Ramazan Ozdamar v MSS Security Pty Limited
[2023] FWC 2237
•16 NOVEMBER 2023
| [2023] FWC 2237 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ramazan Ozdamar
v
MSS SECURITY PTY LIMITED
(C2023/3934)
| COMMISSIONER YILMAZ | MELBOURNE, 16 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal– jurisdictional objection - whether Applicant dismissed – no dismissal - resignation.
On 4 July 2023, Mr Ramazan Ozdamar lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against MSS Security Pty Limited (the Respondent). In his application, Mr Ozdamar alleges that he was forced to resign because he exercised a workplace right.[1]
The Respondent objects to the application stating that Mr Ozdamar voluntarily resigned.[2] Further, it denies that there has been any breach of the general protection provisions under the Act in respect to Mr Ozdamar’s employment.
Mr Ozdamar submits he was employed as a part-time Aviation Protection Officer with the Respondent since 14 November 2017. He states that he was forced to resign and tendered his resignation on 18 June 2023 with two weeks’ notice. Mr Ozdamar submits that his resignation was because of the actions of the employer starting in February 2023[3] which included an investigation into his behaviour, allegedly based on false accusations[4] and for being prevented from working overtime shifts in the international terminal[5] which he asserts ‘affected [his] productivity, work performance, overall efficiency and as a result [he] was forced to use [his] sick leaves.’[6]
The matter in dispute is whether Mr Ozdamar resigned voluntarily or was forced to resign. A person may make a section 365 general protections involving dismissal application where that person was an employee, who was dismissed from employment and they allege that the dismissal is a contravention of the general protections provisions. Whether Mr Ozdamar’s termination of employment with the Respondent is a “dismissal” within the meaning of the Act is in dispute.
Mr Ozdamar gave oral evidence on his own behalf and was his sole witness. For the Respondent, the following witnesses gave evidence:
Mr George Tselios, Aviation Services Manager
Mr Jamie Adams, Client Delivery Manager Victoria
Both parties were self-represented.
Was the Applicant Dismissed?
It is not contested that Mr Ozdamar tendered his written resignation on 18 June 2023 with two weeks’ notice. The employment came to an end on 2 July 2023 at the conclusion of the notice period. However, Mr Ozdamar contends that he had no choice but to resign, he submits that he was forced to do so because of the Respondent’s actions. The conduct that he alleges that led to his resignation concerns a series of events which commenced with an alleged “false allegation”[7] against him followed by his actions to “clear [his] name.”[8] He further submits that he was treated “inferior” to others[9], experienced a drop in wages[10] and received warnings. He describes the workplace right as his effort to clear his name. This “right” is described as seeking his rights to a fair and open investigation to clear his name.[11]
While Mr Ozdamar does not contend that he was dismissed directly by his employer, he does contend that his resignation was forced due to his employer’s conduct and in effect that I should find the resignation is a dismissal.
Taking into account Mr Ozdamar’s oral evidence, the tendered material and the evidence of the Respondent, I find that Mr Ozdamar was not dismissed. This decision explains my reasons.
Applicant’s evidence and submissions
Mr Ozdamar tendered over 1000 pages of his submissions, consisting of his outline of submissions and attachments plus two further sets of submissions in reply to the Respondent’s materials. The submissions contain a fair degree of repetition and due to the volume and divergent statements made, the submissions relating to workplace rights and forced resignation at times were incoherent and difficult to decipher. As a self-represented litigant, Mr Ozdamar was given opportunity to be heard and the following is a summation of his arguments to the Commission:
The motivator for resigning was to protect his health and wellbeing from a “toxic workplace”.[12]
The Respondent did not manage its employees. It acted irresponsibly and was incompetent. Further its own faults were blamed on Mr Ozdamar.[13]
Mr Ozdamar was treated differently (inferior) to the other employees, particularly the female guards. This he says is evidenced by his standdown and the alleged rumours about him by the Respondent.[14]
The Respondent used Qantas to make false allegations against him and to damage his reputation.[15]
That Mr Ozdamar was given “fraudulent” warnings based on false allegations.[16]
In written submissions Mr Ozdamar describes feuding between the guards, a shortage of guards and his steps to “enforce standards” and “maintain order” by introducing a sticker system, a stamp, penalise guards for being late or for being absent with late notice including other steps to manage guards. He submits that he “never gave [guards] special treatment” nor took “favours to not compromise [his] position and weaken [his] authority”.[17] Emails from Mr Ozdamar to his manager about his efforts to enforce standards or maintain order as he describes it were attached to the submissions.
Mr Ozdamar tendered in evidence his leave applications, numerous text exchanges, extracts from emails and letters exchanged between the parties. Emails from Mr Ozdamar to George Tselios, his direct manager reported on his numerous complaints about other guards and in particular his complaints about the female guards. In one email, Mr Ozdamar disputes the bullying and discrimination complaints from two women on 12 January 2023 to the Head of Compliance.[18] In relation to this incident Mr Ozdamar complains that he was discriminated against and demands an investigation to clear his name. In fact, there are earlier pieces of communication concerning events in 2022 where Mr Ozdamar disputes allegations against him, presumably by fellow guards such as talking “bad about management” and “creating a toxic environment”.[19]
Documentation tendered by Mr Ozdamar supports continued grievances among guards concerning whether they are eating lollies on shift, chewing gum, the manner of directions given or decisions made by Team Leaders such as allocation of duties, reprimands, granting overtime or the willingness or otherwise to work overtime, reasons for leaving a post, use of mobile phones and watches, wearing of ties and the connections or favouritism among friends or family.[20]
Key events supported by documentation tendered by Mr Ozdamar include:
19 December 2022 - Max Xenophontos TWU Representative invites Mr Ozdamar to a meeting to resolve the disharmony among guards who are union members. Mr Ozdamar rejects the invite and interprets the text messages as “threats” from his Manager, Mr Tselios.
30 December 2022 - Alleged embarrassing public incident at the international departure gate between guards reported by a Qantas employee to the Respondent.
27 December 2022 and 2 January 2023 – Mr Ozdamar makes a complaint about Lara Porobija, one of the guards he was working with during the incident.
12 January 2023 - two female guards (one of them was Ms Porobija) complained against Mr Ozdamar to the Head of Compliance.
12 January 2023 - discussion between Mr Ozdamar, Naylor Pinto, George Tselios and Max Xenophontos regarding a complaint by Qantas and complaints by other guards, particularly by two female guards that allege threatening, harassing, disrespectful and demoralising conduct by Mr Ozdamar. In addition, Mr Ozdamar and the two female guards were moved to screening point from international services.
19 January 2023 - mediation occurred between Mr Ozdamar and the two female guards.
13 February 2023 - in a meeting the change to Mr Ozdamar’s roster was explained as being due to operational requirements.
14 February-7 June 2023 - Mr Ozdamar made 22 personal leave applications, multiple times a fortnight throughout that period. He attributes the need for this leave to ‘distress, anxiety, [and a] depressive state of mind’.[21]
20 February 2023 - in a meeting Mr Ozdamar escalated his concerns about the complaints against him and his removal from international terminal to the P&C Manager, Business Manager and TWU Co-ordinator. The reason of operational reasons for the move was cited again with a further opportunity of review by the end of April.
2 March 2023 - confirmation that Mr Ozdamar was reassigned from the international terminal and a commitment to meet to discuss the reassignment was made by Jamie Adams, Executive General Manager. The email further notes the absences from work.[22]
14 March 2023 - Mr Ozdamar meets with the P&C Manager, Executive General Manager Mr Adams and the TWU Coordinator demanding to be reinstated to international terminal and stating he would communicate directly with Qantas.
15 March 2023 - Mr Ozdamar does not return from sick leave, occasional absences noted from 13 February 2023.[23]
23 March 2023 - The Respondent is informed of the first of three complaints against them in the Fair Work Commission by Mr Ozdamar.
1 May 2023 - Mr Ozdamar receives a Letter of Expectations directing him to cease communicating about his complaint which is considered closed and to comply with directions regarding various standards.[24]
4 May 2023 - a letter with eight allegations is handed to Mr Ozdamar relating to his alleged inappropriate conduct on 27 and 29 April 2023. Further, Mr Ozdamar is stood down with pay.[25]
8 May 2023 - Mr Ozdamar submitted an incident report about guard Hadi El Haddad.
10 May 2023 - a meeting was held with Mr Ozdamar in which he is given a letter of warning which states that of the eight allegations, only one was unsubstantiated, two were partially substantiated and the balance substantiated.[26]
12 May 2023 - Mr Ozdamar is informed that his complaints made against three guards dated 8 and 12 May were investigated on 10 May including staff interviews, statements taken and CCTV footage collected and observed on 10 May 2023. The letter further states that management determined that on 11 May 2023 that the allegations made by Mr Ozdamar could not be substantiated. Mr Ozdamar was advised that he could escalate his grievance further internally or externally. (The three mentioned in the letter do not include the two females alleged to have been involved in the 30 December 2022 incident).[27] Tendered in evidence in support were two alleged incident reports made by Mr Ozdamar[28] concerning a disagreement over lollies and chewing gum. Mr Ozdamar found it offensive that he was told not to take lollies on shift and where he challenged why it was ok for Mr El Haddad to chew gum. He alleges Mr El Haddad physically pushed him. Both alleged incidents referred to in the incident reports occurred on 29 April 2023. Mr Ozdamar alleges his reputation was tarnished by the female guard because she mentioned his name loudly when she said to him “no one was chewing gum.”
16 June 2023 - Mr Ozdamar receives a final warning relating to his persistence in pursuing closed matters and demonstrating “insubordination, unprofessional conduct, harassment and bullying.”[29]
18 June 2023 - Mr Ozdamar tenders his resignation protesting his innocence from alleged false allegations and the written warnings, further stating that he would reveal to any prospective employer the Respondent’s internal issues and the conditions he was “subjected to.”[30]
The general protections provisions in the Act relied on by Mr Ozdamar are the following:
S.340 Protection of workplace rights
S.343 Coercion
S.244 Undue influence or pressure, and
S.351 Discrimination. On this ground it is alleged that the investigation was selective, and actions taken against him were swift comparatively with other guards, he was stood down and preference was given to female guards.
In oral evidence Mr Ozdamar stated the text messages that he received from his union representative[31] was in his view a direct threat from his Manager, Mr Tselios, and one of many reasons that he was forced to resign.[32] He stated that on 13 February 2023 he advised Mr Tselios that he was no longer represented by Ms Max Xenophontos of the TWU.[33] He further stated that the text messages “proves that Max wasn’t authorised to act on my behalf, in her words, she was conveying the words of George [Mr Tselios] to me, via SMS.”[34] In addition Mr Ozdamar states that the text messages on 19 December 2022 was one element of “adverse actions” starting from this date which forced him to resign on 18 June 2023.[35] Mr Ozdamar is critical of the text exchange because he states that instead of being managed by management, the responsibility of a mediation between himself and other Security Guards was passed onto the union.[36]
Concerning an incident between guards at the international departure gate on 30 December 2022, Mr Ozdamar disputes that he was responsible and while he was not disciplined, nor a formal investigation conducted, he asserts that a false allegation was made against him which caused him concern. Part of this is due to, following the incident, losing the opportunity of working overtime hours in the area of international services as well as broader concerns that the allegations may impact on his career.[37] Mr Ozdamar asserts that the allegation that he was involved in an incident with two other guards on this day is incorrect and the decision to move him from International to Screening Point was unfair and resulted in the loss of overtime. As the details of the allegation concerning this incident first arose in the Letter of Expectations dated 1 May 2023, prepared by the People and Culture Manager (Vic/Tas) it states that the incident involved Mr Ozdamar and the two female guards. The Letter also refers to the meeting held on 12 January 2023 where the allegations by the two female guards against Mr Ozdamar was discussed and all three were informed that they would be relocated to Screening Point. It appears that the author of the Letter of Expectations was not present at the meeting. Mr Ozdamar tendered in evidence copies of timesheets, which show on 30 December 2022,[38] the two female guards referred to in the Letter of Expectations did not work the shift.
Respondent’s evidence and submissions
In contrast to Mr Ozdamar’s submissions, the Respondent submits that Mr Ozdamar commenced employment on 18 December 2017 as a part-time Security Officer.[39] It submits that for the duration of his employment he was located at Tullamarine Airport. The Respondent operates in the security industry and for the purposes of this matter Mr Ozdamar performed work relevant to its client Qantas. The Respondent tendered in evidence the contract of employment, a copy of the relevant enterprise agreement and relevant policies.
Mr George Tselios, Aviation Services Manager gave evidence that he was Mr Ozdamar’s direct line Manager and in response to the application he detailed the events and performance management processes prior to receipt of the resignation.
Mr Tselios says that he was informed by Qantas that one of its employees witnessed its staff in a heated argument at the International Departure gate in view of the public on 30 December 2022. Following the complaint and in a meeting with Qantas he was informed that the conduct caused embarrassment and that Qantas requested that the employees involved be relocated to an alternative post.[40] Mr Tselios’ evidence was inconsistent as to whether the two team leaders and other staff member in the incident were named. Initially Mr Tselios in answer to questions stated that two team leaders were named, one being Mr Ozdamar.[41] Witness evidence was inconclusive of who was involved and the names mentioned were inconsistent. Mr Tselios further gave evidence that Qantas stated a number of verbal altercations were observed between the Respondent’s staff which required its attention.[42]
Mr Tselios submits that following its own internal investigation it relocated Mr Ozdamar to the Screening Point, a decision that was not welcomed by Mr Ozdamar. He submits that Mr Ozdamar was not disciplined and it was entitled to move staff but the decision was challenged both internally and externally. The Respondent submits that after failed attempts to appeal the transfer to Screening Point, Mr Ozdamar remained disgruntled, and his performance declined.[43]
Mr Tselios also gave witness evidence that a mediation meeting was arranged in February 2023 between its Team Leaders and the union representative to overcome the conflict between them.[44] The level of discord between the guards that worked at the international departure terminal came to a head at the mediation meeting and as Mr Tselios gave evidence in cross examination, “I advised all the group, including [Mr Ozdamar], that the client was not willing to continue to tolerate that behaviour, especially from team leaders and shortly after that the whole team or the whole group was removed from international. It was mentioned in the meeting, if things continue people will be removed because it was embarrassing for MSS to the client and that did happen to every single person in that group.”[45] Mr Tselios gave evidence that during the meeting the female guards were crying, there were allegations back and forth between them and Mr Ozdamar, and the persistent tension and friction in public at the International Departure was also raised.[46] He submitted that the purpose of the meeting was to try and move forward, beyond these issues.[47] Mr Tselios further gave evidence that Mr Ozdamar was not rostered for International and disputes that he was banned as claimed.[48]
The Respondent confirmed the letter of expectations dated 1 May 2023[49] was given to Mr Ozdamar, followed by a letter detailing 8 allegations on 4 May 2023.[50]
On 9 May 2023, Mr Ozdamar attended a meeting with two People and Culture employees where he was informed of the outcome of the investigation into the 8 allegations presented to him on 4 May 2023. He was informed that a letter of warning would follow detailing which of the allegations were substantiated or partially substantiated. Following the meeting and receipt of the formal warning letter dated 10 May 2023, Mr Ozdamar wrote advising that he rejected the warning and deemed it invalid and void. He states that the investigation was one sided and biased. In his correspondence he challenges the alleged evidence relied on for his warning and failure to act on his complaints. He states that he would take legal action.[51] The Respondent asserts that this letter was received on 9 May, when it was evidently not received on that day.[52] Mr Ozdamar’s letter refers to the warning email of 10 May and the Respondent’s response to his complaints which he received on 12 May 2023.
The Respondent submits that Mr Ozdamar took periods of personal/sick leave because he remained dissatisfied in May and June. Mr Tselios tendered in evidence an email sent to Mr Ozdamar on 9 June 2023 which he describes as a welfare check and the response from Mr Ozdamar received on 10 June 2023.[53]
The Respondent also tendered in evidence various undated communication from Mr Ozdamar (which appears to be from 2023) that details alleged conduct described as unfair, corruption, mismanagement, coercion blaming him for the errors of the Respondent, incompetence by management and other various alleged faults of the Respondent.[54]
A final letter of warning was issued on 16 June 2023[55] and two days later Mr Ozdamar submitted his letter of resignation on Sunday 18 June 2023 at 9.42pm.[56] On Monday 19 June 2023 at 1.01pm the Respondent accepted the resignation and confirmed the period of notice is to be taken as sick leave.
Consideration
The issue to determine is whether Mr Ozdamar was dismissed as defined by the Act or voluntarily resigned as submitted by the Respondent.
Section 365 of the Act deals with applications before the Commission and contains two limbs, firstly that there is a dismissal and secondly that the Applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly the Act at s.365 provides:
‘Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.’
The term “dismissed” in s.365 of the Act is defined in s.386 of the of the Act.[57] A dismissal is to be at the initiative of the employer, or a person was forced to resign but a dismissal does not include a range of situations (e.g. employment for a specified period of time or for a specified reason). The relevant extract from s.386 provides:
‘Meaning of dismissed
(1)A person has been dismissed if:
(a)the person's employment with his or her employer has been terminated on the employer's initiative; or
(b)the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.’
The relevant provision in this matter is the application of subsection 386 (1) (b) of the Act. There is no dispute that the exclusions in subsections 386 (2) and (3) do not apply. Both subsections of 386 (1) go to the employment coming to an end because of the employer’s conduct and there is no dispute that the application of subsection 386(1)(b) which Mr Ozdamar relies on is contested between the parties.
To make a general protections dismissal application the person must have been dismissed as defined by the Act. Before exercising its powers under s.368[58] of the Act, the Commission must be satisfied that the person was dismissed in fact.[59].
The principle from the authorities is that the employer’s conduct is key to effect the resignation of the employee, and such that the employee had no choice but to resign.[60] A quick acceptance by the employer of a resignation in the heat of the moment heat may be considered a dismissal, however, Mr Ozdamar does not argue this, nor does the evidence support a heat of the moment resignation. A repudiation of the contract by the employer may also give rise to a termination caused by the employer. Neither of these situations are advanced by Mr Ozdamar, instead he relies on the argument that because of conduct by his employer he was forced to resign.
The question of whether the employee had no real choice but to resign is not a matter where the employee did not agree with the circumstances, rather the action of the employer must be such that the employee had no real choice but to resign. Therefore, had the action of the employer not occurred, the employee would not have resigned. It is important to consider the facts objectively, and where an employee does not like the circumstances, is uncomfortable, finds it difficult or distressing, such characterisations alone would not satisfy the principles in Mohazab.[61]
Since Mohazab, a number of cases[62] have considered forced resignation with the most recent authority being BUPA Aged Care.[63] The Full Bench reviewed the authorities in relation to s.386(1) and (2) of the Act. The relevant summary paragraph follows:
“[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 probably 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.”
Having considered the submissions and evidence, I am not satisfied that the conduct of the Respondent as described by Mr Ozdamar left him with no option but to resign from his employment. Where an applicant complains that the employer forced the resignation the conduct of the employer must be scrutinised to determine if it is a forced resignation.[64] Mr Ozdamar submits that a series of events left him with no choice but to resign. These events in summary are as follows:
False accusations, being prevented from working overtime shifts in the international terminal which allegedly affected his productivity, work performance, overall efficiency
Mr Ozdamar submits that the decision to remove him from the International terminal was based on a false allegation that he was involved in an incident with other guards that led to the loss of overtime and affected his performance. In making this claim, he relies on the Respondent’s statements that Qantas reported concerns regarding the conflict between guards, with particular reference to the incident of 30 December 2022.
The Respondent submits and Mr Ozdamar does not contest the employer’s prerogative to reassign its guards as required. In this case, due to the volume of evidence of conflict between guards, it is probable that Qantas observed and reported unacceptable conduct to the Respondent. To address their client’s concern, the guards known to be in conflict were removed from the location after an attempt to mediate between them failed in February 2023.
From the evidence of both parties, it is obvious that Mr Ozdamar complained about several of the guards. Mr Tselios gave evidence that for each complaint by Mr Ozdamar he also received complaints from other guards about Mr Ozdamar concerning conduct on a shift. The indisputable evidence corroborates the various complaints among guards including their bitterness, tension and conflict while on shift. This quarrelling was, unfortunately, at the international departure gate in view of the public.
Mr Ozdamar disputes that he was a party to any incident, particularly between himself and the two female guards (or any of the other guards mentioned during the course of proceedings) on 30 December 2022, and he further challenges that Qantas even reported an incident involving him. It is inconceivable that this position can be characterised as any conduct that forced a resignation. For the purposes of s.386(1)(b) of the Act, it is the conduct of the employer that forces the termination of employment, Mr Ozdamar did not evidence any conduct by the employer in relation to this allegation that would on any reasonable view have the probable effect of a resignation, particularly four months after the reassignment.
Further, Mr Ozdamar had choices other than to resign after the reassignment and this is evident from his election to challenge the decision through any means. All efforts to challenge the decision to his satisfaction failed and he maintained his grievance. The continued dissatisfaction with the outcome of his grievances likely did lead to stress and anxiety which manifested in his regular use of personal leave and his poor performance. At no time following the reassignment was Mr Ozdamar in a position where he had no choice but to resign.
Finally in relation to this argument Mr Ozdamar purports that the Respondent “used the name of Qantas Airlines to make false allegations against [him] and damage [his] reputation.”[65] The onus is on Mr Ozdamar to make his case that he had no other choice but to resign because of the Respondent’s conduct. On this point no evidence was led that the allegations of unacceptable conduct by guards was contrived or that Qantas was “used” to make a false allegation. As already found, the conflict between guards was evident and the only evidence of damage to Mr Ozdamar’s reputation, if in fact it did occur, is attributable to his own conduct. The Respondent had a right and, in this instance, justifiable reason to reassign guards to any location. The insistence that he should not be moved or his speculation that he was moved because of a contrived or “fraudulent” reason intensified a dispute between himself and management. Importantly Mr Ozdamar was not disciplined, he was simply moved which the Respondent had management prerogative to do.
Accumulative events led to resignation
Mr Ozdamar concedes he did not resign in direct response to a single incident, instead he submits that it was the collective actions or events that led to his decision to resign.[66]
In Mr Ozdamar’s opinion he performed outstandingly as a guard and team leader and all faults fell on the other guards who were uncooperative and unruly.[67] However, the evidence reveals that Mr Ozdamar’s conduct was also complained about as being harsh and bullish in addition to other allegations against him.[68]
Mr Ozdamar was critical of the conduct of others which he found to be substandard and did not reflect on his own conduct which was considered unacceptable by other guards and the Respondent. Telling was his interpretation of the texts by the union representative that sought a meeting of its members to sort out their work differences before management take action. This Mr Ozdamar described as threats from Mr Tselios through the union, which cannot on any reasonable and objective assessment be read as a threat. Where it has members, particularly where there is a dispute between its membership as in this case, it is not unusual for a union delegate or organiser to attempt to resolve issues between members to avoid management intervention. To characterise the texts differently, in my opinion, is not a plausible conclusion. To Mr Ozdamar this was one incident that he claims led to his “forced resignation.”
Mr Ozdamar also describes the work environment as “toxic” and one where management did not manage its employees. Based on the evidence concerning guard conduct, the work environment most likely was unpleasant, but this would have been unpleasant for many not just for Mr Ozdamar. He further contends that he was blamed for the incompetence of management. While the Respondent deserves some criticism for its failure to effectively manage the unacceptable conduct of guards, including Mr Ozdamar, there was no evidence of blame toward Mr Ozdamar for management shortcomings. The warning letters make no reference to Mr Ozdamar failing to deal with issues around staff attendance/lateness[69], chewing gum,[70] staff being on mobile phones[71] or other concerns Mr Ozdamar raised that were not his responsibility. The evidence suggests that Mr Ozdamar was mostly disciplined due to his behaviour towards his coworkers. Further the allegations or criticisms of “poor” management by the Respondent cannot be attributable to a forced resignation.
Due to Mr Ozdamar’s continued complaints about the roster change (reassignment) and his disrespectful communications over February and March 2023 he received a letter of expectations on 1 May. He continued to criticise his manager inappropriately which resulted in his standdown on 4 May over 8 allegations of inappropriate conduct occurring on 27 and 29 April 2023. The allegations concern unprofessional conduct, disrespectful comments and “slanderous” statements. The allegations resulted in a warning of 10 May 2023 and on 16 June 2023 he received a final warning concerning harassment, unprofessionalism, and insubordination. The contents of this final warning largely relate to the conduct referred to in the letter of expectations issued on 1 May 2023.
Again, while there may be procedural deficiencies in the disciplinary process, this does not constitute a forced resignation. Mr Ozdamar in fact concedes that he saw the writing on the wall that with the final warning on record that a termination at the initiative of the employer was possible in the future.[72] Mr Ozdamar maintained that there was an untrue allegation against him which he says was the actual reason for his roster change even though the reassignment did not involve any allegations deserving of a warning. Mr Ozdamar submits he was entitled to expect to clear his name but there was no allegation to clear; instead he continued to engage with fellow guards, his manager, HR and other executives in a manner described as unprofessional, disrespectful and insubordinate according to his final warning.[73]
Mr Ozdamar further contends that he was treated differently (inferior) to other guards, particularly the females. He submits his standdown and alleged rumours about him was evidence. Other than allegations from the bar table that there were rumours, there was no evidence that the employer engaged in the conduct to force a resignation. Mr Ozdamar was stood down and this was not in contest, however, the standdown concerned what was described as 8 serious allegations of disrespectful, unprofessional and slanderous comments about his manager.
On a final note, Mr Ozdamar submitted numerous other documents concerning events of 2022 and 2023, mainly of his complaints about other guards and his dissatisfaction with a WorkCover complaint amongst other matters. None of those documents are evidence of the employer’s conduct intended to cause an employee’s resignation or would on any probable view have the effect to force a resignation. I do observe that the Respondent did attach a two page document that accompanied his resignation of 18 June 2023 in which Mr Ozdamar blames guards, his manager, HR and the executive management for his distress in the workplace and the need for his decision to remove himself for his own wellbeing.[74] In this correspondence Mr Ozdamar does assert that he was forced to resign and gives two weeks’ notice. While the document contains different expressions, it appears that the purpose is to characterise his grievance relating to the alleged “false” accusation that led to his roster change, allegations of sexism and harassment and other conduct as a situation forcing his resignation. However, asserting constructive dismissal is not a dismissal unless the evidence shows that the applicant had no choice but to resign, that it was the conduct of the employer that forced the resignation, or the intention of the conduct by the employer was to bring the relationship to an end.
In another document submitted by the Respondent, Mr Ozdamar expresses a grievance that his warnings were void or unfair because he expressed his view about various individuals including his manager.[75] The suggestion the warnings were unfair is on the basis that allegations can be made against him but when he criticises management he gets a warning. This position demonstrates his grievance about management practices over time, but the scrutinised conduct when viewed objectively did not force a resignation. In fact, by Mr Ozdamar’s own admission he resigned 2 days after having received a final warning and he expected at some point he would be dismissed for his conduct but did not wish misconduct on his employment record.
The onus to establish a forced resignation rests on the Applicant. In this matter Mr Ozdamar failed to present evidence to satisfy that onus to meet the definition of dismissed in accordance with precedent relating to the application of s.386(1)(b) of the Act.
Conclusion
Having considered the evidence I am satisfied that Mr Ozdamar was not dismissed within the meaning of s.386(1)(a) or (b) of the Act. Mr Ozdamar intimates that there was pressure, and that he was treated differently but there was no evidence to suggest any conduct that led to a heat of the moment resignation or a repudiation of the contract. The various reasons given by Mr Ozdamar that he says he had no option to resign does not satisfy the definition of a forced resignation having considered each of the reasons and the reasons collectively. The reasons relied on show he had a choice, and that choice was to follow directions, conduct himself professionally, cease agitating closed matters and cease all disrespectful communications. None of the employer’s conduct can be characterised as forcing a resignation or an intention to bring the employment relationship to an end. Mr Ozdamar resigned on his own initiative because he would not or could not let his grievance about the reassignment go and the Respondent disciplined him for conduct described as disrespectful, insubordinate and unprofessional. For the above reasons Mr Ozdamar was not dismissed from his employment, but rather he voluntarily resigned due to the possibility of a dismissal by the employer if he continued his conduct for which he was warned. On this basis his application for general protections involving dismissal is dismissed.
An order[76] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Ms R Ozdamar for the Applicant
Mr C Morgos for the Respondent
Hearing details:
Monday 4 September 2023
[1] Attachment to Form F8, ‘Excerpts From the General Protections Bench book marked in red followed by response’.
[2] Form F8A, question 5.1.
[3] RO4: The reason for my application to the Fair Work Commission, para 12.
[4] Ibid, para 3.
[5] Ibid, para 1.b.
[6] Ibid, para 20.
[7] RO4: The reason for my application to the Fair Work Commission, para 2.
[8] Ibid, para 3.
[9] Applicant’s Outline of Argument, question 1h.
[10] RO4: The reason for my application to the Fair Work Commission, para 18.
[11] Applicant’s Outline of Argument, question 5b.
[12] Ibid, question 1a.
[13] Ibid, question 1h.
[14] RO4: The reason for my application to the Fair Work Commission, para 20.
[15] Applicant’s Outline of Argument, question 1h.
[16] Ibid, question 5c.
[17] Submissions dated 16 August 2023.
[18] Email of 12 January 2023 at 10.18pm from Mr Ozdamar to Mr Tselios.
[19] See email from Mr Ozdamar to Mr Tselios, the TWU and Mr Pinto Business Manager dated 6 March 2023 referring to events in July and August 2022.
[20] Much of this material consists of emails and texts from Mr Ozdamar to Mr Tselios complaining about guard/ team leader conduct and his advice of his expected solutions to address this “toxic environment.”
[21] RO4: The reason for my application to the Fair Work Commission, para 14.
[22] RO43 Email from Jamie Adams to Mr Ozdamar.
[23] Letter of 24 March 2023 from Naylor Pinto, Aviation Business Manager Vic/Tas.
[24] RO44 This letter is in response to a further complaint about being moved to screening point and outlines a series of events and a breach of the Code of Conduct and standing orders. Also Annexure D of Respondent’s Outline of Submissions.
[25] RO11 and RO50 and Annexure C of Respondent’s Outline of Submissions.
[26] RO43 and Annexure F of the Respondent’s Outline of Submissions.
[27] RO51.
[28] RO9 concerning a male guard and RO10 concerning a female guard.
[29] RO45 and Annexure H of the Respondent’s Outline of Submissions.
[30] RO3 and Annexure J of the Respondent’s Outline of Submissions.
[31] RO13 - submissions regarding the text message exchange, RO14 - extract the of exchange and RO54 - full text message exchange between Max Xenophontos and Mr Ozdamar on 19 December 2022.
[32] Transcript at PN213 – PN224.
[33] Ibid, PN239.
[34] Ibid, PN239 – PN240.
[35] Ibid, PN247 – PN250.
[36] Ibid, PN266 – PN268.
[37] Ibid, PN297 – PN305.
[38] Among the various timesheets tendered in the late submission of 21 August 2023.
[39] Respondent’s Outline of Submissions, para 2.
[40] Exhibit R1 Witness statement of George Tselios at 13-15.
[41] Transcript at PN520 – 524
[42] Oral evidence.
[43] Respondent’s Outline of Submissions paras [11]-[12].
[44] Transcript at PN643-649.
[45] Ibid, PN637.
[46] Ibid, PN656, and PN724.
[47] Ibid, PN670
[48] Ibid, PN850 – PN851.
[49] Respondent’s Outline of Submissions at attachment D.
[50] Respondent’s Outline of Submissions at attachment C.
[51] Annexure I to the Respondent’s Outline of Submissions.
[52] Respondent’s Outline of Submissions, para 13.
[53] Annexures R and V respectively to the Respondent’s Outline of Submissions.
[54] Annexure M to the Respondent’s Outline of Submissions.
[55] Annexure H to the Respondent’s Outline of Submissions.
[56] Annexure J and L, email and Annexure K letter of resignation attached to the Respondent’s Outline of Submissions.
[57] See Part 1-2 – Definitions in s.12 of the Fair Work Act 2009, which refers to s.386.
[58] Dealing with a dismissal dispute other than by arbitration.
[59] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].
[60] See Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; 39 AILR 3-234 at 205 (IR) per Lee, Moore and Marshall JJ and O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100-528 AIRC 496 at [19] – [23].
[61] Ibid.
[62] Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279, Pawel v Advanced Precast Pty Ltd AIRC Print S5904 (12 May 2000), O’Meara v Stanley Works Pty Ltd AIRC Print PR973462 (11 August 2006) ABB Engineering Construction Pty Ltd v Doumit Print N6999, (9 December 1996) and Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154.
[63] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3941.
[64] Davidson v Commonwealth Department of Australia (represented by the Department of Climate Change and Energy Efficiency)[2011] FWA 3610, para 92.
[65] Applicant’s Outline of Argument, question 1h.
[66] Transcript at PN249.
[67] Submissions dated 16 August 2023, Email from Mr Ozdamar to Mr Tselios dated 12 January 2023, Email from Mr Ozdamar to Ms Jessica Fernandes dated 13 February 2023, and late submissions dated 27 August 2023 para 23.
[68] Letter of Expectation dated 1 May 2023, Letter of Warning dated 10 May 2023 and Transcript at PN656, PN724.
[69] Letter from Applicant dated 16 November 2022.
[70] Email from Mr Ozdamar to Mr Tselios dated 10 November 2022.
[71] Email from Mr Ozdamar to Mr Tselios dated 7 September 2022.
[72] Transcript at PN 360
[73] Ibid, PN 358 – PN376.
[74] Annexure K to the Respondent’s Outline of Submissions.
[75] Annexure I to the Respondent’s Outline of Submissions.
[76] PR765837.
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