Peter Murray Eades v MGC Solutions Pty Ltd
[2022] FWC 671
| [2022] FWC 671 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Murray Eades
v
MGC Solutions Pty Ltd
(U2021/10785)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 6 APRIL 2022 |
Application for an unfair dismissal remedy
Mr Peter Eades (the Applicant) made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant had worked for MGC Solutions Pty Ltd (the Respondent) as a vehicle operator since 25 January 2021. However, on 15 November 2021, the Applicant’s employment ended. The Applicant says he was dismissed. The Respondent says the Applicant voluntarily resigned.
As explained to the parties at hearing, the threshold issue in this matter is whether the Applicant was dismissed as that term is understood by reference to s 386(1) of the Act. The Applicant claims that he was dismissed, notwithstanding purportedly uttering the words ‘I may as well resign’ after having received a first and final warning letter (the Warning) for improper timekeeping.
It becomes slightly challenging at this point because ideally the Applicant would clearly identify whether he was dismissed under one of the two limbs set out in s 386(1) of the Act, or even both. Namely, was his employment terminated at the initiative of the employer (see s 386(1)(a) of the Act) or was he forced to resign because of conduct or a course of conduct, engaged in by the Respondent (see s 386(1)(b) of the Act).
The Applicant’s Form F2 Unfair dismissal application represents that the reasons for the dismissal included:
(a) the Respondent acting upon the Applicant’s reply to the formal warning letter (‘I may as well resign’), without the Applicant being accorded any offer of employer human resources support; and
(b) the Applicant has resigned from his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his employer.
At hearing, the Applicant initially appeared to be running a ‘resignation in the heat of the moment’ argument, relying much upon the Applicant’s mental health challenges at the time the employment ended.
When asked directly what argument the Applicant was relying upon in respect of s 386(1) of the Act, the Applicant clarified that he had not resigned from his employment with the Respondent. The Applicant contended his words ‘I may as well resign’, were not a resignation. However, the Respondent had in effect relied upon the remark, and within two hours of the remark being said, the Respondent terminated the Applicant’s employment absent of any support being in place.
The Respondent contends that the Applicant resigned voluntarily, the resignation was accepted and instead of requiring the Applicant to work out his notice period, the Respondent informed him that this would not be required because the Applicant purportedly threw his Warning at his supervisor after having received it from Mr Allen Marsh (Mr Marsh), the Respondent’s General Manager of People Safety and Culture.
The broader context and events leading to the conclusion of the Applicant’s employment were as follows.
Background
Up until the interactions between the Applicant and a Mr Christopher Ballem (Mr Ballem) at the Grass Valley work site (Grass Valley) in November 2021, there did not appear to be anything remarkable in the Applicant’s relatively short employment history with the Respondent. However, Grass Valley appeared to mark a turning point.
It is uncontroversial that the Applicant and his colleague, a Mr Tyler Jorgensen (Mr Jorgensen), had been assigned to work on the Grass Valley work site for one of the Respondent’s clients in early November 2021. Further, it is undisputed that the Respondent had arranged accommodation for the Applicant and Mr Jorgensen whilst working at that site, and the accommodation was very substandard. At hearing Mr Mark Byrne (Mr Byrne), Director of the Respondent, explained that there had been a shortage of accommodation in the Grass Valley area, and having been informed by the Respondent’s client about some available accommodation, rooms were secured at that location for the Applicant and Mr Jorgensen.
Tendered into evidence was an exchange of text messages between the Applicant and Mr Byrne about the Grass Valley accommodation:
Applicant:Hey bro I’m not staying here tomorrow night no food to order or beer or cool drinks but most of all fucken mice shit in the room kitchen like a pig sty
Mr Byrne:ok mate I suggest you go and talk to the owner about your room condition. That way you can buy beer and cook food in a clen place rather than send e a text like that.
Applicant:Cheers mate ..but the owner doesn’t stay here one towel to share between two people what fucken joke
Mr Byrne:you are shitting me, I will get it sorted tomorrow morning mate
Tue, Nov 2, 7:10AM
Applicant:Hey mark don’t worry about it we’ll stay for the week
After the exchange of text messages, it appeared that there was no further agitation about the accommodation by the Applicant.
On or around 1 November 2021, Mr Ballem presented to the Grass Valley site wearing another company’s badging on his uniform and similarly driving a vehicle with the badging of another company. The Applicant stated that Mr Ballem did not inform him that he was both his and Mr Jorgensen’s supervisor. However, it appears that after a short period the Applicant became aware that Mr Ballem was his supervisor on the site.
For his part, Mr Ballem confirmed that he was currently employed by the Respondent as a supervisor and had been in the Respondent’s employ for just over two years. Mr Ballem gave evidence that he had, at times, worked for another company related to the Respondent, albeit he had always been employed by the Respondent – hence the different badging on the uniform and vehicle.
Mr Ballem said he was sent to a site in Grass Valley on 1 November 2021, to oversee construction of a project the Respondent was undertaking with two team members. Mr Ballem said that it was there that he worked with the Applicant but noted he had previously worked with the Applicant on another project for approximately a week. Mr Ballem added that he had also seen the Applicant at the Canning Vale offices of the Respondent.
From his first day on site, Mr Ballem observed that the Applicant displayed a very negative attitude towards not only the work, but also the company and senior members of staff.
According to Mr Ballem, he considered the Applicant to be outspoken and often resistant to tasks set out for him. Mr Ballem said he spoke to the Applicant about the need
to have a positive attitude and asked him to be more cooperative towards the company and the task at hand. Mr Ballem continued that he would observe that the Applicant was late to work and if left to his own devices, would leave early.
Mr Ballem stated that on one particular day, he noted that the Applicant would ‘go missing’ from the work area, and on three separate occasions on this particular day he found the Applicant sitting in the work truck watching videos on his phone. Mr Ballem said he again spoke with him about his behaviour and informed him that he needed to improve his attitude towards the job and his co-workers. It was Mr Ballem’s evidence that for two weeks on this site, the Applicant showed little to no signs of improvement in his attitude. Mr Ballem said that he informed the Applicant that if things did not change, he would have to report his behaviour, which could lead to a written warning from the Respondent.
Mr Jorgensen worked with the Applicant on the Grass Valley site and recalls being spoken to by Mr Ballem on a particular day where Mr Ballem was waiting for expander foam to set. Mr Jorgensen said that he was on a break with the Applicant when Mr Ballem explained to them, that when others were working the two of them needed to ‘show face’ and do other work. Mr Jorgensen said that Mr Ballem had gotten ‘pissed’ about it.
The issue of the Applicant’s and Mr Jorgensen’s working hours prompted Mr Ballem to hold further discussions with the Applicant and Mr Jorgensen. Mr Ballem said that it became apparent to him that the Applicant and Mr Jorgensen were falsifying daily timesheets often billing 12-hour shifts when in fact only working 9 to 10 hours a day.
Mr Ballem said that he mentioned this to the Applicant and informed him that he needed to log his worked hours honestly and gave him the opportunity to amend his timesheets before submitting them, explaining that this behaviour would not be tolerated.
According to Mr Ballem, the Applicant responded to the timesheet issue by stating that he believed he could easily obtain work elsewhere and that he would simply quit if this occurred (‘this’, presumedly meaning escalating the matter to management). Mr Ballem stated that the Applicant went on to say that if he left the Respondent business it would lose all its contracts with the Respondent’s client, Arc Infrastructure. Mr Ballem said that he tried reasoning with the Applicant but was unsuccessful in his attempts to change his attitude. Mr Ballem stated that eventually he was forced to notify the office of what was transpiring, which led to the Applicant receiving the Warning about his behaviour.
On 15 November 2021, after a 7:00am pre-start,[1] a meeting was held between Mr Marsh and the Applicant. At that meeting, the Applicant was provided with the Warning signed off by Mr Marsh for breaches of expected behaviours and conduct including personal oversight, inaccurate timekeeping, decreased motivation and untimely execution of work.
According to the Applicant, his response to having been provided the Warning by MrMarsh was, ‘I may as well resign’.[2] The Applicant states that he was not afforded the opportunity of employer counselling or support services.[3]
Mr Byrne gave evidence that after the Applicant had received the Warning issued by Mr Marsh, he was approached by the Applicant at the photocopier. Mr Byrne gave evidence that the Applicant calmly let him know that he was resigning from his employment, asked how long the current project was lasting, and that he would give Mr Byrne his resignation in writing with the final date of his employment.[4]
Mr Byrne stated that he informed the Applicant that this was fine and that they needed to get going to cultural awareness training that was being held by the Respondent’s client Arc Infrastructure at 8:00am on that same morning.[5]
Mr Byrne gave evidence that he went outside to see who was still straggling in the yard and had not yet left. He said that he found the crew waiting and asked what was going on. Mr Byrne stated that the crew informed him that the Applicant was not available and that he was the Heavy Rigid licenced driver for the truck. Mr Byrne said that he saw the Applicant on his phone and approached him to find out what was going on. Mr Byrne stated that the Applicant informed him that he would not drive the truck any longer. Mr Byrne said that he asked the Applicant if he was still working for him, and the Applicant replied yes. Mr Byrne said he informed the Applicant that he would drive the truck as it had no bearing on his resignation from the Respondent and he was obliged to give the company two weeks’ notice and during that period, he would fulfil his function as an employee.
It was Mr Byrne’s evidence that the Applicant took the crew to the training after the conversation.[6]
Mr Byrne stated that the Applicant’s misconduct concerning the timekeeping issue warranted immediate dismissal given the severity of the conduct and a zero-tolerance approach to fraud by the Respondent. However, the Applicant had shown himself to be a good operator and Mr Byrne considered the Warning was appropriate as he would rather keep him.
However, circumstances changed at the cultural awareness training. At the hearing, Mr Byrne clarified that it was during the cultural awareness training he received a phone call informing him of what had unfolded after the Applicant had received the Warning. Mr Byrne said that the information conveyed was that the Applicant, having received the Warning, headed out of the office and threw the letter at Mr Ballem, stating that he was going to quit. Mr Byrne said that he could not have the Applicant back on site at that point to work out his notice, given the disrespect shown for a supervisor, so he opted not to have the Applicant work out his notice period.
For his part, Mr Ballem said that the morning the Applicant received the Warning he was at the head office in Canning Vale. Mr Ballem said that the Applicant walked up to him and threw a letter at him saying that he was going to quit. Mr Ballem said that the Applicant then proceeded to gather his things and walk out. Mr Ballem said he looked at the letter and saw it was the Warning. He noted that the Warning had nothing to do with him and so he took it back to the office.
Mr Ballem clarified that it was the culmination of the Applicant’s bad attitude, dishonesty and reluctance to perform his duties to the standards set by the Respondent, which constituted the reasons for his reprimand in the form of the Warning.
Agreed matters
Before considering the merits of a matter, the Act obliges consideration of some initial matters.[7] It is not in contest, and I am satisfied on the evidence that:
(a) the Applicant’s earnings were less than the high-income threshold;[8]
(b) the Respondent was not a ‘small business employer’ as defined in s 23 of the Act, so the Small Business Fair Dismissal Code was inapplicable;[9] and
(c) the alleged dismissal was not a case of genuine redundancy.[10]
A person is protected from unfair dismissal if, at the time of her or his dismissal, she or he had completed a period of employment with the employer of at least the minimum employment period. To determine if the Applicant had completed the minimum employment period consideration must be had to whether he had been dismissed. The word ‘dismissed’ is defined in the Act. Various decisions of this Commission and in some instances the Industrial Relations Court have illuminated the meaning of ‘dismissed’ further.
It is of course the case that to constitute an unfair dismissal a person must have been dismissed.[11]
Matter in dispute – was there a dismissal
Central to the consideration in this case is the operation of s 386(1) of the Act.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2 of the Act, which concerns Unfair Dismissal. The word ‘dismissed’ is defined in s 12 of the Act as having adopted the meaning in s 386 of the Act.
Section 386(1) of the Act reads:
(1) A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (Bupa),[12] in the following terms:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[13]
While a summary of the position under s 386(1) of the Act was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Limited v Mrs Roxana Balgowan (City of Sydney RSL),[14] gave further consideration to the operation of s386(1)(a) of the Act, expressing:
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)
The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).[15] This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that the Act had retained the use of the phrase and that the judgment in Mohazab remained good authority as to the connotation of that formula. [16]
While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[17] Furthermore, while a termination of employment may involve more than one action, it was important to ask oneself what was the critical action or actions, which constituted a termination of employment.
My findings can be succinctly put – I have found the Applicant resigned voluntarily for the following reasons.
On receipt of the Warning, the Applicant was aware that a decision to terminate his employment had not been communicated to him. However, the Applicant concedes that he stated that ‘he may as well resign’. In the Form F3 Employer Response filed in the Commission it is written that the Applicant informed Mr Marsh, others in the workplace and subsequently Mr Byrne, that he was resigning.
The Respondent did not call Mr Marsh to provide evidence in the proceedings. The reason for not doing so said the Respondent, was its unfamiliarity with the jurisdiction and lack of knowledge that for Mr Marsh’s evidence to be considered by the Commission, he would need to file a witness statement and be available for cross examination. Whilst I do not disbelieve the Respondent in this respect, the directions issued to the parties were clear, and in the circumstances where Mr Marsh was not called and his evidence was untested, I consider little weight can be attributed to his account.
However, after the interaction with Mr Marsh, the Applicant encountered Mr Byrne at the photocopier. From the evidence given, it appeared that this interaction occurred after the issuance of the Warning.
I accept that both the Applicant and Mr Byrne attempted to assist the Commission by accurately recounting their recollections and circumstances.
In particular, I found that Mr Byrne was open in his evidence and made appropriate concessions. It appeared that Mr Byrne was genuinely disappointed about the events which had unfolded. He observed that he considered that the Applicant had been a good operator and his preference initially had been to keep him employed despite of what he considered to be serious misconduct regarding the timekeeping. Mr Byrne further noted that previously he had loaned a work vehicle to the Applicant, had followed up on the Applicant’s recommendations for new recruits and had trusted the Applicant to do the right thing for the business. When the Applicant asked Mr Byrne about the level of Aboriginal employment within the Respondent business, Mr Byrne responded by informing the Applicant, that the question was a good question to have asked, and conceded that such engagement was limited to the Applicant.
For his part, it is apparent that the Applicant tried not to be disruptive over the accommodation at Grass Valley having initially agitated about the state of it. However, at hearing the Applicant went to some lengths to explain the impact of the living quarters on his mental health. The Applicant explaining that on 15 November 2021, he was not in a good space mentally and the Respondent should have put in place better supports for him.
However, if the argument of the Applicant was that he had not resigned or that he had resigned in the heat of the moment, the argument cannot be sustained based on the evidence given.
It is not disputed that the Applicant packed up his gear subsequent to the meeting with Mr Marsh. Further, it is not disputed that the Applicant held a conversation with Mr Byrne in which he discussed his resignation and questioned about the duration of the current project with a view to communicating his final date of employment.
After the discussion at the photocopier had concluded, I am satisfied that the Applicant had unequivocally informed Mr Byrne that he was resigning. While the Applicant purported to have inserted the word ‘may’ thereby leaving himself with some latitude to move from the position of resignation, if he so desired, the conversation with Mr Byrne included reference to the current project being worked on and timing the end day of employment with that project. It was not the case that the Applicant was making up his mind whether to resign or not, that decision had, on any objective level, been made by him. It was the case that what was left to be determined was the final date of employment. I am therefore unpersuaded that it was the act of the Respondent that resulted directly or consequentially in the termination of the Applicant’s employment.
As noted, at times it was difficult to discern whether the Applicant was contending that he had resigned in the heat of the moment. If that was the contention, it again does not stand up on the evidence. By the time the conversation was held with Mr Byrne, there was no mention by either party of the Applicant displaying emotive or reactive tendencies, or the Applicant having a level of confusion. Furthermore, it is not evident that the Respondent had seized upon the opportunity to simply end the employment at the time the meeting was held with Mr Marsh or Mr Byrne. Whilst accepting of the Applicant’s resignation when communicated, Mr Byrne clearly contemplated that the Applicant would work out his notice period.
This position was reinforced when Mr Byrne located the Applicant, who had opted not to drive his colleagues to the cultural awareness training. The Applicant’s reticence to drive the truck, necessitated a discussion between Mr Byrne and the Applicant about the Applicant’s obligations as an employee during the notice period. Again, it cannot be said that the Respondent acted readily to accept the Applicant’s resignation. Rather, it was more the case that the Respondent was concerned about retaining the Applicant as an employee during the period of notice and having him comply with his employment obligations.
In my view, this is a case where quite clearly the discretion of the resigning employee gave rise to the dismissal. The Applicant’s resignation was tendered in circumstances where he had been informed of the Warning and was clearly aggrieved, considering it unjust. However, Mr Ballem provided cogent evidence as to what had led to the issuing of the Warning, and I do not doubt his observations of the Applicant’s conduct during his time on the Grass Valley site. Further, for the aforementioned reasons, I do not consider that the resignation was given in the ‘heat of the moment’ as contemplated in Bupa. While the Applicant may have displayed defensive behaviour towards Mr Ballem, by the time the discussion was held with Mr Byrne this was not the case.
It is not the case that it is suggested that the Applicant always conducted himself in the manner he did whilst working at the Grass Valley site. Clearly Mr Byrne had valued the Applicant as a good employee who had fallen into error, but notwithstanding he wished to retain his services.
The Applicant had clearly referred to his mental health challenges whilst working on the Grass Valley site and that the accommodation provided led to his impaired mental health. However, whilst Mr Byrne indicated to the Applicant that he was ready to address the accommodation issue, the Applicant himself put a stop to that. Furthermore, the Applicant did not at any time indicate to Mr Ballem, Mr Walsh or Mr Byrne that he was unfit or otherwise in need of additional support concerning his mental health.
There was a dispute between the parties concerning whether the Applicant threw the Warning at Mr Ballem or handed the Warning to Mr Ballem. I consider that more likely than not the Applicant pointedly discarded the Warning in Mr Ballem’s direction and it dropped to Mr Ballem’s feet. On this point, I prefer the evidence of Mr Ballem for the reasons already cited noting that he was forthright in his evidence, and rather than engaging in histrionics regarding the incident, he retold simply taking the Warning to the Respondent’s office on the basis that he considered the Warning was private.
While the Respondent opted not to have the Applicant to work out the notice period but accepted his resignation immediately, this does in the circumstances of this case, render the resignation a dismissal. Furthermore, it is noted that payment was made in lieu of notice.
I note that the Respondent sought to rely on the evidence of Mr Jorgensen regarding his evidence that he and the Applicant had inaccurately reported their time worked on the Grass Valley site. However, little weight has been attributed to Mr Jorgensen’s account in light of him being a relatively inexperienced worker who had purportedly engaged in misconduct, had received a warning for the same misconduct, and who was called to give evidence on behalf of the Respondent in circumstances where he is a relative of one of the directors of the Respondent. I am therefore not satisfied as to his independence. Notwithstanding, an argument that the Respondent afforded differential treatment to Mr Jorgensen and the Applicant, is not made out on the evidence given that Mr Jorgensen received a warning as did the Applicant – albeit Mr Jorgensen was accepting of it.
The Applicant may consider that he had not voluntarily resigned, but he did. He may also feel that he had no choice but to resign due to a course of conduct engaged by the Respondent or that he had resigned in the heat of the moment. I have found that this was not the case.
Conclusion
Based on my factual findings and all of the circumstances, I have concluded that the Applicant was not dismissed for the purpose of s 386(1) of the Act. The Application is therefore dismissed and an accompanying Order[18] is issued to this effect.
DEPUTY PRESIDENT
Appearances:
Mr K. Hill on behalf of the Applicant;
Mr A. Marsh on behalf of the Respondent.
Hearing details:
Perth (video hearing)
29 March 2022
[1] Witness Statement of Mark Byrne (Byrne Statement).
[2] Form F2 Question 3.2 (Exhibit A1).
[3] Ibid.
[4] Byrne Statement (n 1).
[5] Ibid.
[6] Ibid.
[7] Fair Work Act 2009 (Cth) s 396 (the Act).
[8] Ibid s 396(b).
[9] Ibid s 396(c).
[10] Ibid s 396(d).
[11] Ibid s 385(a).
[12] [2017] FWCFB 3941 (Bupa).
[13] Ibid [47].
[14] [2018] FWCFB 5.
[15] Mohazab v Dick Smith Electronics Pty Ltd [ No 2] (1995) 62 IR 200 (Mohazab).
[16] (2016) 262 IR 221.
[17] Mohazab (n 15) 205.
[18] PR739705.
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