 396, being the requirement on the Commission to determine certain jurisdictional matters before considering the merits of an application. Those matters are as follows:

‘(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.’

[4] Subsection (d) of s 385 is obviously not relevant in this case. There is no dispute that Mr Blythe’s application under s 394 of the Act, was filed within the 21 days required by s 394(2) of the Act. Similarly, I do not apprehend there to be any contest that the applicant was a person protected from unfair dismissal (s 382 of the Act) in that:

(i) he had the requisite minimum employment period (12 months) as an employee in a small business (as defined); and
(ii) his annual rate of earnings did not exceed the high income threshold.

[5] Further, it is not disputed that the respondent is a small business (five employees) and if the applicant was dismissed by the respondent, his dismissal would need to be consistent with the Small Business Fair Dismissal Code (the ‘Code’) if it was claimed to be a fair dismissal. This question will only arise if the applicant was dismissed at the initiative of the employer, in accordance with s 386 of the Act.

[6] Returning of s 385 of the Act to the definition of an unfair dismissal, the applicant maintains that sub-ss (a), (b) and (c) having been satisfied (sub-s (d) being irrelevant), he was unfairly dismissed, his dismissal was ‘harsh, unjust and unreasonable’, within the meaning of s 387 of the Act and he should be awarded compensation by the Commission of the maximum of 26 weeks’ pay, calculated on his annual remuneration of $91,260, plus superannuation. Mr Blythe does not seek reinstatement. For reasons which will be made apparent later, and assuming I reach the step of considering remedy, I do not consider reinstatement would be appropriate, given Mr Blythe’s hostility and disrespect towards Mr Hartree (the respondent’s owner and Managing Director). Whichever way one looks at the applicant’s termination of employment, the employment relationship had irretrievably broken down, beyond repair.

[7] Attempts at settling the matter were made in accordance with the Commission’s usual protocols. However, these proved unsuccessful. The preliminary objection of the respondent, that the applicant had not been dismissed, was remitted to me for hearing. Directions were issued in preparation for the hearing in Perth on 25 February 2016. Ultimately, the hearing extended to four further days, with final submissions in writing. At the hearing, Mr Blythe represented himself, assisted by Mrs J van Wyngaarden (herself a former dismissed employee of the respondent). Permission was granted for the respondent to be represented by Mr D Vilensky, Solicitor, pursuant to s 596 of the Act. I note Mr Blythe did not oppose Mr Vilensky’s representation of the respondent.

THE EVIDENCE

[8] The following persons gave written and oral evidence in the proceeding:

The applicant;

Mrs van Wyngaarden, former Practice Manager and Associate Director of the respondent; and

Mr Hartree.

The applicant

[9] The applicant filed a considerable amount of material which was a mixture of both evidence and submissions. This material traversed his original engagement by the respondent in 2009, irrelevant nitpicking about procedural matters, references to incidents and events in 2003, 2004, 2011, 2013 and 2014, and Mr Blythe’s long-held dissatisfaction with Mr Hartree’s management of him, including incidents involving other staff and complaints about his salary and conditions. Much of this material, while providing a contextual background to the breakdown in the relationship between the applicant and Mr Hartree, was ultimately irrelevant to the question to be determined at this stage of the proceedings. I accept that the material filed by the applicant is obviously reflective of his unrepresented status. Indeed, most of his submissions and questioning of Mr Hartree were repetitive, self-serving and often inappropriate. Nevertheless, I am satisfied Mr Blythe has canvassed all of the issues he wishes to bring to the Commission’s attention in determining his application.

[10] That said, two curious matters emerged during this case. In all of the email exchanges the applicant had with Mr Hartree, he copied in Mrs van Wyngaarden. After his termination of employment, the only means of communicating with the applicant was through Mrs van Wyngaarden. The applicant provided no email address, phone number or other contact point which the Commission could utilise to contact him.

[11] Doing the best I can from the applicant’s materials, I shall attempt to distil the evidence directly relevant to the circumstances leading up to, and including the meeting of 17 September 2015, in which it is said the applicant resigned, and the few days thereafter. Nevertheless, it is necessary to understand the background to this meeting to appreciate the context and discussion which occurred at the meeting and what took place subsequently.

[12] Although it is clear the applicant had issues with Mr Hartree, almost from the beginning of his employment, the developing toxic relationship between them, had its recent origins in around September 2014, when the applicant, being unhappy with not being recognised financially for his work and commitment to the Company, sought a performance review and salary increase. Mr Hartree responded as follows on 30 October 2014:

‘Peter,

I'm not going to respond to your disturbing insults and accusations at our meeting Wednesday afternoon, outside of confirming that I disagree with you and I will not put up with that line of conduct in my business again.

Your efforts and workmanship are valued by myself, I sincerely hope that we can achieve an outcome that works for yourself and HAA going forward.

Peter you requested a review via email, I supported the concept and await financial reports with a view to preparing a measured response and long term strategy. You then decided you wanted a cheque in an envelope and melted down Wednesday because I rejected that option in favour of the practical proposal initially set out in your email (salary review, performance based bonus).

Going forward I propose the following options for discussion;

Option 1. Increase annual salary to $95k, plus fixed % bonus subject to quarterly review of modelshoprevenue and expenses (wages, materials, rent, costs).

Option 2. Increase hourly rate, pay per project as a contractor.

Implementation of either option is strictly subject to the following;

1. Profitability of the modelshop business.
2. The events regarding your remuneration following 2008 are history, I have been clear from the outset on my position – I’m not interested in the distraction of further discussion on this topic or past payments to other staff.
3. The terms of your Employment Agreement are renegotiated
4. We meet monthly to discuss any developing issues.

Please consider this information over the weekend, I look forward to meeting with you Monday at 1:00pm to discuss.’

[13] The following day (a Friday) the applicant responded, in short order, with his own Option 3 in an email stating:

‘Thanks David,

Please accept option 3. I tender my resignation effective immediately.’

[14] It would appear the applicant then collected and removed his personal effects. Over the weekend, Mrs van Wyngaarden reflected on the applicant’s contribution to the business and took it upon herself to refuse to accept his resignation. She emailed him as follows:

‘It is entirely impossible to imagine a practice without you in it Peter. The huge effort your daily presence and care has on us all – our staff, our clients, suppliers. [sic] visitors, neighbours and myself personally cannot be overstated.

With fullest enthusiasm and selfless regard you ensure client expectations and deadlines are met without hesitation – they are always left happy & satisfied without exception.

Your reliable dependability and commitment to ongoing improvement has achieved beyond ‘ordinary’ and from which we all benefit, thankyou [sic].

If only in the interest of protecting the integrity of this practice and those who enjoy it’s [sic] services Peter your offer of resignation cannot be accepted. Our dependence on your professionalism, loyalty, substantial contribution and support it immense.

David and I welcome your attendance at a meeting tomorrow to ensure that a fair and sensible resolution is enacted to maintain your tenure uninterrupted.’

[15] The meeting with the applicant, foreshadowed by Mr Hartree above, took place on Monday, 3 November 2014, at 1:00 pm. Mr Hartree sent him an agenda at 7:13 am as follows:

‘The last 2 years in the Modelshop have been a work in progress commercially, profit marginal when all expenses are taken into account, fantastic potential. I have been supportive of the ongoing investment, R+D and Jacqui's time committed to modelshop.

Peter you made it clear in the meeting Wednesday our relationship continues to be a strain for you personally, your comments were toxic and unhelpful, my email in response with options for a practical resolve was responded to Friday morning with your resignation and walk out.

To be frank, I'm exhausted by the emotional roller coaster and with pressing architectural deadlines later this week - frustrated by the ongoing distraction.

I remain hopeful we can reach an amicable and mutually beneficial conclusion to this matter, at this stage I'm not interested in returning you to full time salaried employment - it was not working.

Option 1.
PB re-employed on a contract hourly rate of $54/hr (a 25% increase), we determine fabrication hours for each project in advance as a lump sum- in 6 months we will review and revert to full time salary plus profit share on the basis both the business and relationships are working positively.

Option 2.
PB+ JQ buy the modelmaking business from me outright with machinery etc, to stay in Queen Street until lease expires or relocate whenever appropriate, re-badge to new business name if you desire, new website etc. I assist with ownership transition and promotion to past, current and future clients, HAA models etc.

Option 3.
I continue the modelmaking business with others.’

[16] The applicant returned to work with no change to his employment contract and with no insistence by Mr Hartree on any of the above options.

[17] In June 2015, seemingly as a result of complaints by the applicant to WorkSafe Western Australia, a WorkSafe inspector visited the respondent’s premises and issued a number of improvement and infringement notices, most notably in respect to the spray painting booth in the model shop, being non-compliant with the required standards.

[18] On the evening of 15 September 2015, there was an incident in the model shop involving the applicant and another employee, Mr Sammuel Arellano, in which there was a heated verbal, almost physical, exchange between them (the ‘Arellano incident’). Mr Hartree sought a statement from the applicant the next day, but he refused.

[19] Mr Hartree issued the applicant with a written warning the following day, 17 September 2015. The applicant said he received it at 3:40 pm. (Mr Hartree said he hand-delivered the warning letter at about 12:00 pm when he went to lunch.) As this warning encompasses a brief history of events from Mr Hartree’s perspective, and given the intense focus on, and forensic analysis of the warning in cross-examination and submissions, I set out the letter in full below:

‘WRITTEN WARNING
Peter Blythe
17 September 2015

Peter,

1. Over the last 2 years your behaviour at work has deteriorated to the point where you are now having regular conflict with other staff and myself. The caustic comments made during these incidents are unhelpful, your elevated and aggressive tone is unnecessary and at times intimidating and inappropriate.

2. I have counselled you on numerous occasions to define my expectations as your employer however you continue to behave erratically, a distraction to you completing your modelshop work, and a waste of my time in managing the fallout.

3. I have diarised notes capturing details of each incident and subsequent meetings over the past years, recent episodes as follows;

4. Wednesday 8 July 2015. You refused to meet with me to discuss modelshop reporting, delivery programmes and in particular the MRA model that was due for delivery end of July. In front of 2 other staff, you shouted at the time, “I'm not going to provide a programme, end of story, and if that's not good enough David, give me a termination notice stating reasons why”. I found the comment’s [sic] discourteous and offensive, certainly not the way an employee would communicate with an employer, and on the back of being told some weeks prior “just go upstairs and count your money” I was not happy at all.

5. Monday 31 August 2015. Without authority, you sent an insulting email to another staff member after he entered the modelshop to put his rubbish in the council sulo bin. Your email commented “There is no need to bring down your single insignificant bag of rubbish to the modelshop. It seems a lot of trouble for you to unlock the doors for a token contribution as an excuse to survey the modelshop given you can barely make the effort to get to work on time, submit your work brief or wash a teaspoon!” In the
meeting to follow this email where you requested Sammuel to attend and discuss openly, you lost your temper and said to Sammuel “the quality of your work is not good enough Sammuel, you are not honest, I don't like you, I have no respect for you, I can not [sic] work with you, I will not work with you,.[sic]” Insulting comments that create tension within the office environment and damage the concept of teamwork, I'm shocked that after these comments you now complain that Sammuel does not acknowledge you each day. For the record there are no restrictions on architectural staff entering the modelshop or vice versa, if models or machinery are tampered with - you let me know and I will deal with it.

6. Tuesday 15 September 2015. Sammuel was working late on tasks I had set for him to complete before taking 8 days leave. For a reason you are yet to explain to me, yourself and Jacqui decided to stay behind until he had completed the scope, a process you decided was taking too long and progressed to turn off the lights whilst he was working, a heated exchange followed where you and Sammuel were toe to toe and shouting - I understand from Sammuel and Jacqui that you had been drinking. I have a written statement from Sammuel regarding the incident including but not limited to you shouting at him “shut the fuck up and get the fuck out of the office”, “you are the junior”, “you are a bad draftsman”. I spoke to Sammuel by phone immediately following, he was understandably unsettled and intimidated by your actions and thought at one stage that a fight was about to occur. You called me also following the incident to confirm “There has been an altercation with Sammuel and I told him exactly what I thought of him”. Peter how would you react if somebody turned off the lights in the modelshop whilst you were working to meet a deadline? To be clear I will not tolerate bullying in this workplace and consider you owe Sammuel an apology?

7. Wednesday 16 September 2015. I requested a written statement from yourself on the 15/09 incident however you refused. Prior to leaving for the day, I demanded a meeting to discuss further immediately. The content of the discussion was illogical to say the least, you insisted on discussing events of 2 years ago “for context” however when I pressed you to focus on the events of the previous night you said “meeting is over” and left me in the room - an unacceptable outcome.

8. On the back of tendering your resignation without giving notice and walking out 31 October 2014, (leaving unfinished modelshop projects and the business in a compromising position) – I’m not at all happy with this ongoing conflict around you Peter.

9. When you withdrew your 31/10 resignation and sought to return to employment, I was clear with you that going forward I would not tolerate insubordination and conflict, and that I required more communication from you regarding delivery of modelshop projects - to that end I’m increasingly concerned that you are not meeting your commitment to me on how you would conduct yourself. You mentioned last night that the single reason these issues were occurring was “poor practice management”.

10. As your employer, I want to be clear that we are on the same page and communicating regularly to avoid future breakdowns, and work towards the smooth running of the modelshop business – the following structures are to be strictly followed;

• Disagreement in the workplace is inevitable, to maintain best possible work environment, air your grievances in a structured manner to myself, capturing your issues in writing, to be discussed in a meeting in a mature and professional manner.
• Offensive and insulting comments/emails to myself or other staff are not at all acceptable.
• Your working hours are 8:30AM to 5:30PM with 1.0 hour for lunch, I appreciate that you have been committed to the practice working longer hours at times, however I'm seeking to ensure you have a better work/life balance - outside of occasion's where I personally approve overtime, you are not to stay in the office/workshop later that [sic] 6:00PM.
• When you leave the workshop for a break or lunch/meeting, notify the staff upstairs when you leave and when you return to assist them with taking your phone messages.
• If you are leaving the workshop during your normal working hours for longer than 1.0hour allocated to lunch, I want you to confirm to me personally in advance (email OK) where you are going and when you will be back.
• If you are to be absent from work for any reason I want you to call me personally to confirm details.
• You will forward me a work brief on a Friday before close, setting out current modelshop projects and your tasks for the following week, variations to scope, highlighting issues in advance and confirming any change to model completion/delivery dates, if necessary we will meet early the following week to resolve.
• Model project quotes (exclusive of GST) will be divided by $150/ hr and programmed to strictly be completed within this timeframe.
• If you wish to have a drink in the office/workshop on a Friday after work that is OK, however you are not to drink alcohol on the premises at any other time.
• I expect that you will take your full accrued annual leave at a time that is convenient to the business.

Peter you are no doubt a fantastic modelmaker, I have shown my support by paying you well and continuing my investment to this element of the practice. I trust you will accept this feedback in a positive light and that we can progress from strength to strength with clarity on structure moving forward. I'm happy to make a time to meet and discuss further should you desire.’

[20] At 3:43 pm that day (three minutes after he said he received the warning), the applicant responded to the warning letter with his version of recent events. He rejected the tone and terms of the letter and claimed it was grossly inaccurate. His response read:

‘To David Hartree

I refer to our meeting conducted on the afternoon of Wednesday 16 September 2015. The meeting follows the altercation between myself and colleague Sammuel Arellano the previous evening.

I declined to complete my briefing with you on the events of the previous evening on the grounds that you repeatedly continue to ignore the context of Sammuel’s proven contempt for the spirit of his employment agreement, management directives, assigned tasks, and general courtesy and manner toward fellow staff and reasonable procedure. These attitudes are documented and have declined to the point of untenable acceptance for modelshop duties despite his assurances to perform. You have been aware of this issue for a considerable period of time and you are even on the record stating ‘He’s got to go’. I have never made this statement, instead endeavoring to persevere with careful management and considerable time invested preparing the preliminary work for a qualified architect. Sammuel's recent deception to falsely inflate an AutoCad task for the modelshop was not accountable to his employer or the client. Instead, these deficiencies have been absorbed by myself by managing additional hours and completing AutoCad shop drawings, formally assigned to qualified architects, to meet deadlines.

The altercation between Sammuel and myself on the evening of Tuesday 15 September 2015 was not work related, but fueled [sic] by Sammuel’s contempt for my refusal to accept unsatisfactory performance and attitude. Sammuel has not uttered a single word to me in two weeks. As witnessed by a representative of senior management, the altercation was personal and of equal and stem conviction except only for Sammuel’s raised, clenched fist above my face. I phoned you immediately after to report the incident. Your reaction demonstrated a complete lack of empathy until for some reason the phone cut out, not hung up by me as you described in the meeting. My reference to current unregistered staff as junior architects is reasonable. How can you call yourself senior management without junior staff?

Your malicious and unsubstantiated comments against my conduct, character and professionalism cannot pass without correction.

1) ‘I must respect all staff’

I am the longest serving Hartree and Associates employee. I have witnessed the best and worst in many colleagues the majority of whom have long departed. There is no record of me belittling staff the way you have done.

I have numerous emails to you detailing the poor behaviour of former colleagues including an associate director who displayed conduct far from ‘getting on with it’ yet your attitude was flippant and dismissive. After disputes, these people departed with no respect. One former staff dispute needed to be resolved in court.

You are aware of the verbal harassment displayed by a current Draftsman towards the Associate Director. You ignored to take any disciplinary action yet I have disrespected no one but still receive inaccurate judgement by you.

My respect towards staff is contrary to staff respect towards me.
• I had implemented a Friday lunch staff social event.
• I have conducted BBQ's with no assistance or gratitude from staff.
• I have voluntarily given gifts to current and former staff without the courtesy of thanks.
• I have provided numerous home baked items over the years to share with staff.
• I have provided Christmas gestures to all staff. I have always asked colleagues if they would like a morning coffee without ever receiving the same courtesy in return.
• It is also witnessed that I was seeking a gift for Sammuel simply because I learnt we shared a common interest.
• I have suggested in the past that you remain on a Friday evening to share a social drink with colleagues.
• I have always extended arrival and departure salutations to colleagues.
• Like you, I have also availed my resources to you personally to assist and enhance
relationships beyond the workplace.

My ambition to enhance morale, encourage improvement and team values remain without compromise.

2) ‘Since the start. I have bought aggression to the practice’

There is no evidence in my long history with the practice of any aggression. Certainly, I have raised my voice with determined conviction in defiance of unjust victimization and unfair workplace demands perpetrated by yourself and others. This determined conviction has concluded satisfactorily both morally and ethically without any demonstrated or implied aggression by me. I have never raised a clenched provocative fist to anyone, I have never thrown tools around the workplace or papers in the faces of colleagues and unlike yourself, I have never slapped anyone in the face in the company of staff and their partners. Your practice has a record of numerous conflicts between staff, management and clients including inter-management conflicts.

3) ‘Just get on with my work’

The very reason why I am in dispute with a colleague is because I do wish to ‘get on with my work’. I am in attendance well beyond the hours required by my employment agreement. I have attained AutoCad training and certification to enhance my already considerable contribution to the practice.

Having practiced professionally longer than you, my experience and accomplished works is [sic] unequalled by my contemporaries. I am highly regarded in my field having worked for other practices whose testimony to my work ethic is in direct contradiction to your remarks. For more than two decades I have developed my skills, techniques and qualifications all of which have served the practice with overwhelming advantages. I have conducted myself with consistent professionalism over many years.

The only impediment allowing me to 'just get on with it' is your interference with clients, employees and neighbours to only destabilize your practice. Furthermore, I have supplied my own machinery, since you rejected my application to acquire, without recognition or appreciation. I have also voluntarily continued spray painting to keep to schedules as much as practicable despite a Worksafe prohibition notice and an outstanding improvement notice for spray facility compliance with the relevant Australian Standard. Efforts were made to effect this notice expeditiously but remains unaddressed by you despite your declaration that you take Worksafe matters seriously.

To conclude, you remain divided with your Associate Director regarding these matters and your conduct in relation to your professional and ethical responsibilities towards staff.

Your three accusations described above do not support your awarding me an Associate recognition a couple of years ago. Therefore one can only conclude that your behavior against me is a personal deficit that burdens you alone.

I have served this practice with distinction for many years. You are calculating with the deployment of your harassment and intimidation. There are laws and codes that protect employees from this form of unjustified workplace abuse. Should your misrepresentation of my professional character continue, I intend to defend myself and my rights from your ongoing disruption and harm by enacting my rights to fair employment.’

[21] A meeting with the applicant was held that day at 4:00 pm, with Mrs van Wyngaarden in attendance. There was little put in the applicant’s written materials as to his version of the conversations in this meeting. However, he claimed that Mr Hartree had said that his failure to observe the 10 ‘discriminatory and inaccurate conditions’ would be met with another letter and failing that he would be dismissed. The applicant said he was distressed and shaken. Mr Hartree got up and said ‘We’re back where we were six months ago’. At this juncture, I note that these are the only words the applicant, Mrs van Wyngaarden and Mr Hartree all agree were said in the meeting. The applicant denied stating ‘I resign effective immediately. I will finalise it in writing tomorrow’. The applicant claimed Mrs van Wyngaarden corroborated his version of the meeting in that at no point had he resigned or indicated any intention to do so. As this is the crucial event which will determine the jurisdictional objection, I will return to the relevant evidence in more detail later.

[22] Returning to the chronology as set out in the applicant’s materials, later that evening (6:09 pm) the applicant made very clear to Mr Hartree his views as to the outcome of the meeting. He wrote:

‘David,

To be clear, I will NOT be forced by you to resign.
Please withdraw the warning letter you served upon me today.

I REJECT this warning letter for its numerous inaccuracies, unfairly biased opinions and terms and the intimidating tone in which it is delivered.

I expect to be reprimanded for GENUINE inappropriate behaviour just as I intend to serve notice on you for any further GENUINE violations of the relevant fair workplace and safety act and regulations. As stated in my letter to you today, this is a response to your ongoing harassment, neglect, unfair, inconsistent and harmful treatment.

Furthermore, I will only meet with you to discuss these issues in the presence of an independent third party mediator.’

[23] On Friday, 18 September 2015, the applicant wrote to WorkSafe requesting contact from a representative about workplace harassment he had experienced over the last two years. That day, Mr Hartree wrote to the applicant in the following terms:

‘Dear Peter,

In reply to your email to me dated 17 September 2015 I wish to make it very clear as follows:

1. You resigned "effective immediately" as an employee of HAA at the conclusion of our meeting at 4:00PM on 17 September 2015;
2. I accepted your resignation without hesitation and we both left the room. Consequently your employment with HAA is lawfully terminated and is now at an end without further formalities.
3. I did not force you to resign. You tendered your resignation willingly and it was accepted.
4. Although not legally necessary for you to do so, your closing comment was that you would formalize your resignation with a letter today. Instead of receiving such a letter you sent me a long email dated 17 September 2015. I thoroughly reject the contents of this email and will not be entering into any further communications with you.

I will review your accrued entitlements with Jacqui on morning of 21 September 2015 and make payment the same day.

Please clear your personal belongings, leave your keys and vacate the premises today, going forward you are not to re-enter the building at any time without my personal approval.’

[24] Later that evening, the applicant wrote to Mr Hartree rejecting and refuting his earlier email and claiming to have been unlawfully terminated by Mr Hartree. Despite this, the applicant returned to work on Monday, 21 September 2015, and at 7:23 am sent the following email to Mr Hartree:

‘David,

Your letter dated 18 September 2015 accepting my alleged resignation is in breach of the Fair Work Act 2009 and therefore unlawful. At best, the grounds of your unlawful dismissal constitute a constructive dismissal as prescribed in the act [sic] and is therefore not lawful. My resignation of 31 October 2014 also constitutes an unlawful dismissal.

In regards to the mismanaged personal altercation between Sammuel and myself, I recommend Sammuel report the witnessed incident, and his allegations against me, to the WA Police to investigate the matter thoroughly.

Going forward, I have never faltered from my professionalism therefore I expect the same in return from my employer. As always, I am happy to discuss the technical and fundamental aspects of modelmaking with you at any time. However, as I have already stated, to maintain a fair accord, should you wish to discuss matters pertaining to my personal character, attitude, performance or my negotiated employer-employee agreement it shall be in the company of an independent mediator. Parry and Rosenthal Managing Director Mr Paul Rossen has agreed to assist.

Since your letter is unlawful, I will be continuing my employment with Hartree and Associates Architects and Modelmakers in accordance with the terms of my current Employer-Employee Agreement November 2008 with no impediment to my entitlements and rights.’

[25] Mr Hartree replied in two emails later that day. They read:

‘Dear Peter

1. Last Thursday 17 September 2015 you resigned as an employee of Hartree +
Associates Architects and Modelmakers.
2. I accepted your resignation and your employment with H+AA came to an end.
3. I note you are now asserting a constructive dismissal. I thoroughly reject this and repeat that you resigned of your own accord last Thursday.
4. Either way, irrespective of whether you resigned willingly or felt forced to resign (a constructive dismissal), your employment is lawfully at an end.
5. My letter to you last Friday confirmed your employment was at an end and I asked you to leave the premises by the end of the day and not to return. This remains the position.
6. I do not understand why you returned to work today. I repeat my demand that you vacate the premises immediately as you have no lawful right to be on the premises.
7. If you believe you have rights and remedies against H+AA as you allege, you are at liberty to pursue them - and which I assure you will be vigorously defended.
8. Please leave immediately.’

‘Peter

It seems the message is not getting through to you.

Quite frankly I find this artificial and utterly self serving [sic] position of yours in now stating after the fact that you did not resign as tiresome and a distortion of the truth.
For the record Peter you did resign, I accepted your resignation and your employment with HAA was terminated at that point.
I cannot tolerate a situation where an employee resigns, is then asked to leave the premises but refuses to do so and stays put as if he was still employed. This is precisely the untenable position you have adopted.
Notwithstanding, without in any way being obliged to do so for the reasons already outlined, so as to bring this matter to an end please regard this email as the formal termination of your employment with HAA which must now be regarded as being at an end forthwith.
Please remove your personal belongings and leave the premises immediately for once and for all - and do not return.
Your accrued employee entitlements will be paid into your nominated bank account after I have reviewed and approved.
I will not be entering into any more correspondence with you regarding the termination of your employment with HAA.’

[26] The applicant continued to engage with Mr Hartree insisting he had not resigned and he would continue working. In a three-page email sent to Mrs van Wyngaarden at 7:44 pm on 21 September 2015 and headed ‘WRITTEN WARNING 17 September 2015 – UNFINISHED FOR REVIEW Peter Blythe Right of Reply’, the applicant sets out a series of incidents leading to the Arellano incident and claiming that his resignation in October 2014 was in ‘fact’ a constructive unfair dismissal.

[27] Finally, Mr Hartree emailed the applicant on 22 September 2015 in the following terms:

‘Dear Peter,

I was stunned to read your email to me sent at 6.35pm yesterday (21 September 2015) in response to my email to you sent at 6.07pm on the same date.

Whether you accept it or not Peter your employment with HAA has been lawfully terminated. Period.

Because you attempted to withdraw your resignation after I had accepted it, to avoid any confusion in your mind and to bring finality to the stand off, to the extent your employment was not already lawfully terminated, it was terminated by my email to you sent on 21 September 2015 at 6.07pm. In that email I asked you to leave the premises but you failed and refused to do so.

Your gross insubordination, disrespect and naked defiance have made your position as an employee of HAA untenable. It would be difficult to imagine worse conduct from an employee. By your conduct you have materially breached your contract of employment to the extent that the element of mutual trust and confidence has been totally eroded.

For the record I repeat the following from my email sent to you at 6.07pm yesterday: “... so as to bring this matter to an end please regard this email as the formal termination of your employment with HAA which must now be regarded as being at an end forthwith.”

You are again requested to leave the premises immediately failing which you may be removed forcefully.’

[28] The applicant maintained he had tendered no resignation, verbally or in writing, implied or otherwise. He claimed the respondent’s actions in reviewing his entitlements and not paying him five weeks’ notice do not support a resignation. He further believed that Mr Hartree attempted to force him to resign on 17 September 2015 by placing unreasonable demands on him. The respondent had a predetermined ‘agenda’ to terminate his employment in June 2015 after the WorkSafe improvement notices and having negotiated with a competitor modelmaker to complete the applicant’s work once he was dismissed.

[29] Further, the applicant claimed that he was dismissed, without warning on 22 September 2015 and escorted off the premises by a security guard.

[30] In a lengthy cross-examination, the applicant would not accept any of the criticism of his behaviour over the last two years as set out in the respondent’s warning letter of 17 September 2015. On the contrary, he claimed the reasons for the tension and conflict in the workplace were the constant harassment of him by Mr Hartree and his attempts to ‘undermine and degrade’ the workplace agreement. The warning letter had nothing to do with his performance or conduct. However, the applicant acknowledged that over six years, he had not pursued any action to recover his alleged unpaid contractual entitlements. He believed Mr Hartree’s views were fabricated and part of the ‘agenda’ to force him out.

[31] The applicant agreed that the last paragraph of the warning letter was not suggestive of an employer wanting to terminate an employee; but it had to be read in context. He believed it was absolutely appropriate for him to refuse to meet Mr Hartree on 8 July 2015. He also said it was appropriate to tell Mr Hartree in front of others that he ‘should just go upstairs and count [his] money’, because this had followed months of continual harassment.

[32] The applicant confirmed that he had resigned, in writing in October 2014 and returned after a few days after Mr Hartree withdrew his then proposed unreasonable terms. The applicant denied that an email he sent to a work colleague on 31 August 2015 was insulting or inappropriate.

[33] The applicant then described the Arellano incident when he turned the lights off while Mr Arellano was working. There was a heated argument and Mr Arellano actually raised his arm as if to hit him. Mr Hartree simply accepted Mr Arellano’s version of events and had not even asked a direct witness, Mrs van Wyngaarden, for a statement until 10 days after he was dismissed. The applicant conceded he initially refused to provide Mr Hartree with a statement, but eventually did. The applicant did not consider there was a need for him to improve his conduct, because there was nothing to improve. He had always conducted himself in a mature and professional manner.

[34] The applicant claimed that the ‘agenda’ to remove him was because Mr Hartree:

was aggrieved by the WorkSafe inspections;

had sold the building for $2 million and did not want to spend money on improvements;

had visited a competitor modelmaker to arrange completion of the applicant’s work when he was dismissed; and

would save money by ‘forcing’ the applicant’s resignation.

[35] The applicant agreed that at the time of his dismissal, he was working on three modelling projects for the respondent, including a $27,000 project for BHP.

[36] The applicant was taken to each of the dot points in the warning letter (see paragraph [19] above) and said they were all unreasonable and offensive, particularly as Mr Hartree’s directions did not apply to anyone else. In particular, he said it was unreasonable not to expect him to work back if he had a job to complete. It was unreasonable that he had to advise Mr Hartree if he was leaving work for longer than his meal breaks or when he was away from work. He had always called in whenever he was sick. It was also unreasonable for Mr Hartree to ask for work briefs on a Friday for the next week, because as a senior staff member, he was self-managed and would report to the Associate Director, Mrs van Wyngaarden, in any event. There was never any complaint about his work and there was never an issue about the smooth running of the model shop because everything was fine. The applicant said Mr Hartree’s direction about annual leave was unreasonable because it was not consistent with what applied to other staff, or the fact that Mr Hartree was hardly in the office over the last year or two.

[37] The applicant accepted he drank alcohol on the respondent’s premises after working hours – just like everyone else (maybe once or twice a week).

[38] It was the applicant’s evidence that his relationship with Mrs van Wyngaarden was as a friend and support person. He confided in her and she had helped him with proofreading his materials for this case. She did not do this in her own work time. She was dismissed two months after his own dismissal. He did not believe Mrs van Wyngaarden had a conflict of interest in being an Associate Director of the respondent and discussing his unfair dismissal case with him. The applicant was asked about his email of 21 September 2015 (see paragraph [26] above), which he prepared while in the office and Mrs van Wyngaarden was still employed. He had sent the email to her for proofreading. The applicant claimed Mr Hartree ‘unlawfully’ accessed this email and summarily dismissed him the next day. He did not consider there was anything inappropriate in sending the email to Mrs van Wyngaarden. He said that as she was a witness to the meeting of 17 September 2015 and the Arellano incident, it was very appropriate for her to proofread the email. (In response to a question from me, it was established that Mrs van Wyngaarden was an employee of the respondent who had the title of Associate Director, but she was not a Director in the strict legal sense).

[39] The applicant was queried about the short time period between receiving the warning letter (at 3:40 pm) and sending his response email (at 3:43 pm) (see paragraphs [19]-[20] above). The applicant explained that he had already prepared his response email and was keeping it in reserve. When he received the warning letter, he only needed three minutes to know it was grossly inaccurate, because it was absolutely predictable behaviour by the respondent. The applicant claimed he wrote the email after the incident with Mr Arellano. He denied that he was anticipating the warning letter and wanted to get in first before Mr Hartree acted.

[40] The applicant confirmed that the meeting with Mr Hartree and Mrs van Wyngaarden on 17 September 2015 commenced at about 4:00 pm in the downstairs board room and lasted maybe 10-12 minutes. He later agreed it lasted 45 minutes. The applicant described what happened as follows:

‘And so we sat down. I was obviously upset. The respondent had in his hand the written warning and the respondent admitted to myself and Mrs Van Wyngaarden that the first page of the written warning was actually - you know - all based upon Samuel's evidence and therefore he admitted there were discrepancies in it. Then he focused straight on the - on the 10 - on the 10 bullet points. The 10 bullet points were served up to me without any course for discussion, any course for feedback. As it says in the written warning it says strictly followed - if I didn't follow those terms there will be another warning issued. And following that it'll be - my employment will be terminated. And I requested a mediator in writing on three times and verbally at that meeting and in every instance it was ignored.’

[41] The applicant said the meeting was not calm and measured. He was upset because there was nothing wrong with the operations in the model shop. The applicant rejected Mr Hartree’s version of the conversation, particularly his claim that the applicant had said:

‘Why don't you stop interfering with the model shop projects and clients? You can't make me follow these conditions. What are you going to do if I don't follow them, David?’

and

‘Well, I won't comply. I'm resigning effective immediately. I'll formalise it in writing tomorrow.’

[42] When asked why he used the word resignation in his later email, if as he claimed, he had not resigned, the applicant explained that he knew what Mr Hartree was getting at when he said ‘We’re back where we were six months ago’, i.e. he was forcing him to resign. The applicant confirmed that he was not going to follow Mr Hartree’s ‘unreasonable demands’ and would continue his work for the respondent. When it was put to him that if Mr Hartree wanted him out, he could have given him notice of termination under his employment contract, the applicant said ‘But he didn’t.’ The applicant claimed Mr Hartree had engaged another modelmaker in June 2015 to complete his jobs in anticipation of him being dismissed.

[43] The applicant conceded that he knew his employment had been terminated on 17 September 2015 because he insisted on his entitlements being paid. This was a Friday and he intended to return to work on Monday because he had been advised to act like an employee who had not resigned. He agreed he discussed his emails with Mrs van Wyngaarden. After the fourth letter from Mr Hartree, the applicant still decided to remain working and attend the premises.

[44] The applicant acknowledged he had called in a WorkSafe inspector in June 2015, without discussing the matter with Mr Hartree. He believed the workplace was unsafe. However, he conceded that nothing had been different in the previous six years, and he had done nothing about it. The applicant agreed the issues WorkSafe identified were corrected and had been ‘ticked off’ by WorkSafe. The applicant could not explain the connection between the WorkSafe notices expiring on the Friday after the termination of his employment. The applicant did not accept that by 22 September 2015, Mr Hartree believed the applicant had breached his contract of employment to the extent that any mutual trust and confidence had been totally eroded. Rather, it was Mr Hartree who should have respected the contract of employment.

[45] The applicant denied setting up a rival modelmaking business with Mrs van Wyngaarden while employed by the respondent. They had registered a business name, but no business had been conducted. The applicant claimed that as he was unemployed, his only option was to start up his own business. In the last five months, he had been preparing for this case, setting up a website and looking for factory space to lease. He had also been working on AutoCAD drawings and on a BHP contract that had previously been awarded to the respondent. He had nothing to do with the contract being cancelled by BHP or awarded to him. He understood that BHP had contacted Mrs van Wyngaarden because he could not be contacted. When pressed further, the applicant agreed the business’ Australian Business Number (ABN) had been registered on 11 February 2015 in the names of Peter Blythe and J J van Wyngaarden. The business name was Blythe Modelmakers. He had set it up at that time because it was shortly after Mr Hartree had threatened to change his workplace agreement and had offered him the purchase of the business. He agreed this step was his ‘insurance policy’.

[46] The applicant also agreed he registered another business name, Modeldyne, on 14 August 2015. It has a letterhead, a post box address, phone number and email contacts. All of the contacts were Mrs van Wyngaarden’s. It was through this entity that BHP had contracted with him. The applicant claimed the document in evidence was a template which Mr Hartree had improperly intercepted. He was surprised it had been found via a Google search.

[47] The applicant was shown a changed purchase order from BHP, which cancelled the respondent’s contract ‘due to modelmaker departure’. He was asked to reconcile the respondent’s loss of this work with an alleged desire by Mr Hartree to force his resignation. There were further communications about the contract between Mrs van Wyngaarden and Ms Rebecca Boyd of BHP on 23 October 2015, a month after he had left, and while Mrs van Wyngaarden was still employed by the respondent.

[48] In further evidence, the applicant claimed that in the meeting of 17 September 2015, Mr Hartree was ‘intimidating, argumentative and threatening’. He put that he had an abundance of evidence to demonstrate the respondent’s ‘continual breaches of the employer/employee agreement’ and his unwarranted attempts to change the modelmaking business model. The applicant conceded he had not taken any formal action to challenge the alleged breaches of his contract. He insisted that Mr Hartree had wanted to force his resignation and he had already lined up another modelmaker to complete his work. He also believed that Mr Hartree told him he could rent out the model shop for $45,000 per annum and save on the applicant’s $90,000 pa salary.

[49] The applicant denied that the ‘disturbing insults and accusations’ referred to in Mr Hartree’s email of 30 October 2014 were part of the same pattern of behaviour repeated in 2015. Mr Hartree was wrong then and he was wrong again in September 2015. At the time, Mr Hartree had put two options to him and he had proposed a third – resignation. The applicant denied that if he did not get his way, he would threaten to resign. He rejected the suggestion that this was the same scenario in September 2015, because he had not resigned in writing at that time (as he had in 2014).

Mrs Jacqueline van Wyngaarden

[50] Mrs van Wyngaarden said that the applicant was hand-delivered the warning letter at 3:40 pm on 17 September 2015. At 3:43 pm that day, she was copied into the applicant’s email response. Mrs van Wyngaarden said she had no previous knowledge of the written warning, despite it being usual for Mr Hartree to discuss such matters with her as the respondent’s Practice Manager.

[51] Mrs van Wyngaarden said that there was an earlier request from Mr Hartree for a meeting with the applicant the day before. While she was not present, she could hear it was vocal, emotive and brief. After that, the applicant appeared to be distressed and upset. He told her that Mr Hartree refused to listen to him or allow him to explain his version of events of the evening before (involving Mr Arellano).

[52] Mrs van Wyngaarden described the meeting at 4:00 pm on 17 September 2015. It was ‘emotive, loud, heated, hostile and distressing’. The applicant stated that he took offence at the content of the warning letter, that it was inaccurate, insulting and in breach of his employment agreement. Mrs van Wyngaarden agreed with the applicant that as she was present during the Arellano incident, she could verify that the letter was false, misleading and unfair. She agreed with the applicant that the conditions Mr Hartree imposed on him were insulting and unnecessary. Mr Hartree had acknowledged that some of the information in the letter may have been inaccurate. The applicant stated that Mr Hartree’s uncompromising approach made him feel threatened and harassed, and that he was being treated unfairly, particularly as Mr Hartree refused to listen to him.

[53] Mrs van Wyngaarden claimed that Mr Hartree insisted that if the applicant did not abide by the conditions in the letter, there would be consequences. He would receive another letter and if he did not comply, his employment would be terminated. He added that if the applicant did not like it, then ‘he had options’. Mr Hartree then stood up and said ‘we are back to where we were six months ago’ and left. Mrs van Wyngaarden insisted that at no time had the applicant stated his intention to resign.

[54] Mrs van Wyngaarden said she was copied into:

the applicant’s 6:09 pm email to Mr Hartree (see paragraph [22] above); and

the applicant’s 18 September 2015 email to WorkSafe (see paragraph [23] above).

[55] It was Mrs van Wyngaarden’s evidence that she told the applicant on 18 September 2015 to focus on his work, despite his distress, and he did so. She was aware the applicant had previously contacted WorkSafe in 2012 regarding workplace bullying and harassment.

[56] Mrs van Wyngaarden said that around 4:00 pm on Friday 18 September 2015, Mr Hartree requested the applicant attend a meeting with him. The applicant said he would not do so, without the presence of a mediator. Mr Hartree threw an envelope on the desk. In it, there was a letter wrongly stating that the applicant had resigned ‘effective immediately’, his resignation was accepted and he would not be communicating with him any further. Mr Hartree contacted her by email to say that ‘Peter Blythe resigned full stop’. She was shocked, confused and concerned about how the applicant was being treated.

[57] Mrs van Wyngaarden sent an email to Mr Hartree on 20 September 2015, in which she said

‘ a. Peter Blythe had not resigned and had made it clear by follow up email.
b. The meeting had been distressing for everyone.
c. The defining list to which he referred in his email was within an “inaccurate document”.
d. The document had been poorly executed by David Hartree.
e. The manner in which David Hartree had delivered his letter “Peter Blythe” on Friday upon his departure was definitely disappointing, calculated and callous.’

[58] Mrs van Wyngaarden said that Mr Hartree had not asked her for her version of the Arellano incident until 30 September 2015, despite the fact that she was present at the time.

[59] Mrs van Wyngaarden sent a further email to Mr Hartree on Monday 21 September 2015 stating that:

‘ a. he [Mr Hartree] also had a responsibility and duty of care to his staff along with a right to his ‘staff expectations’.
b. Fair Work could view the manner in which David Hartree had behaved and continued to behave towards Peter Blythe and the ‘resignation(s)’ as constructive dismissals.
c. he himself had also turned off light banks upstairs upon departure from the office on occasions when Sammuel Arellano continued to work (and without objection from Sammuel Arellano) and that the incident between Peter Blythe and Sammuel Arellano had been exaggerated and if it truly was as serious as it had been falsely described by Sammuel Arellano then why was it not referred to the police?
d. I needed and expected David Hartree's full support to fulfil my role.
e. Peter Blythe needed to be left alone by David Hartree to do his job.
f. Peter Blythe was currently progressing the model under my management.’

[60] Mrs van Wyngaarden continued to be copied into the emails between the applicant and Mr Hartree that day. At 3:51 pm, Mr Hartree emailed Mrs van Wyngaarden and stated:

‘ a. Peter sent him a similar email to the email I had sent him.
b. He objected to the contents of the email.
c. He acknowledged that I was trying to negotiate the situation.
d. He requested that I ask Peter Blythe to leave immediately.
e. He asked for a schedule capturing Peter Blythe's Leave Entitlements.’

[61] As a result, she requested the applicant to leave the premises. He said he had not resigned and he would continue to fulfil his employee/employer agreement and his obligations to the clients. He returned to work the next day. Around 12:00 pm, Mr Hartree entered the workshop with a contracted security guard and told the applicant he was dismissed and to leave immediately. Mrs van Wyngaarden said she then ‘warned’ Mr Hartree as follows:

‘I warned David Hartree stating “David do not say that, be careful what you are saying. You are saying that you have dismissed Peter instantly - he is not guilty of any serious misconduct”. David Hartree replied “No, I am dismissing him immediately”.

David then stated to me that “he already resigned at the meeting” to which I replied that “he had not resigned at the meeting”.

David Hartree leaned across the desk and said directly to me “Look me in the eyes and tell me he did not resign - you will have to testify in court what you are saying!”

I repeated that “Peter Blythe had not resigned” and “that I would not be forced into saying that he did”. I told David Hartree that in the meeting he had spoken of “options” to Peter Blythe. David Hartree stated that “he could not recall having ever said that”. I said that the meeting was heated, emotive and distressing and David Hartree and Peter Blythe were talking loudly and over each other. I said that I was not surprised David Hartree could not accurately recall what was said.’

[62] Mrs van Wyngaarden said the applicant requested police notification that his removal was at the employer’s demand. The police were called, but did not attend, and the applicant left peacefully. Mr Hartree later advised her the workshop locks were to be changed.

[63] In oral evidence, Mrs van Wyngaarden stated that when she commenced employment with the respondent on 14 February 2011, she had not known the applicant before that time. Over the years, her position changed to non-financial Associate Director. Mrs van Wyngaarden herself received a warning letter on 5 October 2015. After 8 October 2015, she commenced sick leave for shoulder reconstruction surgery. She was summarily dismissed on 18 November 2015, while still on sick leave. She also had proceedings on foot in the Commission in respect to her alleged unfair dismissal.

[64] Mrs van Wyngaarden described herself as a friend and ex-work colleague of the applicant and his support person. She said she has no business relationship with the applicant and he has not set up his own modelmaking business. In respect to the BHP contract, Mrs van Wyngaarden agreed she was aware of the value of the contract. At the time of the applicant’s employment, the actual work on it had not commenced. She said that BHP had told her that if the respondent was intending to subcontract the work (and two other contracts), it would be cancelling the order. Mrs van Wyngaarden stated that at the time, the applicant was working on two other jobs – one for the Metropolitan Redevelopment Authority and the other for the Department of Mines and Petroleum. They were each worth between $20,000 and $40,000.

[65] Mrs van Wyngaarden acknowledged it was inconvenient for the applicant to leave the business in these circumstances, and she was disappointed that the clients had been affected. Mrs van Wyngaarden claimed the BHP contract was ‘cancelled completed’ and not done by anyone. She conceded that when the applicant left, she contacted BHP to advise them that the contract could not be completed by October 2015 and that the respondent could offer a subcontractor alternative. BHP later stated the contract was cancelled because the applicant had left the respondent’s employ. She believed that BHP was always happy with the applicant’s work. She said that while on sick leave, she received a call from BHP asking if she knew of anyone to fulfil the contract. At that time, the applicant did not have a workshop to be able to complete the contract. There were two or three other model shops in Perth. Two of the partially-completed contracts were completed by a competitor modelmaking company. Mrs van Wyngaarden claimed that the BHP contract was very specific and required specialised techniques.

[66] It was Mrs van Wyngaarden’s evidence that BHP cancelled the order because it could not be completed by October 2015 and the modelmaker had left. Mrs van Wyngaarden claimed that the job was cancelled, ‘it didn’t go to anyone… it didn’t [go to Mr Blythe]. Mr Blythe didn’t have a modelmaking business at the time.’ In answer to a question about the transcript, Mrs van Wyngaarden said she had not read the transcript of the applicant’s evidence. She was asked about his evidence that ‘I’ve been working on AutoCAD drawings for a BHP contract that was awarded to me’. Mrs van Wyngaarden claimed that she was not aware that he had been awarded that contract. It was Mrs van Wyngaarden’s belief that the BHP contract the applicant was referring to might have been similar to the cancelled contract, but it was not that specific contract. The applicant could not have satisfied BHP’s requirements, because he did not even have a business or a workshop. Mrs van Wyngaarden emphatically denied assisting the applicant in getting the BHP job while she was employed by the respondent. In fact, she had encouraged BHP not to cancel the order with the respondent.

[67] Mrs van Wyngaarden had received an email from Ms Rebecca Boyd of BHP on 14 December 2015 concerning a new job for the applicant. By this date, she had been dismissed. She believed Ms Boyd’s email was sent to her in error, because the applicant does not have an email address. She claimed this was a different contract to the respondent’s cancelled order.

[68] Mrs van Wyngaarden acknowledged that the applicant and Mr Hartree had a difficult relationship. Even when Mr Hartree called him derogatory names, the applicant did not respond. While the applicant was frustrated, irritated and definitely under pressure, she had not witnessed him abusing any work colleague. He was not moody. Mrs van Wyngaarden reiterated her disagreement with Mr Hartree’s comments and allegations in the applicant’s warning letter of 17 September 2015. She conceded that some of the applicant’s remarks directed at Mr Hartree, such as ‘go upstairs and count your money’, were inappropriate, and had, in fact, told him so. Mrs van Wyngaarden was taken through each of the allegations raised in the warning letter. She conceded that the various incidents could have been handled differently.

[69] Mrs van Wyngaarden acknowledged that the applicant had resigned in October 2014 and returned a few days later. She did not agree that the applicant’s behaviour was erratic, unpredictable or insubordinate. She believed Mr Hartree had an ‘agenda’ and was motivated to upset the applicant by sending him the warning letter. Mrs van Wyngaarden disagreed with all the conditions Mr Hartree had attempted to impose on the applicant.

[70] Mrs van Wyngaarden also acknowledged she had assisted the applicant in preparing and reviewing documents for this case – but not while she was still employed by the respondent. She believed the applicant’s employment contract was not being complied with by Mr Hartree, and referred to his failure to conduct annual reviews. She believed that if Mr Hartree was really not seeking his resignation, the warning letter should have been more constructive, rather than criticising the applicant unfairly, particularly as he had no previous warnings. She agreed, however, that the last paragraph of the warning letter was a good paragraph.

[71] Mrs van Wyngaarden claimed the warning letter was hand-delivered to the applicant around 3:30 pm on 17 September 2015. She knew the applicant had been working on a response to the Arellano incident. This was not, and could not have been a response to the warning letter. Mrs van Wyngaarden said she was completely shocked when she read the warning letter. It was unwarranted and unnecessary. Mrs van Wyngaarden had arranged for Mr Hartree to meet the applicant that day. She agreed that in the meeting, she supported the applicant and agreed with his comments to Mr Hartree. He had not told Mr Hartree he would not comply with the bullet points in the letter. Her recollection was that the applicant had not said ‘well David, what happens if I don’t comply?’. Mr Hartree wanted to control what was happening, but he had been unreasonable. She believed the applicant attended the meeting in a provoked state knowing the warning letter was inaccurate and feeling threatened. She had herself felt distressed by the meeting.

[72] It was Mrs van Wyngaarden’s evidence that when Mr Hartree said ‘if you don’t like it, you’ve got options’, the applicant replied ‘and one of them is resignation’. However, he did not indicate that he was intending to do so. He was alluding to October 2014, when he had resigned and returned by mutual agreement. At that time, Mr Hartree had petitioned her to contact the applicant about returning to work and he did so.

[73] Mrs van Wyngaarden said that she had discouraged the applicant from sending the response – ‘Draft for Review’ – and it was not sent. She did not consider her involvement in reviewing this email as a conflict of interest. Since 2012, her role had been to try to negotiate a ‘beneficial’ working relationship. Even so, she did not consider the applicant was a ‘disruptive influence’ in the business.

[74] Mrs van Wyngaarden stated that she had never seen a policy and procedures manual in the business, notwithstanding the applicant included such a document in the materials he had filed in the case. However, she believed the document was an historical document. It had never been issued to any new employee since her own appointment.

[75] Mrs van Wyngaarden stated that she had not always sided with the applicant in his dealings with Mr Hartree, but she definitely had assisted him when he felt he was inadequate or unable to express himself or when the respondent would not give him an opportunity to state his position. In fact, the applicant had ultimately requested an independent mediator to attend meetings with Mr Hartree. At the meeting on 17 September 2015, Mrs van Wyngaarden denied that the applicant had said ‘I won’t comply, I’m resigning effective immediately. I will formalise in writing tomorrow’. She agreed that when Mr Hartree asked her for a statement on 30 September 2015, she did not provide it. Mrs van Wyngaarden said Mr Hartree could not have been referring to the applicant’s October 2014 resignation when he said ‘We’re back to where we were six months ago’, because that event was 11 months earlier. In October 2014, he had only given an intention to resign. She accepted he had walked out leaving incomplete jobs. Mrs van Wyngaarden said she did not then try to lure him back over the weekend. She believed he regretted his resignation at that time.

[76] As to the safety issue with the spray painting booth, Mrs van Wyngaarden said the applicant had raised his concerns in June 2015 with her and Mr Hartree. She agreed she had not fixed the issue before the applicant complained to WorkSafe. She claimed to have been surprised when the inspector turned up when Mr Hartree was not present. Nevertheless, nine improvement notices and one prohibition notice were issued. The cost of rectification was ‘a couple of thousand dollars’. The spray painting booth was not being used after the applicant left. Mr Hartree had told WorkSafe the rectification work on the spray painting booth would not be done, because it would not be used. Mrs van Wyngaarden acknowledged that this issue did not assist the relationship between the applicant and Mr Hartree; indeed, Mr Hartree was also upset with her.

[77] Mrs van Wyngaarden conceded she did not tell Mr Hartree the applicant had complained to WorkSafe on 17 September 2015 about workplace harassment, despite her responsibility to do so. She said she did not tell Mr Hartree because she did not believe it would be helpful. Nevertheless, she acknowledged that she had printed the WorkSafe complaint form and gave it to the applicant some time later.

[78] Mrs van Wyngaarden agreed that she and the applicant set up a partnership involving the business names Blythe Modelmakers on 11 February 2015 and Modeldyne on 14 August 2015. She agreed that a template letterhead for Modeldyne identified her post box address and phone number. She denied this was an attempt by her to set up a rival business before being dismissed by Mr Hartree on 18 November 2015. Mrs van Wyngaarden claimed that Mr Hartree had accessed her email, without her knowledge or permission.

[79] Mrs van Wyngaarden said that when the applicant had said he had an occasional drink with her, he had not meant an alcoholic drink, because she does not drink alcohol.

[80] It was Mrs van Wyngaarden’s evidence that she had helped the applicant write his response email to Mr Hartree after the meeting on 17 September 2015. She agreed she was copied into the email; but nothing more. Mrs van Wyngaarden said that Mr Hartree had emailed her on 20 September 2015 seeking a meeting on Monday 21 September 2015 to resolve final payments to be made to the applicant. She responded that ‘Peter made it clear to you by follow-up email that he did not resign’. She was very critical of Mr Hartree and said:

‘The meeting was distressing for all present. Your defining list was shrouded within a document which was inaccurate and poorly executed. The manner in which you delivered your letter on Friday as you were departing was most disappointing. It was definitely calculated and callous.’

[81] In re-examination, Mrs van Wyngaarden denied that there was a long history of poor conduct by the applicant. There was only one instance, the Arellano incident, for which he received an unjustified warning. Mrs van Wyngaarden referred to a significant amount of overtime worked by the applicant since 2009. She was asked about other examples of misconduct by other employees who had not been reprimanded or warned. She was also asked if she had witnessed bullying or intimidating conduct by Mr Hartree towards other staff, and about the policy document she had never seen. Mr Vilensky objected that these matters did not arise from cross-examination and appeared to be a ‘rehearsed’ question and answer exercise under the guise of re-examination.

Mr David Hartree

[82] Mr Hartree set out the history of his architectural business since its inception in 1993. The business had included a modelmaking shop which provided 3D models to complement the design and presentation of the respondent’s architectural business. Mr Hartree said that a good modelmaker is very difficult to find and since the applicant’s resignation, he has been without a modelmaker. This has caused significant disruption to the business and forced him to outsource unfinished modelmaking projects to competitors. While Mr Hartree agreed the applicant was a good modelmaker, he had a history of inappropriate behaviour, unacceptable conduct and of threatening to walk out in the middle of unfinished projects.

[83] Mr Hartree set out his knowledge of the incident involving a graduate architect, Mr Sammuel Arellano, on the evening of 15 September 2015. Shortly after the incident, Mr Arellano called him and told him he felt intimidated by the applicant, and that if the applicant’s behaviour did not cease, then he would be forced to leave. Mr Hartree asked him for a written statement. He annexed this statement to his evidence. Part of that statement said that the applicant told Mr Arellano to ‘shut the fuck up and get the fuck out of the office, you are a junior, you are a bad draftsman’.

[84] Shortly after Mr Arellano’s phone call, Mr Hartree received a call from the applicant. He informed him of the altercation and said he ‘told Sammuel exactly what he thought of him’. When Mr Hartree asked how the applicant would feel if someone turned the lights out while he was working to a deadline, the applicant hung up on him. Mr Hartree considered the applicant’s conduct towards Mr Arellano to be intimidating and bullying. It would not be tolerated.

[85] Mr Hartree cited four other examples of the applicant’s rude, discourteous, offensive and disrespectful behaviour.

On 8 July 2015, after requesting a meeting with the applicant about modelshop programs and delivery, he shouted in front of two other staff members:

‘I’m not going to provide a program, end of story, and if that’s not good enough David, give me a termination notice stating reasons why.’

In early September 2015, when Mr Hartree inquired as to delivery programs, the applicant said in front of the Practice Manager:

‘[S]top interfering with the clients, we don’t need your input, just go upstairs and count your money.’

Prior to 15 September 2015 incident, the applicant sent the following email to Mr Arellano:

‘There is no need to bring down your single insigificant bag of rubbish to the model shop. It seems a lot of trouble for you to unlock the doors for a total contribution as an excuse the [sic] survey the model shop given you can barely make the effort to get to work on time, submit your work brief or wash a teaspoon!’

In a meeting with Mr Arellano and the applicant to discuss their relationship, the applicant lost his temper and said to him:

‘[T]he quality of your work is not good enough Sammuel, you are not honest, I don’t like you, I’ve no respect for you I cannot work with you, I will not work with you.’

[86] Mr Hartree said he requested a written statement from the applicant about the Arellano incident the next day, but the applicant refused. He tried to meet with him, but he would not engage and said ‘the meeting is over’ and left. Mr Hartree decided to issue him with a warning letter on 17 September 2015, concerning his unacceptable behaviour and setting out clear terms for his ongoing employment. Mr Hartree claimed he hand-delivered the letter to the applicant at 12:00 pm on 17 September 2015. He requested the applicant read the letter and meet with him later in the day. At 3:43 pm, he received the applicant’s response and the meeting commenced around 4:00 pm.

[87] As the conversation in the meeting is critical to the outcome of this case, I set out in full Mr Hartree’s version of events from his reply statement below:

‘The meeting started by me repeating the final paragraph of the warning letter. I then said I wanted the Applicant to listen to me whilst I noted the issues and a strategy to be implemented to avoid future disputation between us within the office and that I was keen to seek his input. The meeting was measured for the best part and continued from 4:05PM until 4:45PM. I acknowledged that the Applicant had disagreed with Sammuel’s statement on the incident on 15 September 2015 and I confirmed that the comments made in the warning letter in relation to this incident relied on Sammuel’s version. I instructed the Applicant to provide his own statement which he had declined to provide. During the meeting, after discussing in detail the various incidents the Applicant said words to the effect, “why don’t you stop interfering with the modelshop projects and clients, you can’t make me follow these conditions, what are you going to do if I don’t follow them David”. My response was words to the effect “the conditions are reasonable and going forward they are to be followed and we needed to move on from the ongoing disputes and if you don't follow them I will issue you with another warning letter”. In response the Applicant calmly said to me “well I won't comply, I'm resigning effective immediately ... I will formalise in writing tomorrow”. The Applicant stood up from the meeting table. My response was “I accept”. I then turned to Jacqui [Mrs van Wyngaarden] and said “we are back to where we were six months ago”. By this I meant we were back to where we were when the Applicant previously resigned and walked out without notice in early November 2014, (11 months before), leaving H&AA with unfinished models and no modelmaker.’

[88] Mr Hartree referred to the email exchanges between the applicant and himself which followed within two hours of the meeting. These have been set out earlier in this decision and do not require replication here.

[89] Mr Hartree said he was surprised to receive the applicant’s email at 6:35 pm on 21 September 2015, wherein the applicant maintained he would be continuing his employment, despite his view that he had resigned. He considered his behaviour to be serious misconduct. He responded the next day as follows:

‘Dear Peter,

I was stunned to read your email to me sent at 6.35pm yesterday (21 September 2015) in response to my email to you sent at 6.07pm on the same date.

Whether you accept it or not Peter your employment with HAA has been lawfully terminated. Period.

You are again requested to leave the premises immediately failing which you may be removed forcefully.’

[90] Mr Hartree’s first statement concluded:

‘I reiterate that the Applicant willingly resigned at the meeting on 17 September 2015 and I willingly accepted his resignation. Of this there can be no doubt. I did not in any way force or pressurize the Applicant to resign. I did not in fact want the Applicant to resign as there were a number of models the Applicant was working on at the time which had not yet reached finality and which I needed him to complete to deliver to clients. The Applicant’s resignation caused H&AA a considerable amount of inconvenience and disruption not to mention the negative effect it had with important clients which included the Department of Mines and a masterplan model of the Elizabeth Quay development, model projects that could not be completed by H&AA and were outsourced for completion by our competitors.’

[91] In his reply statement, Mr Hartree said that even on the applicant’s own evidence, his behaviour was unacceptable and required correction. He said that the 10 conditions in the warning letter, which the applicant claimed were unjustified and discriminatory, were no more than what was set out in the respondent’s policy and procedures manual. There could be no doubt the applicant received a warning letter, because he responded to it in those terms.

‘A more practical consequence of the trial judge’s duty to the litigant in person is its impact upon the length of trials. In order to ensure a fair trial, the judge will be required to give extensive advice to the unrepresented party at various stages throughout the proceedings. The time consumed by this advice is, if anything, lengthened by the limitation on the judge’s advisory role set out in MacPherson, Gidley and Zorad. Judges must be satisfied that accused persons understand their rights well enough to enable them to make their own decisions on how to proceed. Ensuring this level of understanding will, in complex cases, be a lengthy process which will increase court delays, add to the costs of proceedings from the point of view of both the court and the other party, and deprive other litigants of access to judicial resources.

A person without legal training is unlikely to be able to discern the real issues in a case. It is likely, therefore, that material will be put which is irrelevant to the questions before the court. This can only tend to lengthen proceedings. Intervention by the court is not a complete solution to this problem. Due to the lack of representation, it will be much harder for the court to become conversant with the issues in a case. A court will, therefore, be hesitant to limit the scope of evidence and submissions before coming to a sound understanding of the nature of the matter.’

[156] Even accepting the applicant’s unrepresented status, the gravamen of his approach to the evidence was that because he asserted something was a fact, and as Mrs van Wyngaarden corroborated his assertion, then it must be a fact; despite any evidence to the contrary. (I will come to Mrs van Wyngaarden’s evidence shortly.) Three examples serve to highlight this rather contorted logic:

The applicant asserted that his written resignation in October 2014 was correctly defined as an unfair dismissal. It was nothing of the kind and was only asserted as an unfair dismissal for the express purpose of ‘colouring’ his case in these proceedings.

The applicant’s view was that because he told Mr Hartree on multiple occasions he had not resigned on 17 September 2015, Mr Hartree’s contrary evidence must be false.

The applicant asserted he had received the warning letter at 3:40 pm on 17 September 2015, so he could not possibly have responded in three minutes. However, Mr Hartree said he handed the applicant the warning letter at 12:00 pm that day. The applicant persistently queried Mr Hartree as to how he could have replied in three minutes, as if there was no evidentiary conflict about the time. His logic was that because he and Mrs van Wyngaarden agreed on the time, Mr Hartree must be wrong.

These examples are called conflicts of evidence – not established facts. I repeat again, the mere assertion of a fact does not make it so.

Mrs van Wyngaarden

[157] It could not seriously be said that Mrs van Wyngaarden was an objective observer of the incidents and events over a period of at least two years which were described in this case. Indeed, in my opinion, Mrs van Wyngaarden’s devoted allegiance to the applicant, and her practical support and assistance to him (at times unbeknownst to Mr Hartree), seriously compromised her duties and obligations as an employee and her fiduciary responsibilities as an Associate Director of the respondent.

[158] Mrs van Wyngaarden’s role as the applicant’s champion, spokesperson, protector and defender went well beyond the role of a support person, including in her own evidence in these proceedings. In short, Mrs van Wyngaarden was hopelessly conflicted both during and after the applicant’s employment, due to her close friendship with the applicant. As a result of her own dismissal on 18 November 2015, Mrs van Wyngaarden’s partisan and biased support for him was guaranteed to flow into her approach to her evidence and role in these proceedings. By this time, any skerrick of loyalty to the business or Mr Hartree, had been utterly extinguished.

[159] It is very odd that apart from the applicant’s work email at the time he was employed, there was no means of communicating with him by phone or personal email. After the applicant left the respondent’s employ, there was no means of communicating with him, except through Mrs van Wyngaarden’s phone or email address, including in respect to modelling work required by BHP. This was a very strange arrangement for a person who had set up a company and was looking for premises, had no work, and was looking for work as a modelmaker. In any event, the extent of the dependence of the applicant on Mrs van Wyngaarden’s advice and support is no better demonstrated than by the evidence that she was copied into almost every communication he had with Mr Hartree. One telling example was the 21 September 2015 unsent response to Mr Hartree’s warning letter – headed ‘UNFINISHED FOR REVIEW’, which the applicant had sent to Mrs van Wyngaarden. There was no question as to who was to be doing the review. In my assessment, Mrs van Wyngaarden was not just proofreading the applicant’s responses to Mr Hartree. I believe she and the applicant were jointly involved in preparing the communications. This was a clear breach of her obligations to the respondent or, at the very least, was an example of disloyalty to Mr Hartree and the business.

[160] Further, I am satisfied that Mrs van Wyngaarden continued to directly support and assist the applicant after his dismissal and while she remained employed by the respondent. It was likely she was doing so during work time, including when she was communicating with Ms Rebecca Boyd from BHP about the $27,000 contract that had been cancelled. Despite Mrs van Wyngaarden’s evidence that she had only told Ms Boyd that the applicant had left the respondent and the respondent could only do the work by subcontracting it to another modelmaker, it is utterly implausible that Mrs van Wyngaarden did not direct the BHP contract to the applicant – particularly given he had no contacts and the contact with the new co-owned business was her mobile number, email and post box address.

[161] This leads me to the evidence about the BHP contract. Despite the applicant’s unambiguous evidence that the respondent’s cancelled BHP contract was the same job he picked up when he left the respondent’s employ, Mrs van Wyngaarden attempted to twist her answers to suggest that the contract the applicant obtained was not the same contract. She rationalised that the respondent’s contract was cancelled and a new contract issued – the one which the applicant obtained. This was errant nonsense, and Mrs van Wyngaarden was simply playing word games. I have no doubt Mrs van Wyngaarden knew full well that the BHP contract, which she had assisted in procuring for the applicant, was the same contract the respondent had lost in October 2015.

[162] Regrettably, I have little confidence that the evidence of the applicant and Mrs van Wyngaarden was truthful. It was a litany of self-serving embellishment and exaggeration, implausible excuses and unlikely explanations. It was patently obvious that they had collaborated to colour and exaggerate their evidence to give the appearance that their joint version of events would ‘trump’ Mr Hartree’s contrary version of events. This collaboration was no better demonstrated than in the applicant’s re-examination of Mrs van Wyngaarden after an adjournment during her cross-examination. It was clear that the applicant had a scripted list of questions, which Mrs van Wyngaarden had known in advance. She had prepared answers, even to the point of her being asked questions about matters not raised in cross-examination, which could be supported by documents she had with her in the witness box. For example, when asked a leading question about the amount of overtime the applicant had worked each year since 2008, Mrs van Wyngaarden amazingly had the figures she had prepared readily at hand. Mrs van Wyngaarden had quick and detailed responses, including by reference to new email material and payroll figures, which she could not possibly have known she would be asked about unless the questions and answers had been rehearsed. Moreover, despite the many objections of Mr Vilensky and the Commission’s intervention, the applicant would not be diverted from the prepared script.

[163] On the other hand, I found Mr Hartree to be a truthful and believable witness. Despite the applicant’s unnecessary goading, and his repetitive and often irrelevant questioning, Mr Hartree remained calm, respectful and controlled. His evidence was consistent and unshakeable. The applicant attempted to impeach the entirety of Mr Hartree’s evidence because he said Mr Hartree had been forced to concede he was wrong when he told Commissioner Johns in Mrs van Wyngaarden’s unfair dismissal proceedings, that he had found the evidence of petty cash discrepancies before her dismissal. He had in fact found the evidence after Mrs van Wyngaarden’s dismissal. For the following reasons, this was not an indicator of Mr Hartree’s lack of credibility as a witness:

This evidence related to separate proceedings before another Member of the Commission.

Mr Hartree’s explanation was that he was confused about the dates because he had been working on a petty cash spreadsheet in relation to Mrs van Wyngaarden’s case at the same time as he had been responding to the applicant’s evidence in this case.

Mr Hartree did not obfuscate or deny he was mistaken. Rather than impugning his credit, it rather demonstrated Mr Hartree was prepared to make concessions against interest, when appropriate. This was in stark contrast to the applicant’s evidence in which he refused to acknowledge or concede any wrongdoing, despite overwhelming evidence to the contrary.

In any event, the real question here was not Mr Hartree’s truthfulness, but whether Mr Hartree had discovered evidence which justified his dismissal of Mrs van Wyngaarden. It is a well-known principle that information and conduct discovered after a person’s dismissal , which was not known at the time, may be relevant to the person’s dismissal and justify the employer’s decision; see: Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 378.

[164] For these reasons and those mentioned earlier, I find that where the applicant’s and Mrs van Wyngaarden’s evidence conflicted with Mr Hartree’s, it is Mr Hartree’s evidence which is to be preferred.

Did the applicant resign in the meeting of 17 September 2015?

[165] A significant problem with the applicant’s version of events of the meeting of 17 September 2015 was that not even the otherwise supportive evidence of Mrs van Wyngaarden entirely corroborated what occurred in the meeting. She made two observations as to what was said in the meeting which the applicant differed with, or did not mention.

[166] Firstly, Mrs van Wyngaarden said the meeting was heated and emotional. By contrast, the applicant said he calmly responded to the 10 conditions required by Mr Hartree and was otherwise not able to put his position because of Mr Hartree’s threatening and intimidating behaviour.

[167] Secondly, Mrs van Wyngaarden said that when Mr Hartree insisted on his conditions, he added ‘if you don’t like it, you’ve got options’. Mrs van Wyngaarden said the applicant replied ‘and one of them is resignation.’ Despite the applicant’s careful attention to detail in recounting this and many other conversations, he failed to mention this option about resignation. In my view, this omission was because the applicant wanted to convince the Commission he had never mentioned resignation. Saying it was an option for him did not comfortably fit within the narrative that he had never resigned. It seems to me that this comment was a logical precursor to why Mr Hartree had then said ‘we’re back where we were six months ago’. At this point, I reject Mrs van Wyngaarden’s assertion that Mr Hartree was not referring to the applicant’s October 2014 resignation, because it was 11 months ago. It was also inconsistent with the applicant’s own evidence that he knew what Mr Hartree was referring to – being his resignation in October 2014; see paragraph [42] above (although I note that the applicant directly contradicted his own evidence in his final submissions; see: paragraph [131] above). There can be no doubt what Mr Hartree was referring to and I accept Mr Hartree’s evidence in this respect.

[168] I am further satisfied the applicant then said he was resigning effective immediately and he would put it in writing the next day. I do not doubt Mr Hartree accepted his resignation. I reject the applicant’s submission that Mr Hartree had an ‘agenda’ to force his resignation. For reasons I referred to at paragraph [147] above, it was immaterial that the applicant changed his mind after the meeting. In any event, there are a number of other facts and circumstances which fortify my finding that the applicant had resigned his employment during the meeting:

1. The applicant had previously resigned, without notice, on 31 October 2014, but after effusive lobbying by Mrs van Wyngaarden, returned a few days later. It was understandable Mr Hartree believed he was faced with the same situation on 17 September 2015. In my view, the applicant knew what resignation meant and given Mr Hartree’s reliance on him, he was quite prepared to use threats of, and actual resignation, to leverage his own position. It was obvious the applicant was not prepared to accept any of the conditions Mr Hartree set out in the warning letter, or even acknowledge any wrongdoing, so he sought to use the incomplete contracts as leverage to have Mr Hartree back down. He did not bank on Mr Hartree calling his bluff when he tried to resign a second time. It was also interesting that in the incident in October 2014 concerning two options of moving forward, it was the applicant himself who suggested a third option – resignation; and that is exactly what he did.

2. It is very likely that the applicant was aware Mr Hartree might be bringing matters to a head. His email response was designed to ‘get in first’ before Mr Hartree acted. In my view, this email was prepared well before he actually received the warning letter, irrespective of whether he received it at 12:00 pm or 3:40 pm that day. The timing conflict is not the point. The response was accusatory and highly critical of Mr Hartree. Rather than responding sensibly to Mr Hartree’s concerns, the applicant made his own complaints against Mr Hartree and what he demanded from him.

3. Shortly after the 17 September 2015 meeting, the applicant responded by denying that he had resigned, and insisting that he would not be forced to resign. It does not make logical sense that if nothing had been said about resignation in the meeting, that he would have responded as if it had been mentioned.

4. Mr Hartree’s evidence, which I accept, was that he was greatly inconvenienced by the applicant’s resignation and had not wanted him to resign. He simply wanted him to change his behaviour. Again, it does not make any sense that Mr Hartree would engineer the applicant’s forced resignation when his business would be seriously inconvenienced, financially disadvantaged and suffer reputational damage.

5. The applicant asserted that one of Mr Hartree’s motivations in forcing his resignation was because of the WorkSafe improvement notices. However, the applicant had made complaints to WorkSafe years earlier and the more recent complaints were in June 2015. It does not make sense, even if Mr Hartree was keen to get rid of the applicant for this reason (which I do not accept), why he would not have done so much sooner.

6. The applicant alleged that his conduct and behaviour was all about the fact that Mr Hartree had been in breach of their employment agreement, and all he wanted was for Mr Hartree to honour the agreement. When pressed in cross-examination, the applicant was vague and unable to articulate how Mr Hartree was in breach of the contract. But what beggars belief is that the applicant claims that Mr Hartree had been behaving this way for almost seven years, without him ever taking formal action against him. I consider this allegation had no foundation. It was nothing more than a diversionary tactic to shift the focus away from the applicant’s own poor conduct and behaviour.

7. On any objective view of the warning letter, it could not be characterised as a tool to force the applicant’s resignation. The conditions it imposed were not unreasonable. The final paragraph acknowledged the applicant’s good work and contribution. Mr Hartree was hopeful of encouraging a change in the applicant’s behaviour. Whether the applicant believed it or not, is irrelevant. The employer was perfectly entitled to raise his concerns which, in truth, the applicant did not deny; he simply refused to acknowledge the obvious.

8. It is difficult to reconcile the applicant’s belief that he had not resigned on 17 September 2015 with his other claim that he had been unlawfully terminated on 18 September. He came back to work on 21 September anyway, ignoring Mr Hartree’s direction not to do so. If the applicant had any sound foundation for claiming to have been unlawfully terminated (which I doubt), he was not helping his position by returning to work in contravention of Mr Hartree’s express direction. Moreover, what was the point of claiming unlawful termination when he had already forcefully insisted he had never resigned? Why would he return to work when he believed he had been terminated; other than to cause further grief for Mr Hartree? It was an unnecessary and provocative move. If the applicant had been was advised to do so, I am bound to say it was very poor advice.

[169] In summary, I am satisfied the applicant resigned, without notice, in the meeting with Mr Hartree on 17 September 2015. As the applicant was not dismissed at the initiative of the employer, he could not have been unfairly dismissed. His unfair dismissal application must be dismissed for want of jurisdiction.

[170] Even if I am wrong about the applicant’s resignation, it seems to me that Mr Hartree had reasonable grounds to have dismissed the applicant at the end of the meeting on 17 September 2015. At that point, Mr Hartree was faced with the applicant’s defiant refusal to comply with any of the conditions Mr Hartree had required for the employment relationship to continue. As the respondent is a small business, such a dismissal would have required consistency with the Code. In my view, it was open to Mr Hartree to dismiss the applicant, without notice or warning, because he believed ‘on reasonable grounds that his conduct was sufficiently serious to justify immediate dismissal’. There was no need to investigate the matter any further. The applicant had made his position abundantly clear – he would not comply with any of the conditions required by Mr Hartree and would only continue to be employed on his own terms and under the conditions he insisted upon.

[171] Further, I am satisfied that while it was not strictly necessary, Mr Hartree’s formal summary dismissal of the applicant on 22 September 2015 was an understandable response to the applicant’s insubordinate, defiant and provocative insistence on returning to the premises, despite the express direction of Mr Hartree that he remove himself and not return, without permission. Mr Hartree reaffirmed this direction not once, but four times. Faced with this dilemma and the possibility of a physical confrontation in the workplace, Mr Hartree was perfectly entitled to exercise his right to dismiss the applicant for serious misconduct. Such a dismissal did not require any further inquiry or investigation by Mr Hartree. To the extent it is necessary, I consider Mr Hartree’s response to be compliant with the Code.

[172] For the aforementioned reasons, this application for an unfair dismissal remedy is dismissed for want of jurisdiction. An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr P Blythe, the applicant, in person.

Mr D Vilensky, solicitor, for the respondent.

Hearing details:

Perth.

2016.

February 25.

Sydney with video link to Perth.

2016.

April 21, 22.

May 13, 26.

Final written submissions:

The applicant: 4 July 2016.

The respondent: 8 July 2016.

Printed by authority of the Commonwealth Government Printer

Peter Blythe v David Hartree Design Associates Pty Ltd t/as Hartree and Associates Architects

[2016] FWC 6160

15 SEPTEMBER 2016

DECISION