Sam Moffat v The Trustee for the MSR Trust
[2023] FWC 940
•26 APRIL 2023
| [2023] FWC 940 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sam Moffat
v
The Trustee for the MSR Trust
(C2023/24)
| DEPUTY PRESIDENT DEAN | CANBERRA, 26 APRIL 2023 |
Application to deal with contraventions involving dismissal – resignation – no dismissal.
Mr Sam Moffatt (Applicant) has made an application pursuant so s.365 of the Fair Work Act 2009 to deal with a general protections dispute involving his alleged dismissal by the Trustee for the MSR Trust (Respondent).
The Respondent has raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed.
The Applicant does not dispute that he tendered his resignation but claims that he was constructively dismissed.
The Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with the dispute about whether his dismissal was in contravention of the general protections provision.[1]
The jurisdictional objection was heard on 20 April 2022. At the hearing the Applicant appeared on his own behalf and Mr Mark Robinson (Director) appeared for the Respondent.
Background
The Respondent operates an electrical and maintenance services company in the automatic door industry. The Applicant commenced employment with the Respondent as a technician on 10 January 2022.
On 26 October 2022 the Applicant sustained a calf injury while carrying out maintenance work in connection with his employment. On the same day, the Applicant attended a physiotherapist, who advised that he not attend work for three days. The Applicant then returned to work on 31 October 2022.
The Applicant continued to work sporadically for the Respondent throughout November 2022 while recovering from his injury.
On 11 November 2022 the Respondent received a completed accident form from the Applicant. On the same day, the Respondent provided initial notification of the Applicant’s injury to its workers compensation insurer, CGU Insurance. The completed claim was submitted to CGU insurance on 17 November 2022.
The Applicant continued to attend work on an intermittent basis throughout December 2022. During this time, the Applicant informed the Mr Robinson that he was suffering from anxiety, and that, consequently, he required Mr Robinson to make certain adjustments. These included limiting the number of phone calls Mr Robinson made to the Applicant and providing the Applicant with greater notice ahead of expected shift start times.
On 20 December 2022 the Applicant sent an email to Mr Robinson entitled “Letter of Resignation”. The email reads as follows:
“Hey Mark
Thank you for responding and being willing to rectify the leave entitlements. I’ve thought some more over the last week, and although I do appreciate the effort being put forth, I am unfortunately not comfortable continuing forward in my role and am going to take some time to focus on my recovery and my mental health.
I apologise for the position this puts you in, but my current state feels like it’s making everything more difficult for both parties anyway. Thank you for the opportunity to work over the last year, and I’m sorry it didn’t work out. I will clean out the van and launder my uniforms before returning all msr equipment this week, let me know if you need anything else.
Cheers,
Sam”
On 23 December 2023 the Applicant sent a further email to Mr Robinson, stating that Mr Robinson’s attitude had become “bitter and hostile”, and that Mr Robinson “pushed [the Applicant] out of the company”.
Submissions
The Applicant submitted that he was forced to resign because of a course of conduct engaged in by Mr Robinson following the Applicant’s injury. He stated that Mr Robinson failed to support him throughout his recovery, and that Mr Robinsons did not exercise the appropriate duty of care in managing the injury.
The Applicant further submitted that Mr Robinson believed the Applicant was using his injury to secure alternate employment. This, combined with what the Applicant described as Mr Robinson’s “hostile” demeanour, led the Applicant to form a view that from Mr Robinson’s perspective, the employment relationship between the Applicant and the Respondent had ended. Consequently, the Applicant contended that his mental health deteriorated, and that he had no option but to resign from his employment, such that he was constructively dismissed by the Respondent.
The Respondent submitted that the Applicant was not dismissed but had simply resigned to focus on his recovery and mental health, and that the Applicant was not pressured or forced into doing so. The Respondent denied that Mr Robinson harassed or bullied the Applicant.
The Respondent further submitted that it had attempted to support the Applicant throughout his recovery, including by giving the Applicant greater notice ahead of shift start times where possible, and that it had not engaged in any conduct that would have caused the Applicant to believe that the employment relationship had concluded.
Legislation and Case Law
The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states:
(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.
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (Bupa)[2] a Full Bench of the Commission examined the relevant authorities at great length and summarised the definition of ‘dismissed’ under s.386(1) 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 be3 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.
In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[3] Deputy President Sams, in considering the issue of ‘forced resignation’, cited the principles set out by Roberts C in Daffey v MSS Security Pty Ltd.[4] Of particular relevance to the present case are the following:
“In the case before me, Mr Daffey maintains that subsection 386(1)(b) applies in his situation.
Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. “Initiative” is relevantly defined in the New Shorter Oxford Dictionary as:
“initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.”
This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) where at p205 a Full Court of the Industrial Relations Court of Australia said, “… 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.”
In Mohazab, the Full Court also said:
‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’
The reasoning in Mohazab was adopted by Full Benches of the Australian Industrial
Relations Commission (AIRC) in Essential Personnel Pty Ltd v Wray, Ngo v Link
Printing Pty Ltd and Beck v Castran Gilbert Real Estate Pty Ltd, amongst others.A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said, ‘We do not doubt that Mr Stubbs believed he had good reason to resign. However, the fact that an employee has good reason to resign does not of itself establish that the employment is not voluntarily left by the employee. To constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...’[Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].’
A Full Bench of the AIRC in ABB Engineering Construction Pty Limited v Doumit said:
‘Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.’
The Full Bench went on to cite:
‘… in Minato v Palmer Corporation Ltd where Murphy JR referred to a number of cases dealing with the situation where “special circumstances” arise. He referred in particular to a UK decision where Wood J stated:
If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant …These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objective.’
In Pawel v Australian Industrial Relations Commission (Pawel) Dowsett J said:
‘When an employee resigns, he or she has usually reached a decision, taking into account many factors. Some may be entirely personal and unrelated to any "misconduct" on the part of the employer. An employee may resign because he or she has been passed over for promotion, has not received a pay increase, has a more attractive job offer or, as in the present case, finds aspects of his or her work uncongenial or undesirable. There can be any number of reasons for an employee to feel dissatisfaction, and there is always the possibility that it will lead to resignation. That dissatisfaction will often have been arguably caused (in part or in whole) by a decision or decisions of the employer. If "initiative" implies only causation, it will usually be arguable that the employer has "initiated" the termination. Although it may be good managerial practice to offer job satisfaction, it cannot be guaranteed. Many dissatisfied employees resign. The process prescribed in Division 3, which depends on termination, is too cumbersome to have been intended to resolve issues of that kind. I do not accept that any employee whose decision to resign was, to some extent, motivated by action or inaction on the part of the employer, may initiate proceedings pursuant to subs 170CE(1). Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer.’
In P O’Meara v Stanley Works Pty Ltd (O’Meara), a Full Bench of the AIRC said:
‘In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 32 Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.’
The decision in O’Meara was followed by her Honour Senior Deputy President Marsh in Beverley Hardcastle v C A Hill & Associates Pty Limited.
His Honour Senior Deputy President Richards in Hastie v Impress Australia Pty Ltd (Hastie) considered the question of constructive dismissal under previous legislation. His Honour considered the previous case law on ‘forced’ resignation and his decision is worthy of inclusion at some length in this decision:
‘It appears to me that the authorities in this area prior to the commencement of the Workchoices legislation sought to differentiate cases which attract the jurisdiction under Part 12 of the Act and those that do not. That is, it happens, that the authorities seek to distinguish between cases in which, on one hand:
• the employer’s conduct has some degree of standing in the causal chain that brings about the resignation; but
• where the employer’s conduct did not otherwise seek to bear oppressively upon the employee’s volition either intentionally to bring about the resignation or by some other oppressive or repugnant conduct such that the resignation was the probable result); and on the other hand, where the employer’s conduct:
• has as its intention the goal to bring about the resignation directly; or
• in all probability resulted in the resignation, for reason of its particular oppressive or repugnant character and/or its impact upon the employee’s volition
It is only when these latter circumstances are met that it can be said that the employer’s conduct or course of conduct was the principal operative reason for the resignation, such that the termination can be said to have been at the initiative of the employer.
The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.
If this were not the case, then it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignation which are the result of the conduct of the employer. This is because, for all practical purposes, most decisions by an employee to resign their employment arise from the conduct of the employer, in some manner or form. That is, employer conduct is causally responsible at some level for most resignations.
But not all the species of the conduct of an employer have the probable result of the employee’s resignation or make the resignation, on an objective view, a reasonable response to the employer’s conduct. It is only a sub set of employer conduct that ought to attract the remedy against a harsh, unjust or unreasonable termination of employment based on a termination at the initiative of the employer.
…
To describe the conduct of the employer as forcing an outcome suggest that the conduct in some manner or form compelled or mandated or obliged or necessitated the resignation of the employee. These seem to be the common dictionary meanings of “forced”.
In a narrow sense, no resignation is ever forced unless there is some observable physical intervention by the employer. Consequently, all resignations are likely to be voluntary, in a narrow sense. Such was commented on by Dowsett J in his minority decision in Pawel v Advanced Precast Pty Ltd:
“As to ‘compulsion’, it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee’s head.”
That said, to describe an employer’s conduct as forcing a resignation does not demand a narrow reading such as this. Force may be applied in a physical sense, as Dowsett J describes it, or else it may be applied indirectly, by the conduct or the course of conduct by an employer which makes an outcome. Of course, many such examples of such conduct might be provided, and a person may be forced or compelled to adopt a course of action by a variety of actions taken by their employer.
Generally, the exercise of force may take many forms, and there is little point in exploring these in detail. But common manifestation of ‘force’ will always exhibit an outcome in which a person acts contrary to their desired intention, and because of the conduct of another person that was directed at or towards them.
I do not think the definition should be limited to cases in which an employee can demonstrate that the employer took positive action of some kind that was motivated to bring about the resignation, though many cases no doubt will fall into that category. The conduct of an employer, wilful or not, may nonetheless generate circumstances in which the resignation of an employee was the probable result.
It would appear to me, then, that on an ordinary or natural reading of the term “forced”, an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonable probable response to the circumstances the employee faced at the time.’”
Consideration
I am satisfied and find that the Applicant was not forced to resign because of conduct or a course of conduct engaged in by the employer. In that sense, he was not dismissed within the meaning set out in s.386(1) of the Act.
The Employer Response to the application, which was part of Mr Robinson’s evidence, set out in extensive detail the sequence of events from the date of the Applicant’s injury to his resignation. There is simply nothing in that chronology that supports a finding that Mr Robinson “failed to support” the Applicant or did not appropriately manage his workers compensation claim. Specifically, I do not accept that the Respondent “intentionally mismanaged” the Applicant’s injury claim.
Further, the resignation letter makes it abundantly clear that the Applicant made a considered decision to resign, stating he wanted to focus on his recovery and his mental health.
There is no evidence to support a finding that the Applicant resigned “in the heat of the moment”.
There is no course of conduct engaged in by the Respondent that could objectively give rise to a finding that such conduct was intended to bring the employment to an end.
The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
S Moffatt on his own behalf.
M Robinson for The Trustee for the MSR Trust.
Hearing details:
2023.
By telephone:
April 20.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
[2] [2017] FWCFB 3941.
[3] [2012] FWA 2473.
[4] [2011] FWA 3983.
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